[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Rules and Regulations]
[Pages 27217-27219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11601]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622, 635, 640, and 654

[Docket No. 100510220-0221-01]
RIN 0648-AY90


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Emergency Fisheries Closures in the Southeast Region Due to the 
Deepwater Horizon Oil Spill; Amendment 2

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

ACTION: Emergency rule; amendment; request for comments.

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SUMMARY: NMFS issues this emergency rule to close portions of the Gulf 
of Mexico (Gulf), South Atlantic, and Caribbean exclusive economic 
zones (Southeast EEZ) to all fishing as necessary when new information 
becomes available, to respond to the evolving nature of the Deepwater 
Horizon oil spill. The closed portions of the Southeast EEZ will be 
updated on a regular basis and announced to the public via NOAA Weather 
Radio, fishery bulletin, and NOAA Web site updates. The updated closed 
area may also be obtained by calling the NMFS Southeast Regional 
Office, Sustainable Fisheries Division at 727-824-5305. This rule 
replaces the existing closure rule, which became effective May 7, 2010, 
and will remain in effect until terminated by subsequent rulemaking, 
which will occur once the existing emergency conditions from the oil 
spill no longer exist. Fish and shellfish in oil affected waters may be 
contaminated with levels of hydrocarbons above baseline levels. The 
U.S. Food and Drug Administration (FDA) considers such seafood to be 
adulterated. The intent of this emergency rule is to prohibit the 
harvest of adulterated seafood and for public safety.

DATES: This rule is effective May 11, 2010. Comments may be submitted 
through June 10, 2010.

ADDRESSES: You may submit comments on this rule, identified by ``0648-
AY90'' by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov.
     Fax: 727-824-5308; Attention: Anik Clemens.
     Mail: Anik Clemens, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: No comments will be posted for public viewing until 
after the comment period. 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.
    To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter ``NOAA-NMFS-2010-0103'' in the keyword 
search, then select ``Send a Comment or Submission.'' NMFS will accept 
anonymous comments (enter N/A in the required fields, if you wish to 
remain anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of the environmental assessment, which includes a finding of 
no significant impact, may be obtained from Cynthia Meyer, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701-
5505; telephone: 727-824-5305; e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Anik Clemens, telephone: 727-824-5305, 
fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) provides the legal authority 
for the promulgation of emergency regulations under section 305(c).

Background

    NMFS responded to the April 20, 2010 Deepwater Horizon oil spill by 
closing a portion of the Gulf EEZ to all fishing through an emergency 
rule effective May 2, 2010 (75 FR 24822, May 6, 2010). The closure 
covered an area of the Gulf approximately 6,817 square miles (17,655 
square km), or 3 percent of the total area of the Gulf EEZ. Oil 
continued to leak from the Deepwater Horizon incident at a rate of 
approximately 5,000 barrels (210,000 gallons, or 794,936.5 liters) per 
day. Due to the evolving nature of the oil spill, NMFS revised the 
closed area in a second emergency rule that became effective May 7, 
2010 and will publish May 12, 2010. This second emergency rule closed 
an area of the Gulf approximately 10,807 square miles (27,989 square 
km), or 4.5 percent of the total area of the Gulf EEZ, therefore, 95.5 
percent of the Gulf remains open.

Need for This Emergency Rule

    The oil spill continues to shift locations in the Gulf of Mexico 
and could reach South Atlantic and/or Caribbean Federal waters. Wind 
speed and direction, currents, waves, and other weather patterns lead 
to changes in oil location. As the weather conditions controlling the 
movement of the oil change, the oil could move in directions not 
initially predicted. This emergency rule allows NMFS to make more 
timely revisions to the area closed to all fishing. This will become 
necessary as new information on the location of the Deepwater Horizon 
oil spill becomes available. Continuing to follow the process of 
revising the closed area through publication of successive emergency 
rules does not allow for timely modification of the closure and

[[Page 27218]]

could lead to possible harvest of adulterated seafood products from an 
area where oil is actually present. Sale of adulterated seafood is not 
in the public interest. This rule will remain in effect until 
terminated by subsequent rulemaking, which will occur once the existing 
emergency conditions from the oil spill no longer exist.

Revising the Closed Area

    NMFS will revise the closed area to all fishing in the Southeast 
EEZ based on the current location of the oil spill. Wind speed and 
direction, currents, waves, and other weather patterns lead to changes 
in oil location. Closed areas may be reopened if NMFS has determined 
that oil has never been in that area. Closed areas may also be reopened 
if NMFS has determined that fish and other marine species located in 
that area have returned to their baseline levels of hydrocarbons. NMFS 
will announce the revised closed area via NOAA Weather Radio, fishery 
bulletin, and NOAA Web site updates. The updated closed area may also 
be obtained by calling the NMFS Southeast Regional Office, Sustainable 
Fisheries Division at 727-824-5305. In order to give fishermen enough 
time to come into compliance with the revised closed area, NMFS will 
announce the revised closed area daily at 12 noon, eastern time (11 
a.m. central time). The revised closed area will become effective at 6 
p.m. eastern time (5 p.m. central time). If no changes are made to the 
closed area on a given day, that will be announced as well. To obtain 
the coordinates of the revised closed area, go to the following Web 
site: http://sero.nmfs.noaa.gov, or call the NMFS Southeast Regional 
Office, Sustainable Fisheries Division at 727-824-5305. The Sustainable 
Fisheries Division After-Hours message includes the updated coordinates 
of the closure.
    NMFS continues to assess the impacts this oil spill is having on 
the fishing industry, as well as on the fish and other marine species 
that inhabit these waters. Fish and shellfish in oil affected waters 
may be contaminated with levels of hydrocarbons above baseline levels. 
The FDA considers such seafood to be adulterated, as defined under 
Sec.  402(a) of the Food, Drug, and Cosmetic Act of 1938. The intent of 
this emergency rule is to prohibit the harvest of adulterated seafood.

