[Federal Register Volume 70, Number 248 (Wednesday, December 28, 2005)]
[Rules and Regulations]
[Pages 76713-76714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24519]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050613158-5262-03; 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 October 18, 2005, at the request of the U.S. Food 
and Drug Administration (FDA), which are scheduled to expire on 
December 31, 2005, are extended through June 30, 2006. In the October 
18, 2005, action, NMFS reinstated and corrected the temporary 
regulations published on September 9, 2005, which 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 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 January 1, 2006.

DATES: The temporary emergency action published on October 18, 2005 (70 
FR 60450), is effective from October 18, 2005, through June 30, 2006.

ADDRESSES: Copies of the small entity compliance guide prepared for the 
October 18, 2005, reinstatement of 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 
emergency rule and environmental assessment are available from Patricia

[[Page 76714]]

A. Kurkul, at the mailing address specified above.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy 
Analyst, (978) 281-9272.

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.
    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 (5) 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 preambles of the 
June 16, 2005, and the July 7, 2005, 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 permitted only in the reopened area for the purpose of shucking of 
the adductor muscle; however, although this limitation was discussed in 
the preamble of the September 9, 2005, temporary rule, it was 
inadvertently omitted from the regulatory text.
    In the absence of further notice from the FDA, the entire temporary 
closure would have expired on October 1, 2005. FDA determined on 
September 23, 2005, that there were insufficient analytical data to 
support the scheduled reopening of the entire area to all bivalve 
molluscan shellfish on October 1, 2005; therefore, it requested that 
NMFS continue the regulations through December 31, 2005. Based on this 
request, NMFS issued additional temporary rules (70 FR 57517 and 70 FR 
60450) to extend the prohibitions through December 31, 2005.
    In the absence of further notice from the FDA, the entire temporary 
closure would have expired on January 1, 2006. FDA has once again 
determined that there are insufficient analytical data to support the 
scheduled reopening of the entire area to all bivalve molluscan 
shellfish on January 1, 2006, and has requested that NMFS continue the 
regulations, which NMFS agrees to do through June 30, 2006.

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) 
(Magnuson-Stevens Act).
    The original emergency closure was in response to a public health 
emergency. Pursuant to section 305(c)(3)(C) of the Magnuson-Stevens 
Act, the closure to the harvest of shellfish, as modified on September 
9, 2005, and as reinstated on October 18, 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 on September 9, 2005, and as reinstated on 
October 18, 2005, should continue through June 30, 2006. If warranted, 
the regulations may be terminated at an earlier date, pursuant to 
section 305(c)(3)(D) of the Magnuson-Stevens Act, by publication in the 
Federal Register of a notice of termination, or extended further, if 
necessary, to ensure the safety of human health.
    The October 18, 2005, rule was determined to be not significant 
under Executive Order 12866.

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

    Dated: December 21, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 05-24519 Filed 12-22-05; 1:23 pm]
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