[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Rules and Regulations]
[Pages 74207-74208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25255]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.050613158-5262-03]
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; request for comments.

-----------------------------------------------------------------------

SUMMARY:  This action extends 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), will expire on January 1, 2008. This 
temporary rule extends a closure of Federal waters through December 31, 
2008. The FDA has determined that current oceanographic conditions and 
alga sampling data suggest 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, 2008.

DATES:  The amendments to Sec.  648.14 are effective from January 1, 
2008, through December 31, 2008. The expiration date of the temporary 
emergency action published on July 27, 2007 (72 FR 35200), is extended 
through December 31, 2008. Comments must be received by January 30, 
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 0648-AT48, 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 Rulemaking 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:  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 blooms commonly referred 
to as red tides. Current oceanographic conditions and alga sampling 
data suggest that the northern section of the Temporary 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. 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); January 4, 2007 (72 FR 291); and again on June 27, 2007 
(72 FR 35200), through December 31, 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, and 
recommended the area remain closed indefinitely. 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 remains closed to the 
harvest of Atlantic surfclams, ocean quahogs, and whole or roe-on 
scallops. The

[[Page 74208]]

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 remains 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. Consultation with the FDA concerning the extension of this 
action beyond the January 1, 2008, expiration date continued through 
December 2007, making it impossible to first publish this action as a 
proposed rule and provide for a 30-day delay of effectiveness. 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: December 20, 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 continues 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 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.;
    (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., 6[deg] 00' W. long.;
    (iv) 40[deg] 00' N. lat., 71[deg] 00' W. long.; and then ending at 
the first point.
* * * * *
[FR Doc. E7-25255 Filed 12-28-07; 8:45 am]
BILLING CODE 3510-22-S