[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76300-76302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30870]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100510220-0598-05]
RIN 0648-AY90


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Emergency Fisheries Closure in the Gulf of Mexico Due to the Deepwater 
Horizon MC252 Oil Spill; Amendment 4

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

ACTION: Temporary emergency rule; request for comments.

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SUMMARY: NMFS issues this temporary emergency rule to prohibit royal 
red shrimp fishing in a specific area of the Gulf of Mexico (Gulf) 
exclusive economic zone (EEZ), in response to a fishery interaction of 
the Gulf shrimp fishery with sub-surface oil byproducts from the 
Deepwater Horizon MC252 oil spill. This temporary emergency rule 
supersedes the temporary emergency rule published December 1, 2010 (75 
FR 74648) and will remain in effect for 60 days. The intended effect of 
this temporary emergency rule is to assure seafood safety and consumer 
confidence in Gulf seafood.

DATES: This rule is effective December 3, 2010, through 12:01 a.m., 
local time, February 2, 2011. Comments may be submitted through January 
2, 2011.

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-2010-0244'' 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, signed on June 17, 2010, 
may be obtained from Susan Gerhart, 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].

[[Page 76301]]


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 MC252 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). Oil 
continued to leak from the Deepwater Horizon MC252 site and the spatial 
and temporal location of the oil in the Gulf EEZ continued to change. 
NMFS revised the closed area in a second emergency rule that became 
effective May 7, 2010 (75 FR 26679, May 12, 2010). The dynamic 
situation regarding the Deepwater Horizon MC252 oil spill required a 
method to respond rapidly to changing conditions. Delaying the 
announcement of the new fishery closed area could have led to the 
possible harvest of adulterated seafood products. Therefore, NMFS 
issued a third emergency rule, effective May 11, 2010 (75 FR 27217, May 
14, 2010), that allowed NMFS to revise the closed area as needed (on a 
daily or weekly basis) and announce the revised closed area via NOAA 
Weather Radio, Fishery Bulletin, and NOAA Web site updates, without the 
need to announce the new closure boundary coordinates in the Federal 
Register.

Closing and Reopening Areas Affected by the Oil Spill

    The third emergency rule also identified a procedure for reopening 
closed areas. Closed areas may be reopened if NMFS has determined that 
oil from the Deepwater Horizon MC252 oil spill has never been in those 
areas. Closed areas may also be reopened if NMFS has determined that 
fish and other marine species within the closed area meet Food and Drug 
Administration (FDA) standards for public health and wholesomeness. The 
procedures did not address fishery interactions with sub-surface oil, 
tar, or oil byproducts.
    The temporary emergency rule published December 1, 2010 (75 FR 
74648) revised the NMFS procedure by allowing for timely adjustment of 
the closed area of the Gulf as applied to royal red shrimp fishing in 
response to interactions of the Gulf shrimp fishery with sub-surface 
oil, tar, or oil byproducts. In the same temporary emergency rule, NMFS 
closed a specific area of the Gulf to royal red shrimp fishing only, 
adjacent to the area currently closed to all fishing in response to an 
interaction by the Gulf shrimp fishery, which occurred approximately 22 
miles (35 km) from the Deepwater Horizon MC252 well head, where a royal 
red shrimp trawl vessel caught a large quantity of tar balls in its 
trawl net. The area closed to royal red shrimp fishing only included 
the location where the interaction occurred, the area where the 
majority of royal red shrimp fishing effort occurred, and the area 
where the majority of the in situ burns occurred after the Deepwater 
Horizon MC252 incident. The tar balls found in the royal red shrimp 
trawl net are believed to be the result of burn residue from the in 
situ burns that occurred in close proximity to the well head. The 
temporary emergency rule that published on December 1, 2010, became 
effective on November 24, 2010 and expires on December 4, 2010.

