[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15467]


[[Page Unknown]]

[Federal Register: June 27, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 638

[Docket No. 940677-4177; I.D. 060194D]

 

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 emergency interim rule at the request of 
the South Atlantic Fishery Management Council (South Atlantic Council) 
to prohibit all taking of live rock in the exclusive economic zone 
(EEZ) off the southern Atlantic states from the North Carolina/Virginia 
boundary to the Dade/Broward County line in Florida; to prohibit the 
taking of live rock by chipping in the EEZ from the Dade/Broward County 
line in Florida to the Atlantic/Gulf of Mexico boundary; and to limit 
the harvest of live rock from the EEZ off the southern Atlantic states 
in 1994 to 485,000 lb (219,992 kg).

EFFECTIVE DATE: June 27, 1994, through September 26, 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 of Mexico 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 
of Mexico Fishery Management Council (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 
minireef aquaria. Live rock is a nonrenewable resource providing 
essential fishery habitat in the Gulf of Mexico and Atlantic Ocean.
    On May 16, 1994 (59 FR 25344), NMFS published an emergency interim 
rule to control the taking of live rock in the Gulf of Mexico. A 
description of the fishery and the rationale for that rulemaking are 
contained in that rule and are not repeated here.
    In part because of concerns about effort shifting from recently 
closed areas in the Gulf of Mexico to current or new harvest areas off 
the southern Atlantic states, the South Atlantic Council requested an 
emergency rule to: (1) Prohibit the taking of live rock in the EEZ off 
the southern Atlantic states from the North Carolina/Virginia boundary 
to the Dade/Broward County line in Florida; (2) prohibit chipping of 
live rock in the EEZ from the Dade/Broward County line in Florida to 
the Atlantic/Gulf of Mexico boundary; and (3) limit the harvest of live 
rock in 1994 from the EEZ off the southern Atlantic states to 485,000 
lb (219,992 kg).
    Reported landings from the Florida portion of the proposed closed 
area totaled less than 10,000 lb (4,536 kg) in 1993 or about 1 percent 
of all Florida landings. Florida is the only state in which live rock 
landings have been recorded. This emergency closure is designed in part 
to prevent expansion of harvesting effort into new areas.
    Chipping means breaking up reefs, ledges, or rocks into smaller 
fragments, usually by means of a chisel and hammer. Chipping causes 
serious damage to hard bottom habitats including coral reefs in the 
Florida Keys. Recent public testimony to the Gulf and South Atlantic 
Councils indicated that chipping accounts for about 10 to 20 percent of 
the live rock harvest off the southern Atlantic states. In the Gulf of 
Mexico, chipping of limestone ledges and worm reefs accounts for about 
90 percent of the live rock harvest.
    During a proposed phase out of live rock harvesting under Amendment 
2 to the FMP, which is currently under development, the Gulf and South 
Atlantic Councils intend to limit harvest to loose rubble rock that is 
primarily the result of natural erosion processes. About 485,000 lb 
(219,992 kg) of rubble live rock were reported landed in Florida in 
1992, and this is the basis for the 1994 quota. Data available to the 
South Atlantic Council indicate that live rock landings are increasing 
and the quota for 1994 is likely to be exceeded prior to implementation 
of management measures in Amendment 2.
    The Florida Department of Environmental Protection (DEP) estimates 
that the quota will probably be met sometime in October 1994. If a 
shift of harvesting effort from the Gulf of Mexico to the Atlantic 
occurs due to the Gulf emergency rule or other factors, the quota could 
be reached much earlier. Amendment 2 is not expected to be implemented 
until mid November 1994. The South Atlantic Council therefore requested 
emergency action to implement the 1994 quota and to prohibit all 
chipping of live rock to prevent damage to the Florida reef tract and 
serious loss of fishery habitat in the EEZ off the southern Atlantic 
states, including the Florida Keys National Marine Sanctuary.
    According to the Florida DEP, the closure of the EEZ north of 
Florida's Dade/Broward County line to live rock collecting may affect 
approximately 12 individuals who reported live rock landings in 1993; 
however, the ex-vessel value of these landings was only about $800 per 
Florida Saltwater Products License (SPL). In Dade and Monroe Counties, 
Florida, live rock landings in 1993 were reported by 96 SPL holders. 
These fishermen will be required to confine their harvest to loose 
rubble rock, which may have a marginal effect on the total value of 
their catch. A 485,000-lb (219,992-kg) quota will probably reduce 
potential 1994 landings by at least 15 percent or about $1,000 per SPL 
holder. Amendment 2 is expected to be submitted by the Gulf and South 
Atlantic Councils in July 1994 for review and, if approved, for 
implementation by the Secretary of Commerce. Amendment 2 would 
implement the measures in this emergency interim rule on a permanent 
basis and include a phase out schedule for live rock harvests in other 
areas.

