[Federal Register Volume 77, Number 236 (Friday, December 7, 2012)]
[Rules and Regulations]
[Pages 72994-72995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29517]
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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, 2013, through December 31, 2013. The
expiration date of the temporary emergency action published on December
8, 2010 (75 FR 76315), and extended on November 22, 2011 (76 FR 72125),
is further extended through December 31, 2013. Comments must be
received by January 7, 2013.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2011-0260 by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal www.regulations.gov. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter NOAA-NMFS-2011-0260 in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on the right of that line.
Mail: Submit written comments to John K. Bullard, 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; Attn: Jason Berthiaume.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will 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). Attachments to electronic comments will be
accepted in Microsoft Word or 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, 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,
2012, and this action extends this closure for 1 additional year,
through December 31, 2013.
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
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.
[[Page 72995]]
Table 2--Coordinates for the Southern Temporary PSP Closure Area
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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 30, 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 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 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. 2012-29517 Filed 12-6-12; 8:45 am]
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