[Federal Register Volume 59, Number 187 (Wednesday, September 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23900]


[Federal Register: September 28, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 638

[Docket No. 940973-4273; I.D. 082394A]
RIN 0648-AF85


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

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

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this proposed rule to implement Amendment 2 to the 
Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico 
and South Atlantic (FMP). Amendment 2 would prohibit the taking of wild 
live rock in the exclusive economic zone (EEZ) off the southern 
Atlantic states (South Atlantic) from the North Carolina/Virginia 
boundary to the Dade/Broward County line in Florida and in the EEZ of 
the Gulf of Mexico (Gulf), except off Florida north of Monroe County; 
phase out wild live rock harvests in the South Atlantic EEZ south of 
the Dade/Broward County line by 1996; phase out wild live rock harvests 
in the Gulf EEZ off Florida north of Monroe County by 1997; establish 
restrictions on live rock harvesting and possession and require permits 
and reporting during the phase-out periods; and allow and facilitate 
live rock aquaculture. In addition, NMFS proposes changes to the 
regulations to correct and conform them to current standards.

DATES: Written comments must be received on or before November 7, 1994.

ADDRESSES: Requests for copies of Amendment 2, which includes a 
regulatory impact review (RIR)/initial regulatory flexibility analysis 
(IRFA) and a final supplemental environmental impact statement (FSEIS), 
should be sent to the Gulf of Mexico Fishery Management Council, 5401 
W. Kennedy Boulevard, Suite 331, Tampa, FL 33609-2486, FAX 813-225-
7015, or to the South Atlantic Fishery Management Council, Southpark 
Building, One Southpark Circle, Suite 306, Charleston, SC 29407-4699, 
FAX 803-769-4520.
    Comments on the proposed rule, Amendment 2, the RIR/IRFA, and the 
FSEIS must be sent to the Southeast Regional Office, NMFS, 9721 
Executive Center Drive N., St. Petersburg, FL 33702.
    Comments regarding the collection-of-information requirements 
contained in this proposed rule should be sent to Edward E. Burgess, 
Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. 
Petersburg, FL 33702, and to the Office of Information and Regulatory 
Affairs, OMB, Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.

