[Federal Register Volume 72, Number 123 (Wednesday, June 27, 2007)]
[Rules and Regulations]
[Pages 35200-35202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12432]


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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 extends 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, June 30, 2006, and again on January 1, 
2007, expire on July 1, 2007. This temporary rule extends a closure of 
Federal waters through December 31, 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 December 31, 2007.

DATES:  The amendments to Sec.  648.14 are effective from July 1, 2007, 
through December 31, 2007. The expiration date of the temporary 
emergency action published on January 4, 2007 (72 FR 291), is extended 
to December 31, 2007. Comments must be received by July 27, 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 
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 July 2007 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 July 2007 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 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

[[Page 35201]]

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 NMFS 
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), and again on January 4, 2007 (72 FR 291) through June 
30, 2007. On May 18, 2007, the FDA indicated that it 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 PSP 
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 PSP 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 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 (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, 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. 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 (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 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/interim rule 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: June 21, 2007.
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 revised 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.;

[[Page 35202]]

    (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. E7-12432 Filed 6-26-07; 8:45 am]
BILLING CODE 3510-22-S