02-18308. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Amendment to the Fishery Management Plans of the Gulf of Mexico

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement the Generic Amendment Addressing the Establishment of the Tortugas Marine Reserves in the Fishery Management Plans of the Gulf of Mexico (Tortugas Amendment), as prepared by the Gulf of Mexico Fishery Management Council (Gulf of Mexico Council). This action will provide enhanced protections for existing marine reserves in the vicinity of the Dry Tortugas, Florida, and is taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This final rule complements regulations previously issued by NOAA under the authority of the National Marine Sanctuary Act by better informing the public of applicable restrictions and providing enhanced enforcement authority and stricter penalties for violations. Consistent with NOAA's existing regulations, these regulations prohibit fishing for any species and anchoring by fishing vessels within the reserves. The intended effect is to inform the public of these restrictions and to further protect and conserve important marine resources.

DATES:

This final rule is effective August 19, 2002.

FOR FURTHER INFORMATION CONTACT:

Peter Eldridge, phone: [phone]; fax: [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The Gulf of Mexico fisheries for coastal migratory pelagics, coral and coral reefs, red drum, reef fish, shrimp, spiny lobster, and stone crab are managed under fishery management plans (FMPs) prepared by the Gulf of Mexico Council and approved and implemented by NMFS. These FMPs were prepared solely by the Gulf of Mexico Council, with the exception of the FMPs for coastal migratory pelagics and spiny lobster that were prepared jointly by the Gulf of Mexico Council and the South Atlantic Fishery Management Council (South Atlantic Council).

The Tortugas Amendment amends the following FMPs: Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico; Fishery Management Plan for the Red Drum Fishery of the Gulf of Mexico; Fishery Management Plan for the Stone Crab Fishery of the Gulf of Mexico; Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico; Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico; Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; and Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic. All of these FMPs, except the FMPs for spiny lobster and stone crab, are implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622. The FMP for spiny lobster is implemented by regulations at 50 CFR part 640; the FMP for stone crab is implemented by regulations at 50 CFR part 654.

On March 7, 2001, NMFS published a notice of availability of the Tortugas Amendment and requested comments on the amendment (66 FR 13692). On June 6, 2001, NMFS approved those Tortugas Amendment measures that amend the FMPs for coral and coral reefs, red drum, stone crab, shrimp, and reef fish. On July 19, 2001, NMFS announced the availability of the Tortugas Amendment management measures that would amend the FMPs for coastal migratory pelagic resources and for spiny lobster and requested comments on those measures (66 FR 37635). NMFS approved those measures on October 16, 2001. A proposed rule to implement all measures included in the Tortugas Amendment, with a request for comments through March 25, 2002, was published on February 7, 2002 (67 FR 5780). The background and rationale for the measures in the Tortugas Amendment and proposed rule are contained in the preamble to the proposed rule and are not repeated here.

Comments and Responses

NMFS received three general comments in support of the Tortugas Amendment during the public comment period on the amendment. NMFS has approved the amendment. One comment supporting the specific aspects of the proposed rule was received during the comment period on the proposed rule.

Comment: An environmental organization supported all the measures in the proposed rule, including a prohibition on fishing for highly migratory species. They stated that they would vigorously oppose anything less than the protections currently included in the proposed rule. They commented that the proposed measures were crucial to help maintain and rebuild fish populations; protect corals and maintain a functioning ecological whole system; and to provide effective enforcement of the current no-take regulations in that area.

Response: NMFS notes that fishing for any species, including highly migratory species, and anchoring by fishing vessels is prohibited in the Tortugas marine reserves.

Classification

The Administrator, Southeast Region, NMFS determined that the Tortugas Amendment is necessary for the conservation and management of fisheries resources in the Gulf of Mexico and that it is consistent with the national standards of the Magnuson-Stevens Act and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not prepared.

The Council prepared a final supplemental environmental impact statement (FSEIS) for the Tortugas Amendment that was filed with the Environmental Protection Agency for public review and comment. A notice of its availability for public comment for 30 days was published in the Federal Register on March 16, 2001 (66 FR 15241). According to the FSEIS, the elimination of consumptive uses within the marine reserves will protect essential fish habitat from fishery-related impacts and eliminate fishing mortality. Establishment of the marine reserves may result in many benefits to the ecosystem, including increased size and abundance of marine species. This may potentially improve reproductive success which could enhance recruitment to other areas of the Gulf of Mexico and the Florida Keys. The FSEIS states that although commercial and recreational fishermen could experience increased costs because of further restrictions on their activities within the marine reserves, they and non-consumptive users are expected to realize long-term benefits resulting from the maintenance of healthy and diverse marine ecosystems. It is noted that following NMFS' publication in the Federal Register of the notice of availability of the Tortugas Amendment for public comment, the FKNMS regulations became effective, thereby prohibiting all commercial and recreational fishing in the marine reserve areas. Accordingly, this final rule should not impact commercial and recreational fishermen in terms of a new prohibition on fishing and anchoring in the reserves.

