[Federal Register Volume 74, Number 83 (Friday, May 1, 2009)]
[Rules and Regulations]
[Pages 20229-20230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10042]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 090224234-9270-01]
RIN 0648-AX68


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Gulf Reef Fish Longline 
Restriction

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: This emergency rule implements area closures applicable to the 
bottom longline component of the reef fish fishery in the exclusive 
economic zone (EEZ) of the Gulf of Mexico, as requested by the Gulf of 
Mexico Fishery Management Council (Council), to reduce incidental take 
and mortality of sea turtles.

DATES: This rule is effective May 18, 2009 through October 28, 2009. 
Comments must be received no later than 5:00 p.m., eastern time, on 
June 1, 2009.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``0648-AX68'' by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov.
     Fax: 727-824-5308; Attention: Cynthia Meyer.
     Mail: Cynthia Meyer, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: 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-2009-0072'' 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.
    Requests for copies of documents supporting this rule may be 
obtained from the Southeast Regional Office, NMFS, 263 13th Avenue 
South, Saint Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Cynthia Meyer, telephone: 727-551-
5784, fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). The FMP was prepared by the 
Council and is implemented under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) by 
regulations at 50 CFR part 622.

Background

    NMFS takes this action in accordance with both the Endangered 
Species Act (ESA) and national standard 9 of the Magnuson-Stevens Act. 
ESA requires the Federal government to protect and conserve species and 
populations that are endangered, or threatened with extinction, and to 
conserve the ecosystems on which these species depend. National 
standard 9 under the Magnuson-Stevens Act requires that conservation 
and management measures, to the extent practicable, minimize bycatch 
and, to the extent bycatch cannot be avoided, minimize the mortality of 
such bycatch. Results from a recent Southeast Fisheries Science Center 
observer analysis indicate the number of sea turtle takes authorized in 
the 2005 biological opinion on the bottom longline component of the 
reef fish fishery in the Gulf of Mexico has been exceeded. In addition, 
this component of the reef fish fishery operates primarily off the west 
Florida shelf, which is an important sea turtle foraging habitat. 
Individual sea turtles incidentally caught by the longline component of 
the fishery include sexually immature juveniles and mature adult 
loggerhead sea turtles that have high reproductive potential. A recent 
scientific study suggested the observed decline in the annual counts of 
loggerhead sea turtle nests in peninsular Florida can best be explained 
by a decline in the number of adult female loggerheads in the 
population. The biological opinion being developed by NMFS in light of 
this new information could result in a jeopardy determination for 
loggerhead sea turtles unless action is taken to reduce the fishery's 
impact on this threatened species.
    Based on this information, the Council and NMFS are considering 
long-term measures to reduce bycatch of sea turtles in the eastern Gulf 
of Mexico bottom longline component of the reef fish fishery in 
Amendment 31 to the FMP. These measures are needed to provide 
protection for loggerhead sea turtles in compliance with the ESA and to 
reduce sea turtle bycatch and bycatch mortality in compliance with 
national standard 9 of the Magnuson-Stevens Act. While the Council is 
considering long-term measures to reduce sea turtle bycatch, short-term 
action is needed to reduce sea turtle bycatch. Therefore, the Council 
requested that NMFS take emergency action to achieve these short-term 
reductions.

Management Measures Established by this Temporary Rule

    Consistent with the Council's request, as well as with ESA and 
Magnuson-Stevens Act requirements, this rule will prohibit the use of 
bottom longline gear to harvest reef fish east of 85[deg]30' W 
longitude in the portion of the EEZ shoreward of the coordinates 
established to approximate a line following the 50-fathom (91.4-m) 
contour as long as the 2009 deep-water grouper and tilefish quotas are 
unfilled. Once the quotas have been filled, the use of bottom longline 
gear to harvest reef fish in water of all depths east of 85[deg]30' W. 
longitude will be prohibited.

Future Action

    NMFS finds that this emergency rule is necessary to reduce the 
incidental take and mortality of sea turtles in the bottom longline 
component of the reef fish fishery in the Gulf of Mexico EEZ while the 
Council completes Amendment 31 to the FMP. NMFS issues this emergency 
rule, effective for not more than 180 days, as authorized by section 
305(c) of the Magnuson-Stevens Act. NMFS has reinitiated consultation 
of the reef fish fishery under Section 7 of the ESA, and the biological 
opinion is expected to be completed during the closure established by 
this rule. Based on the information presented in the biological 
opinion, and the Council's proposed long-term actions, NMFS may 
determine that less restrictive measures would suffice to adequately 
reduce turtle takes by the longline component of the reef fish fishery. 
If so, NMFS may rescind the closure before the 180-day effective period 
of this emergency rule has been reached, and potentially implement less 
restrictive measures.

