[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Proposed Rules]
[Pages 26171-26174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12656]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

RIN 0648-XN22


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

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

ACTION: Denial of a petition for emergency rulemaking.

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SUMMARY: NMFS announces its decision to deny a petition for emergency 
or interim rulemaking under the Administrative Procedure Act (APA) and 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). Several non-governmental organizations (NGOs) petitioned 
the U.S. Department of Commerce to immediately promulgate an emergency 
or interim rule under the Magnuson-Stevens Act to address loggerhead 
sea turtle interactions in the bottom longline component of the 
commercial reef fish fishery in the Gulf of Mexico (Gulf). NMFS finds 
the emergency rulemaking is not warranted because of an emergency rule 
promulgated independently at the request of Gulf of Mexico Fishery 
Management Council (Council), which satisfies the legal mandates of the 
Magnuson-Stevens Act and Endangered Species Act (ESA) for protecting 
hardshell sea turtles.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305, 
fax 727-824-5308, e-mail [email protected].

SUPPLEMENTARY INFORMATION: NMFS published a notice of receipt of 
petition for rulemaking on February 25, 2009 (74 FR 8494), and invited 
public comments for 30 days ending March 27, 2009. Summaries of and 
responses to comments are provided in the Response to Public Comments 
section below.

The Petitions

    Oceana has petitioned the Council and NMFS to implement emergency 
regulations for the bottom longline component of the Gulf reef fish 
fishery to reduce the high levels of loggerhead sea turtle bycatch in 
the fishery and to implement appropriate long-term actions, through an 
amendment to the Fishery Management Plan for Reef Fish Resources of the 
Gulf of Mexico (FMP), to ensure adequate protection for the loggerhead 
sea turtle populations. The Oceana petition specifically requests NMFS 
prohibit the use of reef fish bottom longline gear in waters shallower 
than 55 fathoms (100m) in the Gulf to protect loggerhead sea turtles 
within the depths where all observed takes have occurred, and that NMFS 
prohibit the use of squid as bait when fishing with reef fish bottom 
longlines in waters deeper than 55 fathoms (100m) to further reduce the 
possibility of takes.
    Another petition from the Center for Biological Diversity, 
Defenders of Wildlife, Earthjustice, Caribbean Conservation 
Corporation, Gulf Restoration Network, and Turtle Island Restoration 
Network alleges NMFS has violated the ESA by allowing the bottom 
longline component of the reef fish fishery to continue to operate, 
given evidence it has exceeded its take based on the incidental take 
statement (ITS) from a 2005 biological opinion (opinion). This petition 
requests that NMFS close the bottom longline component of the Gulf reef 
fish fishery immediately until NMFS has put in place sufficient 
measures to protect loggerhead sea turtles consistent with the 
guidelines of the ESA.
    According to the petitions filed by the NGOs, the reasons sea 
turtle bycatch by reef fish bottom longlines requires emergency action 
are: (1) A NMFS report released in 2008 suggests hardshell sea turtle 
take has exceeded that allowed by the ITS from a 2005 opinion. The 
opinion concluded continued authorization of the Gulf reef fish fishery 
managed under the FMP was not likely to jeopardize the continued 
existence of sea turtles and smalltooth sawfish. An ITS was issued with 
the opinion specifying anticipated sea turtle and smalltooth sawfish 
take on a 3-year basis. For hardshell sea turtles, the anticipated 3-
year incidental take for the bottom longline component of the Gulf reef 
fish fishery was 113 takes, of which 56 would be lethal. The 2008 NMFS 
report using observer data estimated the level of take during an 18-
month period was between 411 and 1,983 hardshell sea turtles, primarily 
comprised of loggerhead sea turtles. This number has been revised in a 
2009 NMFS report using 2008 observer data to between 463 and 2,020 
hardshell sea

[[Page 26172]]

turtles for the 30-month time period. (2) Information from the Florida 
Fish and Wildlife Conservation Commission shows declining trends in the 
number of nesting loggerhead sea turtles on Florida beaches. Loggerhead 
sea turtle nesting at Florida index nesting beaches has declined 40 
percent between 1989 and 2008. These declines have been interpreted as 
a possible decline in the sub-adult and adult population. (3) By not 
taking action, NMFS is in violation of the ESA. Specifically, the 
petitioners allege NMFS cannot ensure against jeopardy by continuing to 
authorize Gulf reef fish bottom longline fishing without having 
assessed the impacts of excessive take by the fishery in violation of 
ESA section 7(a)(2). They also allege that by allowing the fishery to 
continue, NMFS is allowing loggerhead sea turtle take to continue in 
violation of ESA sections 7(d) and 9.

