[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Rules and Regulations]
[Pages 78783-78786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30945]



[[Page 78783]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 131212999-3999-01]
RIN 0648-BD84


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 
and expansion; request for comments.

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SUMMARY: This temporary rule extends a closure of Federal waters for 
one year, through December 31, 2014. It also expands the list of 
species prohibited for harvest under this closure to include 
gastropods, commonly referred to as whelks, conchs, and snails. This 
temporary rule, first published in 2005, has been subsequently extended 
several times at the request of the U.S. Food and Drug Administration. 
This action also includes a correction to exclude the Federal waters 
west of 70 degrees West longitude.

DATES: This action extends the closure for one year, effective January 
1, 2014, through December 31, 2014. Comments must be received on any 
part of this action by January 27, 2014.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2011-0260, 
by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2011-0260, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Fax: (978) 281-9177, Attn: Jason Berthiaume.
     Mail: John K. Bullard, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope: ``Comments on PSP Closure.''
    Instructions: All comments received are part of the public record 
and will generally be posted to 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.

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 Paralytic Shellfish Poisoning (PSP). 
These toxins are produced by the alga 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 
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, 
2013, and this action extends this closure for one additional year, 
through December 31, 2014.
    In addition, this emergency rule also prohibits the harvest of 
gastropods from the Temporary PSP Closure Areas. As discussed above, 
these areas are currently closed to the harvest of bivalves, but the 
closure does not include gastropods. Gastropods include carnivorous 
snails, conchs, and whelks that feed on bivalves. The bivalves, if 
contaminated with the toxin that causes PSP, transfer the toxins on to 
the gastropod. While there are few data available on how susceptible 
gastropods are to PSP, the available evidence suggests that gastropods 
typically have higher levels of the PSP toxin and retain it longer than 
bivalves taken from the same waters.
    NMFS has recently received information that there is a developing 
Federal waters whelk fishery seeking to target the northern component 
of the Temporary PSP Closure to harvest whelks. While there has been a 
state waters whelk fishery in recent past, there have been few 
available data regarding a Federal waters fishery. The data that are 
available indicate that there is a Federal waters fishery, primarily 
Massachusetts based, where the PSP Closed Areas cover a large portion 
of the Massachusetts coast line. The FDA, in collaboration with the 
Commonwealth of Massachusetts Division of Marine Fisheries and 
Department of Public Health, have been actively investigating this 
issue, and, on October 29, 2013, the FDA and the Massachusetts Division 
of Marine Fisheries and Department of Public Health advised NMFS to 
expand the Temporary PSP Closures to also include a prohibition on the 
harvest of gastropods while the matter is being researched. On November 
26, 2013, NMFS received a letter from the FDA, formalizing its request 
that NMFS modify the Temporary PSP Closures to also include a 
prohibition on the harvest of gastropods. Based on these 
recommendations, this action will prohibit the harvest and possession 
of gastropods from the areas currently defined as the Temporary PSP 
Closed Areas. The FDA is actively working on this and they have 
informed NMFS that they will continue to look into this issue. 
Therefore, until NMFS is directed otherwise by the FDA, the Temporary 
PSP Closed Areas will also include a prohibition on gastropod 
harvesting. As such, NMFS is seeking comments on the gastropod fishery, 
the PSP closure, and the susceptibility of gastropods and PSP.
    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, and also now includes 
gastropods.

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    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
------------------------------------------------------------------------

    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 to the harvest of whole or roe-on 
scallops, and now also includes gastropods.

    Table 2--Coordinates for the Southern Temporary PSP Closure Area
------------------------------------------------------------------------
             Point                     Latitude            Longitude
------------------------------------------------------------------------
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
------------------------------------------------------------------------

                                                      [GRAPHIC] [TIFF OMITTED] TR27DE13.003
                                                      
    This notice also corrects and clarifies the coordinates in the 
regulatory text to exclude the area known as Nantucket Shoals (also 
referred to as pocket waters) from the closure. The Magnuson-Stevens 
Fishery

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Conservation and Management Act provides the Commonwealth of 
Massachusetts with the authority to manage the Federal waters in this 
area west of the 70 degrees West longitude. This change is a technical 
correction and will have no effects on fisheries because Massachusetts 
already exercises its authority in this area.

