60450 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

TABLE 1. SUMMER FLOUNDER COMMERCIAL QUOTA TRANSFERS

State 

Amount Transferred 2005 Quota1 2005 Revised Quota 

lb kg lb kg lb kg 

New Jersey -36,333 -16,481 3,005,481 1,363,286 2,969,148 1,346,806 

Maine +999 +453 12,396 5,623 13,395 6,076 

Massachusetts +10,957 +4,970 1,219,773 553,289 1,230,730 558,259 

Connecticut +13,965 +6,335 459,408 208,387 473,373 214,722 

New York +10,412 +4,723 1,414,282 641,518 1,424,694 646,241 

1Reflects quotas as published on June 21, 2005 (70 FR 35557), inclusive of previous Addendum XV and ‘‘safe harbor’’ transfers. 

Classification 

This action is taken under 50 CFR 

part 648 and is exempt from review 

under Executive Order 12866. 

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

Dated: October 12, 2005. 

Alan D. Risenhoover, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 05–20829 Filed 10–13–05; 3:01 pm] 

BILLING CODE 3510–22–S 

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; 

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. 

SUMMARY: This action reinstates the 

temporary regulations published in the 

Federal Register on September 9, 2005, 

and establishes the prohibition that was 

inadvertently omitted in the September 

9, 2005 rule. In the September 9, 2005, 

temporary rule, NMFS continued the 

closure through September 30, 2005, of 

one portion of an area it had previously 

closed on June 16, 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 prohibition of harvesting 

whole or roe-on sea scallops, only, in 

the other portion of the area previously 

closed on June 16, 2005, was 

inadvertently omitted from the 

regulatory text of the September 9, 2005, 

publication. NMFS establishes this 

prohibition in this action. The intent of 

this action is to respond to the request 

of the U.S. Food and Drug 

Administration (FDA), having 

determined on September 23, 2005, 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: Effective October 18, 2005, 

through December 31, 2005. Comments 

must be received by November 17, 2005. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

• E-mail: PSPclosure2@NOAA.gov. 

Include the subject line the following: 

‘‘Comments on the October Emergency 

Rule for Area closures Due to PSP.’’

• Federal e-Rulemaking Portal: http:/ 

www.regulations.gov. 

• Mail: Paper, disk, or CD-ROM 

comments should be sent to Patricia A. 

Kurkul, Regional Administrator, 

National Marine Fisheries Service, One 

Blackburn Drive, Gloucester, MA 01930. 

Mark the outside of the envelope 

‘‘Comments on October PSP closure.’’

• Fax:(978) 281–9135. 

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 

emergency rule 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: 

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 / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60451 

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; 

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 is insufficient analytical 

data to support the scheduled reopening 

of the entire area to all bivalve 

molluscan shellfish on October 1, 2005; 

therefore FDA requested that NMFS 

continue the regulations through 

December 31, 2005. 

On October 3, 2005, a document was 

published in the Federal Register (70 

FR 57517) intending to extend the 

expiration date of the September 9, 

2005, temporary rule from September 

30, 2005, to December 31, 2005. 

Although the date of filing for public 

inspection by the Office of the Federal 

Register occurred on September 27, 

2005, the document was not published 

in the Federal Register until October 3, 

2005, leaving no regulations in place 

after September 30, 2005 (the original 

expiration date). Therefore, NMFS 

issues this temporary rule to (1) 

reinstate the prohibition to fish for, 

harvest, catch, or possess any bivalve 

shellfish except sea scallops harvested 

only for adductor muscles and shucked 

at sea in the area described in 

§ 648.14(a)(170) and (2) allow the 

harvest of bivalve molluscan shellfish 

other than whole or roe-on Atlantic sea 

scallops, as described in 

§ 648.14(a)(171). 

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). 

Pursuant to section 5 U.S.C. 553(b)(B) 

of the Administrative Procedure Act, the 

Assistant 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 as described 

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 as described 

below. 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 by this action reinstates the 

September 9, 2005 temporary rule 

through December 31, 2005. This action 

also prohibits the retention of whole or 

roe-on sea scallops in an area as 

described in § 648.14(a)(171) because of 

the possible retention of PSP. This rule 

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 Secretary of Commerce’s 

action. The public had opportunities to 

comment on the earlier regulations 

establishing the closures 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 be reinstated 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. 

Because prior notice and opportunity 

for public comment are not required 

pursuant to 5 U.S.C. 553 or any other 

law, the analytical requirements of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) are inapplicable. Therefore, a 

regulatory flexibility analysis is not 

required and has not been prepared. 

This rule is determined to be not 

significant under Executive Order 

12866. 

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

Dated: October 13, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, 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)(170) and 

(a)(171) are added to read as follows: 

§ 648.14 Prohibitions. 

(a) * * * 

(170) 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, or a vessel 

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 are 

of the U.S. Exclusive Economic Zone 

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) 41° 39′ N. lat., 69° 00′ W. 

long; (4) 41° 39′ N. lat., 71° 00′ W. long., 

and then ending at the first point. 

(171) 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, or a vessel 

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: (1) 41° 39′ N. lat., 71° 

00′ W. long.; (2) 41° 39′ N. lat., 69° 00′ 

W. long.; (3) 40° 00′ N. lat., 69° 00′ W. 

60452 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

long.; (4) 40° 00′ N. lat., 71° 00′ W. long., 

and then ending at the first point. 

* * * * * 

[FR Doc. 05–20893 Filed 10–14–05; 11:25 

am] 

BILLING CODE 3510–22–S