SUPPLEMENTARY INFORMATION: 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 individual mollusk shells). 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 South Atlantic and Gulf.
    In the recent public review process during the development of 
Amendment 2, the Gulf and South Atlantic Councils received testimony 
concerning serious damage to reefs, ledges, and other hard bottom 
habitats from live rock harvesting activities. At the request of the 
Gulf Council, NMFS published an emergency interim rule on May 16, 1994 
(59 FR 25344), effective May 16 through August 14, 1994, and extended 
the rule, with modifications, through November 12, 1994 (59 FR 42533, 
August 18, 1994). At the request of the South Atlantic Council, NMFS 
published an emergency interim rule on June 27, 1994 (59 FR 32938), 
effective through September 26, 1994, and extended the rule through 
December 25, 1994 (59 FR 47563, September 16, 1994). These rules were 
intended to slow the rate of harvest, prevent serious damage to 
habitat, and prevent geographical extension of harvest until permanent 
measures could be implemented through Amendment 2.
    In the South Atlantic EEZ, Amendment 2 would: (1) Prohibit the 
harvest and possession of wild live rock north of the Dade/Broward 
County line in Florida; (2) south of the Dade/Broward County line, 
phase out harvesting of wild live rock by January 1, 1996, establish an 
annual quota on harvests of wild live rock of 485,000 lb (219,992 kg) 
for calendar years 1994 and 1995, and prohibit the taking of wild live 
rock by chipping during those years; and (3) provide for a permit 
system for the harvest and possession of live rock from aquaculture 
operations that will be implemented when appropriate criteria are 
developed through a subsequent amendment.
    In the Gulf EEZ, Amendment 2 would: (1) Prohibit the harvest and 
possession of wild live rock off Texas, Louisiana, Mississippi, 
Alabama, and south of the Monroe/Collier County line in Florida; (2) 
from the Monroe/Collier County line to the Florida/Alabama boundary, 
phase out harvesting of wild live rock by January 1, 1997, contingent 
upon development of a Federal aquaculture permitting system; (3) from 
the Pasco/Hernando County line in Florida to the Florida/Alabama 
boundary, prohibit the taking of wild live rock by chipping during the 
phase-out period; (4) from the Pasco/Hernando County line to the 
Monroe/Collier County line, limit the taking of wild live rock by 
chipping to nonpower-assisted, hand-held hammers and chisels during the 
phase-out period; (5) from the Monroe/Collier County line to the 
Florida/Alabama boundary, establish a daily vessel possession limit for 
wild live rock during the phase-out period; (6) require a permit to 
harvest or possess live rock from aquaculture operations; and (7) 
provide an exception to the taking of prohibited corals as part of the 
aquaculture permit.
    For both the South Atlantic and Gulf, Amendment 2 would: (1) Define 
live rock and add it to the fishery management unit; (2) redefine 
allowable octocorals to ensure that individual colonies and not whole 
rocks are taken under the octocoral quota; (3) establish a Federal 
permit and reporting system for wild live rock harvesting during 
harvest phase-out periods; (4) allow and facilitate live rock 
aquaculture; (5) require a permit to harvest and possess live rock in 
the EEZ for scientific, educational, or restoration purposes; and (6) 
provide for separate management of coral and coral reef resources by 
each Council in its geographical area of authority.
    A description of the fishery and the rationale and effects of live 
rock harvesting restrictions during the phase-out periods in the Gulf 
EEZ off Florida and prohibitions on harvesting in the EEZ off Alabama 
and in the South Atlantic north of the Dade/Broward County line in 
Florida were contained in the emergency interim rules and are not 
repeated here. Rationales for prohibitions on harvest and possession in 
other areas, the phaseout of harvesting in remaining areas off Florida, 
permits and reporting, the redefinition of allowable octocorals, and 
separation of management between the Councils are discussed below.
    To prevent effort shifting from the current areas of harvest, 
Amendment 2 would prohibit wild live rock harvesting and possession in 
the EEZ off Texas, Louisiana, and Mississippi, in addition to areas 
closed under the emergency interim rules. No landings of live rock have 
been reported from these areas. Coral habitats are at such a premium in 
the northern Gulf that local governments and private organizations are 
considering construction of artificial reefs to supplement scarce 
natural hard bottom habitats. Amendment 2 would close the Gulf EEZ off 
Monroe County to all harvest and possession in order to prevent effort 
shifting from the South Atlantic EEZ following closures in that 
adjoining jurisdiction.
    About 99 percent of reported live rock landings are from the Gulf 
EEZ off Florida north of Monroe County and from the South Atlantic EEZ 
south of the Dade/Broward County line. All landings of live rock to 
date have been of ``wild'' live rock, that is, non- aquacultured live 
rock. The Councils propose to phase out these landings and replace them 
with aquacultured products from either state or EEZ waters. The delay 
in implementation of a harvest and possession prohibition in these 
areas is designed to allow live rock harvesters additional time and 
resources to make the transition to aquaculture.
    The Councils propose to redefine allowable octocorals to close a 
potential loophole that could allow harvest of live rock as part of the 
50,000 colony annual quota for allowable octocorals. The revised 
definition would include as allowable octocoral only a limited amount 
of the attached substrate--one inch (2.54 cm) in the South Atlantic EEZ 
and 3 inches (7.62 cm) in the Gulf EEZ.
    Currently, a Federal permit for prohibited coral is issued only 
when the prohibited coral is for a scientific or educational purpose. 
The Councils propose to add restoration to the purposes for which these 
permits are available. This addition recognizes the benefits of habitat 
restoration following ship groundings and other environmental 
perturbations. The Councils also propose to allow the harvest of live 
rock under a Federal permit issued for a scientific, educational, or 
restoration purpose.
    The Councils propose to require permits for and reporting of wild 
live rock harvest during the phase-out periods in the Gulf EEZ off 
Florida north of Monroe County and in the South Atlantic EEZ south of 
the Dade/Broward County line. Permits would be limited to persons who 
legally participated in the fishery on or prior to February 3, 1994, 
and to the number of vessels that operated in the commercial fishery 
for live rock on or prior to February 3, 1994, as documented on trip 
tickets received by the Florida Department of Environmental Protection 
prior to March 15, 1994. The date of February 3, 1994, was published in 
the Federal Register (59 FR 5179, February 3, 1994) as the control date 
for entry into the commercial fishery for live rock. All commercial 
landings of live rock have been permitted and reported under Florida's 
permitting and reporting requirements. Those requirements include a 
Saltwater Products License with a Restricted Species Endorsement and a 
Marine Life Endorsement, and the submission of trip tickets. These 
limitations on permits are intended to stabilize harvest during the 
phase-out period to near the 1992 level and to limit participants to 
those already in the fishery. To accomplish these intended effects, 
NMFS finds it necessary to identify owners with the requisite permit 
history and the number of vessels, by owner, that operated in the 
commercial fishery on or prior to the control date. Vessel permits 
would be issued to such owners in corresponding numbers.
    The Councils intend to allow and facilitate live rock aquaculture 
to replace the wild harvest. Amendment 2 proposes to require an 
aquacultured live rock permit for the harvest and possession of live 
rock from aquaculture operations in the Gulf EEZ, under specific 
criteria designed to protect natural hard bottom areas as specified in 
this rule. The aquaculture permit would also authorize an exception to 
the prohibition on taking and possession of otherwise prohibited 
corals. Otherwise, an aquaculturist could be prevented from harvesting 
the aquaculture product if small polyps of such species are detected on 
the rocks.
    Amendment 2 would establish a permit requirement for the harvest 
and possession of live rock from aquaculture operations in the South 
Atlantic EEZ, but aquaculture permits for this area will be issued only 
after appropriate criteria are developed and implemented through a 
subsequent rulemaking.
    Both Councils have agreed that management of coral, coral reefs, 
live rock, and any other part of the management unit in the FMP will be 
the responsibility of the Council in whose jurisdiction it occurs. 
Under this arrangement, Amendment 2 proposes to eliminate the current 
requirement that both Councils approve all measures in any FMP 
amendment submitted for agency review. This requirement exists because 
the FMP was designated by NMFS as a joint management plan prepared by 
the two Councils.
    Additionally, the South Atlantic Council has requested designation 
of a separate FMP for the South Atlantic because it believes (1) the 
habitats in the Gulf and South Atlantic are different, (2) the resource 
does not move between the South Atlantic and the Gulf, (3) it should 
have authority to coordinate all habitat concerns and policies in the 
South Atlantic, (4) there are additional management needs in the South 
Atlantic, (5) the Councils have different management philosophies, and 
(6) a separate FMP will improve timeliness of management adjustments 
and reduce constituent costs. The Gulf Council concurs in the South 
Atlantic's request. NMFS requests comments on the proposal to separate 
the FMP into an FMP for the South Atlantic and an FMP for the Gulf of 
Mexico.
    Additional background and rationale for the measures discussed 
above are contained in Amendment 2, the availability of which was 
announced in the Federal Register on August 29, 1994 (59 FR 44398).

