02-2997. 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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues this proposed 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 would provide enhanced protections for existing marine reserves in the vicinity of the Dry Tortugas, Florida, and would be taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The proposed regulations would complement 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:

Written comments must be received on or before March 25, 2002.

ADDRESSES:

Written comments on the proposed rule must be sent to Peter Eldridge, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702. Comments may also be sent via fax to 727-570-5583. Comments will not be accepted if submitted via e-mail or the Internet.Requests for copies of the Tortugas Amendment, which includes a regulatory impact review (RIR), an initial regulatory flexibility analysis (IRFA), and a final supplemental environmental impact statement (FSEIS), should be sent to the Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301 North, Suite 1000, Tampa, FL 33619-2266; phone: [phone]; fax: [phone]; e-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

The Dry Tortugas are located approximately 70 miles (112 km) west of Key West, a strategic location for a marine reserve. The Dry Tortugas contain the healthiest coral reefs found in the Florida Keys. Coral pinnacles as high as 40 feet (12 m), with the highest coral cover (over 30 percent) found in the Florida Keys, rise up from the ocean floor. These coral formations are bathed by some of the cleanest waters found in the Florida Keys and occur where the tropical waters of the Caribbean mingle with the more temperate waters of the Gulf of Mexico.

The Tortugas region is important because of its location and the resulting effect of unique oceanographic processes. The Dry Tortugas play a dynamic role in supporting marine ecosystems throughout south Florida and the Florida Keys. Marine organisms that spawn in the Tortugas area produce larvae that are spread throughout the Keys by a persistent system of ocean eddies and currents. As the larval stages of various species range in duration from hours for some coral species, to as much as a year for spiny lobster, these eddies and currents provide the retention time in the water column and current pathways necessary for successful recruitment for numerous species. In addition, the upwelling and convergence of the ocean currents in the Dry Tortugas area act to concentrate food supplies for the larvae of numerous animal species.

The Tortugas region, relative to the rest of the Florida Keys, appears to have a greater population abundance and larger average individual size of many key species (e.g., groupers, snappers, and lobster). However, throughout the Florida Keys, including the Tortugas region, there appears to be an overfishing problem. Furthermore, the coral resources of the Florida Keys are under significant ecological stress resulting from coastal development and fishing activities (e.g., sedimentation and pollution, and fishing gear impacts).

The Florida Keys National Marine Sanctuary (FKNMS) is managed under NOAA’s National Ocean Service. FKNMS managers completed a collaborative effort with the State of Florida, the Dry Tortugas National Park (managed by the National Park Service), and NMFS to establish the boundaries for two inter-jurisdictional marine reserves known as Tortugas North ecological reserve and Tortugas South ecological reserve. The Tortugas North ecological reserve encompasses an area of 120 square nautical miles (nm2); the Tortugas Amendment affects a 13 nm2 portion of this reserve located in the EEZ. The Tortugas South ecological reserve encompasses 60 nm2 , totally located in the EEZ; the Tortugas Amendment includes this entire area. The Tortugas South ecological reserve includes the Riley’s Hump mutton snapper spawning aggregation site proposed by the Gulf of Mexico Council and approved and implemented by NMFS in 1994.

Based on available literature, these two marine reserves are expected to supply adults and larvae to adjacent areas. Additional expected benefits of the Tortugas marine reserves include the following: Establishment of a refuge and replenishment area to ensure continued abundance and diversity of coral reef resources; protection of critical fish spawning stock biomass and recruits from overfishing; physical protection of the coral reef structures; and “spillover” effects wherein organisms, such as fish, move from within to outside the reserve area, thereby providing improved fishing opportunities in the vicinity of the reserve.

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 by the Gulf of Mexico Council, except for the FMPs for coastal migratory pelagics and spiny lobster, which were prepared jointly by the Gulf of Mexico Council and the South Atlantic Fishery Management Council (South Atlantic Council).

