2010-30870. 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.

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: [phone]; 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: [phone]; e-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Anik Clemens, telephone: [phone], fax: [phone]; e-mail: [e-mail].

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°00′	88°30′.
B	29°00′	88°00′.
C	28°30′	88°00′.
D	28°30′	88°30′.
A	29°00′	88°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°30'	LA State/EEZ boundary.
B	29°30′	87°30′.
C	29°00′	87°30′.
D	29°00′	88°30′.
E	28°30′	88°30′.
F	28°30′	89°00′.
G	LA State/EEZ boundary	89°00′.
From point G follow the state/EEZ boundary back to point A
A	29°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.

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

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

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

2. In § 622.34, paragraph (w) is added to read as follows:

§ 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.