Additional Measures Proposed by NMFS

    This proposed rule would eliminate unnecessary language; change the 
scientific names of corals to conform to current standards of the 
American Fisheries Society; add definitions of additional terms; 
correct the address and telephone number of the Regional Director, 
Southeast Region, NMFS; clarify that all coral in a habitat area of 
particular concern (HAPC), including allowable octocoral, is prohibited 
coral; require identification markings on vessels in the live rock 
fishery; prohibit the use or possession of a toxic chemical in the EEZ; 
prohibit the possession of coral in the Flower Garden Banks HAPC; 
prohibit the use of dredges in the Flower Garden Banks HAPC; prohibit 
making a false statement to an authorized officer concerning the taking 
of coral, coral reefs, or live rock; and prohibit interference with an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the Magnuson Act. The requirement for 
identification markings and the added prohibitions are necessary for 
effective enforcement of existing and added management measures and 
would conform the regulations to current standards applicable to other 
federally-managed fisheries in the Gulf of Mexico and off the southern 
Atlantic states.
    NMFS proposes to simplify the existing permitting and reporting 
requirements. Specifically, this rule proposes to remove the 
requirement for Federal permits for and reports on taking allowable 
octocoral that are landed in Florida and for taking fish with an 
allowable chemical that are landed in Florida. Florida requires permits 
and reports for these activities, whether or not the allowable 
octocoral or fish are harvested in the EEZ or State waters. Currently, 
all but one of the Federal permits for these activities involve 
landings in Florida. Duplicate Federal/State permitting and reporting 
serve no useful purpose.
    NMFS proposes to broaden the ban on the use of power- assisted 
tools. Amendment 2 proposes to ban the use of power- assisted tools for 
the taking of aquacultured live rock, wild live rock in the Gulf EEZ 
during the phase-out period, and allowable octocoral. Since chipping of 
wild live rock would be banned in the South Atlantic EEZ during the 
phase-out period, power-assisted tools implicitly would be banned in 
the EEZ in that area. Amendment 2 does not explicitly address 
prohibited coral in either area or allowable octocoral in the South 
Atlantic EEZ. NMFS believes the rationale for the ban on power-assisted 
tools is equally applicable to prohibited coral and allowable octocoral 
throughout the EEZ--extension of the ban to those species and 
additional areas is necessary to enhance enforcement.

Classification

    Section 304(a)(1)(D) of the Magnuson Act requires the Secretary of 
Commerce (Secretary) to publish regulations proposed by a council 
within 15 days of receipt of an amendment and regulations. At this time 
the Secretary has not determined that Amendment 2 is consistent with 
the national standards, other provisions of the Magnuson Act, and other 
applicable laws. The Secretary, in making that determination, will take 
into account the data, views, and comments received during the comment 
period.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Councils prepared an FSEIS for Amendment 2 that will be filed 
with the Environmental Protection Agency for public review and comment; 
a notice of its availability for public comment for 30 days will be 
published in the Federal Register. According to the FSEIS, the proposed 
actions would benefit the natural environment by phasing out activities 
that result in damage to live bottom habitat areas. Potential adverse 
economic impacts on fishermen would be mitigated by the harvest of 
aquacultured live rock.
    The Councils prepared an IRFA as part of the RIR which describes 
the impact this proposed rule would have on small entities, if adopted. 
The IRFA concludes that this proposed rule, if adopted, may have a 
significant economic impact on a substantial number of small entities. 
Specifically, the required change from harvest of wild live rock to 
aquaculture may result in significant increases in the operating and 
capital costs to fishermen. An unknown number of current participants 
may be forced to cease business as live rock harvesters. All current 
participants are small entities. A copy of this analysis is available 
(see ADDRESSES).
    This rule contains five new collection-of-information requirements 
subject to the Paperwork Reduction Act--namely, applications for 
permits to take wild live rock, applications for permits to take 
aquacultured live rock, site evaluation reports for aquacultured live 
rock, reports of live rock harvests, and notification of intent to 
harvest aquacultured live rock. These requirements have been submitted 
to the Office of Management and Budget (OMB) for approval. The public 
reporting burdens for these collections of information are estimated to 
average 15, 15, 45, 15, and 2 minutes per response, respectively, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. This rule also revises a 
collection-of-information requirement subject to the Paperwork 
Reduction Act--namely, applications for prohibited coral, allowable 
chemical, and allowable octocoral permits. This collection of 
information is estimated to average 15 minutes per response and was 
previously approved by OMB under OMB control number 0648-0205. Send 
comments regarding these reporting burden estimates or any other aspect 
of the collections of information, including suggestions for reducing 
the burdens, to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 638

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 22, 1994.
Samuel W. McKeen,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 638 is 
proposed to be 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. Section 638.1 is revised to read as follows:


Sec. 638.1  Purpose and scope.

    (a) The purpose of this part is to implement the Fishery Management 
Plan for Coral and Coral Reefs off the Southern Atlantic States and the 
Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico 
developed under the Magnuson Act by the South Atlantic Fishery 
Management Council and the Gulf of Mexico Fishery Management Council, 
respectively.
    (b) This part governs conservation and management of coral, coral 
reefs, and live rock in the EEZ off the southern Atlantic states and in 
the Gulf of Mexico. ``EEZ'' in this part 638 refers to the EEZ in those 
geographical areas, unless the context clearly indicates otherwise.
    3. In Sec. 638.2, the definition of ``Scientific and educational 
purpose'' is removed; in the definition of ``Allowable chemical'', 
paragraphs (a) and (b) are redesignated as paragraphs (1) and (2), 
respectively; the definitions of ``Allowable octocoral'', ``HAPC'', 
``Prohibited coral'', and ``Regional Director'' are revised; and new 
definitions of ``Aquacultured live rock'', ``Chipping'', ``Gulf of 
Mexico'', ``Live rock'', ``Off the southern Atlantic states'', 
``Scientific, educational, or restoration purpose'', ``Trip'', and 
``Wild live rock'' are added in alphabetical order to read as follows:


Sec. 638.2  Definitions.

