[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Rules and Regulations]
[Pages 58567-58568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27320]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050613158-5262-03 ]
RIN 0648-AT48


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Extension of 
Emergency Fishery Closure Due to the Presence of the Toxin that Causes 
Paralytic Shellfish Poisoning

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

ACTION: Temporary rule; emergency action; extension of effective 
period; request for comments.

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SUMMARY: This temporary rule extends a closure of Federal waters. The 
FDA has determined that oceanographic conditions and alga sampling data 
suggest that the northern section of the Temporary Paralytic Shellfish 
Poison (PSP) Closure Area remain closed to the harvest of bivalve 
molluscan shellfish, with the exception of sea scallop adductor muscles 
harvested and shucked at sea, and that the southern area remain closed 
to the harvest of whole or roe-on scallops. The regulations contained 
in the temporary rule, emergency action, first published in 2005, and 
have been subsequently extended several times at the request of the 
U.S. Food and Drug Administration (FDA). NMFS is publishing the 
regulatory text associated with this closure in this temporary 
emergency rule in order to ensure that current regulations accurately 
reflect the codified text that has been modified and extended numerous 
times, so that the public is aware of the regulations being extended.

DATES: The amendments to Sec.  648.14, in amendatory instruction 2, are 
effective January 1, 2010. The amendments to Sec.  648.14, in 
amendatory instruction 3, are effective from January 1, 2010, through 
December 31, 2010. The expiration date of the temporary emergency 
action published on December 30, 2008 (73 FR 79720), is extended 
through December 31, 2010. Comments must be received by December 14, 
2009.

ADDRESSES: Copies of the Small Entity Compliance Guide, the emergency 
rule, the Environmental Assessment, and the Regulatory Impact Review 
prepared for the October 18, 2005, reinstatement of the September 9, 
2005, emergency action and subsequent extensions of the emergency 
action, are available from Patricia A. Kurkul, Regional Administrator, 
National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, 
MA 01930. These documents are also available via the internet at http://www.nero.noaa.gov/nero/hotnews/redtide/index.html.
    You may submit comments, identified by RIN 0648-AT48, by any one of 
the following methods:
     Mail: Patricia A. Kurkul, Regional Administrator, 
Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930-
2298. Mark on the outside of the envelope, ``Comments on PSP Closure.''
     Fax: (978) 281-9135.
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a 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 in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Anna Macan, Fishery Management 
Specialist, phone: (978) 281-9165, fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    This emergency closure is being implemented at the request of the 
FDA after samples of shellfish from the inshore and offshore waters off 
the coasts of New Hampshire and Massachusetts tested positive for the 
presence of toxins (saxotoxins) that cause PSP. These toxins are 
produced by the alga Alexandrium fundyense, which can form blooms 
commonly referred to as red tides. Current oceanographic conditions and 
alga, sampling data suggest that the northern section of the Temporary 
PSP Closure Area should remain closed to the harvest of bivalve 
molluscan shellfish, with the exception of sea scallop adductor muscles 
harvested and shucked at sea, and that the southern area should remain 
closed to the harvest of whole or roe-on scallops. Red tide blooms, 
also known as harmful algal blooms (HABs), can produce toxins that 
accumulate in filter-feeding shellfish. Shellfish contaminated with the 
toxin, if eaten in large enough quantity, can cause illness or death 
from PSP.
    In 2005, the FDA first requested that NMFS close an area of Federal 
waters off the coasts of New Hampshire and Massachusetts to fishing for 
bivalve shellfish intended for human consumption. On June 16, 2005, 
NMFS published an emergency rule (70 FR 35047) closing the area 
recommended by the FDA (i.e., the Temporary PSP Closure Area). Since 
2005, the closure has been extended several times and the area has been 
expanded and divided into northern and southern components. The 
Northern Temporary PSP Closure Area remained closed to the harvest of 
all bivalve molluscan shellfish, while the Southern Temporary PSP 
Closure Area was reopened to the harvest of Atlantic surfclams, ocean 
quahogs, as sea scallop adductor muscles harvested and shucked at sea. 
The current closure will expire on December 31, 2009, and this action 
extends this closure for one additional year, through December 31, 
2010.
    The boundaries of the northern component of the Temporary PSP 
Closure Area comprise Federal waters bounded by the following 
coordinates specified in Table 1, below. Under this emergency rule, 
this area remains closed to the harvest of Atlantic surfclams, ocean 
quahogs, and whole or roe-on scallops.

    Table 1: Coordinates for the Northern Temporary PSP Closure Area
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    Point                       Latitude                      Longitude
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1             43[deg]00'N                                   71[deg]00'W
2             43[deg]00'N                                   69[deg]00'W
3             41[deg]39'N                                   69[deg]00'W
4             41[deg]39'N                                   71[deg]00'W
5             43[deg]00'N                                   71[deg]00'W
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    The boundaries of the southern component of the Temporary PSP 
Closure Area comprise Federal waters bound by the following coordinates

[[Page 58568]]

specified in Table 2. Under this emergency rule, the Southern Temporary 
PSP Closure Area remains closed only to the harvest of whole or roe-on 
scallops.

