53580 Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 050613158-5237-02; I.D. 

090105A] 

RIN 0648–AT48 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; 

Modification 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; request for comments. 

SUMMARY: At the request of the U.S. 

Food and Drug Administration (FDA), 

NMFS closed portions of Federal waters 

of the Gulf of Maine, Georges Bank, and 

southern New England from June 14, 

2005, through September 30, 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 FDA has 

determined that harvesting for human 

consumption of bivalve molluscan 

shellfish other than whole and roe-on 

scallops from a portion of the closed 

area is now safe and may be resumed. 

As a result, NMFS is modifying its 

previous closure to allow such fishing. 

DATES: Effective September 9, 2005 

through September 30, 2005. Comments 

must be received by October 11, 2005. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

• E-mail: PSPClosure2@NOAA.gov. 

Include in the subject line the following: 

‘‘Comments on Modification of the 

Emergency Rule for Area Closure 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 Modification of the 

Emergency Rule for Area Closure Due to 

PSP.’’

• Fax: (978) 281–9135. 

Copies of the modified emergency 

rule are available from Patricia A. 

Kurkul, at the mailing address specified 

above. 

FOR FURTHER INFORMATION CONTACT: E. 

Martin Jaffe, Fishery Policy Analyst, 

phone: (978) 281–9272, fax: (978) 281–

9135. 

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. The scallop adductor 

muscle, or ‘‘meat,’’ is unaffected by the 

toxin. 

On June 10, 2005, the FDA requested 

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, in effect 

from June 14 through September 30, 

2005, was published in the Federal 

Register on June 16, 2005 (70 FR 35047). 

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°00′ N. lat., 71°00′ W. long.; 

(2) 43°00′ N. lat., 69°00′ W. long.; (3) 

40°00′ N. lat., 69°00′ W. long.; (4) 40°00′ 

N. lat., 71°00′ W. long., and then ending 

at the first point. Further details of the 

original closure may be found in the 

June 16, 2005, and the July 7, 2005, 

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, FDA has determined 

that PSP toxin levels in a portion of the 

closed area (described below) are now 

well below those known to cause illness 

in humans. With the exception of whole 

and roe-on scallops, the FDA has 

determined that harvesting of bivalve 

molluscan shellfish for human 

consumption from the area described is 

once again safe. 

As a result of FDA’s findings NMFS 

is reopening to shellfish harvest those 

waters south of 41°39′ N. lat., west of 

69°00′ W. long., north of 40°00′ N. lat., 

and east of 71°00′ W. long. Because 

scallop viscera and roe are capable of 

retaining PSP toxins longer than other 

species of molluscan shellfish, NMFS is 

retaining the limitation that scallop 

harvesting is only permitted in the area 

for the purpose of shucking at sea of the 

adductor muscle. 

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). 

This rule has been determined to be 

not significant under Executive Order 

12866. 

The Assistant Administrator for 

Fisheries, NOAA, finds good cause 

pursuant to 5 U.S.C. 553(b)(B) to waive 

prior notice and the opportunity for 

public comments for this action, as prior 

notice and comment would be 

impractical and contrary to the public 

interest. The original emergency closure 

was in response to a public health 

emergency. With certain exceptions, 

that emergency no longer exists. 

Therefore to continue the closure to the 

harvest of shellfish through September 

30, 2005, would service no purpose and 

be contrary to the public interest. In 

addition, because this rule relieves a 

restriction by reopening a previously 

closed portion of the current closed 

area, it is not subject to the 30-day 

delayed effectiveness provision of the 

APA pursuant to 5 U.S.C. 553(d)(1). 

Because a notice of proposed 

rulemaking is not required for this rule 

by 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 not applicable. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: September 6, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

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. 

Federal Register / Vol. 70, No. 174 / Friday, September 9, 2005 / Rules and Regulations 53581 

■ 2. In § 648.14, paragraph (a)(166) is 

suspended and paragraph (a)(170) is 

added to read as follows: 

§ 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°00′ N. lat., 71°00′ 

W. long.; (2) 43°00′ N. lat., 69°00′ W. 

long.; (3) 41°39′ N. lat., 69°00′ W. long.; 

(4) 41°39′ N. lat., 71°00′ W. long., and 

then ending at the first point. 

* * * * * 

[FR Doc. 05–17986 Filed 9–7–05; 10:44 am] 

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