[Federal Register Volume 70, Number 174 (Friday, September 9, 2005)]
[Rules and Regulations]
[Pages 53580-53581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17986]



[[Page 53580]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050613158-5237-02; I.D. 090105A]
RIN 0648-AT48


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

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SUMMARY: At the request of the U.S. Food and Drug Administration (FDA), 
NMFS closed portions of Federal waters of the Gulf of Maine, Georges 
Bank, and southern New England from June 14, 2005, through September 
30, 2005, to the harvest for human consumption of certain bivalve 
molluscan shellfish due to the presence in those waters of the toxin 
that causes Paralytic Shellfish Poisoning (PSP). The FDA has determined 
that harvesting for human consumption of bivalve molluscan shellfish 
other than whole and roe-on scallops from a portion of the closed area 
is now safe and may be resumed. As a result, NMFS is modifying its 
previous closure to allow such fishing.

DATES: Effective September 9, 2005 through September 30, 2005. Comments 
must be received by October 11, 2005.

ADDRESSES: Comments may be submitted by any of the following methods:
     E-mail: [email protected]. Include in the subject line 
the following: ``Comments on Modification of the Emergency Rule for 
Area Closure Due to PSP.''
     Federal e-Rulemaking Portal: http://www.regulations.gov.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of 
the envelope ``Comments on Modification of the Emergency Rule for Area 
Closure Due to PSP.''
     Fax: (978) 281-9135.
    Copies of the modified emergency rule are available from Patricia 
A. Kurkul, at the mailing address specified above.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy 
Analyst, phone: (978) 281-9272, fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    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. The scallop adductor muscle, or ``meat,'' 
is unaffected by the toxin.
    On June 10, 2005, the FDA requested NMFS issue an emergency rule to 
close an area of Federal waters to the harvesting of bivalve molluscan 
shellfish intended for human consumption because of toxic algal blooms 
off the coasts of New Hampshire and Massachusetts. This closure 
prohibited harvests of shellfish such as Atlantic surfclams and ocean 
quahogs, as well as scallop viscera. The emergency rule for the action, 
in effect from June 14 through September 30, 2005, was published in the 
Federal Register on June 16, 2005 (70 FR 35047). The emergency rule was 
modified on July 7, 2005 (70 FR 39192) to allow for the collection of 
biological samples by commercial fishing vessels issued a Letter of 
Authorization signed by the Regional Administrator.
    The action temporarily closed all Federal waters of the Exclusive 
Economic Zone of the northeastern United States to any bivalve 
molluscan shellfish harvesting, except for Atlantic sea scallops 
shucked at sea for their adductor muscles, in the area bound by the 
following coordinates in the order stated: (1) 43[deg]00' N. lat., 
71[deg]00' W. long.; (2) 43[deg]00' N. lat., 69[deg]00' W. long.; (3) 
40[deg]00' N. lat., 69[deg]00' W. long.; (4) 40[deg]00' N. lat., 
71[deg]00' W. long., and then ending at the first point. Further 
details of the original closure may be found in the June 16, 2005, and 
the July 7, 2005, Federal Register rules and are not repeated here.
    As a result of tests conducted by the FDA in cooperation with NMFS 
and the fishing industry, FDA has determined that PSP toxin levels in a 
portion of the closed area (described below) are now well below those 
known to cause illness in humans. With the exception of whole and roe-
on scallops, the FDA has determined that harvesting of bivalve 
molluscan shellfish for human consumption from the area described is 
once again safe.
    As a result of FDA's findings NMFS is reopening to shellfish 
harvest those waters south of 41[deg]39' N. lat., west of 69[deg]00' W. 
long., north of 40[deg]00' N. lat., and east of 71[deg]00' W. long. 
Because scallop viscera and roe are capable of retaining PSP toxins 
longer than other species of molluscan shellfish, NMFS is retaining the 
limitation that scallop harvesting is only permitted in the area for 
the purpose of shucking at sea of the adductor muscle.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1855(c).
    This rule has been determined to be not significant under Executive 
Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comments for this action, as prior notice and 
comment would be impractical and contrary to the public interest. The 
original emergency closure was in response to a public health 
emergency. With certain exceptions, that emergency no longer exists. 
Therefore to continue the closure to the harvest of shellfish through 
September 30, 2005, would service no purpose and be contrary to the 
public interest. In addition, because this rule relieves a restriction 
by reopening a previously closed portion of the current closed area, it 
is not subject to the 30-day delayed effectiveness provision of the APA 
pursuant to 5 U.S.C. 553(d)(1).
    Because a notice of proposed rulemaking is not required for this 
rule by 5 U.S.C. 553 or any other law, the analytical requirements of 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not 
applicable.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 6, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

[[Page 53581]]


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2. In Sec.  648.14, paragraph (a)(166) is suspended and paragraph 
(a)(170) is 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 area of the U.S. Exclusive Economic Zone bound by the 
following coordinates in the order stated: (1) 43[deg]00' N. lat., 
71[deg]00' W. long.; (2) 43[deg]00' N. lat., 69[deg]00' W. long.; (3) 
41[deg]39' N. lat., 69[deg]00' W. long.; (4) 41[deg]39' N. lat., 
71[deg]00' W. long., and then ending at the first point.
* * * * *
[FR Doc. 05-17986 Filed 9-7-05; 10:44 am]
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