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, 79720-79722 [E8-30842]

Download as PDF 79720 Federal Register / Vol. 73, No. 250 / Tuesday, December 30, 2008 / Rules and Regulations pwalker on PROD1PC71 with RULES Atmospheric Administration (NOAA), Commerce. ACTION: Closure of Atlantic herring fishery for Management Area 1B. SUMMARY: NMFS announces that, effective 0001 hours, December 24, 2008, federally permitted vessels may not fish for, catch, possess, transfer, or land more than 2,000 lb (907.2 kg) of Atlantic herring in or from Management Area 1B (Area 1B) per trip or calendar day until January 1, 2009, when the 2009 TAC becomes available, except for transiting purposes as described in this notice. This action is based on the determination that 95 percent of the Atlantic herring total allowable catch (TAC) allocated to Area 1B for 2008 is projected to be harvested. Regulations governing the Atlantic herring fishery require publication of this notification to advise vessel and dealer permit holders that no TAC is available for the directed fishery for Atlantic herring harvested from Area 1B. DATES: Effective 0001 hrs local time, December 24, 2008, through December 31, 2008. FOR FURTHER INFORMATION CONTACT: Christopher Biegel, Fishery Management Specialist, at (978) 281– 9112. SUPPLEMENTARY INFORMATION: Regulations governing the Atlantic herring fishery are found at 50 CFR part 648. The regulations require annual specification of optimum yield, domestic and foreign fishing, domestic and joint venture processing, and management area TACs. The 2008 TAC allocated to Area 1B (72 FR 17807, April 10, 2007) is 9,700 mt. The regulations at § 648.201 require the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor the Atlantic herring fishery in each of the four management areas designated in the Fishery Management Plan for the Atlantic Herring Fishery and, based upon dealer reports, state data, and other available information, to determine when the harvest of Atlantic herring is projected to reach 95 percent of the TAC allocated. When such a determination is made, NMFS is required to publish notification in the Federal Register of this determination. Effective upon a specific date, NMFS must notify vessel and dealer permit holders that vessels are prohibited from fishing for, catching, possessing, transferring, or landing more than 2,000 lb (907.2 kg) of herring per trip or calendar day in or from the specified management area for the remainder of the closure period. Transiting during a closure with more than 2,000 lb of VerDate Aug<31>2005 22:13 Dec 29, 2008 Jkt 217001 herring on board is allowed under the conditions specified below. The Regional Administrator has determined, based upon dealer reports and other available information that 95 percent of the total Atlantic herring TAC allocated to Area 1B for the 2008 fishing year is projected to be harvested. Therefore, effective 0001 hrs local time, December 24, 2008, federally permitted vessels may not fish for, catch, possess, transfer, or land more than 2,000 lb (907.2 kg) of Atlantic herring in or from Area 1B per trip or calendar day through December 31, 2008; except a vessel may transit Area 1B with more than 2,000 lb (907.2 kg) of herring on board, or land more than 2,000 lb (907.2 kg) provided such herring were not caught in Area 1B, and provided all fishing gear is stowed and not available for immediate use as required by § 648.23(b). Effective December 24, 2008, federally permitted dealers are also advised that they may not purchase Atlantic herring from federally permitted Atlantic herring vessels that harvest more than 2,000 lb (907.2 kg) of Atlantic herring from Area 1B through 2400 hrs local time, December 31, 2008. Classification This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. This action closes the Atlantic herring fishery for Management Area 1B until January 1, 2009, under current regulations. The regulations at § 648.201(a) require such action to ensure that Atlantic herring vessels do not exceed the 2008 TAC. The Atlantic herring fishery opened for the 2008 fishing year at 0001 hours on January 1, 2008. Data indicating the Atlantic herring fleet will have landed at least 95 percent of the 2008 TAC have only recently become available and there is insufficient time to plan for prior notice and comment on this action. The Assistant Administrator for Fisheries, NOAA (AA) therefore, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. If implementation of this closure is delayed to solicit prior public comment, the quota for this fishing year will be exceeded, thereby undermining the conservation objectives of the FMP. The AA further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the thirty (30) day delayed effectiveness period for the reasons stated above. Authority: 16 U.S.C. 1801 et seq. PO 00000 Frm 00130 Fmt 4700 Sfmt 4700 Dated: December 22, 2008. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8–30835 Filed 12–29–08; 4:15 pm] BILLING CODE 3510–22–S 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 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 § 648.14 are effective from January 1, 2009, through December 31, 2009. The expiration date of the temporary emergency action E:\FR\FM\30DER1.SGM 30DER1 Federal Register / Vol. 73, No. 250 / Tuesday, December 30, 2008 / Rules and Regulations 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: pwalker on PROD1PC71 with RULES 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 VerDate Aug<31>2005 23:44 Dec 29, 2008 Jkt 217001 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 filterfeeding 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 PO 00000 Frm 00131 Fmt 4700 Sfmt 4700 79721 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 Longitude 43° 43° 41° 41° 43° 1 2 3 4 5 Latitude 71° 69° 69° 71° 71° 00′ 00′ 39′ 39′ 00′ N N N N N 00′ 00′ 00′ 00′ 00′ W W W W 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 Longitude 41° 41° 40° 40° 41° 1 2 3 4 5 Latitude 71° 69° 69° 71° 71° 39′ 39′ 00′ 00′ 39′ N N N N N 00′ 00′ 00′ 00′ 00′ W W W W 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. E:\FR\FM\30DER1.SGM 30DER1 79722 Federal Register / Vol. 73, No. 250 / Tuesday, December 30, 2008 / Rules and Regulations pwalker on PROD1PC71 with RULES 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 MagnusonStevens 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 VerDate Aug<31>2005 22:13 Dec 29, 2008 Jkt 217001 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/ nelhabl200605.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. 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: ■ PO 00000 Frm 00132 Fmt 4700 Sfmt 4700 Authority: 16 U.S.C. 1801 et seq. 2. In § 648.14, paragraphs (a)(170) and (a)(171) are added to read as follows: ■ § 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° 00′ N. lat., 71° 00′ W. long.; (ii) 43° 00′ N. lat., 69° 00′ W. long.; (iii) 41° 39′ N. lat., 69° 00′ W. long; (iv) 41° 39′ N. lat., 71° 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° 39′ N. lat., 71° 00′ W. long.; (ii) 41° 39′ N. lat., 69° 00′ W. long.; (iii) 40° 00′ N. lat., 69° 00′ W. long.; (iv) 40° 00′ N. lat., 71° 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 E:\FR\FM\30DER1.SGM 30DER1

Agencies

[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79720-79722]
From the Federal Register Online via the Government Printing 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.

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

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