[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Rules and Regulations]
[Pages 60450-60452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20893]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050613158-5262-03; I.D. 090105A]
RIN 0648-AT48


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

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SUMMARY: This action reinstates the temporary regulations published in 
the Federal Register on September 9, 2005, and establishes the 
prohibition that was inadvertently omitted in the September 9, 2005 
rule. In the September 9, 2005, temporary rule, NMFS continued the 
closure through September 30, 2005, of one portion of an area it had 
previously closed on June 16, 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 prohibition of harvesting whole or roe-on sea scallops, 
only, in the other portion of the area previously closed on June 16, 
2005, was inadvertently omitted from the regulatory text of the 
September 9, 2005, publication. NMFS establishes this prohibition in 
this action. The intent of this action is to respond to the request of 
the U.S. Food and Drug Administration (FDA), having determined on 
September 23, 2005, that there is insufficient analytical data to 
support the scheduled reopening of the entire area to all bivalve 
molluscan shellfish fishing on October 1, 2005.

DATES: Effective October 18, 2005, through December 31, 2005. Comments 
must be received by November 17, 2005.

ADDRESSES: Comments may be submitted by any of the following methods:
     E-mail: [email protected]. Include the subject line the 
following: ``Comments on the October Emergency Rule for Area closures 
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 October PSP closure.''
     Fax:(978) 281-9135.
    Copies of the small entity compliance guide prepared for the 
September 9, 2005, emergency action are available from Patricia A. 
Kurkul, Regional Administrator, National Marine Fisheries Service, One 
Blackburn Drive, Gloucester, MA 01930. The small entity compliance 
guide/permit holder letter is also accessible via the Internet at 
http://www.nero.noaa.gov. Copies of the emergency rule are available 
from Patricia A. Kurkul, at the mailing address specified above.

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

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.
    On June 10, 2005, the FDA requested that 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, published in the Federal Register on June 16, 2005 (70 FR 
35047), stated it would be in effect from June 14 through September 30, 
2005, unless extended. 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. The scallop 
adductor muscle, or ``meat,'' is unaffected by the toxin. Further 
details of the original closure may be found in the June 16, 2005, and 
the July 7, 2005,

[[Page 60451]]

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, it was determined that toxin levels in a 
portion of the closure area (described below) were well below those 
known to cause human illness. With the exception of whole and roe-on 
scallops, the FDA determined that harvesting of bivalve molluscan 
shellfish for human consumption from the area described was once again 
safe.
    At the FDA's request, on September 9, 2005, NMFS reopened 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. (70 FR 53580). 
Because scallop viscera and roe are capable of retaining PSP toxins 
longer than other species of molluscan shellfish, scallop harvesting 
was only permitted in the reopened area for the purpose of shucking of 
the adductor muscle; however, although this limitation was discussed in 
the preamble of the September 9, 2005 temporary rule, it was 
inadvertently omitted from the regulatory text.
    In the absence of further notice from the FDA, the entire temporary 
closure would have expired on October 1, 2005. FDA determined on 
September 23, 2005, that there is insufficient analytical data to 
support the scheduled reopening of the entire area to all bivalve 
molluscan shellfish on October 1, 2005; therefore FDA requested that 
NMFS continue the regulations through December 31, 2005.
    On October 3, 2005, a document was published in the Federal 
Register (70 FR 57517) intending to extend the expiration date of the 
September 9, 2005, temporary rule from September 30, 2005, to December 
31, 2005. Although the date of filing for public inspection by the 
Office of the Federal Register occurred on September 27, 2005, the 
document was not published in the Federal Register until October 3, 
2005, leaving no regulations in place after September 30, 2005 (the 
original expiration date). Therefore, NMFS issues this temporary rule 
to (1) reinstate the prohibition to fish for, harvest, catch, or 
possess any bivalve shellfish except sea scallops harvested only for 
adductor muscles and shucked at sea in the area described in Sec.  
648.14(a)(170) and (2) allow the harvest of bivalve molluscan shellfish 
other than whole or roe-on Atlantic sea scallops, as described in Sec.  
648.14(a)(171).

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).
    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 as 
described 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 as described below. 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 by this action reinstates the September 9, 2005 
temporary rule through December 31, 2005. This action also prohibits 
the retention of whole or roe-on sea scallops in an area as described 
in Sec.  648.14(a)(171) because of the possible retention of PSP. This 
rule may remain in effect until the circumstances that created the 
emergency no longer exist, provided that the public has an opportunity 
to comment after the regulation is published, and, in the case of a 
public health emergency, the Secretary of Health and Human Services 
concurs with the Secretary of Commerce's action. The public had 
opportunities to comment on the earlier regulations establishing the 
closures and one comment was received. The commenter expressed her 
reluctance to agree with reopening a portion of the closure without 
seeing the results of the FDA's tests. While NMFS is the agency with 
authority to promulgate the emergency regulations, it modified the 
regulations on September 9, 2005, at the behest of the FDA after the 
FDA had determined that the results of its tests warranted such action. 
Accordingly, the Secretary of Health and Human Services and the 
Secretary of Commerce concur that the emergency regulations, as 
modified, should be reinstated through December 31, 2005. Subsequently, 
if warranted, the regulations may be terminated at an earlier date, 
pursuant to section 305(c)(3)(D), by publication in the Federal 
Register of a notice of termination.
    Because prior notice and opportunity for public comment are not 
required pursuant to 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 inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
    This rule is determined to be not significant under Executive Order 
12866.
    Authority: 16 U.S.C. 1801 et seq.

    Dated: October 13, 2005.
James W. Balsiger,
Acting 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

    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: (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.
    (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: (1) 41[deg] 39' N. lat., 
71[deg] 00' W. long.; (2) 41[deg] 39' N. lat., 69[deg] 00' W. long.; 
(3) 40[deg] 00' N. lat., 69[deg] 00' W.

[[Page 60452]]

long.; (4) 40[deg] 00' N. lat., 71[deg] 00' W. long., and then ending 
at the first point.
* * * * *
[FR Doc. 05-20893 Filed 10-14-05; 11:25 am]
BILLING CODE 3510-22-S