Classification

    Pursuant to section 305(c) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 
1855(c) the Assistant Administrator for Fisheries, NOAA, has determined 
that this emergency action is consistent with the provisions of the 
Magnuson-Stevens Act, and other applicable law. Section 305 of the 
Magnuson-Stevens Act authorizes the Secretary to act if (1) the 
Secretary finds that an emergency involving a fishery exists; or (2) 
the Secretary finds that interim measures are needed to reduce 
overfishing in any fishery; or (3) if the Council finds one of those 
factors exists and requests that the Secretary act; or (4) to respond 
to a public health emergency or an oil spill. Where such circumstances 
exist, the Secretary may promulgate emergency rules or interim measures 
``to address the emergency or overfishing'' (16 U.S.C. 1855(c)(1) and 
(2)). The Secretary has delegated this authority to NMFS. Further, NMFS 
has issued guidance defining when ``an emergency'' involving a fishery 
exists (62 FR 44421; August 21, 1997). This guidance defines an 
emergency as a situation that (1) arose from recent, unforeseen events, 
(2) presents a serious management problem in the fishery, and (3) can 
be addressed through interim emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and the deliberative consideration of the impacts on 
participants to the same extent as would be expected under the formal 
rulemaking process. Therefore, the rationale for an emergency as 
provided in the preamble of this rule, justifies this rule as an 
emergency and interim action according to the statutes and guidance as 
cited above.
    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. This 
action prohibits the harvest and possession of gastropods from the 
areas referred to as the Temporary PSP Closed Areas, which have been 
closed to bivalve fishing since 2005. NMFS has recently received 
information that the whelk fishery is a new and potentially expanding 
fishery in Federal waters, possibly targeting the northern component of 
the Temporary PSP Closure Area to harvest whelks. Based on available 
data, whelk are susceptible to PSP as they can ingest bivalves 
contaminated with the toxins that cause PSP, transferring the toxins on 
to the gastropod. As such, since the current closure does not include 
gastropods, there is risk of gastropods contaminated with PSP entering 
the market for human consumption. As such, to protect public health it 
is in the best interest of the public as well as the developing whelk 
fishery to have this action in place as soon as possible. Thus, 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.
    In regards to the closure extension, public comment has been 
solicited concurrently with each of the extensions of this action, as 
detailed and responded to below. 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 were 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 tides can be accessed through this information center. While 
NMFS is the agency with the authority to promulgate the emergency 
regulations, NMFS defers to the FDA in promulgating such regulations 
when in regard to public health. The FDA requested that NMFS lift a 
portion of the closure after the FDA determined that the area was safe. 
Based on this recommendation, NMFS lifted a portion of the closure on 
September 9, 2005. 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: December 20, 2013.
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 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 (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

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Atlantic surfclams, ocean quahogs, and mussels, with the exception of 
sea scallops harvested only for adductor muscles and shucked at sea, 
and any gastropods, including whelks, conchs, and carnivorous snails, 
unless issued and possessing on board a Letter of Authorization (LOA) 
from the Regional Administrator authorizing the collection of shellfish 
and/or gastropods 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, and any 
gastropods, including whelks, conchs, and carnivorous snails, unless 
issued and possessing on board a Letter of Authorization (LOA) from the 
Regional Administrator authorizing collection of shellfish and/or 
gastropods 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 below, excluding 
the Federal waters of Nantucket Sound west of 70[deg] 00' W. Longitude:
    (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. 2013-30945 Filed 12-26-13; 8:45 am]
BILLING CODE 3510-22-P