57518 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Rules and Regulations 

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. 

On June 10, 2005, the FDA requested 

that 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, published 

in the Federal Register on June 16, 2005 

(70 FR 35047), stated it would be in 

effect from June 14 through September 

30, 2005, unless extended. 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. The scallop adductor 

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

toxin. 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, it was determined that 

toxin levels in a portion of the closure 

area (described below) were well below 

those known to cause human illness. 

With the exception of whole and roe-on 

scallops, the FDA determined that 

harvesting of bivalve molluscan 

shellfish for human consumption from 

the area described was once again safe. 

At the FDA’s request, on September 9, 

2005, NMFS reopened 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. (70 FR 53580). Because 

scallop viscera and roe are capable of 

retaining PSP toxins longer than other 

species of molluscan shellfish, scallop 

harvesting was only permitted in the 

reopened area for the purpose of 

shucking of the adductor muscle. 

In the absence of further notice from 

the FDA, the entire temporary closure 

would have expired on October 1, 2005. 

At this time, however, the FDA has 

insufficient analytical data to support 

the scheduled reopening of the entire 

area to all bivalve molluscan shellfish 

on October 1, 2005, and has requested 

that NMFS continue the regulations 

through December 31, 2005. 

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). 

The original emergency closure was 

in response to a public health 

emergency. Pursuant to section 

305(c)(3)(C) of the Act, the closure to the 

harvest of shellfish, as modified on 

September 9, 2005, may remain in effect 

until the circumstances that created the 

emergency no longer exist, provided 

that the public has an opportunity to 

comment after the regulation is 

published, and, in the case of a public 

health emergency, the Secretary of 

Health and Human Services concurs 

with the Commerce Secretary’s action. 

The public had opportunities to 

comment on the published regulations 

and one comment was received. The 

commenter expressed her reluctance to 

agree with reopening a portion of the 

closure without seeing the results of the 

FDA’s tests. While NMFS is the agency 

with authority to promulgate the 

emergency regulations, it modified the 

regulations on September 9, 2005, at the 

behest of the FDA after the FDA had 

determined that the results of its tests 

warranted such action. Accordingly, the 

Secretary of Health and Human Services 

and the Secretary of Commerce concur 

that the emergency regulations, as 

modified, should continue through 

December 31, 2005. Subsequently, if 

warranted, the regulations may be 

terminated at an earlier date, pursuant 

to section 305(c)(3)(D), by publication in 

the Federal Register of a notice of 

termination. 

The September 9, 2005, rule was 

determined to be not significant under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: September 27, 2005. 

James W. Balsiger, 

Acting Deputy Administrator for Regulatory 

Programs,National Marine Fisheries Service. 

[FR Doc. 05–19718 Filed 9–28–05; 2:54 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 041126332–5039–02; I.D. 

092805A] 

Fisheries of the Economic Exclusive 

Zone Off Alaska; Pacific Ocean Perch 

in the Western Aleutian District of the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; modification of 

a closure. 

SUMMARY: NMFS is opening directed 

fishing for Pacific ocean perch in the 

Western Aleutian District of the Bering 

Sea and Aleutian Islands Management 

Area (BSAI). This action is necessary to 

allow the Pacific ocean perch fishery in 

the Western Aleutian District of the 

BSAI to resume. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), September 28, 2005, 

through 2400 hrs, A.l.t., December 31, 

2005. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

NMFS closed directed fishing for 

Pacific ocean perch in the Western 

Aleutian District of the BSAI under 

§ 679.20(d)(1)(i) on July 18, 2005 (70 FR 

42280, July 22, 2005). 

NMFS has determined that as of 

September 26, 2005, approximately 

1,422 metric tons of Pacific ocean perch 

remain in the 2005 Pacific ocean perch 

total allowable catch (TAC) in the 

Western Aleutian District of the BSAI. 

Therefore, in accordance with 

§§ 679.25(a)(2)(i)(C) and (a)(2)(iii)(D), 

and to allow the Pacific ocean perch 

fishery to resume, NMFS is terminating 

the previous closure and is reopening 

directed fishing for Pacific ocean perch 

in the Western Aleutian District of the 

BSAI. 

Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Rules and Regulations 57519 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the delay the opening of the 

fishery, not allow the full utilization of 

the Pacific ocean perch TAC in the 

Western Aleutian District of the BSAI, 

and therefore reduce the public’s ability 

to use and enjoy the fishery resource. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.25 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: September 28, 2005. 

Alan D. Risenhoover, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 05–19719 Filed 9–28–05; 2:54 pm] 

BILLING CODE 3510–22–S