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]
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Federal Register / Vol. 73, No. 250 / Tuesday, December 30, 2008 / Rules and Regulations
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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 https://www.nero.noaa.gov/
nero/hotnews/redtide/.
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 https://
www.regulations.gov.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
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
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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 (https://
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]
-----------------------------------------------------------------------
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/.
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 https://www.regulations.gov.
Instructions: All comments received are a part of the public record
and will generally be posted to https://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 (https://
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
