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, 58567-58568 [E9-27320]

Download as PDF Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations * * * * * Issued: November 6, 2009. Ronald L. Medford, Acting Deputy Administrator. [FR Doc. E9–27231 Filed 11–9–09; 11:15 am] BILLING CODE 4910–59–P 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 mstockstill on DSKH9S0YB1PROD with RULES 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. 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 § 648.14, in amendatory instruction 2, are effective January 1, 2010. The amendments to § 648.14, in amendatory instruction 3, are effective from January 1, 2010, through December 31, 2010. The expiration date of the temporary VerDate Nov<24>2008 17:35 Nov 12, 2009 Jkt 220001 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: 58567 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 Point Latitude Longitude 1 2 3 4 5 43°00′N 43°00′N 41°39′N 41°39′N 43°00′N 71°00′W 69°00′W 69°00′W 71°00′W 71°00′W 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, PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 The boundaries of the southern component of the Temporary PSP Closure Area comprise Federal waters bound by the following coordinates E:\FR\FM\13NOR1.SGM 13NOR1 58568 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations 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. TABLE 2: COORDINATES FOR THE During the initial comment period, June SOUTHERN TEMPORARY PSP CLO- 16, 2005, through August 1, 2005, no comments were received. One comment SURE AREA was received after the re-opening of the southern component of the Temporary Point Latitude Longitude PSP Closure Area on September 9, 2005. 1 41°39′N 71°00′W The commenter expressed reluctance to 2 41°39′N 69°00′W re-opening a portion of the closure area 3 40°00′N 69°00′W without seeing the results of the FDA 4 40°00′N 71°00′W tests. Data used to make determinations 5 41°39′N 71°00′W regarding closing and opening of areas to certain types of fishing activity are Classification collected from Federal, state, and This action is issued pursuant to private laboratories. NOAA maintains a section 305(c) of the Magnuson-Stevens Red Tide Information Center (http:// Fishery Conservation and Management www.cop.noaa.gov/news/fs/ Act (Magnuson-Stevens Act), 16 U.S.C. nelhabl200605.html), which can be 1855(c). Pursuant to section 5 U.S.C. accessed directly or through the website 553(b)(B) of the Administrative listed in the ADDRESSES section. Procedure Act, the Assistant Information on test results, modeling of Administrator for Fisheries finds there algal bloom movement, and general is good cause to waive prior notice and background on red tide can be accessed an opportunity for public comment on through this information center. While this action as notice and comment NMFS is the agency with the authority would be impracticable and contrary to to promulgate the emergency the public interest due to a public regulations, it modified the regulations health emergency, and public comment on September 9, 2005, at the request of has been solicited concurrently with the FDA, after the FDA determined that each of the extensions of this action, as the results of its tests warranted such detailed and responded to below. In action. If necessary, the regulations may addition, under section 553(d)(3) there be terminated at an earlier date, is good cause to waive the 30-day delay pursuant to section 305(c)(3)(D) of the in effectiveness due to a public health Magnuson-Stevens Act, by publication emergency. Consultation with the FDA in the Federal Register of a notice of concerning the extension of this action termination, or extended further to beyond the December 31, 2009, ensure the safety of human health. expiration date continued through This emergency action is exempt from October 2009, making it impossible to the procedures of the Regulatory first publish this action as a proposed Flexibility Act because the rule is issued rule and provide for a 30-day delay of without opportunity for prior notice and effectiveness. The original emergency opportunity for public comment. closure was in response to a public This rule is not significant for the health emergency. Toxic algal blooms purposes of Executive Order 12866. are responsible for the marine toxin that causes PSP in persons consuming List of Subjects in 50 CFR Part 648 affected shellfish. People have become Fisheries, Fishing, Reporting and seriously ill and some have died from recordkeeping requirements. consuming affected shellfish under Dated: November 6, 2009 similar circumstances. Pursuant to Samuel D. Rauch III, section 305(c)(3)(C) of the MagnusonDeputy Assistant Administrator for Stevens Act, the closure to the harvest Regulatory Programs, National Marine of shellfish, as modified on September Fisheries Service. 9, 2005, and re-instated on October 18, 2005, may remain in effect until the ■ For the reasons set out in the circumstances that created the preamble, 50 CFR part 648 is amended emergency no longer exist, provided the to read as follows: mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Nov<24>2008 17:06 Nov 12, 2009 Jkt 220001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. § 648.14 [Amended] 2. In § 648.14, paragraphs (a)(10)(iii) and (a)(10)(iv) are removed. ■ 3. In § 648.14, paragraphs (a)(10)(iii) and (a)(10)(iv) are added to read as follows: ■ § 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°00′N. lat., 71°00′W. long.; (B) 43°00′N. lat., 69°00′ W. long.; (C) 41°39′N. lat., 69°00′W. long; (D) 41°39′N. lat., 71° 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°39′N. lat., 71°00′W. long.; (B) 41°39′N. lat., 69°00′W. long.; (C) 40°00′N. lat., 69°00′W. long.; (D) 40°00′N. lat., 71°00′W. long.; and then ending at the first point. * * * * * [FR Doc. E9–27320 Filed 11–12–09; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\13NOR1.SGM 13NOR1

Agencies

[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Rules and Regulations]
[Pages 58567-58568]
From the Federal Register Online via the Government Printing 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.

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

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
------------------------------------------------------------------------
    Point                       Latitude                      Longitude
------------------------------------------------------------------------
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

[[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
------------------------------------------------------------------------
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
------------------------------------------------------------------------

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.
* * * * *
[FR Doc. E9-27320 Filed 11-12-09; 8:45 am]
BILLING CODE 3510-22-S