* * * * *
    Allowable octocoral means an erect, nonencrusting species of the 
subclass Octocorallia, except the seafans Gorgonia flabellum and G. 
ventalina, plus the attached substrate--
    (1) Within 1 inch (2.54 cm) of an allowable octocoral in or from 
the EEZ off the southern Atlantic states; and
    (2) Within 3 inches (7.62 cm) of an allowable octocoral in or from 
the Gulf of Mexico EEZ.
    Aquacultured live rock means live rock that is harvested under an 
aquacultured live rock permit issued pursuant to Sec. 638.4.
    Chipping means breaking up reefs, ledges, or rocks into fragments, 
usually by means of a chisel and hammer.
* * * * *
    Gulf of Mexico means the waters off the southern states from the 
boundary between the Atlantic Ocean and the Gulf of Mexico, as 
specified in Sec. 601.11(c) of this chapter, to the Texas/Mexico 
border.
    HAPC means habitat area of particular concern.
    Live rock means living marine organisms, or an assemblage thereof, 
attached to a hard substrate, including dead coral or rock (excluding 
individual mollusk shells).
    Off the southern Atlantic states means the waters off the east 
coast from 36 deg.34'55'' N. lat. (extension of the Virginia/North 
Carolina boundary) to the boundary between the Atlantic Ocean and the 
Gulf of Mexico, as specified in Sec. 601.11(c) of this chapter.
    Prohibited coral means--
    (1) Coral belonging to the Class Hydrozoa (fire corals and 
hydrocorals);
    (2) Coral belonging to the Class Anthozoa, Subclass Hexacorallia, 
Orders Scleractinia (stony corals) and Antipatharia (black corals);
    (3) A seafan, Gorgonia flabellum or G. ventalina;
    (4) Coral in a coral reef, except for allowable octocoral; or
    (5) Coral in an HAPC, including allowable octocoral.
    Regional Director means the Director, Southeast Region, NMFS, 9721 
Executive Center Drive N., St. Petersburg, FL 33702, telephone 813-570-
5301; or a designee.
* * * * *
    Scientific, educational, or restoration purpose means the objective 
of gaining knowledge for the benefit of science, humanity, or 
management of coral or returning a disturbed habitat as closely as 
possible to its original condition.
* * * * *
    Trip means a fishing trip, regardless of number of days duration, 
that begins with departure from a dock, berth, beach, seawall, or ramp 
and that terminates with return to a dock, berth, beach, seawall, or 
ramp.
    Wild live rock means live rock other than aquacultured live rock.
    4. In Sec. 638.3, in paragraph (a), the reference to ``paragraph 
(b) of this section'' is revised to read ``paragraphs (b) and (c) of 
this section''; and paragraph (c) is added to read as follows:


Sec. 638.3  Relation to other laws.

* * * * *
    (c) If a state has a catch, landing, or gear regulation that is 
more restrictive than a catch, landing, or gear regulation in this 
part, a person landing in such state allowable octocoral taken from the 
EEZ must comply with the more restrictive state regulation.
    5. Section 638.8 is redesignated as Sec. 638.9; Sec. 638.6 is 
redesignated as Sec. 638.8; Secs. 638.4, 638.5, and 638.7 are revised, 
and new Sec. 638.6 is added to read as follows:


Sec. 638.4  Permits and fees.

