[Federal Register Volume 77, Number 170 (Friday, August 31, 2012)]
[Proposed Rules]
[Pages 53164-53167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21586]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120604138-2289-01]
RIN 0648-BC21

Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Surfclam and Ocean Quahog Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.


SUMMARY: NMFS proposes to re-open a portion of the Georges Bank Closed 
Area to the harvest of Atlantic surfclams and ocean quahogs. The area 
has been closed since 1990 due to the presence of toxins known to cause 
paralytic shellfish poisoning. The proposed re-opening is based on a 
request from the Mid-Atlantic Fishery Management Council and the recent 
adoption of a testing protocol into the National Shellfish Sanitation 

DATES: Written comments must be received no later than 5 p.m. eastern 
standard time, on October 1, 2012.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2012-0121, 
by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal http://www.regulations.gov.
     Fax: (978) 281-9177, Attn: Jason Berthiaume.
     Mail: Daniel S. Morris, Acting Regional Administrator, 
NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, 
MA 01930. Mark the outside of the envelope: ``Comments on Proposed 
Opening of GB PSP Closed Area.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted via Microsoft Word, Microsoft Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Jason Berthiaume, Fishery Management 
Specialist, phone (978) 281-9177, fax (978) 281-9135.



    The Georges Bank (GB) Closed Area, located in the Exclusive 
Economic Zone east of 69[deg]00' W. long. and south of 42[deg]20' N. 
lat., has been closed to the harvest of surfclams and ocean quahogs 
since 1990 due to red tide blooms that cause paralytic shellfish 
poisoning (PSP). The closure was implemented based on advice from the 
U.S. Food and Drug Administration (FDA) after samples tested positive 
for toxins (saxitoxins) that cause PSP. These toxins are produced by 
the alga Alexandrium fundyense, which can form blooms commonly referred 
to as red tides, or harmful algal blooms, and can produce toxins that 
accumulate in water column filter-feeding shellfish. Shellfish 
contaminated with the toxin, if eaten in large enough quantity, can 
cause illness or death in humans.
    Due to inadequate testing or monitoring of this area for the 
presence of PSP-causing toxins, the closure was made permanent in 1999, 

[[Page 53165]]

Amendment 12 to the Atlantic Surfclam and Ocean Quahog Fishery 
Management Plan (FMP). Since the implementation of the closure, NOAA's 
National Ocean Service has provided grants to the FDA, the states of 
Maine, New Hampshire, and Massachusetts, and a clam industry 
representative to collect water and shellfish samples from Federal 
waters off southern New England. NMFS has also issued exempted fishing 
permits (EFPs) since 2008 to surfclam and ocean quahog vessels to 
conduct research in the closure area. Testing of clams on GB by the FDA 
in cooperation with NMFS and the fishing industry under the EFPs 
demonstrate that PSP toxin levels have been well below the regulatory 
limit established for public health safety (FDA 2010). The FDA and NMFS 
also developed a Protocol for Onboard Screening and Dockside Testing in 
Molluscan Shellfish that is designed to test and verify that clams 
harvested from GB are safe. The protocol was formally adopted into the 
National Shellfish Sanitation Program at the October 2011 Interstate 
Shellfish Sanitation Conference.
    On June 30, 2010, NMFS published a similar proposal in the Federal 
Register (75 FR 37745) to re-open a portion of the GB Closed Area. This 
proposed rule was later withdrawn due to public comments that opposed 
re-opening the GB Closed Area without having a testing protocol in 
place. Now that the protocol has been formally adopted, NMFS is 
proposing to re-open a portion of the GB Closed Area with the 
requirement that the protocol be used on all fishing trips into the 
    Three areas are being considered for re-opening. To allow the 
industry to access as much of the area as possible and to generate 
public comment on all options, NMFS is proposing to re-open the largest 
of the three areas (Alternative A). The Alternative A area reflects the 
largest area that was previously permitted for sampling under an EFP, 
and the other alternatives areas are smaller subsets of the larger 
Alternative A area. The area proposed for re-opening is defined in the 
table below and the remaining portion of the GB Closed Area would 
remain closed.

[[Page 53166]]


    There have been no recent PSP toxin measurements recorded above 
regulatory limits, and PSP toxin monitoring would be conducted under 
the terms of the protocol for all trips into the area. Further, NMFS 
has the authority to close any area to harvesting of surfclams and 
ocean quahogs to prevent contaminated shellfish from entering the 
market. Any future closures or openings within the GB Closed Area will 
be based upon PSP toxin testing results conducted under the terms of 
the protocol, the advice of the FDA, and the most current information 
    NMFS proposes to re-open the portion of the GB Closed Area to the 
harvest of surfclams and ocean quahogs, under its authority at Sec.  
648.76(c). However, we will continue to defer to the FDA in matters of 
public health and, should we receive new advice from the FDA, we will 
reconsider which portion of the GB Closed Area should be opened for 
    In addition, while NMFS proposes to re-open a portion of the GB 
Closed Area as requested by the Mid-Atlantic Fishery Management 
Council, NMFS also recognizes that red-tide events can vary inter-
annually. For that reason, NMFS has prepared an environmental 
assessment (EA) that analyzes the proposed re-opening and two smaller 
area alternatives within the GB Closed

[[Page 53167]]

Area, to cover the possibility that the proposed opening could shift or 
vary, depending on a change in conditions or if new information becomes 
available. Given the temporal nature of PSP conditions, NMFS is seeking 
public comment on whether this proposed re-opening should be 
implemented and, if so, which of the three areas should be re-opened 
(Alternatives A, B, or C).