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, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.

50 CFR Part 640

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

50 CFR Part 654

Fisheries, Fishing.

Dated: July 15, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs,National Marine Fisheries Service.

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

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 (d) is revised to read as follows:

§ 622.34

Gulf EEZ seasonal and/or area closures.

(d) Tortugas marine reserves. The following activities are prohibited within the Tortugas marine reserves: Fishing for any species and anchoring by fishing vessels.

(1) EEZ portion of Tortugas North. The area is bounded by rhumb lines connecting the following points: From point A at 24°40′00″ N. lat., 83°06′00″ W. long. to point B at 24°46′00″ N. lat., 83°06′00″ W. long. to point C at 24°46′00″ N. lat., 83°00′00″ W. long.; thence along the line denoting the seaward limit of Florida's waters, as shown on the current edition of NOAA chart 11438, to point A at 24°40′00″ N. lat., 83°06′00″ W. long.

(2) Tortugas South. The area is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	24°33′00″	83°09′00″
B	24°33′00″	83°05′00″
C	24°18′00″	83°05′00″
D	24°18′00″	83°09′00″
A	24°33′00″	83°09′00″

PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

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

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

4. In § 635.21, paragraph (a)(4) is added to read as follows:

§ 635.21

Gear operation and deployment restrictions.

(a) * * *

(4) No person may fish for, catch, possess or retain any Atlantic highly migratory species or anchor a fishing vessel, issued a permit or required to be permitted under this part, in the areas designated at § 622.34(d) of this chapter.

5. In § 635.71, paragraph (a)(30) is revised to read as follows:

§ 635.71

Prohibitions.

(a) * * *

(30) Deploy or fish with any fishing gear from a vessel or anchor a fishing vessel, permitted or required to be permitted under this part, in any closed area as specified at § 635.21.

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

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

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

7. In § 640.7, paragraph (v) is added to read as follows:

§ 640.7

Prohibitions.

(v) Fish for any species or anchor a fishing vessel in a marine reserve as specified in § 640.26.

8. Section 640.26 is added to subpart B to read as follows:

§ 640.26

Tortugas marine reserves.

The following activities are prohibited within the Tortugas marine reserves: Fishing for any species and anchoring by fishing vessels.

(a) EEZ portion of Tortugas North. The area is bounded by rhumb lines connecting the following points: From point A at 24°40′00″ N. lat., 83°06′00″ W. long. to point B at 24°46′00″ N. lat., 83°06′00″ W. long. to point C at 24°46′00″ N. lat., 83°00′00″ W. long.; thence along the line denoting the seaward limit of Florida's waters, as shown on the current edition of NOAA chart 11438, to point A at 24°40′00″ N. lat., 83°06′00″ W. long.

(b) Tortugas South. The area is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	24°33′00″	83°09′00″
B	24°33′00″	83°05′00″
C	24°18′00″	83°05′00″
D	24°18′00″	83°09′00″
A	24°33′00″	83°09′00″

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

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

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

10. In § 654.7, paragraph (o) is added to read as follows:

§ 654.7

Prohibitions.

(o) Fish for any species or anchor a fishing vessel in a marine reserve as specified in § 654.28.

11. Section 654.28 is added to subpart B to read as follows:

§ 654.28

Tortugas marine reserves.

The following activities are prohibited within the Tortugas marine reserves: Fishing for any species and anchoring by fishing vessels.

(a) EEZ portion of Tortugas North. The area is bounded by rhumb lines connecting the following points: From point A at 24°40′00″ N. lat., 83°06′00″ W. long. to point B at 24°46′00″ N. lat., 83°06′00″ W. long. to point C at 24°46′00″ N. lat., 83°00′00″ W. long.; thence along the line denoting the seaward limit of Florida's waters, as shown on the current edition of NOAA chart 11438, to point A at 24°40′00″ N. lat., 83°06′00″ W. long.

(b) Tortugas South. The area is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	24°33′00″	83°09′00″
B	24°33′00″	83°05′00″
C	24°18′00″	83°05′00″
D	24°18′00″	83°09′00″
A	24°33′00″	83°09′00″