    (a) Applicability. (1) Federal permits. Federal permits are 
required for specified activities in the EEZ as follows:
    (i) Prohibited coral. A Federal permit is required for an 
individual to take or possess prohibited coral and will be issued only 
when the prohibited coral will be used for a scientific, educational, 
or restoration purpose.
    (ii) Allowable chemical. A Federal permit is required for an 
individual to take or possess fish or other marine organisms with an 
allowable chemical in a coral area, other than fish or other marine 
organisms that are landed in Florida.
    (iii) Allowable octocoral. A Federal permit is required for an 
individual to take or possess allowable octocoral, other than allowable 
octocoral that is landed in Florida.
    (iv) Wild live rock. (A) A Federal permit is required for a vessel 
to take or possess wild live rock. A wild live rock vessel permit will 
not be issued unless the current owner of the vessel for which the 
permit is requested had the required Florida permit and endorsements 
for live rock on or before February 3, 1994, and a record of landings 
of live rock on or before February 3, 1994, as documented on trip 
tickets received by the Florida Department of Environmental Protection 
before March 15, 1994. For landings other than in Florida, equivalent 
state permits/endorsements, if required, and landing records may be 
substituted for the Florida permits/endorsements and trip tickets. An 
owner will not be issued permits in numbers exceeding the number of 
vessels for which the owning entity had the requisite reported 
landings. An owner of a permitted vessel may transfer the vessel permit 
to another vessel owned by the same person by returning the existing 
permit with an application for a vessel permit for the replacement 
vessel.
    (B) A Federal permit is required for an individual to take or 
possess wild live rock for a scientific, educational, or restoration 
purpose and an individual permit will be issued only for such purpose. 
Such individual wild live rock permit may authorize the taking and 
possession of wild live rock in or from areas not otherwise allowed by 
the regulations in this part.
    (v) Aquacultured live rock. A Federal permit is required for a 
person to take or possess aquacultured live rock. Each aquacultured 
live rock permit will be issued for a specific site, which may not 
exceed 1 acre (0.4 ha). Aquacultured live rock permits are available 
only for harvests in the Gulf of Mexico.
    (2) Florida permits. Appropriate Florida permits and endorsements 
are required for the following activities, without regard to whether 
they involve activities in the EEZ or Florida's waters:
    (i) Landing in Florida fish or other marine organisms taken with an 
allowable chemical in a coral area.
    (ii) Landing allowable octocoral in Florida.
    (iii) Landing live rock in Florida.
    (b) Application. An application for a Federal permit must be signed 
and submitted by the applicant on an appropriate form, which may be 
obtained from the Regional Director. The application must be submitted 
to the Regional Director at least 30 days prior to the date on which 
the applicant desires to have the permit made effective. Information 
must be provided as follows:
    (1) Basic information. (i) Name, mailing address including zip 
code, telephone number, social security number, and date of birth of 
the applicant.
    (ii) Name and address of any affiliated company, institution, or 
organization.
    (iii) Information concerning vessels and harvesting gear/methods 
requested by the Regional Director.
    (iv) Any other information that may be necessary for the issuance 
or administration of the permit.
    (2) Scientific, educational, or restoration purpose. An applicant 
for a prohibited coral permit or a wild live rock permit for a 
scientific, educational, or restoration purpose must specify the amount 
and size of prohibited coral or wild live rock to be harvested, by 
species, its intended use, and proposed locations and periods of 
fishing.
    (3) Allowable chemical. An applicant for an allowable chemical 
permit must specify the type of chemical to be used, species to be 
harvested and their intended use, and proposed locations and periods of 
fishing.
    (4) Aquacultured live rock. An applicant for an aquacultured live 
rock permit must identify each vessel that will be depositing material 
on or harvesting aquacultured live rock from the proposed aquacultured 
live rock site, must specify the port of landing of aquacultured live 
rock, and must provide a site evaluation report that--
    (i) Provides accurate coordinates of the proposed harvesting site 
so that it can be located using LORAN or Global Positioning System 
equipment;
    (ii) Shows the site on a chart in sufficient detail to determine 
its size and allow for site inspection;
    (iii) Discusses possible hazards to safe navigation or hindrance to 
vessel traffic, traditional fishing operations, or other public access 
that may result from aquacultured live rock at the site;
    (iv) Describes the naturally occurring bottom habitat at the site; 
and
    (v) Specifies the type and origin of material to be deposited on 
the site and how it will be distinguishable from the naturally 
occurring substrate.
    (c) Change in application information. An individual, the owner of 
a vessel, or a person with a permit must notify the Regional Director 
within 30 days after any change in the application information 
specified in paragraph (b) of this section. The permit is void if any 
change in the information is not reported within 30 days.
    (d) Fees. A fee is charged for each permit application submitted 
under paragraph (b) of this section. The amount of the fee is 
calculated in accordance with the procedures of the NOAA Finance 
Handbook for determining the administrative costs of each special 
product or service. The fee may not exceed such costs and is specified 
with each application form. The appropriate fee must accompany each 
application.
    (e) Issuance. (1) The Regional Director will issue a permit at any 
time to an applicant if the application is complete. An application is 
complete when all requested forms, information, and documentation have 
been received and the applicant has submitted all applicable reports 
specified at Sec. 638.5.
    (2) Upon receipt of an incomplete application, the Regional 
Director will notify the applicant of the deficiency. If the applicant 
fails to correct the deficiency within 30 days of the date of the 
Regional Director's letter of notification, the application will be 
considered abandoned.
    (f) Duration. A permit remains valid for the period specified on it 
unless it is revoked, suspended, or modified pursuant to subpart D of 
15 CFR part 904 or the permitted vessel is sold.
    (g) Transfer. A permit issued pursuant to this section is not 
transferable or assignable, except as provided under paragraph 
(a)(1)(iv)(A) of this section for a wild live rock vessel permit. An 
individual or person who desires to conduct an activity for which a 
permit is required must apply for a permit in accordance with the 
provisions of paragraph (b) of this section. The application must be 
accompanied by a copy of a signed bill of sale or equivalent 
acquisition papers if the application involves a current permit for 
aquacultured live rock.
    (h) Display. (1) An individual permit issued pursuant to this 
section must be available when the permitted activity is being 
conducted, including the landing of species taken as a result of that 
activity.
    (2) A vessel permit for wild live rock issued pursuant to this 
section must be carried on board the vessel and such vessel must be 
identified as required by Sec. 638.6.
    (3) An aquacultured live rock permit issued pursuant to this 
section, or a copy, must be carried on board a vessel depositing or 
possessing material on an aquacultured live rock site or harvesting or 
possessing live rock from an aquacultured live rock site, and such 
vessel must be identified as provided for in Sec. 638.6.
    (4) The operator of a vessel or an individual must present the 
permit for inspection upon the request of an authorized officer.
    (i) Sanctions and denials. A permit issued pursuant to this section 
may be revoked, suspended, or modified, and a permit application may be 
denied, in accordance with the procedures governing enforcement-related 
permit sanctions and denials found at subpart D of 15 CFR part 904.
    (j) Alteration. A permit that is altered, erased, or mutilated is 
invalid.
    (k) Replacement. A replacement permit may be issued. An application 
for a replacement permit will not be considered a new application. A 
fee, the amount of which is stated with the application form, must 
accompany each request for a replacement.


Sec. 638.5  Recordkeeping and reporting.