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).
    This rulemaking is a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866. The Department of Commerce has 
notified the Office of Management and Budget Office of Information and 
Regulatory Affairs (OMB/OIRA) under section 6(a)(3)(D) of the Executive 
Order, and OMB/OIRA agrees, that NOAA is promulgating this action in an 
emergency situation and that normal Executive Order review is not 
practicable at this time. For this reason, OMB/OIRA has not reviewed 
this notice under EO 12866.
    The Assistant Administrator for Fisheries, NOAA (AA), finds good 
cause under 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment. Prior notice and opportunity for public 
comment would be impracticable and contrary to the public interest, as 
delaying action constitutes a public safety concern. NMFS is 
implementing this closure in response to the oil spill to help prevent 
any potential injuries to fishermen in the area. Any delay of 
implementation of this fisheries closure could constitute unsafe 
fishing conditions for the fishing industry. In addition, any delay 
would pose a clear risk of the lawful harvest of adulterated product, 
which is not in the public interest. Thus, the AA finds good cause to 
waive prior notice and the opportunity for public comment.
    For the reasons stated above, the AA also finds good cause to waive 
the 30-day delay in effective date of this rule under 5 U.S.C. 
553(d)(3).
    Because prior notice and opportunity for public comment are not 
required for this rule by 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.

List of Subjects

50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Imports, Reporting and 
recordkeeping requirements, Treaties.

50 CFR Part 640

    Fisheries, Fishing, Incorporation by reference, Reporting and 
recordkeeping requirements.

50 CFR Part 654

    Fisheries, Fishing.

    Dated: May 11, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 622, 635, 640, 
and 654 are amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.7, paragraph (jj) is added to read as follows:


Sec.  622.7  Prohibitions.

* * * * *
    (jj) Harvest a Caribbean spiny lobster, effective May 11, 2010, in 
the portion of the Caribbean EEZ designated in Sec.  622.33(c), due to 
the Deepwater Horizon oil spill.

0
3. In Sec.  622.33, paragraph (c) is added to read as follows:


Sec.  622.33  Caribbean EEZ seasonal and/or area closures.

* * * * *
    (c) Caribbean EEZ area closure related to Deepwater Horizon oil 
spill. Effective [May 11, 2010, all fishing is prohibited in the 
portion of the Caribbean EEZ identified in the map shown on the NMFS 
Web site: http://sero.nmfs.noaa.gov/deepwater_horizon_oil_spill.htm.

0
4. In Sec.  622.34, paragraph (o) is removed and reserved and paragraph 
(n) is added to read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (n) Gulf EEZ area closure related to Deepwater Horizon oil spill. 
Effective [May 11, 2010, all fishing is prohibited in the portion of 
the Gulf EEZ identified in the map shown on the NMFS Web site: http://sero.nmfs.noaa.gov/deepwater_horizon_oil_spill.htm.
* * * * *

0
5. In Sec.  622.35, paragraph (m) is added to read as follows:


Sec.  622.35  Atlantic EEZ seasonal and/or area closures.

* * * * *
    (m) Atlantic EEZ area closure related to Deepwater Horizon oil 
spill. Effective May 11, 2010, all fishing is prohibited in the portion 
of the South Atlantic EEZ identified in the map shown on the NMFS Web 
site: http://sero.nmfs.noaa.gov/deepwater_horizon_oil_spill.htm.

[[Page 27219]]

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
6. The authority citation for part 635 continues to read as follows:

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

0
7. In Sec.  635.21, paragraph (a)(4)(vi) is removed and reserved and 
paragraph (a)(4)(vii) is added to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (a) * * *
    (4) * * *
    (vii) Caribbean, Gulf, and South Atlantic EEZ area closures related 
to Deepwater Horizon oil spill. Effective May 11, 2010, no vessel 
issued, or required to be issued, a permit under this part, may fish or 
deploy any type of fishing gear in the areas designated at Sec. Sec.  
622.33(c), 622.34(n), or 622.35(m) of this chapter.
* * * * *

PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH 
ATLANTIC

0
8. The authority citation for part 640 continues to read as follows:

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

0
9. In Sec.  640.7, paragraph (x) is added to read as follows:


Sec.  640.7  Prohibitions.

* * * * *
    (x) Harvest a spiny lobster, effective May 11, 2010, in the portion 
of the Gulf or South Atlantic EEZ designated in Sec.  622.34(n) or 
Sec.  622.35(m) of this chapter, respectively, due to the Deepwater 
Horizon oil spill.

PART 654--STONE CRAB FISHERY OF THE GULF OF MEXICO

0
10. The authority citation for part 654 continues to read as follows:

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

0
11. In Sec.  654.7, paragraph (r) is removed and reserved and 
paragraph(s) is added to read as follows:


Sec.  654.7  Prohibitions.

* * * * *
    (s) Pull or tend a stone crab trap, effective May 11, 2010, in the 
portion of the Gulf EEZ designated in Sec.  622.34(n) of this chapter, 
due to the Deepwater Horizon oil spill.

[FR Doc. 2010-11601 Filed 5-11-10; 4:15 pm]
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