Response to Assertions and Proposed Management Measures Set Forth in 
the Petition

    NMFS agrees with the NGOs' assertion that estimated hardshell sea 
turtle, in particular loggerhead sea turtle take, has exceeded the 
level prescribed in the 2005 biological opinion. As a result, 
management action was needed to provide protection for threatened 
loggerhead sea turtles in compliance with the ESA and to reduce sea 
turtle bycatch and bycatch mortality in compliance with national 
standard 9 (NS 9) of the Magnuson-Stevens Act. NMFS and the Council had 
already initiated efforts to address the issue prior to receipt of 
either petition. Thus, NMFS has promulgated an emergency rule at the 
request of the Council to reduce hardshell sea turtle takes while the 
Council develops long-term measures in Amendment 31 to the FMP. This 
emergency rule moves the bottom longline component of the eastern Gulf 
reef fish fishery seaward of a line approximating the 50-fathom (91-m) 
depth contour and prohibits the use of longlines in the eastern Gulf 
once the deepwater grouper and tilefish quotas are met.
    In developing the emergency rule, NMFS determined the selected 
measures were sufficient to meet the legal requirements of the 
Magnuson-Stevens Act and the ESA. All but one sea turtle observed taken 
were on sets in waters less than 50 fathoms (91 m) in the eastern Gulf. 
Restricting bottom longlines to waters greater than 50 fathoms is 
consistent with regulations in the western Gulf. No sea turtle takes 
were observed in the western Gulf where reef fish bottom longline gear 
is restricted to the area seaward of a line approximating 50 fathoms 
(91 m). Thus, reductions in the potential for interactions between 
bottom longline gear and sea turtles would be achieved without unduly 
restricting fishing activity in deeper water where the deepwater 
grouper and tilefish fisheries are prosecuted. In addition, prohibiting 
squid as bait was not considered in the emergency rule because it is 
unclear how much reduction in take would result from such a measure and 
it is unclear what effect this would have on the bait industry if the 
Council did not adopt a similar long-term measure in Amendment 31.

Response to Comments

    A total of 305 comments were received on the petitions for 
rulemaking. Of those comments, 232 were in support of the petitions and 
the remaining comments were against it. One comment in support of the 
petition was from an NGO that included 49,320 electronic signatories to 
their letter. Another series of comments in support of the petitions 
were conducted through a postcard campaign consisting of 220 identical 
responses. A summary of the comments and NMFS' responses follows.
    Comment 1: Several commenters indicated the information used to 
estimate the level of take by the bottom longline component of the 
commercial reef fish fishery is highly uncertain. They indicated more 
research is needed to determine the level of interactions between sea 
turtles and this gear before action is taken, particularly in light of 
the adverse economic impacts that would result to the bottom longline 
component of the fishery if it were closed or moved seaward of 50 
fathoms (91 m) in the eastern Gulf. They believed that, in light of the 
poor national economy, affected fishermen would have a hard time 
finding alternative fisheries to operate in or other jobs if they were 
put out of business.
    Response: NS 9 of the Magnuson-Stevens Act requires that 
conservation and management measures shall, to the extent practicable, 
(A) minimize bycatch and (B) to the extent bycatch cannot be avoided, 
minimize the mortality of such bycatch. The bycatch reduction and 
monitoring requirements in the Magnuson-Stevens Act apply to a broad 
range of living marine species, including sea turtles. Additionally, 
the ESA requires that the Federal government protect and conserve 
species and populations that are endangered or threatened with 
extinction, and conserve the ecosystems on which these species depend. 
Section 7 of the ESA requires all Federal agencies to use their 
authorities to carry out their programs for the conservation of 
endangered and threatened species and to ensure any action is not 
likely to jeopardize the continued existence of any endangered or 
threatened species or result in the destruction or adverse modification 
of their critical habitat.
    Both the Magnuson-Stevens Act and ESA require NMFS to use the best 
available scientific information. In addition, ESA case law requires 
that when faced with data uncertainty, decisions should give the 
benefit of the doubt to the species (i.e., favor protection of the 
species). With respect to estimating bycatch, a 2004 NMFS national 
working group on bycatch reviewed regional issues related to fisheries 
and bycatch and discussed advantages and disadvantages of various 
methods for estimating bycatch, including fishery-independent surveys, 
self-reporting through logbooks, port sampling, recreational sampling, 
at-sea observation (observers and electronic monitoring), and stranding 
networks. Although all methods may contribute to useful information for 
estimating bycatch, the national working group concluded at-sea 
observation (observers or electronic monitoring) provides the best 
mechanism to obtain reliable and accurate bycatch estimates for many 
fisheries.
    Given the above, the Southeast Fisheries Science Center (SEFSC) 
used observer data to estimate the number of loggerhead sea turtle 
takes for comparison with the anticipated takes specified in the 2005 
biological opinion's ITS. This estimate constitutes the best scientific 
information available and must be used to guide the agency's decision. 
They found the anticipated take level had been exceeded by the bottom 
longline component of the reef fish fishery, and even the lower bounds 
of the 95-percent confidence intervals around the take estimates were 
above the anticipated takes specified in the ITS.
    Comment 2: Some comments suggested factors other than bottom 
longline fishing are responsible for declines in sea turtle populations 
and that mortality from the fishery was a fraction of the total. These 
factors included coastal construction, coastal development, beach 
renourishment, and hurricanes. Therefore, it is unfair to single out 
the bottom longline component of the reef fish fishery to attain a 
reduced sea turtle mortality rate.
    Response: Although many factors contribute to hardshell sea turtle 
mortality, NMFS is obligated to address hardshell sea turtle bycatch in 
the