    (a) An individual with a Federal prohibited coral or wild live rock 
permit for a scientific, educational, or restoration purpose must 
submit a report of harvest to the Regional Director. Specific reporting 
requirements will be provided with the permit.
    (b) An individual with a Federal allowable octocoral permit must 
submit a report of harvest to the Science and Research Director. 
Specific reporting requirements will be provided with the permit.
    (c) A person with an aquacultured live rock permit must report to 
the Regional Director each deposition of material on a site. Such 
reports must be postmarked not later than 7 days after deposition and 
must contain the following information:
    (1) Permit number of site and date of deposit.
    (2) Geological origin of material deposited.
    (3) Amount of material deposited.
    (4) Source of material deposited, that is, where obtained, if 
removed from another habitat, or from whom purchased.
    (d) The owner of a vessel that takes wild live rock, and a person 
who takes aquacultured live rock that is landed in Florida, must submit 
Florida trip tickets as required by Florida statutes and regulations.
    (e) A person who takes aquacultured live rock that is landed other 
than in Florida must submit a report of harvest to the Regional 
Director. Specific reporting requirements will be provided with the 
permit.
    (f) Additional data will be collected by authorized statistical 
reporting agents, as designees of the Science and Research Director, 
and by authorized officers. An owner or operator of a fishing vessel, 
an individual or person with a coral permit issued pursuant to 
Sec. 638.4, and a dealer or processor are required upon request to make 
prohibited coral, fish or other marine organisms taken with an 
allowable chemical, allowable octocoral, or live rock available for 
inspection by the Science and Research Director or an authorized 
officer.


Sec. 638.6  Vessel identification.

    (a) Official number. A vessel with a Federal permit for wild live 
rock or operating under an aquacultured live rock permit, issued 
pursuant Sec. 638.4, must display its official number--
    (1) On the port and starboard sides of the deckhouse or hull, and 
on an appropriate weather deck, so as to be clearly visible from an 
enforcement vessel or aircraft;
    (2) In block arabic numerals in contrasting color to the 
background;
    (3) At least 18 inches (45.7 cm) in height for fishing vessels over 
65 ft (19.8 m) in length and at least 10 inches (25.4 cm) in height for 
all other vessels; and
    (4) Permanently affixed to or painted on the vessel.
    (b) Duties of operator. The operator of each fishing vessel must--
    (1) Keep the official number clearly legible and in good repair; 
and
    (2) Ensure that no part of the fishing vessel, its rigging, fishing 
gear, or any other material aboard obstructs the view of the official 
number from any enforcement vessel or aircraft.


Sec. 638.7  Prohibitions.

    In addition to the general prohibitions specified in Sec. 620.7 of 
this chapter, it is unlawful for any person to do any of the following:
    (a) Without a Federal permit, take or possess in the EEZ--
    (1) Prohibited coral,
    (2) Fish or other marine organisms with an allowable chemical in a 
coral area,
    (3) Allowable octocoral,
    (4) Wild live rock, or
    (5) Aquacultured live rock--as specified in Sec. 638.4(a)(1).
    (b) Falsify information specified in Sec. 638.4(b) on an 
application for a permit.
    (c) Fail to display or present a permit, as specified in 
Sec. 638.4(h).
    (d) Falsify or fail to submit required reports or trip tickets, as 
specified in Sec. 638.5(a), (b), (c), (d), and (e).
    (e) Fail to make prohibited coral, fish or other marine organisms 
taken with an allowable chemical, allowable octocoral, or live rock 
available for inspection, as specified in Sec. 638.5(f).
    (f) Falsify or fail to display and maintain vessel identification, 
as required by Sec. 638.6.
    (g) Fail to return immediately to the sea prohibited coral, 
allowable octocoral, or live rock taken as incidental catch, or, in 
fisheries in which the entire catch is landed unsorted, sell, trade, or 
barter, or attempt to sell, trade, or barter prohibited coral, 
allowable octocoral, or live rock, as specified in Sec. 638.21.
    (h) Use or possess a toxic chemical in a coral area in the EEZ, as 
specified in Sec. 638.22(a).
    (i) Use a power-assisted tool in the EEZ to take prohibited coral, 
allowable octocoral, or live rock, or possess in the EEZ such coral or 
live rock taken with a power-assisted tool, as specified in 
Sec. 638.22(b).
    (j) Fish for or possess prohibited coral or allowable octocoral in 
the West and East Flower Garden Banks HAPC or the Florida Middle 
Grounds HAPC, except as authorized by a permit, as specified in 
Sec. 638.23(a)(1) and (b)(1).
    (k) Use prohibited fishing gear in an HAPC, as specified in 
Sec. 638.23(a)(2), (b)(2), and (c).
    (l) After the fishery for allowable octocoral is closed, harvest or 
possess allowable octocoral in the EEZ, or purchase, barter, trade, or 
sell allowable octocoral so harvested or possessed, or attempt any of 
the foregoing, as specified in Sec. 638.24(b).
    (m) Harvest or possess wild live rock in the EEZ off the southern 
Atlantic states north of 25 deg.58.5' N. lat., or in the Gulf of Mexico 
EEZ west of 87 deg.31'06'' W. long. or south of 25 deg.20.4' N. lat., 
as specified in Secs. 638.25(a) and 638.26(a).
    (n) Harvest wild live rock by chipping or possess wild live rock 
taken by chipping in the EEZ off the southern Atlantic states south of 
25 deg.58.5' N. lat. or in the Gulf of Mexico EEZ from 87 deg.31'06'' 
W. long. east and south to 28 deg.26' N. lat., as specified in 
Secs. 638.25(b) and 638.26(b)(1).
    (o) After the fishery for wild live rock is closed in the EEZ off 
the southern Atlantic states, harvest or possess wild live rock in that 
area, or purchase, barter, trade, or sell wild live rock so harvested 
or possessed, or attempt any of the foregoing, as specified in 
Sec. 638.25(c).
    (p) Harvest wild live rock other than by hand or by chipping with a 
nonpower-assisted, hand-held hammer and chisel in the Gulf of Mexico 
EEZ from 28 deg.26' N. lat. to 25 deg.20.4' N. lat. or possess in that 
area wild live rock taken otherwise, as specified in Sec. 638.(b)(2).
    (q) Exceed the daily vessel harvest and possession limit applicable 
to the harvest or possession of live rock in or from the Gulf of Mexico 
EEZ, as specified in Sec. 635.26(c).
    (r) Fail to comply with the restrictions applicable to aquacultured 
live rock sites specified in Sec. 638.27(b).
    (s) Mechanically dredge or drill, or otherwise disturb, 
aquacultured live rock or harvest live rock other than by hand, as 
specified in Sec. 638.27(c).
    (t) Falsify or fail to provide information 24 hours prior to 
harvesting aquacultured live rock, as specified in Sec. 638.27(d).
    (u) Harvest live rock from a site for which the person does not 
have an aquacultured live rock permit, as specified in Sec. 638.27(e).
    (v) Make any false statement, oral or written, to an authorized 
officer concerning the taking, catching, harvesting, landing, purchase, 
sale, possession, or transfer of allowable octocoral, prohibited coral, 
or live rock.
    (w) Interfere with, obstruct, delay, or prevent by any means an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the Magnuson Act.
    6. Subpart B of part 638 is revised to read as follows:

