Fishery conservation and management: Northeastern United States fisheries— Emergency closure due to presence of toxin causing paralytic shellfish poisoning; correction,

[Federal Register: July 7, 2005 (Volume 70, Number 129)]

[Rules and Regulations]

[Page 39192-39193]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr07jy05-9]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.050629171-5171-01; I.D. 070105A]

RIN 0648-AT51

Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Haddock Incidental Catch Allowance for the 2005 Atlantic Herring Fishery; Emergency Fishery Closure Due to the Presence of the Toxin That Causes Paralytic Shellfish Poisoning; Correction

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; correcting amendment; extension of comment period.

SUMMARY: NMFS is clarifying emergency regulations that closed portions of Federal waters of the Gulf of Maine, Georges Bank, and southern New England to the harvest of bivalve shellfish due to the presence of the toxin that causes Paralytic Shellfish Poisoning (PSP). This correction will allow for the collection and testing of samples for the toxin that causes PSP. In addition, this rule will correct the effective date for the definition of a ``Category 1 herring vessel'' and reinstate a prohibition on the sale of certain haddock that was inadvertently overwritten by the emergency rule.

DATES: Effective July 7, 2005, except for the amendment to Sec. 648.14(a)(166) which is effective June 14, 2005, through September 30, 2005, and the amendment to Sec. 648.14(a)(169) which is effective June 13, 2005, through December 10, 2005.

The comment period for the original emergency action published at 70 FR 35047, June 16, 2005, is extended from July 18, 2005, through August 1, 2005.

[[Page 39193]]

ADDRESSES: Comments may be submitted by any of the following methods:

E-mail: PSPClosure@NOAA.gov. Include in the subject line the following: ``Comments on the PSP Emergency Rule.''

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 the PSP Emergency Rule.''

Fax: (978) 281-9135.Copies of the emergency rule are available from the mailing address listed here.

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

SUPPLEMENTARY INFORMATION:

Background

On June 10, 2005, the Food and Drug Administration (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. The reason for the request is that shellfish testing has detected one of the largest toxic algal blooms (red tides) in history, which has moved in an easterly direction from state waters into Federal waters. On June 16, 2005, NMFS published an emergency rule (70 FR 35047) closing the area recommended by the FDA, i.e. the PSP Temporary Closure Area, through September 30, 2005. However, the emergency rule did not allow sufficient flexibility to allow for the collection of biological samples of shellfish for testing PSP toxin levels in the closure area by commercial fishing vessels working cooperatively with NMFS and the FDA. The emergency rule was not intended to impede, in any manner, the collection of biological samples of shellfish from the PSP Temporary Closure Area by commercial fishing vessels. This rule allows for the Administrator, Northeast Region, NMFS (Regional Administrator) to issue a Letter of Authorization (LOA) to commercial fishing vessels that are working cooperatively with NMFS and the FDA to collect biological samples of shellfish for testing. The request for an LOA would be from the FDA to the Regional Administrator. Vessels issued the LOA would be exempt from the prohibition on the possession of shellfish harvested from the PSP Temporary Closure Area, subject to the terms and conditions of the LOA. This collection will facilitate the testing of shellfish for the toxin that causes PSP by the FDA and/or FDA-approved laboratories.

In addition the rule reinstates the prohibition on the sale and purchase of haddock for human consumption landed by Category 1 herring vessels that was published in the Federal Register on June 13, 2005 (70 FR 34055), and subsequently and inadvertently overwritten by the PSP Temporary Emergency Closure on June 16, 2005 (70 FR 35047). The definition for ``Category 1 herring vessel'' is revised so it will become permanent without an expiration date of December 10, 2005.

Classification

This rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause under 5 U.S.C. 553(b)(B) and 553(d)(3), respectively, to waive prior notice and the opportunity for public comment and the delayed effectiveness period on this action. Providing an opportunity for notice and public comment on this action would be contrary to the public interest. This rule clarifies the June 16, 2005 (70 FR 35047) emergency rule prohibiting the possession of shellfish harvested from the PSP Temporary Closure Area by allowing the harvest of shellfish by commercial fishing vessels working with NMFS and the FDA. Any delay in implementing this rule could seriously jeopardize public health by impeding the ability of the NMFS and the FDA from obtaining biological samples from the PSP Temporary Closure Area. Biological samples obtained from the PSP Temporary Closure Area are necessary to determine if the level of contaminants in shellfish in a certain area remains a public health risk, or if the area is once again safe for the harvest of bivalve shellfish for human consumption.

The correcting amendments that are set forth in this rule are exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: June 30, 2005. Rebecca Lent, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For reasons set out in the preamble, 50 CFR part 648 is corrected by making the following correcting amendments:

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. 648.2, the definition for ``Category 1 herring vessel'' is revised to read as follows:

Sec. 648.2 Definitions.

* * * * *

Category 1 herring vessel means a vessel issued a permit to fish for Atlantic herring that is required to have an operable VMS unit installed on board pursuant to Sec. 648.205(b). * * * * *

0 3. In Sec. 648.14, paragraph (a) (166) was added at 70 FR 35047, June 16, 2005. In Sec. 648.14, paragraph (a)(166) is revised and paragraph (a)(169) is added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(166) 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 from the Regional Administrator authorizing the collection of shellfish for biological sampling and operating under the terms and conditions of said Letter, 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) 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. * * * * *

(169) Sell, purchase, receive, trade, barter, or transfer haddock, or attempt to sell, purchase, receive, trade, barter, or transfer haddock for, or intended for, human consumption landed by a Category 1 herring vessel as defined in Sec. 648.2. * * * * *

[FR Doc. 05-13357 Filed 7-1-05; 3:07 pm]

BILLING CODE 3510-22-S