[Federal Register: December 31, 2007 (Volume 72, Number 249)]
[Rules and Regulations]
[Page 74207-74208]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de07-12]
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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.
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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