[Federal Register Volume 73, Number 130 (Monday, July 7, 2008)]
[Rules and Regulations]
[Pages 38340-38342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1412]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No 080630803-8805-01]
RIN 0648-AW99


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Expansion 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; expansion of effective area; 
request for comments.

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SUMMARY: This action expands an area currently closed to the harvest of 
bivalve shellfish, except for sea scallop adductor muscles harvested 
and shucked at sea, identified in a temporary final rule initially 
published on October 18, 2005. The regulations contained in the 
temporary rule, emergency action, published on October 18, 2005, and 
subsequently extended several times at the request of the U.S. Food and 
Drug Administration (FDA), were effective through December 31, 2008. 
This temporary rule supersedes the previous rule. This rule will expire 
on December 29, 2008. This temporary rule expands the closure area of 
Federal waters previously closed since the original emergency closure. 
The FDA has determined that current oceanographic conditions and alga 
sampling data warrant expanding the Northern Temporary Paralytic 
Shellfish Poison (PSP) Closure Area to encompass the current closure 
area and an adjacent area in the Federal waters southeast of 
Massachusetts around Nantucket Island and eastward to the George's Bank 
PSP Closure Area. This expanded area is closed to the harvest of 
bivalve molluscan shellfish, except for sea scallop adductor muscles 
harvested and shucked at sea. The remaining segment of the Southern 
Temporary PSP Closure Area continues to be closed to the harvest of 
whole or roe-on scallops only.

DATES: Effective from July 2, 2008 to December 29, 2008. Comments must 
be received by August 6, 2008.

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, One Blackburn 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 0468-AW99, by any one of 
the following methods:
     Mail: Patricia A. Kurkul, Regional Administrator, 
Northeast Region, NMFS, One Blackburn 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: 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: Edward Stern, Fishery Management 
Specialist, phone: (978) 281-9177, 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. 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), 
through September 30, 2005. On July 7, 2005 (70 FR 39192), the 
emergency rule was modified to facilitate the testing of shellfish for 
the toxin that causes PSP by the FDA and/or FDA-approved laboratories 
by incorporating a provision that allowed for the issuance of a Letter 
of Authorization (LOA) from the NMFS Regional Administrator. On 
September 9, 2005 (70 FR 53580), the emergency regulation was once 
again modified by a provision that divided the Temporary PSP Closure 
Area 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 rule was extended as 
published on September 9, 2005, on October 3, 2005 (70 FR 57517); 
reinstated on October 18, 2005, (70 FR 60450) to correct a technical 
error; extended on December 28, 2005 (70 FR 76713); and subsequently on 
June 30, 2006 (71 FR 37505); January 4, 2007 (72 FR 291); June 27, 2007 
(72 FR 35200); and December 31, 2007 (72 FR 74207). On May 18, 2007, 
the FDA indicated that it could not support the re-opening of the 
Northern Temporary PSP Closure Area due to insufficient analytical data 
from the area, and recommended the area remain closed indefinitely.

Provisions Implemented under this Emergency Rule

    On June 25, 2008, NMFS received a request from the FDA to revise 
and expand the Northern Temporary PSP Closure Area after samples of 
shellfish

[[Page 38341]]

from the inshore and offshore waters off of the coast of Massachusetts 
tested positive for the toxins (saxotoxins) that cause PSP. These 
toxins are produced by the alga Alexandrium fundyense, which can form 
blooms commonly referred to as red tides.
    Oceanographic conditions and alga sampling data warrant revising 
and expanding the Northern Temporary PSP Closure Area to encompass the 
current closure area and an adjacent area in the Federal waters 
southeast of Massachusetts around Nantucket Island, and eastward to the 
George's Bank PSP Closure Area. 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.
    Based on the information provided by the FDA, the National Marine 
Fisheries Service implements this emergency rule to revise and expand 
the Northern Temporary PSP Closure Area to include Federal waters 
southeast of Massachusetts surrounding Nantucket Island, and eastward 
to the current Georges Bank PSP Closure Area, bound by the coordinates 
specified in Table 1, below. The boundaries of the original Northern 
Temporary PSP Closure area and the December 31, 2008 expiration date 
for this area, which was established in the emergency rule published on 
December 31, 2007 (72 FR 74207), is superseded by this emergency rule. 
The revised and expanded Northern Temporary PSP Closure Area is closed 
to the harvest of Atlantic surfclams, ocean quahogs, and whole or roe-
on scallops until December 29, 2008.

