[Federal Register Volume 60, Number 151 (Monday, August 7, 1995)]
[Proposed Rules]
[Pages 40150-40152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19325]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 638
[Docket No. 950725190-5190-10; I.D. 062695A]
RIN 0648-AH71
Coral and Coral Reefs of the Gulf of Mexico; Amendment 3
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 3 to the
Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico
(FMP). Amendment 3 would prohibit the taking of wild live rock in the
exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) off Florida
north and west of the Levy/Dixie County line; remove the prohibition on
taking wild live rock in the EEZ by chipping between the Pasco/Hernando
County and Levy/Dixie County, Florida lines; establish annual quotas
for wild live rock harvesting for 1995 and 1996 in the Gulf EEZ; and
reduce the amount of substrate that may be taken with allowable
octocorals in the Gulf EEZ. The intended effect is to protect the live
rock resource and fishery habitat in the Gulf EEZ and to simplify the
regulations implementing the FMP.
DATES: Written comments must be received on or before September 18,
1995.
ADDRESSES: Comments on the proposed rule must be sent to the Southeast
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,
FL 33702.
Requests for copies of Amendment 3, which includes a regulatory
impact review and an environmental assessment, or for copies of a
minority report on Amendment 3 by two Council members, 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.
FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.
SUPPLEMENTARY INFORMATION: The FMP was prepared by the Gulf of Mexico
Fishery Management Council (Council) and is implemented through
regulations at 50 CFR part 638 under the authority of the Magnuson
Fishery Conservation and Management Act (Magnuson Act).
Background
Under Amendment 2 to the FMP, the harvest of wild live rock in the
Gulf EEZ off Florida north of Monroe County is being phased out and the
taking of wild live rock elsewhere in the Gulf is prohibited. Effective
January 1, 1997, all wild live rock harvests are prohibited in the Gulf
EEZ. Amendment 2 also established certain restrictions on wild live
rock harvesting and possession, required permits and reporting during
the phase-out period, and established an aquacultured live rock permit
system. The intent of Amendment 2 was to protect an essentially
nonrenewable resource and prevent a net loss of fishery habitat.
Florida has the only reported live rock landings from the EEZ; live
rock harvesting is banned in Florida waters. The final rule to
implement Amendment 2 was published December 28, 1994 (59 FR 66776).
During development of Amendment 2, the Council was concerned about
the continuing effects of wild live rock harvesting in the northern
Gulf, especially the Florida Panhandle area, because live rock is
relatively scarce in
[[Page 40151]]
these areas. Accordingly, Amendment 2 included a prohibition on taking
of wild live rock by chipping north of the Pasco/Hernando County,
Florida line, but allowed harvest of loose, rubble rock in the EEZ
north of that line.
Subsequent testimony by local governments, recreational divers, and
environmental groups indicated that the measures of Amendment 2 were
insufficient to protect hard bottom resources, especially north and
west of the Levy/Dixie County line, where the abundance of hard bottom
resources declines sharply.
Amendment 3
Amendment 3 proposes the following measures: Prohibit the taking of
wild live rock in the Gulf EEZ off Florida north and west of the Levy/
Dixie County line--the Panhandle area; remove the prohibition on taking
wild live rock by chipping between the Pasco/Hernando County and Levy/
Dixie County, Florida lines; establish a 500,000 lb (226,796 kg) annual
quota for 1995 and 1996 in the Gulf EEZ off Florida north of Monroe
County to the Levy/Dixie County line, which is the only area that would
remain open to live rock harvesting in the Gulf EEZ; and reduce the
amount of substrate that may be taken at the base of an allowable
octocoral in the Gulf EEZ from 3 inches (7.6 cm) to 1 inch (2.5 cm).
These measures constitute minor changes to the management regime
established for live rock in Amendment 2.
Prohibiting the harvest of wild live rock off the Panhandle area
would address the concerns discussed above regarding relative scarcity
of the resource in that area. According to testimony received by the
Council, this measure would benefit reef fish fishermen and
recreational divers who depend on the fishery habitat provided by live
rock resources in this area.
A total of 5 individuals in the Panhandle area are eligible for
vessel permits to take wild live rock until 1997. Closure of the
Panhandle area to commercial harvesting is not expected to have a
significant adverse impact on the live rock industry because: (1) This
area accounts for a relatively small percentage of total harvest; (2)
eligible participants can relocate operations to areas unaffected by
this closure; and (3) all current participants will have to cease wild
harvest operations by 1997, whether or not Amendment 3 is implemented.
The Council proposes removal of the prohibition on chipping of wild
live rock between the Pasco/Hernando County and Levy/Dixie County,
Florida lines because this 3-county area most closely resembles the
southern counties, in terms of availability of live rock and the
characteristics of the fishery, than the Panhandle area to the north.
Leaving the prohibition in place would result in three different kinds
of management regimes during the phase out--no taking of live rock in
the Panhandle area, taking of loose rubble rock only in the adjoining
3-county area, and taking by chipping in the area to the south. Thus,
the removal of the prohibition on chipping for the 3-county area would
simplify the regulations and enhance enforcement by standardizing the
harvesting restrictions throughout the range of allowable wild live
rock harvesting, i.e., from the Collier/Monroe County line to the Levy/
Dixie County line.