    Table 2: Coordinates for the Southern Temporary PSP Closure Area
------------------------------------------------------------------------
    Point                       Latitude                      Longitude
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1             41[deg]39'N                                   71[deg]00'W
2             41[deg]39'N                                   69[deg]00'W
3             40[deg]00'N                                   69[deg]00'W
4             40[deg]00'N                                   71[deg]00'W
5             41[deg]39'N                                   71[deg]00'W
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Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
16 U.S.C. 1855(c). Pursuant to section 5 U.S.C. 553(b)(B) of the 
Administrative Procedure Act, the Assistant Administrator for Fisheries 
finds there is good cause to waive prior notice and an opportunity for 
public comment on this action as notice and comment would be 
impracticable and contrary to the public interest due to a public 
health emergency, and public comment has been solicited concurrently 
with each of the extensions of this action, as detailed and responded 
to below. In addition, under section 553(d)(3) there is good cause to 
waive the 30-day delay in effectiveness due to a public health 
emergency. Consultation with the FDA concerning the extension of this 
action beyond the December 31, 2009, expiration date continued through 
October 2009, making it impossible to first publish this action as a 
proposed rule and provide for a 30-day delay of effectiveness. The 
original emergency closure was in response to a public health 
emergency. Toxic algal blooms are responsible for the marine toxin that 
causes PSP in persons consuming affected shellfish. People have become 
seriously ill and some have died from consuming affected shellfish 
under similar circumstances. Pursuant to section 305(c)(3)(C) of the 
Magnuson-Stevens Act, the closure to the harvest of shellfish, as 
modified on September 9, 2005, and re-instated on October 18, 2005, may 
remain in effect until the circumstances that created the emergency no 
longer exist, provided the public has had an opportunity to comment 
after the regulation was published, and, in the case of a public health 
emergency, the Secretary of Health and Human Services concurs with the 
Commerce Secretary's action. During the initial comment period, June 
16, 2005, through August 1, 2005, no comments were received. One 
comment was received after the re-opening of the southern component of 
the Temporary PSP Closure Area on September 9, 2005. The commenter 
expressed reluctance to re-opening a portion of the closure area 
without seeing the results of the FDA tests. Data used to make 
determinations regarding closing and opening of areas to certain types 
of fishing activity are collected from Federal, state, and private 
laboratories. NOAA maintains a Red Tide Information Center (http://www.cop.noaa.gov/news/fs/ne_hab_200605.html), which can be accessed 
directly or through the website listed in the ADDRESSES section. 
Information on test results, modeling of algal bloom movement, and 
general background on red tide can be accessed through this information 
center. While NMFS is the agency with the authority to promulgate the 
emergency regulations, it modified the regulations on September 9, 
2005, at the request of the FDA, after the FDA determined that the 
results of its tests warranted such action. If necessary, the 
regulations may be terminated at an earlier date, pursuant to section 
305(c)(3)(D) of the Magnuson-Stevens Act, by publication in the Federal 
Register of a notice of termination, or extended further to ensure the 
safety of human health.
    This emergency action is exempt from the procedures of the 
Regulatory Flexibility Act because the rule is issued without 
opportunity for prior notice and opportunity for public comment.
    This rule is not significant for the purposes of Executive Order 
12866.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 6, 2009
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended to 
read as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


Sec.  648.14  [Amended]

0
2. In Sec.  648.14, paragraphs (a)(10)(iii) and (a)(10)(iv) are 
removed.

0
3. In Sec.  648.14, paragraphs (a)(10)(iii) and (a)(10)(iv) are added 
to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (10) * * *
    (iii) Fish for, harvest, catch, possess or attempt to fish for, 
harvest, catch, or possess any bivalve shellfish, including Atlantic 
surfclams, ocean quahogs, and mussels, with the exception of sea 
scallops harvested only for adductor muscles and shucked at sea, unless 
issued and possessing on board a Letter of Authorization (LOA) from the 
Regional Administrator authorizing the collection of shellfish for 
biological sampling and operating under the terms and conditions of 
said LOA, in the area of the U.S. Exclusive Economic Zone bound by the 
following coordinates in the order stated:
    (A) 43[deg]00'N. lat., 71[deg]00'W. long.;
    (B) 43[deg]00'N. lat., 69[deg]00' W. long.;
    (C) 41[deg]39'N. lat., 69[deg]00'W. long;
    (D) 41[deg]39'N. lat., 71[deg] 00'W. long.; and then ending at the 
first point.
    (iv) Fish for, harvest, catch, possess, or attempt to fish for, 
harvest, catch, or possess any sea scallops, except for sea scallops 
harvested only for adductor muscles and shucked at sea, unless issued 
and possessing on board a Letter of Authorization (LOA) from the 
Regional Administrator authorizing collection of shellfish for 
biological sampling and operating under the terms and conditions of 
said LOA, in the area of the U.S. Exclusive Economic Zone bound by the 
following coordinates in the order stated:
    (A) 41[deg]39'N. lat., 71[deg]00'W. long.;
    (B) 41[deg]39'N. lat., 69[deg]00'W. long.;
    (C) 40[deg]00'N. lat., 69[deg]00'W. long.;
    (D) 40[deg]00'N. lat., 71[deg]00'W. long.; and then ending at the 
first point.
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[FR Doc. E9-27320 Filed 11-12-09; 8:45 am]
BILLING CODE 3510-22-S