[Federal Register Volume 67, Number 26 (Thursday, February 7, 2002)]
[Proposed Rules]
[Pages 5780-5784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2997]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622, 635, 640, and 654

[Docket No. 010410086-1086-01; I.D. 020801A]
RIN 0648-AN83


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.

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SUMMARY: NMFS issues this proposed rule to implement the Generic 
Amendment Addressing the Establishment of the Tortugas Marine

[[Page 5781]]

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: 813-228-2815; fax: 813-225-7015; e-mail: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Peter Eldridge, phone: 727-570-5305; 
fax: 727-570-5583; e-mail: [email protected].

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

[[Page 5782]]

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

[[Page 5783]]

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 Sec.  622.34, paragraph (d) is revised to read as follows:


Sec.  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 deg.40'00" N. 
lat., 83 deg.06'00" W. long. to point B at 24 deg.46'00" N. lat., 
83 deg.06'00" W. long. to point C at 24 deg.46'00" N. lat., 
83 deg.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 deg.40'00" N. lat., 83 deg.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 deg.33'0  83 deg.09'0
                                                         0"           0"
B                                               24 deg.33'0  83 deg.05'0
                                                         0"           0"
C                                               24 deg.18'0  83 deg.05'0
                                                         0"           0"
D                                               24 deg.18'0  83 deg.09'0
                                                         0"           0"
A                                               24 deg.33'0  83 deg.09'0
                                                         0"           0"
------------------------------------------------------------------------

* * * * *

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 Sec.  635.21, paragraph (a)(3) is added to read as follows:


Sec.  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 Sec.  622.34(d) of this chapter.
* * * * *

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


Sec.  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 Sec.  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 Sec.  640.7, paragraph (v) is added to read as follows:


Sec.  640.7  Prohibitions.

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

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


Sec.  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

[[Page 5784]]

connecting the following points: From point A at 24 deg.40'00" N. lat., 
83 deg.06'00" W. long. to point B at 24 deg.46'00" N. lat., 
83 deg.06'00" W. long. to point C at 24 deg.46'00" N. lat., 
83 deg.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 deg.40'00" N. lat., 83 deg.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 deg.33'0  83 deg.09'0
                                                         0"           0"
B                                               24 deg.33'0  83 deg.05'0
                                                         0"           0"
C                                               24 deg.18'0  83 deg.05'0
                                                         0"           0"
D                                               24 deg.18'0  83 deg.09'0
                                                         0"           0"
A                                               24 deg.33'0  83 deg.09'0
                                                         0"           0"
------------------------------------------------------------------------

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 Sec.  654.7, paragraph (o) is added to read as follows:


Sec.  654.7  Prohibitions.

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

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


Sec.  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 deg.40'00" N. 
lat., 83 deg.06'00" W. long. to point B at 24 deg.46'00" N. lat., 
83 deg.06'00" W. long. to point C at 24 deg.46'00" N. lat., 
83 deg.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 deg.40'00" N. lat., 83 deg.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 deg.33'0  83 deg.09'0
                                                         0"           0"
B                                               24 deg.33'0  83 deg.05'0
                                                         0"           0"
C                                               24 deg.18'0  83 deg.05'0
                                                         0"           0"
D                                               24 deg.18'0  83 deg.09'0
                                                         0"           0"
A                                               24 deg.33'0  83 deg.09'0
                                                         0"           0"
------------------------------------------------------------------------

[FR Doc. 02-2997 Filed 2-6-02; 8:45 am]
BILLING CODE 3510-22-S