    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator for Fisheries, NOAA, has determined that this 
proposed rule is consistent with the Atlantic Surfclam and Ocean Quahog 
FMP, other provisions of the Magnuson-Stevens Act, and other applicable 
law, subject to further consideration after public comment.
    NMFS prepared a draft EA for this action that analyzes the impacts 
of this proposed rule. A copy of the draft EA is available from the 
Federal e-Rulemaking portal http://www.regulations.gov. Type ``NOAA-
NMFS-2012-0121'' in the Enter Keyword or ID field and click search. A 
copy of the EA is also available upon request from NMFS Northeast 
Acting Regional Administrator, Daniel S. Morris (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification is as follows.
    The proposed measures would only affect vessels holding an active 
Federal open access surfclam and/or ocean quahog permit. In 2011, there 
were 47 Federal open-access surfclam and/or ocean quahog permitted 
vessels that landed surfclams and/or ocean quahogs. All of these 
vessels fall within the SBA's definition of a small business. This 
action proposes to re-open an area that has previously been closed. The 
surfclam and ocean quahog fishery is managed under an Individual 
Transferable Quota system, and, since overall quotas are not being 
changed as a result of this action, no additional harvest would be 
permitted with this action. Participating vessels would still be able 
to fish in any of the existing areas open to the harvest of surfclams 
and ocean quahogs. Those vessels that may fish in the area proposed to 
be opened may experience increased operational costs, if they choose to 
fish there; however, these costs may be offset due to increased 
productivity and efficiency of the fishing effort because of greater 
abundance of surfclams and ocean quahogs in the GB Closed Area. 
Regardless, any increased costs would not be considered significant.
    In addition, for the past 5 years, NMFS has issued EFPs allowing 
the harvest of surfclams using the FDA-approved Protocol for Onboard 
Screening and Dockside Testing in Molluscan Shellfish. Because NMFS has 
issued EFPs to harvest surfclams within the GB Closure Area, and given 
that surfclams are more valuable than ocean quahogs, it is likely that 
vessels would continue this trend of targeting surfclams from the GB 
Closed Area. Due to the seasonal variability of PSP toxin levels, any 
or all of the areas associated with this action could open or close 
based on PSP conditions. Given this uncertainty as to whether the area 
would remain open, it is not anticipated that there would be an overall 
increase in participation in the surfclam and ocean quahog fishery due 
to the opening of this area. Therefore, because this action only 
proposes to re-open an area that has previously been closed, and 
because no net change in fishing effort, participation in the fishery, 
or fishery expenses is expected, this action will not have a 
significant economic effect on a substantial number of small entities. 
As a result, an initial regulatory flexibility analysis is not required 
and none has been prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 28, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:


    1. The authority citation for part 648 continues to read as 

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec.  648.76, paragraph (a)(4) is revised to read as follows:

Sec.  648.76  Closed areas.

    (a) * * *
    (4) Georges Bank. The paralytic shellfish poisoning (PSP) 
contaminated area, which is located on Georges Bank, and is located 
east of 69[deg] W. long., and south of 42[deg]20' N., lat., is closed 
to the harvest of surfclams and ocean quahogs. A portion of the Georges 
Bank Closed Area is open to harvest surfclams and ocean quahogs 
provided the vessel complies with the requirements specified in 
paragraph (a)(4)(i) of this section. The open portion of the Georges 
Bank Closed Area is defined by straight lines connecting the following 
points in the order stated:

              Open Portion of the Georges Bank Closed Area
                 Point                    N. Latitude      W. Longitude
1.....................................      42[deg]00'       68[deg]50'
2.....................................      42[deg]00'       67[deg]20'
3.....................................      41[deg]00'       67[deg]20'
4.....................................      41[deg]00'       67[deg]10'
5.....................................      40[deg]40'       67[deg]10'
6.....................................      40[deg]40'       68[deg]30'
7.....................................      41[deg]30'       68[deg]30'
8.....................................      41[deg]30'       68[deg]50'

     (i) Requirements for Vessels Fishing in the Open Portion of the 
Georges Bank Closed Area. A vessel may fish in the open portion of the 
Georges Bank Closed Area as specified in this paragraph (a)(4), 
provided it complies with the following terms and conditions:
    (A) A valid letter of authorization issued by the Regional 
Administrator must be onboard the vessel; and
    (B) The vessel must adhere to the terms and conditions of the PSP 
testing protocol as adopted into the National Shellfish Sanitation 
Program by the Interstate Shellfish Sanitation Conference. All 
surfclams and ocean quahogs harvested from the area must be handled in 
accordance with the terms and conditions of the protocol from the first 
point of harvest through completion of testing and release by the State 
Shellfish Control Authority as required by the PSP testing protocol; 
    (C) Prior to leaving port at the start of a fishing trip, the 
vessels' owner or operator must declare its intent to fish in the area 
through the vessel's vessel monitoring system.
* * * * *
[FR Doc. 2012-21586 Filed 8-30-12; 8:45 am]