[Federal Register Volume 61, Number 54 (Tuesday, March 19, 1996)]
[Rules and Regulations]
[Pages 11164-11165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6493]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 620

[Docket No. 960126016-6070-02; I.D. 012696C]
RIN 0648-XX41


General Provisions for Domestic Fisheries; Amendment to Temporary 
Closure of Block Island to Some Fishing Gear Activity

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency interim rule; amendment.

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SUMMARY: In response to a request from the State of Rhode Island, NMFS 
has determined that it is necessary to modify the emergency interim 
rule that closed a portion of Federal waters off the coast of the State 
of Rhode Island, in Block Island Sound to protect public health, 
safety, and welfare. This action expands by approximately 28 square 
miles (73 square kilometers [km]) the area in which fishing for, 
landing, or possessing benthic crustaceans and mollusks, including but 
not limited to lobsters, clams, and crabs, is prohibited. Accordingly, 
the use and operation of lobster traps, trawl and dredge gear designed 
or used for fishing on the ocean bottom or any other gear designed for 
harvesting benthic crustaceans and mollusks is prohibited in the same 
area. This action also rescinds the prohibition on possessing, landing, 
or fishing for finfish, including squid, in the area with gear other 
than bottom trawl and dredge gear.

EFFECTIVE DATE: March 13, 1996, through May 1, 1996.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone at (508) 281-9221.

SUPPLEMENTARY INFORMATION: On January 19, 1996, an oil barge grounded 
and spilled more than 800,000 gallons (3.0 million liters) of heating 
oil into the waters of Block Island Sound, RI. On January 26, 1996, 
NMFS, at the request of and in conjunction with the State of Rhode 
Island, prohibited the harvest of seafood from an area of approximately 
250 square miles (647 square km) in Block Island Sound. The original 
area of closure was announced and defined in an emergency interim rule 
published in the Federal Register on February 1, 1996 (61 FR 3602).
    Since the original closure became effective, state and Federal 
agencies have been testing the water, marine life, and sediment in and 
around the closed area for contamination. Seafood species have been 
subjected to inspection by sensory experts and chemical analysis.
    In a portion of those lobsters and shellfish subjected to the 
tests, inspectors have discovered indications of oil adulteration. Some 
of the contaminated lobsters were taken from sites south of the 
established closure area. NMFS, therefore, at the request and 
recommendation of the state, is expanding the area in which fishing for 
and landing lobsters, clams, and crabs is prohibited. The enlarged area 
encompasses the sites to the south and east of Block Island where 
contaminated lobsters were collected. The area includes approximately 
28 square miles of Federal waters. The coordinates of the full closed 
area are described in the rule text below.
    Accordingly, this action prohibits the use and operation of fishing 
gear that has been determined most likely to take significant numbers 
of benthic crustaceans and mollusks, including but not limited to 
lobsters, clams, and crabs, in the expanded closed area. The following 
gear types fall into this category: Lobster traps, bottom trawl gear, 
and dredge gear. The following gear types have been determined not to 
take significant numbers of benthic crustaceans and mollusks and are 
exempted from this prohibition: Hook and line gear, mid-water trawls, 
weirs, purse seine gear, and sink gillnets. Recovery of gear previously 
deployed in the closed area in the exclusive economic zone is allowed 
if the fisher registers and complies fully with the State's gear 
retrieval program under the Department of Environmental Management. 
This action prohibits the new deployment of lobster traps in the area. 
Gear deployed prior to the closure and left in the area for the 
duration of the closure would not be in violation of this rule. Transit 
through the closed area and possession of benthic crustaceans and 
mollusks captured outside the area is allowed, provided that all 
fishing gear is stowed and unavailable for immediate use.
    Finfish testing has indicated that the consumption of finfish does 
not pose a risk to human health. Therefore, NMFS, at the request and 
recommendation of the State of Rhode Island, is modifying