  Table 1: Coordinates for the Expanded 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]00'N         69[deg] 00'
                                                                      W
4                                       41[deg]00'N         70[deg] 30'
                                                                      W
5                                       41[deg]39'N         70[deg] 30'
                                                                      W
6                                       41[deg]39'N         71[deg] 00'
                                                                      W
7                                       43[deg]00'N         71[deg] 00'
                                                                      W
------------------------------------------------------------------------

    The remaining section of the Southern Temporary PSP Closure Area 
remains open to the harvest of bivalve molluscan shellfish, except for 
whole or roe-on scallops. The boundaries of the Southern Temporary PSP 
Closure Area comprise Federal waters bound by the coordinates specified 
in Table 2, below. Under this emergency rule, the remaining segment of 
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         70[deg] 30'
                                                                      W
3                                       41[deg]00'N         70[deg] 30'
                                                                      W
4                                       41[deg]00'N         69[deg] 00'
                                                                      W
5                                       40[deg]00'N         69[deg] 00'
                                                                      W
6                                       40[deg]00'N         71[deg] 00'
                                                                      W
7                                       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. Without the immediate implementation of this 
emergency rule, the public health would be in danger of illness or 
death from contaminated shellfish harvested in the revised and expanded 
Northern Temporary PSP Closure Area. 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. Toxic algal blooms are 
responsible for the marine toxin that causes PSP in persons consuming 
affected shellfish. In the past, people have become seriously ill and 
some have died from consuming contaminated shellfish. It is necessary 
to waive the 30-day delay in effectiveness to prevent the harvest of 
contaminated shellfish to ensure the protection of public health. This 
emergency rule will expire December 29, 2008, prompting a review of the 
closure by NMFS and FDA. Pursuant to section 305(c)(3)(C) of the 
Magnuson-Stevens Act, this emergency action may remain effective 
through subsequent renewal and publication in the Federal Register 
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 this case of a public health 
emergency, the Secretary of Health and Human Services concurs with the 
Commerce Secretary's action. 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. This modification is also at the request of the FDA. 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.
    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 5 
U.S.C. 553 or by any other law, the analytical requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.
    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: July 1, 2008.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended 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)(170) and (a)(171) are suspended and 
paragraphs (a)(181) and (a)(182) are added to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (181) 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

[[Page 38342]]

scallops harvested only for adductor muscles and shucked at sea, or a 
vessel 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:
    (i) 43[deg]00'N. lat., 71[deg]00'W. long.;
    (ii) 43[deg]00'N. lat., 69[deg]00'W. long.;
    (iii) 41[deg]00'N. lat., 69[deg]00'W. long.;
    (iv) 41[deg]00'N. lat., 70[deg]30'W. long.;
    (v) 41[deg]39'N. lat., 70[deg]30'W. long.;
    (vi) 41[deg]39'N. lat., 71[deg]00'W. long.; and then ending at the 
first point.
    (182) 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, or a vessel 
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:
    (i) 41[deg]39'N. lat., 71[deg]00'W. long.;
    (ii) 41[deg]39'N. lat., 70[deg]30'W. long.;
    (iii) 41[deg]00'N. lat., 70[deg]30'W. long.;
    (iv) 41[deg]00'N. lat., 69[deg]00'W. long.;
    (v) 40[deg]00'N. lat., 69[deg]00'W. long.;
    (vi) 40[deg]00'N. lat., 71[deg]00'W. long.; and then ending at the 
first point.
* * * * *
[FR Doc. 08-1412 Filed 7-2-08; 8:46 am]
BILLING CODE 3510-22-S