The Tortugas Amendment implemented by this rule amends the following FMPs to provide additional protections in the portion of the Tortugas North ecological reserve that falls within the Gulf of Mexico exclusive economic zone (EEZ) and in the Tortugas South ecological reserve, which resides entirely within the EEZ: 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.

The approved measures of the Tortugas Amendment prohibit fishing for any species, other than Atlantic highly migratory species (Atlantic HMS), within these marine reserves. Additionally, the amendment also prohibits anchoring by all fishing vessels within the marine reserves. These fishing and anchoring prohibitions are intended to achieve the maximum benefits (see discussion above) from the two marine reserves over their initially anticipated duration of 10 years.

Under the Magnuson-Stevens Act, NMFS, acting on behalf of the Secretary of Commerce, has full management responsibility for Atlantic highly migratory species (HMS). In its Tortugas Amendment, the Gulf of Mexico Council proposed that its fishing and anchoring prohibitions within the reserves apply to Atlantic HMS for several reasons, including significant enforcement considerations as well as the overall biological benefits to the marine reserve ecosystem. The U.S. Coast Guard and NMFS advised the Council that unless fishing for all species and anchoring of all fishing vessels were prohibited within the Tortugas Reserves, there was no way to enforce adequately such prohibitions for just those species managed under the Gulf of Mexico Council’s FMPs. Regarding the biological benefits of protecting Atlantic HMS species within the reserves, the region serves as a spawning ground for a variety of Atlantic HMS, including bluefin tuna. The Tortugas region has also been identified under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks as constituting a portion of the essential fish habitat for several tuna species and a variety of shark species. NMFS will consider the comments received on the Tortugas Amendment and on this proposed rule, which contains proposed regulatory language regarding the fishing and anchoring prohibitions as applied to Atlantic HMS. NMFS may adopt fishing and anchoring prohibitions with respect to Atlantic HMS, within the two Reserves.

The Tortugas Amendment protects the marine reserves for a period of at least 10 years, during which period the ecological benefits of the reserves will be evaluated. The prohibition on fishing and anchoring of fishing vessels should minimize human disturbances in the Tortugas reserves and help to restore and maintain their ecological integrity, including a full assemblage of fish, coral, and other benthic invertebrates. The reserves will also create a reference or baseline area for studying human impacts on coral reef ecosystems.

After NMFS published a notice of availability of the Gulf of Mexico Council’s Tortugas Amendment for public comment in the Federal Register on March 7, 2001 (66 FR 13692). On June 6, 2001, NMFS approved those Tortugas Amendment management measures that amend 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; and Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. However, the Tortugas Amendment’s proposed measures that would amend the two FMPs prepared jointly (joint FMPs) by the Gulf of Mexico Council and the South Atlantic Council (namely, the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic and the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic) had not yet been adopted by the South Atlantic Council. Therefore, those measures were not eligible for Secretarial review and approval under the Magnuson-Stevens Act at the time the Gulf of Mexico Council submitted its Tortugas amendment to NMFS.

At its meeting of June 18-23, 2001, the South Atlantic Council adopted the measures that would amend the two joint FMPs. Based on this action, NMFS determined that these measures had been properly submitted by the Gulf of Mexico Council and South Atlantic Council and could be reviewed and, if approved, implemented. Accordingly, on July 19, 2001, NMFS published a notice of availability of these amendment measures for public comment through September 17, 2001 (66 FR 37635). On October 16, 2001, NMFS approved the measures amending the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic and the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic.

This proposed rule includes all Tortugas Amendment measures that NMFS approved on June 6, 2001, and October 16, 2001. All comments received by NMFS on the Tortugas Amendment, under both current and previous Secretarial review periods, or on this proposed rule during its comment period will be summarized and addressed in the preamble of the final rule issued to implement the amendment’s approved measures.

Classification

NMFS has determined that the Tortugas Amendment is consistent with the national standards of the Magnuson-Stevens Act and other applicable law.

