[Federal Register Volume 59, Number 93 (Monday, May 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11764]


[[Page Unknown]]

[Federal Register: May 16, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 638

[Docket No. 940425-4125; I.D. 040694D]

 

Coral and Coral Reefs of the Gulf of Mexico and the South 
Atlantic

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

ACTION: Emergency interim rule.

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SUMMARY: NMFS publishes this interim emergency rule at the request of 
the Gulf of Mexico Fishery Management Council (Gulf Council) to 
prohibit the taking of live rock in the exclusive economic zone (EEZ) 
of the Gulf of Mexico (Gulf) from the Pasco/Hernando County line in 
Florida to the Alabama/Mississippi boundary; and, in the Gulf EEZ off 
Florida south of the Pasco/Hernando County line, to prohibit the use of 
power-assisted tools to break up or dislodge pieces of live rock and to 
establish a daily vessel harvest and possession limit for live rock of 
25 5-gallon (19-liter) buckets. The intended effect of this rule is to 
protect live rock resources and fishery habitat in the Gulf.

EFFECTIVE DATES: May 16, 1994 through August 14, 1994.

ADDRESSES: Copies of documents supporting this action, including an 
environmental assessment, may be obtained from Georgia Cranmore, 
Southeast Regional Office, NMFS, 9721 Executive Center Drive, St. 
Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-893-3161.

SUPPLEMENTARY INFORMATION: Coral and coral reefs in the EEZ off the 
southern Atlantic states and in the Gulf are managed under the Fishery 
Management Plan for Coral and Coral Reefs of the Gulf of Mexico and the 
South Atlantic (FMP). The FMP was prepared by the Gulf Council and the 
South Atlantic Fishery Management Council (South Atlantic Council) and 
is implemented through regulations at 50 CFR part 638 under the 
authority of the Magnuson Fishery Conservation and Management Act 
(Magnuson Act).
    Live rock consists of living marine organisms, or an assemblage 
thereof, attached to a hard substrate, including dead coral or rock 
(excluding mollusk shells), and therefore is a ``fish'' within the 
meaning of the Magnuson Act. Live rock is collected by SCUBA divers and 
sold to the marine aquarium industry, which markets it as the basis for 
mini-reef aquaria. In 1992, reported live rock landings in Florida from 
the EEZ totaled 783,145 lbs (355,228 kg) with an ex-vessel value of 
$864,521. (Florida had previously banned the harvest of live rock in 
its waters.) In 1992, Florida implemented regulations to phase out 
landings of live rock from the EEZ off Florida over a 3-year period 
ending in 1995.
    In 1993 a Federal court overturned these regulations (Southeastern 
Fisheries Ass'n, Inc. v. Chiles, 979 F.2d 1504 (11th Cir. 1992).
    At the request of Gulf Council members from Florida and Alabama, 
the Gulf and South Atlantic Councils initiated development of Amendment 
2 to the FMP to address management of live rock in the EEZ. Similar to 
coral reefs, the current focus of the FMP, live rock resources are 
essentially nonrenewable and serve as habitat for a variety of other 
organisms.
    In the recent public review process during the development of 
Amendment 2, the Gulf and South Atlantic Councils received testimony 
that rock outcroppings, that are important reef fish habitats, are 
being removed and sold as live rock for marine aquariums. Testimony 
from about 60 divers and fishermen indicated that removal of live rock 
by harvesters in the northern Gulf is causing severe damage to the 
limited outcroppings or rock ledges and reefs that occur in state and 
Federal waters. Divers and fishermen testified that some small banks 
have disappeared and many ledges off the Florida Panhandle have been 
seriously damaged. Such outcroppings are not nearly as abundant in this 
area as they are off southern Florida. These nonrenewable resources 
serve as essential habitat for reef fish and invertebrates. 
Accordingly, the Gulf Council requested an emergency rule to prohibit 
the taking of live rock in the EEZ of the Gulf from the Pasco/Hernando 
County line in Florida to the Alabama/Mississippi boundary.
    The Gulf and South Atlantic Councils also heard testimony that 
pneumatic drills and hammers are being used to break large rock ledges 
into harvestable pieces. This results in large-scale destruction of 
reef fish habitat. Testimony indicated that large vessels with numerous 
divers and equipped with power-assisted gear can devastate a rock ledge 
very quickly. To prevent further acceleration of harvest of live rock 
before the management measures proposed for inclusion in Amendment 2 
can be implemented, the Gulf Council also requested a prohibition on 
the use of power-assisted tools and a daily vessel harvest and 
possession limit, both of which would apply to the harvest of live rock 
in the EEZ of the Gulf south of the Pasco/Hernando County line.
    Live rock or live bottom habitats are at such a premium in the 
northern Gulf that local government and private organizations have been 
active in constructing artificial reefs to supplement natural habitats 
off the coasts of Alabama and Florida. Loss of these natural, 
nonrenewable, habitat areas because of live rock collections presents a 
serious threat to marine habitat resources.
    According to the Florida Department of Environmental Protection, 
the closure of the Gulf EEZ from Florida's Pasco/Hernando County line 
to the Alabama/Mississippi boundary to live rock collecting will affect 
approximately 16 fishermen and live rock dealers who reported landings 
of live rock in Florida and Alabama in 1993.
    The daily vessel harvest and possession limit and the prohibition 
on the use of power tools were widely supported by industry 
representatives during the last three public hearings conducted in 
conjunction with Gulf Council meetings. These restrictions are expected 
to affect only a few individuals who allegedly are taking up to 10,000 
lbs (4,536 kg) of live rock per trip using power tools.
    Amendment 2 is scheduled to be submitted for Secretarial review by 
the Councils in July 1994. It is expected that Amendment 2 will 
implement the measures in this emergency interim rule on a more 
permanent basis and include a phase-out schedule for live rock harvests 
in other areas.
Compliance With NMFS Guidelines for Emergency Rules
    The Gulf Council and NMFS have concluded that the present situation 
constitutes biological and conservation emergencies, which are properly 
addressed by this emergency interim rule, and that the situation meets 
NMFS's policy guidelines for the use of emergency rules, published on 
January 6, 1992 (57 FR 375). The situation (1) results from recent, 
unforeseen events or recently discovered circumstances; (2) presents a 
serious management problem; and (3) realizes immediate benefits from 
the emergency interim rule that outweigh the value of advance notice, 
public comment, and deliberative consideration expected under the 
normal rulemaking process. The basis for the conclusions regarding 
emergency guidelines (1) and (2) was summarized above.
    Regarding the realization of immediate benefits, the Gulf Council 
has determined that an emergency rule under section 305(c) of the 
Magnuson Act is the only means for immediately addressing the 
biological emergency involving the Gulf live rock resources.
    Going through the formal FMP amendment process would delay 
implementation of the required measures and would result in substantial 
damage to live rock resources and fishery habitats in the Gulf. This 
emergency interim rule will prevent live rock collection in the 
northern Gulf and slow the harvesting rate in the rest of the Gulf EEZ 
until annual quotas and a phase-out can be implemented under Amendment 
2 through the normal FMP amendment and rulemaking process.
    NMFS concurs with the Gulf Council's findings about the biological 
emergency regarding Gulf live rock resources and the need for immediate 
regulatory action. Accordingly, NMFS publishes this emergency interim 
rule, effective initially for 90 days, as authorized by section 305(c) 
of the Magnuson Act. By agreement of NMFS and the Gulf Council, this 
emergency interim rule may be extended for an additional period of 90 
days.

