2010-30232. 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 3

AGENCY:

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

ACTION:

Temporary emergency rule; amendment; request for comments.

SUMMARY:

NMFS issues this temporary rule to revise the existing procedures for closing and reopening areas of the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) for the royal red component of the Gulf shrimp fishery in response to a fishery interaction of the Gulf shrimp fishery with oil or oil byproducts from the Deepwater Horizon MC252 oil spill. The revisions to the procedures for closing and reopening allow for timely adjustment to the spatial and temporal scale of closed areas to fishing for royal red shrimp in response to new information regarding a fishery interaction with the Gulf shrimp fishery with sub-surface oil and oil byproducts. To facilitate timely notice to the public of such closures, the closed portions of Federal waters will be updated on a regular basis and announced to the public via NOAA Weather Radio, Fishery Bulletin, and NOAA Web site updates, or the public may obtain the information by calling the Deepwater MC252 Oil Spill Hotline at 800-627-6622. The action being taken pursuant to this temporary rule is to prohibit royal red shrimp fishing in a specific area of the Gulf in response to a known interaction of this component of the shrimp fishery with sub-surface oil and oil byproducts. This temporary rule would remain in effect for 10 days, unless superseded by subsequent rulemaking. The intended effect of this temporary rule is to promote seafood safety and consumer confidence in seafood products.

DATES:

This rule is effective November 26, 2010 through December 4, 2010, unless superseded by subsequent rulemaking. Comments may be submitted by December 24, 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: [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.

Procedures for 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 FDA standards for public health and wholesomeness. The procedures did not specifically address fishery interactions with sub-surface oil or oil byproducts. This temporary rule revises the NMFS procedure by allowing for timely adjustment of the spatial and temporal scale of closed areas to fishing activities in response to new information regarding an interaction of the Gulf shrimp fishery with sub-surface oil and oil byproducts.

Need for This Temporary Rule

In response to this interaction, which occurred approximately 22 miles (35 km) from the Deepwater Horizon MC252 well head, NMFS is taking temporary action to prohibit royal red shrimp fishing in a specific area of the Gulf EEZ. The area of the Gulf EEZ currently closed to all fishing would continue to remain in effect.

The public may obtain the updated boundary coordinates for the fishery closed area by listening to NOAA Weather Radio, visiting various NOAA Web sites, reading the e-mailed or posted Fishery Bulletins, receiving a text message or 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.

This rulemaking informs the public of the boundary coordinates of the current area closed to all fishing as well as the new area closed to royal red shrimp fishing only. 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′

The area closed to royal red shrimp fishing only, as of 6 p.m. Eastern Time, on November 24, 2010, is 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.

Pursuant to second 305(c) of the Magnuson-Stevens Act, this rule will remain in effect for 10 days, unless superseded by subsequent rulemaking.

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 action allows NMFS to close and reopen areas of the Gulf, as needed, in response to new information regarding the royal red shrimp component of the Gulf shrimp fishery with sub-surface oil and oil byproducts. This rule closes an area of the Gulf EEZ to royal red shrimp fishing in response to an interaction with the Gulf shrimp fishery and sub-surface oil and oil byproducts that occurred approximately 22 miles (35 km) from the Deepwater Horizon MC252 well head. The intent of this action is to prevent the harvest of adulterated seafood products. A timely response is needed to ensure seafood safety and consumer confidence in 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 Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

Dated: November 24, 2010.

John Oliver,

Deputy Assistant Administrator for Operations, 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 (n) is removed and reserved and paragraph (o) is added to read as follows:

§ 622.34

Gulf EEZ seasonal and/or area closures.

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(o) Gulf EEZ area closure related to Deepwater Horizon oil spill. Effective November 26, 2010, fishing is prohibited in the portion of the Gulf EEZ, and for the fishery components identified, in the map shown on the NMFS Web site: http://sero.nmfs.noaa.gov/​deepwater_​horizon_​oil_​spill.htm.

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