[Federal Register Volume 74, Number 202 (Wednesday, October 21, 2009)]
[Rules and Regulations]
[Pages 53889-53892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25359]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 622

[Docket No. 0910141365-91366-01]
RIN 0648-AY21


Sea Turtle Conservation; Fisheries of the Caribbean, Gulf of 
Mexico, and South Atlantic

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

ACTION: Final rule.

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SUMMARY: This rule implements an area closure and associated gear 
restrictions applicable to the bottom longline component of the reef 
fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico 
to reduce incidental take and mortality of sea turtles. Specifically, 
this rule prohibits the use of bottom longline gear for the harvest of 
reef fish shoreward of a line approximating the 35-fathom depth contour 
in the eastern Gulf of Mexico and limits bottom longline vessels 
operating in the reef fish fishery east of longitude 85[deg]30'W to 
1,000 hooks onboard, of which only 750

[[Page 53890]]

may be actively fished or rigged for fishing.

DATES: This rule is effective on October 16, 2009.

FOR FURTHER INFORMATION CONTACT: Michael Barnette, telephone: 727-551-
5794, fax: 727-824-5309, e-mail: <a href="/cdn-cgi/l/email-protection#deb3b7bdb6bfbbb2f0bcbfacb0bbaaaabb9eb0b1bfbff0b9b1a8"><span class="__cf_email__" data-cfemail="412c28222920242d6f2320332f24353524012f2e20206f262e37">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: All sea turtles that occur in U.S. waters 
are listed as either endangered or threatened under the Endangered 
Species Act of 1973 (ESA). The Kemp's ridley (Lepidochelys kempii), 
leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys 
imbricata) turtles are listed as endangered. The loggerhead (Caretta 
caretta) and green (Chelonia mydas) turtles are listed as threatened, 
except for breeding populations of green turtles in Florida and on the 
Pacific coast of Mexico, which are listed as endangered.
    Sea turtles are incidentally taken, and some are killed, as a 
result of numerous activities, including fishery-related activities in 
the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and 
its implementing regulations, the taking of sea turtles is prohibited, 
with exceptions identified in 50 CFR 223.206(d), or according to the 
terms and conditions of a biological opinion issued under section 7 of 
the ESA, or according to an incidental take permit issued under section 
10 of the ESA.

