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Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permit (EFP)

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National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.


Notification of a proposal for an EFP to conduct experimental fishing; request for comments.


The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator) has made a preliminary determination that the subject EFP application submitted by Truex Enterprises contains all the required information and warrants further consideration. The proposed EFP would test the safety and efficacy of harvesting surfclams and ocean quahogs from the Atlantic surfclam and ocean quahog Georges Bank (GB) Closure Area using a harvesting protocol developed by state and Federal regulatory agencies and endorsed by the U.S. Food and Drug Administration (FDA). The Assistant Regional Administrator has also made a preliminary determination that the activities authorized under the EFP would be consistent with the goals and objectives of the Atlantic Surfclam and Ocean Quahog regulations and Fishery Management Plan (FMP). However, further review and consultation may be necessary before a final determination is Start Printed Page 70824made to issue the EFP. Therefore, NMFS announces that the Assistant Regional Administrator proposes to recommend that an EFP be issued that would allow one commercial fishing vessel to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the Northeastern United States. The EFP would allow for an exemption from the Atlantic surfclam and ocean quahog GB Closure Area. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.


Comments on this document must be received on or before December 28, 2007.


Comments on this notice may be submitted by e-mail. The mailbox address for providing e-mail comments is Include in the subject line of the e-mail comment the following document identifier: “Comments on GB PSP Closed Area Exemption.” Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on GB PSP Closed Area Exemption.” Comments may also be sent via facsimile (fax) to (978) 281-9135.

Copies of supporting documents referenced in this notice are available from George H. Darcy, Assistant Regional Administrator, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930, and are available via the Internet at​sfd/​clams.

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Brian Hooker, Fishery Policy Analyst, phone 978-281-9220.

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Truex Enterprises of New Bedford, MA, first submitted an application for an EFP on March 30, 2006, and public comment was solicited via the Federal Register on June 19, 2006 (71 FR 35254). On October 2, 2006, the applicant submitted additional information seeking to add states where the product harvested under the EFP could be landed. Comments for the revised EFP were published on November 14, 2006 (71 FR 66311). At that time, due to lack of concurrence on the Protocol for Onboard Screening and Dockside Testing for PSP Toxins in Molluscan Shellfish (Protocol) from the state of landing, the EFP was not issued. The applicant has since received concurrence from the state of landing and the state where the product is to be processed for the Protocol and EFP, thus the applicant has re-initiated the EFP application.

The exempted fishing application requests authorization to allow the catch and retention for sale of Atlantic surfclams and ocean quahogs from within the Atlantic surfclam and ocean quahog GB Closure Area. This area, located east of 69°00 W. long. and south of 42°20 N. lat., has been closed since May 25, 1990. This closure was implemented based on advice from the FDA after samples of surfclams from the area tested positive for the toxins (saxotoxins) that cause Paralytic Shellfish Poisoning (PSP). These toxins are produced by the algae Alexandrium fundyense, which can form blooms commonly referred to as red tides. Red tide blooms, also known as harmful algal blooms (HABs), can produce toxins that accumulate in filter-feeding shellfish. Shellfish contaminated with the saxotoxin, if eaten in large enough quantity, can cause illness or death from PSP. Due, in part, to the inability to test and monitor this area for the presence of PSP, this closure was made permanent through Amendment 12 to the FMP in 1999.

The primary goal of the proposed study is to test the efficacy of the Protocol that was developed by state and Federal regulatory agencies to test for presence of saxotoxins in shellfish. This protocol would facilitate the harvest of shellfish from waters susceptible to HABs, which produce the saxotoxins, but that are not currently under rigorous water quality monitoring programs by either state or Federal management agencies. The Protocol details procedures and reporting for harvesting, testing, and landing of shellfish harvested from areas that are susceptible to HABs prior to the shellfish from entering commerce. A copy of the Protocol is available from the NMFS Northeast Region website:​sfd/​clams.

The proposed project would conduct a trial for the sampling protocol in an exemption zone within the larger 1990 GB Closure Area with the F/V Sea Watcher I. The exemption zone would not include any Northeast multispecies or essential fish habitat year-round closure areas. This proposed exempted fishing activity would occur from approximately December 2007 through November 2008, using surfclam and ocean quahog quota allocated to Truex Enterprises under the Federal individual transferable quota (ITQ) program. The applicant has estimated a harvest of 176,000 bushels (9,370,240 L) of surfclams and 80,000 bushels (4,259,200 L) of ocean quahogs from the exemption area. The exemption area was tested in cooperation with the FDA in the winter of 2006. No samples collected during that time were above acceptable levels for saxotoxins (80μg toxin/100g of shellfish).

The applicant has obtained endorsements for the EFP and the Protocol from the States of New Jersey and Delaware, the states in which it intends to land and process the product harvested under the EFP, respectively. Each state is responsible for regulating the molluscan shellfish industry within its jurisdiction and ensuring the safety of shellfish harvested within or entering its borders. This EFP would allow for an exemption from the Atlantic surfclam and ocean quahog GB Closure Area specified at 50 CFR 648.73(a)(4).

Comments received during the comment period for the EFP notice published on June 19, 2006 (71 FR 35254), were addressed in the November 14, 2006, notice. During the comment period for the EFP as re-proposed on November 14, 2006 (71 FR 66311), NMFS received two comments. The two commenters were opposed to the issuance of the EFP until concerns regarding the dockside sampling protocol could be resolved. Although adherence to the dockside monitoring protocol would be a condition of the EFP, NMFS is not the author of the protocol, nor the Federal agency responsible for matters of public health. Thus, NMFS defers to the FDA to respond to issues regarding the dockside monitoring protocol. A letter dated July 25, 2007, from the FDA to the Massachusetts Department of Public Health (Department), addressed 14 concerns raised by the Department. In addition, the FDA has amended the Protocol in response to concerns raised by state shellfish control authorities. The most recent version was issued in August 2007. These documents are available from the Regional Administrator and via the Internet (see ADDRESSES). The Protocol and the pilot project that would be authorized by this EFP have also since been endorsed by the executive board of the Interstate Shellfish Sanitation Conference.

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

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Dated: December 7, 2007.

Emily H. Menashes,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

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[FR Doc. E7-24074 Filed 12-12-07; 8:45 am]