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    This emergency rule may be extended for up to an additional 186 
days, provided that the public has had an opportunity to comment on the 
rule and provided that the Council is actively preparing a plan 
amendment or proposed regulations to address this emergency on a 
permanent basis. Public comments on this emergency rule are invited and 
will be considered in determining whether to maintain or extend this 
rule to address the incidental take and mortality of sea turtles in the 
Gulf of Mexico. The Council is preparing an FMP amendment to address 
this issue on a permanent basis which, if approved, would be 
implemented through notice and comment rulemaking.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this emergency rule is necessary to reduce the 
incidental take and mortality of sea turtles in the bottom longline 
component of the reef fish fishery in the Gulf of Mexico EEZ and is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This emergency rule has been determined to be not significant for 
purposes of E.O. 12866.
    Pursuant to 5 U.S.C. 553(b)(B), the AA finds good cause to waive 
prior notice and opportunity for public comment. Prior notice and 
opportunity for public comment would be contrary to the public 
interest, as delaying action to reduce the incidental take and 
mortality of sea turtles in the bottom longline component of the reef 
fish fishery would increase the likelihood of additional sea turtle 
mortality in excess of that allowed under the incidental take statement 
established under the ESA.
    For the same reasons, the AA finds good cause to waive the 30-day 
delay in effective date under 5 U.S.C. 553(d)(3). However, the 
effective date of this rule will be delayed until 15 days after the 
date of publication in the Federal Register. A typical bottom longline 
fishing trip lasts approximately 2 weeks. Advance preparation for such 
a trip often takes a couple of days for purchasing and loading 
necessary provisions and involves substantial expenditures. Immediate, 
or nearly immediate, implementation of this rule would be very 
disruptive of trips for which advance preparations and expenses had 
already occurred or for trips that had already been initiated and 
provisioned based on the expectation of a full 2-week trip. A 15-day 
delay will provide adequate time to inform the bottom longline 
component of the Gulf of Mexico reef fish fishery of the impending 
restrictions and allow them to plan and adjust their fishing activities 
accordingly.
    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: April 28, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.34, paragraph (q) is added to read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (q) Prohibitions applicable to bottom longline fishing for Gulf 
reef fish. (1) Bottom longlining for Gulf reef fish is prohibited in 
the portion of the Gulf EEZ east of 85[deg]30' W. long. that is 
shoreward of rhumb lines connecting, in order, the following points:

------------------------------------------------------------------------
   Point                       North lat.                     West long.
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A           28[deg]58.5'                                      85[deg]30.
                                                                     0'
B           28[deg]42.5'                                      85[deg]05.
                                                                     0'
C           28[deg]12.5'                                      84[deg]50.
                                                                     0'
D           27[deg]52.0'                                      84[deg]30.
                                                                     0'
E           27[deg]28.0'                                      84[deg]19.
                                                                     0'
F           26[deg]28.5'                                      83[deg]50.
                                                                     0'
G           25[deg]30.0'                                      83[deg]44.
                                                                     5'
H           25[deg]04.0'                                      83[deg]44.
                                                                     5'
I           24[deg]48.0'                                      83[deg]54.
                                                                     4'
J           24[deg]39.5'                                      83[deg]41.
                                                                     0'
K           24[deg]28.5'                                      83[deg]14.
                                                                     5'
L           24[deg]25.0'                                      83[deg]00.
                                                                     0'
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    (2) If both the commercial deep-water grouper and tilefish 
components of the Gulf reef fish fishery are closed, bottom longlining 
for Gulf reef fish is prohibited in all waters of the Gulf EEZ east of 
85[deg]30' W. long.
    (3) A vessel with bottom longline gear on board or that is using 
bottom longline gear to fish for species other than Gulf reef fish may 
not possess Gulf reef fish within the prohibited areas specified in 
paragraphs (q)(1) of this section or within the prohibited area 
specified in paragraph (q)(2) of this section when that prohibition is 
applicable, unless the bottom longline gear is appropriately stowed. 
For the purposes of paragraph (q) of this section, appropriately stowed 
means that a longline may be left on the drum if all gangions and hooks 
are disconnected and stowed below deck; hooks cannot be baited; and all 
buoys must be disconnected from the gear but may remain on deck.
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[FR Doc. E9-10042 Filed 4-28-09; 4:15 pm]
BILLING CODE 3510-22-S