Background

     On February 15, 2005, NMFS completed a biological opinion for the 
Gulf reef fish fishery, as managed under the Gulf of Mexico Reef Fish 
Fishery Management Plan (Reef Fish FMP). The opinion concluded that the 
continued authorization of the Gulf reef fish fishery was not likely to 
jeopardize the continued existence of any listed species of sea 
turtles. An incidental take statement (ITS) was issued specifying the 
amount and extent of anticipated take on a three-year basis, along with 
reasonable and prudent measures and associated terms and conditions 
deemed necessary and appropriate to minimize the impact of these takes. 
Other listed species were found not likely to be adversely affected. No 
critical habitat overlapped with the action area, thus none was 
affected.
     As provided in 50 CFR 402.16, reinitiation of formal consultation 
is required when discretionary involvement or control over the action 
has been retained (or is authorized by law) and: (1) the amount or 
extent of the incidental take is exceeded; (2) new information reveals 
effects of the agency action that may affect listed species or critical 
habitat in a manner or to an extent not previously considered; (3) the 
agency action is subsequently modified in a manner that causes an 
effect to the listed species or critical habitat not previously 
considered; or (4) if a new species is listed or critical habitat 
designated that may be affected by the identified action.
    On September 3, 2008, NMFS' Southeast Regional Office, Sustainable 
Fisheries Division, requested reinitiation of ESA section 7 
consultation on the Reef Fish FMP. The request was based on a 
preliminary analysis conducted by the Southeast Fisheries Science 
Center (SEFSC) of recent observer data. The SEFSC's preliminary 
analysis indicated that the overall amount and extent of incidental 
take for sea turtles specified in the incidental take statement of the 
2005 opinion had been exceeded by the bottom longline component of the 
fishery. The final report, ``Estimated Takes of Sea Turtles in the 
Bottom Longline Portion of the Gulf of Mexico Reef Fish Fishery July 
2006 Through 2007 Based on Observer Data,'' (NMFS SEFSC 2008) was 
received on October 8, 2008. The final report confirmed that loggerhead 
takes had been substantially exceeded by the commercial bottom longline 
component and that consultation needed to be reinitiated.
     On October 28, 2008, NMFS presented a summary of the final report 
to the Gulf of Mexico Fishery Management Council (Council), and 
informed the Council that the 2005 opinion ITS had been exceeded and 
that a new biological opinion needed to be conducted for the fishery. 
In response to this new information, the Council passed a motion to 
prepare a scoping document for Amendment 31 to the Reef Fish FMP to 
address sea turtle and longline interactions, indicating a desire to 
consider time/area closures, gear modifications, alternative baits, 
observer program modifications, and effort limitations. The Council 
also requested a temporary emergency rule to reduce the sea turtle 
bycatch in the Gulf bottom longline component of the reef fish fishery 
in the short-term while they continued to develop Amendment 31 to 
address the problem in the long-term. On January 9, 2009, after 
extensive review of NMFS SEFSC 2008 and ongoing activities in the Gulf 
reef fish fishery, NMFS determined that continuing to authorize the 
fishery during the reinitiation period would not violate section 
7(a)(2) or section 7(d) of the ESA.
     Per the Council's request, NMFS published a temporary emergency 
rule on May 1, 2009, 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 completed Amendment 31 (74 FR 
20229, May 1, 2009). Effective May 18, 2009 through October 28, 2009, 
the rule prohibited the use of bottom longline gear to harvest reef 
fish east of 85[deg]30'W longitude shoreward of a line approximating 
the 50-fathom depth contour until the 2009 deepwater grouper and 
tilefish quotas were met, and in water of all depths east of 
85[deg]30'W longitude thereafter. In the rule, NMFS specified that if 
it determined that less restrictive measures would suffice to 
adequately reduce turtle takes by the longline component of the reef 
fish fishery, NMFS could rescind the closure before the 180-day 
effective period of the emergency rule was reached and potentially 
implement less restrictive measures.
     On August 13, 2009, the Council voted in favor of submitting 
Amendment 31 to NMFS for Secretarial review and approval. Amendment 31, 
now under Secretarial Review, proposes the following actions to reduce 
sea turtle take by the bottom longline component of the reef fish 
fishery east of Cape San Blas, Florida: (1) A prohibition on the use of 
bottom longline gear shoreward of a line approximating the 35-fathom 
contour from June through August; (2) a reduction in the number of 
longline vessels operating in the fishery through an endorsement 
provided only to vessel permits with a demonstrated history of 
landings, on average, of at least 40,000 pounds of reef fish annually 
with fish traps or longline gear during 1999-2007; and (3) restricting 
the total number of hooks that may be possessed onboard each reef fish 
bottom longline vessel to 1,000, only 750 of which may be rigged for 
fishing.
     On October 13, 2009, NMFS completed a biological opinion on the 
continued authorization of the Gulf reef fish fishery, as managed under 
the Reef Fish FMP. The biological opinion considered all Reef Fish FMP 
amendments implemented to date, as well as the regulatory actions 
included in this rule and actions proposed in Amendment 31. The opinion 
concluded that the continued authorization of the Gulf reef fish 
fishery was likely to adversely affect sea turtles and sawfish, but was 
not likely to jeopardize the continued existence of any listed species. 
An ITS was issued specifying the amount and extent of anticipated take 
on a three-year basis, along with reasonable and prudent measures and

[[Page 53891]]

associated terms and conditions deemed necessary and appropriate to 
minimize the impact of these takes.
     The emergency rule currently in place is set to expire on October 
29, 2009. A final rule implementing Amendment 31, if approved, is not 
expected to be effective until May 2010. Therefore, at a minimum, an 
interim action is needed 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 after the emergency rule expires but before 
Amendment 31 is implemented; this rule supersedes the current emergency 
rule, which expires on October 29, 2009.
     The measures implemented through the current emergency rule have 
effectively ended reef fish longline fishing in the eastern Gulf of 
Mexico until the deep-water grouper and tilefish fishing year starts 
January 1, 2010. This has caused economic hardship for the commercial 
fishing industry. Should the current emergency rule be renewed until 
regulations developed in Amendment 31 are implemented, this economic 
hardship will continue as most effort conducted by the longline 
component is targeted at shallow-water grouper species. Analyses of 
alternatives for Amendment 31, including those in the biological 
opinion, indicate there are alternatives that would allow longline 
operations, albeit with some limitations, while still providing 
adequate protection for sea turtles. Therefore, the purpose of this 
rulemaking is to balance the continued operation of the bottom longline 
component of the reef fish fishery while maintaining adequate 
protective measures for sea turtles until the Council's preferred 
management strategy in Amendment 31 can be implemented.
    Additional time is required to implement Amendment 31, in 
particular the proposed longline endorsement provision, and the time 
constraint precludes the inclusion of this provision in this 
rulemaking. The longline endorsement would require evaluation of 
landings records and subsequent issuing of endorsements to qualifying 
reef fish permit owners. This process would take several months. 
Therefore, the longline endorsement provision will not be implemented 
by this action.