Subpart B--Management Measures

638.20  Fishing years.
638.21  Harvest limitations.
638.22  Gear restrictions.
638.23  Habitat areas of particular concern.
638.24  Octocoral quota and closure.
638.25  Wild live rock off the southern Atlantic states.
638.26  Wild live rock in the Gulf of Mexico.
638.27  Aquacultured live rock.
638.28  Specifically authorized activities.

Subpart B--Management Measures


Sec. 638.20  Fishing years.

    The fishing year for live rock begins on January 1 and ends on 
December 31. The fishing year for prohibited coral and allowable 
octocoral begins on October 1 and ends on September 30.


Sec. 638.21  Harvest limitations.

    Except as authorized by a permit issued pursuant to Sec. 638.4, 
prohibited coral, allowable octocoral, and live rock taken as 
incidental catch must be returned immediately to the sea in the general 
area of fishing. In fisheries where the entire catch is landed 
unsorted, such as the scallop and groundfish fisheries, unsorted 
prohibited coral, allowable octocoral, and live rock are exempt from 
the requirement for a Federal permit and may be landed; however, no 
person may sell, trade, or barter or attempt to sell, trade, or barter 
such prohibited coral, allowable octocoral, or live rock.


Sec. 638.22  Gear restrictions.

    (a) A toxic chemical may not be used or possessed in a coral area 
in the EEZ.
    (b) A power-assisted tool may not be used in the EEZ to take 
prohibited coral, allowable octocoral, or live rock, and the possession 
in the EEZ of such corals or live rock taken with a power-assisted tool 
is prohibited.


Sec. 638.23  Habitat areas of particular concern.

    The following areas are designated as HAPCs:
    (a) West and East Flower Garden Banks. The West and East Flower 
Garden Banks are geographically centered at 27 deg.52'14.21'' N. lat., 
93 deg.48'54.79'' W. long. and 27 deg.55'07.44'' N. lat., 
93 deg.36'08.49'' W. long., respectively. On each bank, the HAPC 
extends from its geographical center to the 50-fathom (300-ft) (91.4-m) 
isobath. The following restrictions apply in the HAPC:
    (1) Fishing for or possessing prohibited coral or allowable 
octocoral is prohibited, except as authorized by a permit issued 
pursuant to Sec. 634.4; and
    (2) Fishing with bottom longlines, traps, pots, dredges, or bottom 
trawls is prohibited.
    (b) Florida Middle Grounds. The Florida Middle Grounds is bounded 
by rhumb lines connecting the following points: 

------------------------------------------------------------------------
         Point                  Latitude                 Longitude      
------------------------------------------------------------------------
A......................  28 deg.42.5' N.........  84 deg.24.8' W.       
B......................  28 deg.42.5' N.........  84 deg.16.3' W.       
C......................  28 deg.11.0' N.........  84 deg.00.0' W.       
D......................  28 deg.11.0' N.........  84 deg.07.0' W.       
E......................  28 deg.26.6' N.........  84 deg.24.8' W.       
A......................  28 deg.42.5' N.........  84 deg.24.8' W.       
------------------------------------------------------------------------

    The following restrictions apply in the HAPC:
    (1) Fishing for or possessing prohibited coral or allowable 
octocoral is prohibited, except as authorized by a permit issued 
pursuant to Sec. 634.4; and
    (2) Fishing with bottom longlines, traps, pots, dredges, or bottom 
trawls is prohibited.
    (c) Oculina Bank. The Oculina Bank is located approximately 15 
nautical miles east of Fort Pierce, FL, at its nearest point to shore, 
and is bounded on the north by 27 deg.53' N. lat., on the south by 
27 deg.30' N. lat., on the east by 79 deg.56' W. long., and on the west 
by 80 deg.00' W. long. In the HAPC, fishing with bottom longlines, 
traps, pots, dredges, or bottom trawls is prohibited. See 
Sec. 646.26(d) of this chapter for prohibitions on fishing for snapper-
grouper in the Oculina Bank HAPC.


Sec. 638.24  Octocoral quota and closure.

