[Federal Register Volume 76, Number 225 (Tuesday, November 22, 2011)]
[Rules and Regulations]
[Pages 72125-72127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30151]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050613158-5262-03]
RIN 0648-BB59


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 (PSP)

AGENCY: National Marine Fisheries Service, 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 
U.S. Food and Drug Administration has determined that oceanographic 
conditions and alga sampling data suggest that the northern section of 
the Temporary Paralytic Shellfish Poison 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. 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 from January 1, 2012, through December 31, 2012. The 
expiration date of the temporary emergency action published on December 
8, 2010 (75 FR 76315), is extended through December 31, 2012. Comments 
must be received by December 23, 2011.

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-BB59, 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: 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 (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, 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.

SUPPLEMENTARY INFORMATION:

Background

    On June 10, 2005, the U.S. Food and Drug Administration (FDA) 
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 due to the presence in those waters of 
toxins (saxotoxins) that cause PSP. These toxins are produced by the 
alga Alexandrium fundyense,

[[Page 72126]]

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 toxin, if eaten in large enough quantity, can cause illness or 
death from PSP.
    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, and sea scallop adductor muscles harvested 
and shucked at sea. The current closure will expire on December 31, 
2011, and this action extends this closure for one additional year, 
through December 31, 2012.
    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
------------------------------------------------------------------------
                 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 
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. 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. Two 
comments have been received after the re-opening of the southern 
component of the Temporary PSP Closure Area on September 9, 2005. One 
commenter described the overall poor quality of water in Boston Harbor, 
but provided no evidence to back these claims. The other 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://oceanservice.noaa.gov/redtide/), which can be accessed directly or 
through the Web site 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 17, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    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.


0
2. 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

[[Page 72127]]

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.
* * * * *
[FR Doc. 2011-30151 Filed 11-21-11; 8:45 am]
BILLING CODE 3510-22-P