[Federal Register Volume 72, Number 2 (Thursday, January 4, 2007)]
[Rules and Regulations]
[Pages 291-292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9975]


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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; 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.

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SUMMARY: This action reinstates a temporary final rule published on 
October 18, 2005. The regulations contained in the temporary rule, 
emergency action, published on October 18, 2005, at the request of the 
U.S. Food and Drug Administration (FDA) and that were subsequently 
extended on December 28, 2005, and again on June 30, 2006, expire on 
December 31, 2006. This temporary rule extends the closure through June 
30, 2007. The FDA has determined that current oceanographic conditions 
and alga sampling data suggests that the northern section of the 
Temporary Paralytic Shellfish Poison (PSP) Closure Area remain closed 
to the harvest of bivalve molluscan shellfish 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 June 30, 2007.

DATES: The amendment to Sec.  648.14 is effective from January 1, 2007, 
to June 30, 2007. The expiration date of the temporary emergency action 
published on June 30, 2006 (71 FR 37505), is extended to June 30, 2007. 
Comments must be received by February 5, 2007.

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.
    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.

FOR FURTHER INFORMATION CONTACT: Brian Hooker, Fishery Policy Analyst, 
phone: (978) 281-9220, fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    This emergency closure was 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 Paralytic Shellfish Poisoning (PSP). 
These toxins are produced by the algae Alexandrium fundyense that can 
form blooms commonly referred to as red tides. 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 
through the issuance of a Letter of Authorization (LOA) from the 
Regional Administrator. On September 9, 2005 (70 FR 53580), the 
emergency regulation was once again modified by the division of the 
Temporary PSP Closure Area into northern and southern components. The 
northern area remained closed to the harvest of all bivalve molluscan 
shellfish while the southern component was reopened to the harvest of 
Atlantic surfclams and ocean quahogs but remained closed to the harvest 
of whole or roe-on scallops. 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), through December

[[Page 292]]

31, 2006. On December 27, 2006, the FDA indicated that they could not 
support the re-opening of the Temporary PSP Closure Area due to 
insufficient analytical data from the area.
    The boundaries of the northern component of the temporary closure 
area comprise Federal waters 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. Under this emergency rule this area 
would remain closed to the harvest of Atlantic surfclams, ocean 
quahogs, and whole or roe-on scallops. The boundaries of the southern 
component of the temporary closure area comprise Federal waters 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. long.; (4) 40[deg]00' N. lat., 
71[deg]00' W. long., and then ending at the first point. Under this 
temporary emergency rule, this southern component of the area would 
remain closed only to the harvest of whole or roe-on scallops.

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) 
(Magnuson-Stevens Act). The original emergency closure was in response 
to a public health emergency. 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 Web site 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.
    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 28, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, 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

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 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.
    (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. long.; (4) 40[deg] 00' N. lat., 
71[deg] 00' W. long., and then ending at the first point.
* * * * *
[FR Doc. 06-9975 Filed 1-3-07; 8:45 am]
BILLING CODE 3510-22-P