[[Page 26173]]

fishery because of NS 9 of the Magnuson-Stevens Act and section 7 of 
the ESA (see above). NMFS has exercised this obligation to reduce take 
in other fisheries, such as the requirement of turtle excluder devices 
in Gulf and South Atlantic shrimp fisheries and the requirement of 
turtle release gear on federally permitted vessels in the Gulf reef 
fish fishery and the highly migratory species pelagic longline fishery. 
With respect to other hardshell sea turtle takes from other human 
activities such as coastal construction, coastal development, and beach 
renourishment, NMFS consults with other action agencies with respect to 
endangered and threatened species. Under the ESA, all action agencies 
are required to conserve endangered and threatened species, including 
hardshell sea turtles.
    Comment 3: Higher numbers of loggerhead sea turtle takes should be 
seen as an indicator that loggerhead sea turtle populations are 
increasing rather than decreasing.
    Response: Past and current estimates of hardshell sea turtle takes 
have been derived through different methodologies. Take estimates for 
the 2005 biological opinion were based on catch and effort reported in 
the Coastal Fisheries Logbook Program and the Supplementary Discard 
Data Program. However, it is recognized that extrapolated bycatch 
estimates still may be inaccurate if there is less than complete 
compliance with the logbook requirement or if reporting significantly 
misrepresents actual fishing effort. The take estimates reported by the 
SEFSC from 2006 through 2008 were derived from observer data applied to 
effort estimates reported from logbook data for the bottom longline 
component of the reef fish fishery. Observer data are generally thought 
to be more reliable than self-reported data (see above), and logbooks 
are noted as more useful in providing estimates of total effort by area 
and season. Therefore, because the take estimates were derived through 
different methodologies, this may account for some of the differences 
in take estimates between studies.
    Other information implies loggerhead sea turtle populations may be 
declining. For the past 20 years, the Florida Fish and Wildlife 
Conservation Commission coordinated a detailed sea turtle nesting-trend 
monitoring program, the Index Nesting Beach Survey (INBS). The INBS 
counts represent approximately 69 percent of known loggerhead sea 
turtles nesting in Florida. In addition, Florida accounts for 
approximately 90 percent of loggerhead sea turtle nesting activity 
within the southeastern United States nesting population, which is 
considered the world's second largest population. Loggerhead sea turtle 
nests were counted annually at core index nesting beaches in Florida 
from 1989 through 2008 on both the Atlantic and Gulf coasts. Counts of 
nests indicated a declining trend in loggerhead sea turtle nesting. 
Many scientists have suggested the observed decline in the annual 
counts of loggerhead sea turtle nests on index and statewide beaches in 
peninsular Florida can best be explained by a decline in the number of 
adult female loggerhead sea turtles in the population.
    Comment 4: Comments received on banning squid for bait by the 
bottom longline component of the reef fish fishery were mixed. Some 
comments indicated the measure to ban squid should be considered in an 
emergency rule. Others indicated there is little evidence that using 
baits other than squid will reduce sea turtle takes, and so this 
measure should not be considered unless new information suggests 
otherwise.
    Response: Studies of loggerhead sea turtles caught by the pelagic 
longline fishery and in captive laboratory experiments found loggerhead 
sea turtles preferred dead squid over finfish. Researchers have 
suggested captive loggerhead sea turtles were more likely to swallow 
whole squid than finfish because squid has a more flexible and tough 
muscle texture. Finfish baits were bitten off in smaller pieces and 
