[Federal Register: July 7, 2008 (Volume 73, Number 130)]
[Rules and Regulations]
[Page 38340-38342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy08-9]
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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]
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