[Federal Register Volume 71, Number 126 (Friday, June 30, 2006)]
[Rules and Regulations]
[Pages 37505-37506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5936]


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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) and that were subsequently extended on 
December 28, 2005, expire on June 30, 2006. This temporary rule extends 
the closure through December 31, 2006. The FDA has determined that 
current oceanographic conditions and alga sampling data suggests that 
the northern section of the Temporary Paralytic Shellfish Poison (PSP) 
Closure Area remain closed to the harvest of bivalve molluscan 
shellfish and that the southern area remain closed to the harvest of 
whole or roe-on scallops.

DATES:  The temporary emergency action published on October 18, 2005 
(70 FR 60450), is effective from October 18, 2005, through December 31, 
2006.

ADDRESSES:  Copies of the small entity compliance guide, the emergency 
rule, the environmental assessment, and the regulatory impact review 
prepared for the October 18, 2005, reinstatement of the September 9, 
2005, emergency action and subsequent extensions of the emergency 
action, are available from Patricia A. Kurkul, Regional Administrator, 
National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 
01930. These documents are also available via the internet at 
www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    This emergency closure was implemented at the request of the FDA 
after samples of shellfish from the inshore and offshore waters off of 
the coasts of New Hampshire and Massachusetts tested positive for the 
toxins (saxotoxins) that cause Paralytic Shellfish Poisoning (PSP). 
These toxins are produced by the algae Alexandrium fundyense that can 
form blooms commonly referred to as red tides. Red tide blooms, also 
known as harmful algal blooms (HABs), can produce toxins that 
accumulate in filter-feeding shellfish. Shellfish contaminated with the 
toxin, if eaten in large enough quantity, can cause illness or death 
from PSP.
    On June 10, 2005, the 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. On June 
16, 2005, NMFS published an emergency rule (70 FR 35047) closing the 
area recommended by the FDA, i.e. the Temporary PSP Closure Area, 
through September 30, 2005. On July 7, 2005 (70 FR 39192), the 
emergency rule was modified to facilitate the testing of shellfish for 
the toxin that causes PSP by the FDA and/or FDA-approved laboratories 
through the issuance of a Letter of Authorization (LOA) from the 
Regional Administrator. On September 9, 2005 (70 FR 53580),

[[Page 37506]]

the emergency regulation was once again modified by the division of the 
Temporary PSP Closure Area into northern and southern components. The 
northern area remained closed to the harvest of all bivalve molluscan 
shellfish while the southern component was reopened to the harvest of 
Atlantic surfclams and ocean quahogs but remained closed to the harvest 
of whole or roe-on scallops. The rule was extended as published on 
September 9, 2005, on October 3, 2005 (70 FR 57517), reinstated on 
October 18, 2005 (70 FR 60450) to correct a technical error, and 
extended on December 28, 2005 (70 FR 76713) through June 30, 2006. On 
June 15, 2006, the FDA indicated that they could not support the re-
opening of the Temporary PSP Closure Area due to insufficient 
analytical data from the area. Sampling of the Temporary PSP Closure 
Area is expected to occur in July of 2006.
    The boundaries of the northern component of the temporary closure 
area comprise Federal waters 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) 41[deg]39' N. lat., 
69[deg] 00' W. long.; (4) 41[deg] 39' N. lat., 71[deg]00' W. long., and 
then ending at the first point. Under this emergency rule this area 
would remain closed to the harvest of Atlantic surfclams, ocean 
quahogs, and whole or roe-on scallops. The boundaries of the southern 
component of the temporary closure area comprise Federal waters bound 
by the following coordinates in the order stated: (1) 41[deg] 39' N. 
lat., 71[deg] 00' W. long.; (2) 41[deg] 39' 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. 
Under this temporary emergency rule this southern component of the area 
would remain closed only to the harvest of whole or roe-on scallops.

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 re-instated on October 18, 2005, may 
remain in effect until the circumstances that created the emergency no 
longer exist, provided the public has had an opportunity to comment 
after the regulation was published, and, in the case of a public health 
emergency, the Secretary of Health and Human Services concurs with the 
Commerce Secretary's action. During the initial comment period, June 
16, 2005, through August 1, 2005, no comments were received. One 
comment was received after the re-opening of the southern component of 
the Temporary PSP Closure Area on September 9, 2005. The commenter 
expressed reluctance to re-opening a portion of the closure area 
without seeing the results of the FDA tests. Data used to make 
determinations regarding closing and opening of areas to certain types 
of fishing activity are collected from Federal, state, and private 
laboratories. NOAA maintains a Red Tide Information Center (http://oceanservice.noaa.gov/redtide/) which can be accessed directly or 
through the website listed in the ADDRESSES section. Information on 
test results, modeling of algal bloom movement, and general background 
on red tide can be accessed through this information center. While NMFS 
is the agency with the authority to promulgate the emergency 
regulations, it modified the regulations on September 9, 2005, at the 
request of the FDA, after the FDA has determined that the results of 
its tests warranted such action. If necessary, 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 to ensure the safety of 
human health.
    The rule, as last published on October 18, 2005, was determined to 
be not significant for the purposes of Executive Order (E.O.) 12866.

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

    Dated: June 26, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 06-5936 Filed 6-27-06; 3:37 pm]
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