Classification

     The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this rule is necessary to balance the need to reduce 
the incidental take and associated mortality of sea turtles with the 
need to reduce the ongoing social and economic hardships in the bottom 
longline component of the reef fish fishery in the Gulf of Mexico EEZ. 
The AA has determined this rule is consistent with the ESA and other 
applicable law.
     This rule has been determined to be not significant for purposes 
of Executive Order 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 to comment would be contrary to the public interest, 
because delaying action to address threatened and endangered species 
interactions in the fishery would likely result in additional take and 
mortality of sea turtle species. Such take would be in excess of the 
take analyzed in the effects analysis for the relevant time period, and 
potentially even result in exceeding the incidental take statement 
issued with the most recent biological opinion. As a result, this would 
introduce risk of jeopardizing the survival and recovery of sea turtle 
populations, which is inconsistent with the requirements of the ESA. 
While other more restrictive actions could be taken to reduce takes in 
the fishery, in the absence of any further regulatory action, the 
current restrictions in the fishery will expire on October 29, 2009, 
and the bottom longline component of the fishery will be authorized to 
occur in a manner that has been documented to result in excessive take 
of sea turtles. As stated above, such take would not be in compliance 
with the ESA, and would be contrary to the public interest in 
protecting threatened and endangered species populations. Extending the 
existing closure would be more restrictive than necessary to fulfill 
the agency's obligations under the ESA, and would result in undue 
social and economic hardship on participants using bottom longline gear 
in the fishery.
    For these same reasons, the AA finds good cause to waive the 30-day 
delay in effective date pursuant to 5 U.S.C. 553(d)(3).
    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.
    The Endangered Species Act provides the statutory basis for the 
rule.

List of Subjects

50 CFR Part 223

    Endangered and threatened species; Exports; Imports; 
Transportation.

50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: Ocotber 16, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR parts 223 and 622 are 
amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
2. In Sec.  223.206 paragraph (d) introductory text is revised and 
paragraph (d)(12) is added to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) Exception for incidental taking. The prohibitions against 
taking in Sec.  223.205(a) do not apply to the incidental take of any 
member of a threatened species of sea turtle (i.e., a take not directed 
towards such member) during fishing or scientific research activities, 
to the extent that those involved are in compliance with all applicable 
requirements of paragraphs (d)(1) through (d)(12) of this section, or 
in compliance with the terms and conditions of an incidental take 
permit issued pursuant to paragraph (a)(2) of this section.
* * * * *
    (12) Prohibitions applicable to bottom longline fishing for Gulf 
reef fish. (i) Bottom longlining for Gulf reef fish as defined in Sec.  
622.2 of this title 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]58.70'     85[deg]30.00
                                                                      '
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B                                         28[deg]59.25'     85[deg]26.70
                                                                      '
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C                                         28[deg]57.00'     85[deg]13.80
                                                                      '
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D                                         28[deg]47.40'     85[deg]03.90
                                                                      '
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E                                         28[deg]19.50'     84[deg]43.00
                                                                      '
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F                                         28[deg]00.80'     84[deg]20.00
                                                                      '
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G                                         26[deg]48.80'     83[deg]40.00
                                                                      '
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[[Page 53892]]

 
H                                         25[deg]17.00'     83[deg]19.00
                                                                      '
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I                                         24[deg]54.00'     83[deg]21.00
                                                                      '
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J                                         24[deg]29.50'     83[deg]12.30
                                                                      '
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K                                         24[deg]26.50'     83[deg]00.00
                                                                      '
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    (ii) Within the prohibited area specified in paragraph (d)(12)(i) 
of this section, a vessel with bottom longline gear on board may not 
possess Gulf reef fish unless the bottom longline gear is appropriately 
stowed, and a vessel that is using bottom longline gear to fish for 
species other than Gulf reef fish may not possess Gulf reef fish. For 
the purposes of paragraph (d)(12) 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.
    (iii) Within the Gulf EEZ east of 85[deg]30' W. long., a vessel for 
which a valid Gulf reef fish permit has been issued under Sec.  622.4 
of this title and that is fishing bottom longline gear or has bottom 
longline gear on board cannot possess more than a total of 1,000 hooks 
including hooks on board the vessel and hooks being fished, and cannot 
possess more than 750 hooks rigged for fishing at any given time. For 
the purpose of this paragraph, ``hooks rigged for fishing'' means hooks 
attached to a line or other device capable of attaching to the mainline 
of the longline.
* * * * *

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

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

    Authority: 16 U.S.C. 1801 et seq.
Sec.  622.34 [Amended]

0
4. In Sec.  622.34, paragraph (q) is removed and reserved.
[FR Doc. E9-25359 Filed 10-16-09; 8:45 am]
BILLING CODE 3510-22-S


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