Compliance With NMFS Guidelines for Emergency Rules

    The South Atlantic 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) is 
summarized above.
    Regarding the realization of immediate benefits, the South Atlantic 
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 live rock resources of the Florida 
Keys and the remainder of the areas off the southern Atlantic states. 
Going through the formal FMP amendment process without the emergency 
rule would delay implementation of the required measures and would 
result in substantial damage to live rock resources and fishery 
habitats off the southern Atlantic states. The immediate benefit of 
this emergency interim rule is that it will prevent expansion of live 
rock collection in the area north of Florida's Dade County, protect the 
Florida reef tract from chipping, and limit the rate of harvesting that 
causes serious damage to habitat in the area of the Florida Keys until 
a phase out can be implemented under Amendment 2 through the normal FMP 
amendment and rulemaking process.
    NMFS concurs with the South Atlantic Council's findings about the 
biological emergency 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 South Atlantic Council, this 
emergency interim rule may be extended for an additional period of 90 
days.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), 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 AA finds that the immediate need to prevent environmental 
damage to the Florida reef tract and serious loss of fishery habitat in 
the EEZ off the southern Atlantic states constitutes good cause to 
waive the requirement to provide prior notice and an opportunity for 
public comment, pursuant to authority set forth at 5 U.S.C. 553(b)(B), 
as such procedures would be contrary to the public interest. Similarly, 
the need to implement these measures in a timely manner to address the 
conservation and biological emergencies described above, constitutes 
good cause under authority contained in 5 U.S.C. 553(d)(3), to waive 
the 30 day delay in effective date.

List of Subjects in 50 CFR Part 638

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 21, 1994.
Henry R. Beasley,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 638 is 
amended, effective June 27, 1994, through September 26, 1994, 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, paragraphs (r), (s), and (t) are added to read as 
follows:


Sec. 638.5  Prohibitions.

* * * * *
    (r) Harvest or possess live rock in or from the EEZ off the 
southern Atlantic states north of 25 deg.58.5' N. lat., as specified in 
Sec. 638.28(b).
    (s) Harvest live rock by breaking it up or dislodging pieces of it 
in the EEZ off the southern Atlantic states south of 25 deg.58.5' N. 
lat., or possess in or from that area live rock that has been broken up 
or dislodged, as specified in Sec. 638.28(c).
    (t) Harvest, possess, purchase, barter, trade, or sell live rock in 
or from the EEZ off the southern Atlantic states when the live rock 
fishery in that area is closed, as specified in Sec. 638.28(d).
    3. In subpart B, Sec. 638.28 is added to read as follows:


Sec. 638.28  Live rock off the southern Atlantic states.

    (a) Definitions. (1) EEZ off the southern Atlantic states means 
that portion of the EEZ from 36 deg.34'55'' N. lat. (extension of the 
boundary line between Virginia and North Carolina) to the boundary 
between the Atlantic Ocean and the Gulf of Mexico, as specified in 
Sec. 601.11(c) of this chapter.
    (2) 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 live rock in or from the EEZ 
off the southern Atlantic states north of 25 deg.58.5' N. lat. 
(extension of the Dade/Broward County, Florida, boundary), or possess 
live rock harvested from that area after the effective date of this 
rule.
    (c) Gear limitations. No person may harvest live rock by breaking 
it up or dislodging pieces of it in the EEZ off the southern Atlantic 
states south of 25 deg.58.5' N. lat., and no person may possess in or 
from that area live rock that has been broken up or dislodged after the 
effective date of this rule.
    (d) Quota and closure. In the EEZ off the southern Atlantic states, 
persons harvesting live rock are subject to a quota of 485,000 lb 
(219,992 kg) during 1994. When that quota is reached, or is projected 
to be reached, the Assistant Administrator will file a notice to that 
effect with the Office of the Federal Register. On and after the 
effective date of such notice, for the remainder of 1994, live rock may 
not be harvested or possessed in the EEZ off the southern Atlantic 
states, and the purchase, barter, trade, and sale of live rock in or 
from the EEZ off the southern Atlantic states is prohibited. The latter 
prohibition does not apply to live rock that was harvested prior to the 
effective date of the notice in the Federal Register.

[FR Doc. 94-15467 Filed 6-24-94; 8:45 am]
BILLING CODE 3510-22-P