    (a) The quota for allowable octocoral from the EEZ is 50,000 
colonies per fishing year.
    (b) When the quota specified in paragraph (a) of this section is 
reached, or is projected to be reached, the Assistant Administrator 
will file notification to that effect with the Office of the Federal 
Register. On and after the effective date of such notification, for the 
remainder of the fishing year, allowable octocoral may not be harvested 
or possessed in the EEZ and the purchase, barter, trade, or sale, or 
attempted purchase, barter, trade, or sale, of allowable octocoral in 
or from the EEZ is prohibited. The latter prohibition does not apply to 
allowable octocoral that was harvested and landed prior to the 
effective date of the notification in the Federal Register.


Sec. 638.25  Wild live rock off the southern Atlantic states.

    (a) Closed area. No person may harvest or possess wild live rock in 
the EEZ off the southern Atlantic states north of 25 deg.58.5' N. lat. 
(extension of the Dade/Broward County, Florida, boundary).
    (b) Gear limitation. In the EEZ off the southern Atlantic states 
south of 25 deg.58.5' N. lat., no person may harvest wild live rock by 
chipping and no person may possess in that area wild live rock taken by 
chipping.
    (c) Quota and closure. (1) The quota for wild live rock from the 
EEZ off the southern Atlantic states is 485,000 lb (219,992 kg) per 
fishing year during the fishing years that begin January 1, 1994, and 
January 1, 1995. Commencing with the fishing year that begins January 
1, 1996, the quota is zero.
    (2) When the quota specified in paragraph (c)(1) of this section is 
reached, or is projected to be reached, the Assistant Administrator 
will file notification to that effect with the Office of the Federal 
Register. On and after the effective date of such notification, for the 
remainder of the fishing year, wild live rock may not be harvested or 
possessed in the EEZ off the southern Atlantic states and the purchase, 
barter, trade, or sale, or attempted purchase, barter, trade, or sale, 
of wild live rock in or from the EEZ off the southern Atlantic states 
is prohibited. The latter prohibition does not apply to wild live rock 
that was harvested and landed prior to the effective date of the 
notification in the Federal Register.


Sec. 638.26  Wild live rock in the Gulf of Mexico.

    (a) Closed areas. No person may harvest or possess wild live rock 
in the Gulf of Mexico EEZ--
    (1) West of 87 deg.31'06'' W. long. (extension of the Alabama/
Florida boundary); or
    (2) South of 25 deg.20.4' N. lat. (extension of the Monroe/Collier 
County, Florida boundary).
    (b) Gear limitations. (1) In the Gulf of Mexico EEZ from 
87 deg.31'06'' W. long. east and south to 28 deg.26' N. lat. (extension 
of the Pasco/Hernando County, FL, boundary), no person may harvest wild 
live rock by chipping and no person may possess in that area wild live 
rock taken by chipping.
    (2) In the Gulf of Mexico EEZ from 28 deg.26' N. lat. to 
25 deg.20.4' N. lat., wild live rock may be harvested only by hand, 
without tools, or by chipping with a nonpower-assisted, hand-held 
hammer and chisel, and no person may possess in that area wild live 
rock taken otherwise.
    (c) Harvest and possession limits. Through December 31, 1996, a 
daily vessel limit of twenty-five 5-gallon (19-L) buckets, or volume 
equivalent (16.88 ft3 (478.0 L)), applies to the harvest or possession 
of wild live rock in or from the Gulf of Mexico EEZ from 87 deg.31'06'' 
W. long. east and south to 25 deg.20.4' N. lat., regardless of the 
number or duration of trips. Commencing January 1, 1997, the daily 
vessel limit is zero.


Sec. 638.27  Aquacultured live rock.

    (a) Aquacultured live rock may be harvested from the Gulf of Mexico 
EEZ only under a permit issued pursuant to Sec. 638.4. A person 
harvesting aquacultured live rock is exempt from the prohibition on 
taking prohibited coral for such prohibited coral as attaches to 
aquacultured live rock.
    (b) The following restrictions apply to individual aquaculture 
activities:
    (1) No aquaculture site may exceed 1 acre (0.4 ha) in size.
    (2) Material deposited on the aquaculture site must be geologically 
or otherwise distinguishable from the naturally occurring substrate or 
be indelibly marked or tagged; may not be placed over naturally 
occurring reef outcrops, limestone ledges, coral reefs, or vegetated 
areas; must be free of contaminants; and must be nontoxic.
    (3) A minimum setback of at least 50 ft (15.2 m) must be maintained 
from natural vegetated or hard bottom habitats.
    (c) Mechanically dredging or drilling, or otherwise disturbing, 
aquacultured live rock is prohibited, and aquacultured live rock may be 
harvested only by hand.
    (d) Not less than 24 hours prior to harvest of aquacultured live 
rock, the owner or operator of the harvesting vessel must provide the 
following information to the NMFS Law Enforcement Office, Southeast 
Area, St. Petersburg, FL, telephone (813) 570- 5344:
    (1) Permit number of site to be harvested and date of harvest.
    (2) Name and official number of the vessel to be used in 
harvesting.
    (3) Date, port, and facility at which aquacultured live rock will 
be landed.
    (e) Live rock on a site may be harvested only by the person, or his 
or her employee, contractor, or agent, who has been issued the 
aquacultured live rock permit for the site.


Sec. 638.28  Specifically authorized activities.

    The Regional Director may authorize, for the acquisition of 
information and data, activities otherwise prohibited by the 
regulations in this part.

[FR Doc. 94-23900 Filed 9-22-94; 3:50 pm]
BILLING CODE 3510-22-P