[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]
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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.
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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