Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 76315 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 050613158–5262–03] 

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; 

request for comments. 

SUMMARY: This temporary rule extends a 

closure of Federal waters. The FDA has 

determined that oceanographic 

conditions and alga sampling data 

suggest that the northern section of the 

Temporary Paralytic Shellfish Poison 

(PSP) Closure Area remain closed to the 

harvest of bivalve molluscan shellfish, 

with the exception of sea scallop 

adductor muscles harvested and 

shucked at sea, and that the southern 

area remain closed to the harvest of 

whole or roe-on scallops. The 

regulations contained in the temporary 

rule, emergency action, first published 

in 2005, and have been subsequently 

extended several times at the request of 

the U.S. Food and Drug Administration 

(FDA). NMFS is publishing the 

regulatory text associated with this 

closure in this temporary emergency 

rule in order to ensure that current 

regulations accurately reflect the 

codified text that has been modified and 

extended numerous times, so that the 

public is aware of the regulations being 

extended. 

DATES: The amendments to § 648.14, in 

amendatory instruction 2, are effective 

from January 1, 2011, through December 

31, 2011. The expiration date of the 

temporary emergency action published 

on November 13, 2009 (74 FR 58567), is 

extended through December 31, 2011. 

Comments must be received by January 

7, 2011. 

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, 55 Great Republic 

Drive, Gloucester, MA 01930. These 

documents are also available via the 

Internet at http://www.nero.noaa.gov/ 

nero/hotnews/redtide/index.html. 

You may submit comments, identified 

by RIN 0648–AT48, by any one of the 

following methods: 

• Mail: Patricia A. Kurkul, Regional 

Administrator, Northeast Region, 

NMFS, 55 Great Republic Drive, 

Gloucester, MA 01930–2298. Mark on 

the outside of the envelope, ‘‘Comments 

on PSP Closure.’’ 

• Fax: (978) 281–9135. 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive or protected information. 

NMFS will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Anna Macan, Fishery Management 

Specialist, phone: (978) 281–9165, fax: 

(978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

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 after samples of shellfish 

from the area tested positive for the 

presence of toxins (saxotoxins) that 

cause PSP. These toxins are produced 

by the alga Alexandrium fundyense, 

which 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 16, 2005, NMFS published an 

emergency rule (70 FR 35047) closing 

the area recommended by the FDA (i.e., 

the Temporary PSP Closure Area). Since 

2005, the closure has been extended 

several times and the area has been 

expanded and divided into northern 

and southern components. The 

Northern Temporary PSP Closure Area 

remained closed to the harvest of all 

bivalve molluscan shellfish, while the 

Southern Temporary PSP Closure Area 

was reopened to the harvest of Atlantic 

surfclams, ocean quahogs, and sea 

scallop adductor muscles harvested and 

shucked at sea. The current closure will 

expire on December 31, 2010, and this 

action extends this closure for one 

additional year, through December 31, 

2011. 

The boundaries of the northern 

component of the Temporary PSP 

Closure Area comprise Federal waters 

bounded by the following coordinates 

specified in Table 1 below. Under this 

emergency rule, this area remains closed 

to the harvest of Atlantic surfclams, 

ocean quahogs, and whole or roe-on 

scallops. 

TABLE 1—COORDINATES FOR THE

NORTHERN TEMPORARY PSP CLOSURE AREA

Point Latitude Longitude 

1 .............................. 43°00′ N 71°00′ W 

2 .............................. 43°00′ N 69°00′ W 

3 .............................. 41°39′ N 69°00′ W 

4 .............................. 41°39′ N 71°00′ W 

5 .............................. 43°00′ N 71°00′ W 

The boundaries of the southern 

component of the Temporary PSP 

Closure Area comprise Federal waters 

bound by the following coordinates 

specified in Table 2. Under this 

emergency rule, the Southern 

Temporary PSP Closure Area remains 

closed only to the harvest of whole or 

roe-on scallops. 

TABLE 2—COORDINATES FOR THE

SOUTHERN TEMPORARY PSP CLOSURE AREA

Point Latitude Longitude 

1 .............................. 41°39′ N 71°00′ W 

2 .............................. 41°39′ N 69°00′ W 

3 .............................. 40°00′ N 69°00′ W 

4 .............................. 40°00′ N 71°00′ W 

5 .............................. 41°39′ N 71°00′ W 

Classification 

This action is issued pursuant to 

section 305(c) of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act), 16 U.S.C. 

1855(c). Pursuant to section 5 U.S.C. 

553(b)(B) of the Administrative 

Procedure Act, the Assistant 


jlentini on DSKJ8SOYB1PROD with RULES
76316 Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 

Administrator for Fisheries finds there 

is good cause to waive prior notice and 

an opportunity for public comment on 

this action as notice and comment 

would be impracticable and contrary to 

the public interest due to a public 

health emergency, and public comment 

has been solicited concurrently with 

each of the extensions of this action, as 

detailed and responded to below. In 

addition, under section 553(d)(3) there 

is good cause to waive the 30-day delay 

in effectiveness due to a public health 

emergency. The original emergency 

closure was in response to a public 

health emergency. 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. Pursuant to 

section 305(c)(3)(C) of the MagnusonStevens 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 

Web site 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 

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. 

This emergency action is exempt from 

the procedures of the Regulatory 

Flexibility Act because the rule is issued 

without opportunity for prior notice and 

opportunity for public comment. 

This rule is not significant for the 

purposes of Executive Order 12866. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: December 2, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

to read as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.14, paragraphs (a)(10)(iii) 

and (a)(10)(iv) are added to read as 

follows: 

§ 648.14 Prohibitions. 

(a) * * * 

(10) * * * 

(iii) Fish for, harvest, catch, possess or 

attempt to fish for, harvest, catch, or 

possess any bivalve shellfish, including 

Atlantic surfclams, ocean quahogs, and 

mussels, with the exception of sea 

scallops harvested only for adductor 

muscles and shucked at sea, unless 

issued and possessing on board a Letter 

of Authorization (LOA) from the 

Regional Administrator authorizing the 

collection of shellfish for biological 

sampling and operating under the terms 

and conditions of said LOA, in the area 

of the U.S. Exclusive Economic Zone 

bound by the following coordinates in 

the order stated: 

(A) 43°00′ N. lat., 71°00′ W. long.; 

(B) 43°00′ N. lat., 69°00′ W. long.; 

(C) 41°39′ N. lat., 69°00′ W. long; 

(D) 41°39′ N. lat., 71°00′ W. long.; and 

then ending at the first point. 

(iv) Fish for, harvest, catch, possess, 

or attempt to fish for, harvest, catch, or 

possess any sea scallops, except for sea 

scallops harvested only for adductor 

muscles and shucked at sea, unless 

issued and possessing on board a Letter 

of Authorization (LOA) from the 

Regional Administrator authorizing 

collection of shellfish for biological 

sampling and operating under the terms 

and conditions of said LOA, in the area 

of the U.S. Exclusive Economic Zone 

bound by the following coordinates in 

the order stated: 

(A) 41°39′ N. lat., 71°00′ W. long.; 

(B) 41°39′ N. lat., 69°00′ W. long.; 

(C) 40°00′ N. lat., 69°00′ W. long.; 

(D) 40°00′ N. lat., 71°00′ W. long.; and 

then ending at the first point. 

* * * * * 

[FR Doc. 2010–30871 Filed 12–7–10; 8:45 am] 

BILLING CODE 3510–22–P 


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