Need for This Temporary Emergency Rule

    This temporary emergency rule supersedes the temporary emergency 
rule published December 1, 2010 (75 FR 74648). This rule restores the 
regulatory text relating to the procedures for implementing future 
fishery closures related to the Deepwater Horizon MC252 oil spill, 
promulgated through rulemaking, published May 14, 2010 (75 Fr 27217). 
Through this temporary emergency rule, NMFS is prohibiting royal red 
shrimp fishing in the area of the Gulf EEZ identified in the December 
1, 2010 temporary emergency rule (also found in the second table 
below), for 60 days. This is a precautionary action to assure seafood 
safety and consumer confidence in Gulf seafood while NMFS further 
investigates the deepwater area where the royal red shrimp component of 
the Gulf shrimp fishery is concentrated. Specifically, NMFS will sample 
in and around the area of the Gulf where the interaction occurred to 
determine the extent of the tar balls. NMFS is concerned about seafood 
interactions with oil, tar, and oil byproducts. The FDA considers 
seafood that has interacted with oil, tar, or oil byproducts to be 
adulterated. NMFS will continue to analyze the tar balls found in the 
area close to the well head in an attempt to determine if they 
originated from the Deepwater Horizon MC252 incident.
    NMFS is not aware of interactions of any Gulf fishery, other than 
the royal red shrimp component of the Gulf shrimp fishery, with tar 
balls or other sub-surface oil byproducts. The penaeid (brown, white, 
and pink shrimp) shrimp trawl component of the Gulf shrimp fishery 
occurs in shallower waters rather than in the vicinity of the in situ 
burn sites. Other deepwater fishing activities occur in the area, but 
bottom trawling is not used in those fishing activities. Trawls move 
across the bottom, collecting shrimp and other items. For this reason, 
tar balls and other potential oil byproducts are likely to be collected 
and intermingled with the shrimp catch. Therefore, NMFS will continue 
to sample the shrimp and other seafood in and around the area currently 
closed to royal red shrimp fishing to ensure the seafood is not 
adulterated.
    The public may obtain the boundary coordinates for the area closed 
to all fishing by listening to NOAA Weather Radio, visiting the 
Southeast Regional Office Web site: http://sero.nmfs.noaa.gov/, reading 
the e-mailed or posted Fishery Bulletins, reading a tweet that the 
closed area has been revised, or by calling the Deepwater Horizon MC252 
oil spill hotline number (1-800-627-6622) to listen to a recorded 
message of the updated boundary coordinates. To improve public 
outreach, the fishery bulletins and the recorded messages are also 
available in Spanish and Vietnamese.
    The current area closed to all fishing related to the Deepwater 
Horizon MC252 oil spill, as of November 15, 2010, is bounded by rhumb 
lines connecting, in order, the following coordinates:

------------------------------------------------------------------------
              Point                   North lat.          West long.
------------------------------------------------------------------------
A...............................  29[deg]00'........  88[deg]30'.
B...............................  29[deg]00'........  88[deg]00'.
C...............................  28[deg]30'........  88[deg]00'.
D...............................  28[deg]30'........  88[deg]30'.
A...............................  29[deg]00'........  88[deg]30'.
------------------------------------------------------------------------

    In addition to the area closed to all fishing, the area closed to 
royal red shrimp fishing only continues to be bounded by rhumb lines 
connecting, in order, the following coordinates:

------------------------------------------------------------------------
              Point                   North lat.          West long.
------------------------------------------------------------------------
A...............................  29[deg]30'........  LA State/EEZ
                                                       boundary.
B...............................  29[deg]30'........  87[deg]30'.

[[Page 76302]]

 
C...............................  29[deg]00'........  87[deg]30'.
D...............................  29[deg]00'........  88[deg]30'.
E...............................  28[deg]30'........  88[deg]30'.
F...............................  28[deg]30'........  89[deg]00'.
G...............................  LA State/EEZ        89[deg]00'.
                                   boundary.
From point G follow the state/
 EEZ boundary back to point A.
A...............................  29[deg]30'........  LA State/EEZ
                                                       boundary.
------------------------------------------------------------------------

    This rule will remain in effect for 60 days.

Classification

    This action is issued pursuant to section 305(c) of the 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 the opportunity for 
public comment would be impracticable and contrary to the public 
interest, as delaying this action is a seafood safety concern and could 
result in compromised seafood products reaching the public. This 
temporary emergency rule prohibits royal red shrimp fishing in the area 
of the Gulf EEZ identified in a temporary emergency rule published 
December 1, 2010 (75 FR 74648) and supersedes that temporary emergency 
rule. NMFS will continue to investigate the deepwater area where the 
majority of the royal red shrimp fishing effort occurs by sampling the 
area for tar balls, to determine tar ball distribution across the area 
and to determine if the tar balls originated from the Deepwater Horizon 
MC252 incident. NMFS is concerned that seafood may have interacted with 
the tar balls. The FDA considers such seafood to be adulterated. This 
temporary emergency rule is necessary to prevent the harvest of 
adulterated seafood products.
    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 Subject in 50 CFR Part 622

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

    Dated: December 2, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 622 is 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.  622.34, paragraph (w) is added to read as follows:


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

* * * * *
    (w) Gulf EEZ area closure related to Deepwater Horizon oil spill. 
Effective December 3, 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.

[FR Doc. 2010-30870 Filed 12-3-10; 4:15 pm]
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