Classification

    The Assistant Administrator for Fisheries, NOAA (Assistant 
Administrator), has determined that this rule is necessary to respond 
to an emergency situation and is consistent with the Magnuson Act and 
other applicable law.
    This emergency interim rule has been determined to be ``not 
significant'' for purposes of E.O. 12866.
    The Assistant Administrator finds for good cause under section 
553(b)(B) of the Administrative Procedure Act (APA) that the need to 
prevent further environmental damage and loss of fishery habitat makes 
it impracticable and contrary to the public interest to provide prior 
notice and opportunity for public comment on this rule. Similarly, to 
implement measures to address the conservation and biological 
emergencies in a timely manner, the Assistant Administrator finds for 
good cause under section 553(d)(3) of the APA that the effective date 
of this rule should not be delayed.

List of Subjects in 50 CFR Part 638

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 10, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 638 is amended 
as follows:

PART 638--CORAL AND CORAL REEFS OF THE GULF OF MEXICO AND THE SOUTH 
ATLANTIC

    1. The authority citation for part 638 continues to read as 
follows:

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

    2. In Sec. 638.5, effective May 16, 1994, through August 14, 1994, 
paragraphs (o), (p), and (q) are added to read as follows:


Sec. 638.5  Prohibitions.

* * * * *
    (o) Harvest or possess live rock in or from the EEZ of the Gulf of 
Mexico from 28 deg.26'N. lat. north and west to 88 deg.23'12''W. long., 
as specified in Sec. 638.27(b).
    (p) Use a power-assisted tool to break up or dislodge pieces of 
live rock in the EEZ of the Gulf of Mexico south of 28 deg.26'N. lat., 
or possess live rock taken with such a power-assisted tool in or from 
that area; as specified in Sec. 638.27(c).
    (q) Exceed the daily vessel harvest and possession limit of 25 5-
gallon (19-liter) buckets, or volume equivalent, applicable to the 
harvest or possession of live rock in or from the EEZ of the Gulf of 
Mexico south of 28 deg.26'N. lat., as specified in Sec. 638.27(d).
    3. In subpart B, effective May 16, 1994, through August 14, 1994, 
Sec. 638.27 is added to read as follows:


Sec. 638.27  Live rock.

    (a) Definition. Live rock means living marine organisms, or an 
assemblage thereof, attached to a hard substrate, including dead coral 
or rock (excluding mollusk shells).
    (b) Closed area. No person may harvest or possess live rock in or 
from the EEZ of the Gulf of Mexico from 28 deg.26' N. lat. (extension 
of the Pasco/Hernando County, Florida, boundary) north and west to 
88 deg.23'12'' W. long. (a line due south from the seaward terminus of 
the Alabama/Mississippi state line).
    (c) Gear limitations. No person may use a power-assisted tool to 
break up or dislodge pieces of live rock in the EEZ of the Gulf of 
Mexico south of 28 deg.26' N. lat., and no person may possess live rock 
taken with such a power-assisted tool in or from that area.
    (d) Harvest and possession limit. A daily vessel limit of 25 5-
gallon (19-liter) buckets, or volume equivalent, applies to the harvest 
or possession of live rock in or from the EEZ of the Gulf of Mexico 
south of 28 deg.26' N. lat.

[FR Doc. 94-11764 Filed 5-13-94; 8:45 am]
BILLING CODE 3510-22-P