loggerhead sea turtles were able to avoid the hook. Although these 
studies suggest prohibiting the use of squid or squid parts in the 
bottom longline component of the reef fish fishery could reduce 
loggerhead sea turtle interactions with gear, it is unknown by what 
percentage loggerhead sea turtle hooking incidents would be reduced. 
Therefore, further research is needed to predict the extent of take 
reduction from a prohibition of squid for bait for the bottom longline 
component of the reef fish fishery.
    Comment 5: One comment suggested that because the information on 
interactions between the reef fish bottom longline gear and sea turtles 
is uncertain, the fishery should be allowed to continue under an 
exempted fishing permit (EFP)to collect this information. Participants 
in the fishery would then be allowed to operate as long as they 
collected data for use in assessing interactions between sea turtles 
and longline gear.
    Response: For this information to be used to examine sea turtle 
interactions with bottom longline gear, the work would need to be 
performed within a scientific research program. NMFS and other agencies 
do sponsor research on fisheries and species listed under the ESA. For 
example, NMFS' Cooperative Research Program specifically encourages 
fishermen be included in the data collection process. Should research 
be funded on the interaction of reef fish bottom longlines with sea 
turtles and the proposal includes the involvement of commercial reef 
fish vessels landing their catch, an EFP could be issued to 
participating vessel(s) subject to the requirements under 50 CFR 
600.745.
    Comment 6: Some comments indicated if the bottom longline component 
of the reef fish fishery is to be closed, the closure be for as short 
of a time period as possible. They pointed out sea turtle takes appear 
to be highest in the late spring to summer, and suggested a closure be 
targeted for those seasons.
    Response: Immediate reductions in hardshell sea turtle takes are 
needed to reduce takes by the bottom longline component of the reef 
fish fishery. NMFS has taken short-term action to reduce this bycatch 
through an emergency rule. The rule, effective May 18, 2009, expires on 
October 28, 2009, may be extended for up to another 186 days. During 
this time, NMFS will be preparing a new biological opinion for the 
fishery, which will assess the impacts on listed species. NMFS will be 
monitoring sea turtle take to evaluate the reductions. While the rule 
is in effect, the Council is developing long-term measures to reduce 
bottom longline takes by the reef fish fishery. Alternatives being 
considered by the Council to reduce takes includes season-area 
closures. The Council will be taking public comment on these measures 
as it develops Amendment 31. Comments on closures, the timing of 
closures, and the duration of the closures should be submitted to the 
Council during appropriate comment periods. Additionally, should the 
Council approve and submit Amendment 31 for approval by the Secretary 
of Commerce, NMFS will provide additional opportunities for public 
comment.

Agency Decision

    After considering the assertions and proposed management measures 
set forth in the petitions and all public comments, NMFS has determined 
the specific measures requested in the petitions should not be 
addressed via emergency rulemaking at this time. NMFS agrees that 
hardshell sea turtle takes need to be reduced and has taken action at 
the request of the Council to implement an emergency rule to achieve

[[Page 26174]]

short-term reductions. The emergency rule implemented by NMFS satisfies 
the legal mandates of the Magnuson-Stevens Act and ESA for protecting 
sea turtles. Therefore, the specific actions requested in the petitions 
for rulemaking by the NGOs are denied.

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

    Dated: May 26, 2009
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-12656 Filed 5-29-09; 8:45 am]
BILLING CODE 3510-22-S