[[Page 11165]]
the closure to allow fishing for finfish except by bottom trawl or 
dredge.
    The full extent of the ecological damage caused by the oil spill 
still is not known. The emergency nature of the adverse environmental 
condition created by the presence of oil in the area renders prior 
notice and opportunity to comment on a proposed closure contrary to the 
public interest. Consequently, the emergency action authority vested in 
NMFS, on behalf of the Secretary of Commerce (Secretary), under section 
305(c) of the Magnuson Fishery Conservation and Management Act, 16 
U.S.C. 1855(c) is invoked to make the closure effective immediately.
    This action will remain in effect from March 13, 1996, through May 
1, 1996, unless circumstances change. An extension of the closure, if 
warranted, is possible for an additional 90 days under the Secretary's 
emergency rulemaking authority. The New England Fishery Management 
Council was informed of this action and has concurred with the 
implementation of additional measures, including an extension of the 
present closure, so long as such measures complement the State's 
regulations and are implemented at the State's request.
    In a separate action, the areas discussed above will be closed to 
gillnetting, March 1 - March 31, 1996, as part of a larger area closure 
for the protection of migrating harbor porpoise, under Framework 
Adjustment 14 to the Northeast Multispecies Fishery Management Plan. 
Under the Framework Adjustment, gillnetters will not be allowed to 
operate in the closed area unless they elect to comply with protocols 
for an experimental fishery. The rules set forth below in no way amend 
the actions related to Framework Adjustment 14.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this rule is necessary to respond to an emergency 
situation and is consistent with the Magnuson Act and other applicable 
law.
    The AA finds that failure to implement the actions in this rule 
that close additional areas to fishing for benthic crustaceans and 
mollusks could result in serious risk to public safety and human 
health. The foregoing constitutes good cause to waive the requirement 
to provide prior notice and the opportunity for public comment, 
pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such 
procedures would be contrary to the public interest. Similarly, the 
need to implement these measures in a timely manner to address public 
safety, health, and welfare constitutes a good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effectiveness.
    Testing has determined that consumption of finfish doesn't pose a 
threat to human health. Finfish fishermen would suffer severe economic 
hardship unnecessarily if the current prohibition were to remain in 
effect. As such, the AA finds that the foregoing constitutes good cause 
to waive the requirement to provide prior notice and the opportunity 
for public comment, pursuant to authority set forth at 5 U.S.C. 
553(b)(B), as such procedures would be contrary to the public interest. 
Further, as this provision relieves a restriction, it is made effective 
immediately pursuant to authority at 5 U.S.C. 553(d)(1).
    This emergency rule has been determined to be not significant for 
the purposes of E.O. 12866.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because this rule is not required to be issued with 
prior notice and opportunity for public comment.

List of Subjects in 50 CFR Part 620

    Fisheries, Fishing.

    Dated: March 13, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 620 is amended 
as follows:

PART 620--GENERAL PROVISIONS FOR DOMESTIC FISHERIES

    1. The authority citation for part 620 continues to read as 
follows:

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

    2. Section 620.7, paragraph (i) is revised and paragraphs (j) and 
(k) are added to read as follows:


Sec. 620.7  General prohibitions.

* * * * *
    (i) Fish for in, or possess or land benthic crustaceans and 
mollusks, including but not limited to American lobsters, rock crabs, 
red crabs, blue crabs, jonah crabs, surf clams, ocean quahogs, sea 
scallops, mussels, periwinkles, and oysters from the Federal waters of 
Block Island Sound bounded as follows: From the point where LORAN line 
25740 intersects with the 3-nautical mile (6-km) line south of Easton 
Point, RI, proceeding southwesterly along the 25740 line to its 
intersection with the 14470 line, thence south-southeasterly along the 
14470 line to its intersection with the 43840 line, thence 
southwesterly along the 43840 line to its intersection with 14540 line, 
thence northwesterly along the 14540 line to its intersection with the 
3-nautical mile (6-km) line south of Block Island, RI, thence 
northeasterly and along said 3-nautical mile (6-km) line to the 
northern intersection of the 3-nautical mile (6-km) line and the 14540 
line, thence northwesterly along the 14540 line to the intersection of 
the 3-nautical mile (6-km) line, thence northeasterly along the 3-
nautical mile (6-km) line to the starting point.
    (j) Unless exempted in this paragraph, to deploy, use, fish with or 
operate lobster traps, trawl or dredge gear designed or used for 
fishing on the ocean bottom, or any other gear designed for or capable 
of catching benthic mollusks or crustaceans, in the area described in 
Sec. 620(i). Hook and line gear, mid-water trawls, weirs, purse seine 
gear and sink gillnets are specifically exempted from this prohibition. 
Recovery of trap gear from the closed area is specifically exempted 
from this prohibition if the owner/fisher of said gear registers and 
complies fully with the State of Rhode Island Department of 
Environmental Management's gear retrieval program.
    (k) Transit the area described in parargraph (i) of this section, 
unless all prohibited fishing gear is stowed and unavailable for 
immediate use in accordance with 50 CFR 625.24(f), 650.21(a)(2)(iii), 
and 651.20(c)(4)(i).
[FR Doc. 96-6493 Filed 3-13-96; 5:04 pm]
BILLING CODE 3510-22-F