[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76315-76316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30871]



[[Page 76315]]

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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 from January 1, 2011, through December 31, 2011. The 
expiration date of the temporary emergency action published on November 
13, 2009 (74 FR 58567), is extended through December 31, 2011. Comments 
must be received by January 7, 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-AT48, by any one of 
the following methods:
    <bullet> 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.''
    <bullet> Fax: (978) 281-9135.
    <bullet> 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

    On June 10, 2005, the 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 after 
samples of shellfish from the area 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. 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, 
2010, and this action extends this closure for one additional year, 
through December 31, 2011.
    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.

    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
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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

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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. 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://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: December 2, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, 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.


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. 2010-30871 Filed 12-7-10; 8:45 am]
BILLING CODE 3510-22-P