This proposed 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 this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, as follows:

The proposed rule would enhance protections for two existing marine reserves in the vicinity of the Dry Tortugas, Florida, under the authority of the Magnuson-Stevens Fishery Conservation Management Act, complementing regulations already established under the authority of the National Marine Sanctuary Act (NMSA).

The regulations proposed by the Florida Keys National Marine Sanctuary (FKNMS) and published in the Federal Register on May 18, 2000 (65 FR 31634) were made effective on March 8, 2001 (66 FR 16120). Those regulations currently prohibit all commercial and recreational fishing as well as anchoring of all vessels (including fishing vessels) within the area of the reserves affected by this action.

While the FKNMS regulations currently prohibit all commercial and recreational fishing, which results in the protection and conservation of important marine resources, there are additional benefits from implementing complementary regulations under the Magnuson-Stevens Act via this proposed rule. The Magnuson-Stevens Act is the primary source of authority for regulating Federal fisheries. Public awareness, particularly of commercial and recreational fishermen that utilize the affected areas, would likely be increased through the adoption of this proposed action. Increased enforcement and stricter penalties for violations would be available under the authority of the Magnuson-Stevens Act.

The Council initially prepared an IRFA, prior to effectiveness of NOAA’s NMSA regulations. However, since the preparation of this IRFA, the NOAA’s NMSA regulations became effective, rendering the basis for and conclusions of the IRFA moot. Nevertheless, the following summary of the initial IRFA is included to provide historical context on the use of the Tortugas area by commercial entities:

This proposed rule is being considered because several fish species within the Gulf of Mexico are overfished and because there is a need to protect coral and coral reef habitats. The Magnuson-Stevens Act requires the Council to take action to prevent overfishing and to protect essential fish habitat (EFH). The establishment of two marine reserves in the vicinity of the Dry Tortugas contributes to these objectives. Although the Tortugas North and Tortugas South marine ecological reserves are being established under the initiative of the FKNMS, about 48 percent of the proposed marine reserve area is within the Council's jurisdiction. The IRFA indicates that up to 12 for-hire vessels, mainly dive boats, would be affected by the proposed action. In addition, about 164 commercial vessels, mainly shrimp and reef fish vessels, would be directly affected by the proposed rule. About 11 percent of the annual for-hire revenues of $1.4 million and about 12 percent of the annual commercial revenues of $6.9 million could be negatively affected by the establishment of the marine reserves. No additional reporting, recordkeeping or other compliance costs were identified, and no duplicative, overlapping, or conflicting Federal rules were identified. Note that the findings of the original IRFA are no longer applicable because of the implementation of the FKNMS regulations.

The determination of significant economic impact can be ascertained by examining two criteria, disproportionality and profitability. The disproportionality question is: do the regulations place a substantial number of small entities at a significant competitive disadvantage compared to large entities? All entities affected by this proposed rule are classified as small entities. Thus, the issue of disproportionality is irrelevant in the present case.

The profitability question is: do the regulations significantly reduce profit for a substantial number of small entities? As fishing businesses engaged in the Tortugas area have already been displaced by regulations implemented by the FKNMS, these entities will not experience any significant or adverse economic impacts as a result of this rule.

Accordingly, an initial regulatory flexibility analysis was not required for this proposed rule. However, copies of the RIR and original IRFA are available (see ADDRESSES).

The Council prepared a final supplemental environmental impact statement (FSEIS) for the FMP 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 EFH 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 proposed 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: February 1, 2002.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 622, 635, 640, and 654 are proposed to be 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. 1801 et seq.

4. In § 635.21, paragraph (a)(3) is added to read as follows:

§ 635.21

Gear operation and deployment restrictions.

(a) * * *

(3) No person may fish for, catch, possess or retain any Atlantic highly migratory species or anchor a fishing vessel in the areas designated at § 622.34(d) of this chapter.

* * * * *

5. In § 635.71, paragraph (a)(35) is added to read as follows:

§ 635.71

Prohibitions.

* * * * *

(a) * * *

(35) Deploy or fish with any fishing gear from a vessel or anchor a fishing vessel 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″