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, 78783-78786 [2013-30945]
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Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Rules and Regulations
AGENCY:
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:
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-20110260, 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.
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 filterfeeding 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
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
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:
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78783
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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Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Rules and Regulations
TABLE 1—COORDINATES FOR THE NORTHERN TEMPORARY PSP CLOSURE AREA
Point
1
2
3
4
5
Latitude
..................................................................................................................................................................................
..................................................................................................................................................................................
..................................................................................................................................................................................
..................................................................................................................................................................................
..................................................................................................................................................................................
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
43°00′
43°00′
41°39′
41°39′
43°00′
N
N
N
N
N
.......
.......
.......
.......
.......
Longitude
71°00′
69°00′
69°00′
71°00′
71°00′
W
W
W
W
W
scallops, and now also includes
gastropods.
TABLE 2—COORDINATES FOR THE SOUTHERN TEMPORARY PSP CLOSURE AREA
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1
2
3
4
5
Latitude
..................................................................................................................................................................................
..................................................................................................................................................................................
..................................................................................................................................................................................
..................................................................................................................................................................................
..................................................................................................................................................................................
This notice also corrects and clarifies
the coordinates in the regulatory text to
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Jkt 232001
exclude the area known as Nantucket
Shoals (also referred to as pocket
PO 00000
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41°39′
41°39′
40°00′
40°00′
41°39′
N
N
N
N
N
.......
.......
.......
.......
.......
Longitude
71°00′
69°00′
69°00′
71°00′
71°00′
waters) from the closure. The
Magnuson-Stevens Fishery
E:\FR\FM\27DER1.SGM
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W
W
W
W
W
ER27DE13.003</GPH>
Point
Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES
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
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18:49 Dec 26, 2013
Jkt 232001
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 reopening 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 reopening a portion of the closure area
without seeing the results of the FDA
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78785
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 (https://
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
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.14, paragraphs (a)(10)(iii)
and (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
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Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Rules and Regulations
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°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, 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° 00′ W.
Longitude:
(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. 2013–30945 Filed 12–26–13; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 121009528–2729–02]
RIN 0648–XD026
Fisheries of the Northeastern United
States; 2014 Commercial Summer
Flounder Quota Adjustments
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Announcement of 2014
commercial summer flounder state
quotas.
AGENCY:
NMFS is announcing the
commercial summer flounder state
quotas for fishing year 2014. The 2014
summer flounder specifications were
established in December 2012. This
notice incorporates any previously
unaccounted for overages from fishing
year 2012 and any known overages to
date from fishing year 2013. These
commercial state quotas may change as
a result of a recent stock assessment and
a recommendation by the Mid-Atlantic
Fishery Management Council.
DATES: Effective January 1, 2014,
through December 31, 2014.
FOR FURTHER INFORMATION CONTACT:
Moira Kelly, Fishery Policy Analyst,
(978) 281–9218.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
The Mid-Atlantic Fishery
Management Council (Council) and the
Atlantic States Marine Fisheries
Commission cooperatively manage the
summer flounder, scup, and black sea
bass fisheries. Specifications in these
fisheries include the acceptable
biological catch (ABC) limit, various
catch and landing subdivisions (such as
the commercial and recreational sector
annual catch limits (ACLs)), annual
catch targets (ACTs), sector-specific
landing limits (i.e., the commercial
fishery quota and recreational harvest
limit (RHL)), and research set-aside
(RSA) established for the upcoming
fishing year. Typically, these
specifications are set on an annual basis
and announced in the Federal Register
in December of each year. Because the
summer flounder stock assessment was
scheduled for July 2013 and the normal
specification schedule would be
delayed, the Council established
specifications for the 2014 summer
flounder fishery in December 2012
(December 31, 2012; 77 FR 76942).
These specifications included the initial
state allocations, as well as the state
allocations after adjusting for RSA.
An important component of the
annual specifications rulemaking is the
notification of the commercial summer
flounder state quota and overages.
Overages are calculated using final
landings data from the previous fishing
year and landings from the current
fishing year through October 31. In this
case, previously unaccounted for
overages from fishing year 2012 are
combined with known overages from
fishing year 2013, through October 31,
2013. As a result, the 2014 summer
flounder state quotas, adjusted for RSA
and overages, are as follows:
TABLE 1—2014 COMMERCIAL SUMMER FLOUNDER STATE QUOTAS, AS ADJUSTED BY OVERAGES AND RSA
FMP
percent
share
2014 Initial quota
tkelley on DSK3SPTVN1PROD with RULES
State
lb
2014 Initial quota, less
RSA
lb
kg
0.04756
0.00046
6.82046
15.68298
2.25708
7.64699
16.72499
0.01779
2.03910
21.31676
27.44584
5,579
54
800,091
1,839,732
264,772
897,050
1,961,967
2,087
239,202
2,500,616
3,219,604
2,533
24
363,242
835,240
120,207
407,261
890,735
947
108,598
1,135,282
1,461,703
5,417
52
776,788
1,786,147
257,061
870,922
1,904,823
2,026
232,235
2,427,783
3,125,829
2,457
24
352,345
810,183
116,601
395,044
864,013
919
105,340
1,101,224
1,417,852
0
0
28,199
0
0
79,355
0
52,384
0
0
0
0
0
12,791
0
0
35,995
0
23,760
0
0
0
5,417
52
748,589
1,786,147
257,061
791,587
1,904,823
¥50,358
232,235
2,427,783
3,125,829
2,457
24
339,554
810,183
116,601
359,058
864,013
¥22,842
105,340
1,101,224
1,417,852
Total ...................................
100.00
11,730,754
5,326,000
11,389,082
5,166,000
155,376
70,476
11,284,065
5,118,366
VerDate Mar<15>2010
18:49 Dec 26, 2013
Jkt 232001
lb
kg
Adjusted 2014 quota, less
RSA and overages
ME .............................................
NH .............................................
MA .............................................
RI ...............................................
CT ..............................................
NY .............................................
NJ ..............................................
DE .............................................
MD .............................................
VA ..............................................
NC .............................................
On October 9, 2013, the Council met
to discuss whether adjustments to the
kg
Quota overages (through
10/31/13)
previously established 2014
specifications were necessary as a result
PO 00000
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Fmt 4700
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lb
kg
of the updated stock assessment, and to
establish fishing year 2015
E:\FR\FM\27DER1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Rules and Regulations]
[Pages 78783-78786]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30945]
[[Page 78783]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
[[Page 78784]]
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
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
[[Page 78785]]
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 (https://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
[[Page 78786]]
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
