[Federal Register Volume 70, Number 190 (Monday, October 3, 2005)]
[Rules and Regulations]
[Pages 57517-57518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19718]


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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


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.

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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:

[[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[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. 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[deg]39' N. lat., west of 69[deg]00' W. long., north 
of 40[deg]00' N. lat., and east of 71[deg]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]
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