Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No. 050613158-5237-02; I.D. 090105A]
          - RIN 0648-AT48

# AGENCY:

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

# ACTION:

Temporary rule; emergency action; extension of effective period.

# SUMMARY:

The regulations contained in the temporary rule, emergency action, published on September 9, 2005, at the request of the U.S. Food and Drug Administration (FDA), continue through December 31, 2005. In that action NMFS reopened a portion of Federal waters of the Gulf of Maine, Georges Bank, and southern New England that it had previously closed 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 there is insufficient analytical data to support the scheduled reopening of the entire area to all bivalve molluscan shellfish fishing on October 1, 2005.

# DATES:

The temporary emergency action published September 9, 2005 (70 FR 53580), is effective from September 9, 2005, through December 31, 2005.

# ADDRESSES:

                        Copies of the small entity compliance guide prepared for the September 9, 2005, emergency action are available from Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. The small entity compliance guide/permit holder letter is also accessible via the Internet at                         *http://www.nero.noaa.gov*. Copies of the September 9, 2005, emergency action are available from Patricia A. Kurkul, at the mailing address specified above.                    

# FOR FURTHER INFORMATION CONTACT:

E. Martin Jaffe, Fishery Policy Analyst, (978) 281-9272.

# SUPPLEMENTARY INFORMATION:

      ( print page 57518)    

## 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