[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79720-79722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30842]


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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 action extends 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), will expire on December 31, 2008. This temporary 
rule extends a closure of Federal waters through December 31, 2009. The 
FDA has determined that current 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. 
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 through December 31, 2009.

DATES: The amendments to Sec.  648.14 are effective from January 1, 
2009, through December 31, 2009. The expiration date of the temporary 
emergency action

[[Page 79721]]

published on December 31, 2007 (72 FR 74207), is extended through 
December 31, 2009. Comments must be received by January 29, 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: 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: Timothy Cardiasmenos, Fishery Policy 
Analyst, phone: (978) 281-9204, 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 
of the coasts of New Hampshire and 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. 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.
    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. In 
June 2008, the FDA requested that the Northern Temporary PSP Closure 
area be expanded due to positive PSP sampling results. Recent sampling 
conducted by the FDA in cooperation with the fishing industry and the 
Massachusetts Department of Marine Fisheries found greatly reduced PSP 
toxin levels in the expanded portion of the Northern Temporary PSP 
Closure Area. Based on this sampling, the FDA had determined that a 
continuation of the expanded closure would no longer be necessary to 
protect the public health, and on November 6, 2008, the FDA sent a 
letter to NMFS requesting a termination of the expanded area, and an 
extension of the previous closure through December 31, 2009. On 
November 18, 2008, NMFS terminated the expanded portion of this closure 
area. The current closure will expire on December 31, 2008, and this 
action extends this closure through December 31, 2009.
    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 
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.

[[Page 79722]]

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 actions, 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, 2008, expiration date continued 
through November 2008, 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 has 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.
    The rule, as last published on October 18, 2005, was determined to 
be 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 19, 2008
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.

0
2. In Sec.  648.14, paragraphs (a)(170) and (a)(171) are added to read 
as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (170) 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, 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 are 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] 39' N. lat., 69[deg] 00' W. long;
    (iv) 41[deg] 39' N. lat., 71[deg] 00' W. long.; and then ending at 
the first point.
    (171) 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., 69[deg] 00' W. long.;
    (iii) 40[deg] 00' N. lat., 69[deg] 00' W. long.;
    (iv) 40[deg] 00' N. lat., 71[deg] 00' W. long.; and then ending at 
the first point.
* * * * *
[FR Doc. E8-30842 Filed 12-29-08; 8:45 am]
BILLING CODE 3510-22-S