Amendment 3 proposes a cap on the allowable harvest of wild live
rock from the Gulf EEZ at the approximate current harvest level of
500,000 lb (226,796 kg) for 1995 and 1996. This quota would prevent
increases in harvest levels during the phaseout due to increased demand
and possible effort shifts from the Florida Keys to the Gulf EEZ. The
live rock fishery in the Atlantic EEZ off the Florida Keys will close
when the quota for that area is reached in 1995 and will not reopen in
1996 because the quota for 1996 and subsequent years is zero. Some
permitted vessels are expected to move into the Gulf and continue
harvesting during 1996.
Harvest and sale of wild live rock taken on or after the effective
date of the closure would be prohibited. But the prohibition on sale of
wild live rock after the effective date of the closure would not apply
to wild live rock harvested and landed prior to that date--wild live
rock is frequently maintained by harvesters for weeks or months before
sale. This would be consistent with the current rule for a closure of
the EEZ off the southern Atlantic states (Sec. 638.25(c)(2)).
During the development of Amendment 2, some individuals who harvest
octocorals in the EEZ off Florida for sale to the aquarium industry
testified that attached substrate is needed to anchor the octocoral in
the aquarium. Such substrate could include live rock, possibly in
violation of the restrictions on the harvest of live rock. Accordingly,
Amendment 2 defined allowable octocorals to include the substrate
within 1 inch (2.5 cm) of the octocoral in the EEZ off the southern
Atlantic states and the substrate within 3 inches (7.6 cm) in the Gulf.
However, in accordance with 50 CFR 638.3(c), if a state has a landing
regulation that is more restrictive than a Federal landing restriction
for octocorals, a person landing in that state must comply with the
more restrictive state regulation.
Florida recently implemented a rule allowing only 1 inch (2.5 cm)
of substrate from the attachment of the octocoral. Therefore, an
individual harvesting octocoral from the Gulf EEZ and landing in
Florida must comply with the more restrictive 1-inch (2.5-cm) rule.
There are no reported landings of octocorals outside Florida. The
Council and NMFS agree with Florida's finding that a 3-inch (7.6 cm)
rule would allow the continued taking of excessive amounts of live rock
as bycatch under the octocoral quota. Therefore, Amendment 3 would
redefine allowable octocorals taken in the Gulf EEZ to include only the
substrate within 1 inch (2.5 cm) of an allowable octocoral. This FMP
change would result in an octocoral substrate measure for the Gulf of
Mexico that is consistent with the provision for the EEZ off the
southern Atlantic states and with the Florida rule. This change would
have negligible effects on industry practices and income. Taking of an
octocoral with more than 1 inch (2.5 cm) of attached substrate would
constitute taking of live rock.
Additional background and rationale for the measures discussed
above are contained in Amendment 3, the availability of which was
announced in the Federal Register on July 13, 1995 (60 FR 36093).
Minority Report
A minority report signed by two Council members raises objections
to Amendment 3's closure of the Panhandle area to live rock harvesting
before the 1997 closure of the Gulf EEZ established under Amendment 2.
These members believe that this measure is a reversal of the Council's
earlier commitment to allow Panhandle fishermen sufficient time to
convert to live rock aquaculture. Copies of the minority report are
available (see ADDRESSES). The final rule for Amendment 3 will include
responses to comments received on the proposed rule, including the
issue raised in the minority report.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires the regulations
proposed by a council to be published within 15 days of receipt of an
amendment and regulations. At this time, the Assistant Administrator
for Fisheries, NOAA, (AA) has not determined that Amendment 3 is
consistent with the National Standards, other provisions of the
Magnuson Act, and other applicable laws. The AA, in making that
[[Page 40152]]
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 Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. Under a previous rulemaking all current participants in
the wild live rock fishery must cease business by 1997. This proposed
rule merely accelerates the phaseout of wild live rock harvesting off
the Panhandle area and is expected to affect up to 5 small businesses,
which may relocate their operations from the closed area and continue
operations until 1997. The measures in Amendment 3 would not: (1)
Reduce annual gross revenues in excess of 5 percent; (2) significantly
increase compliance or production costs of participants; (3) require
capital investment to comply with the rule; or (4) require current
participants to cease business. All entities involved are small
entities. As a result, a regulatory flexibility analysis was not
prepared.
List of Subjects in 50 CFR Part 638
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 31, 1995.
Gary Matlock,
Program Management Officer, 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 SOUTH
ATLANTIC
1. The authority citation for part 638 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 638.2, the definition for ``Allowable octocoral'' is
revised 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 within 1 inch (2.54 cm) of an
allowable octocoral.
* * * * *
3. In Sec. 638.7, paragraphs (m), (n), and (p) are revised to read
as follows:
Sec. 638.7 Prohibitions.
* * * * *
(m) Harvest or possess wild live rock in the EEZ off the southern
Atlantic states north of 25 deg.58.5' N. lat., as specified in
Sec. 638.25(a), or in the Gulf of Mexico EEZ north and west of a line
extending in a direction of 235 deg. from true north from the Levy/
Dixie County, Florida boundary or south of 25 deg.20.4' N. lat., as
specified in Sec. 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., as specified in Sec. 638.25(b).
* * * * *
(p) Harvest or possess in the Gulf of Mexico EEZ from a line
extending in a direction of 235 deg. from true north from the Levy/
Dixie County, Florida boundary to 25 deg.20.4' N. lat. wild live rock
taken other than by hand or by chipping with a nonpower-assisted, hand-
held hammer and chisel, as specified in Sec. 638.26(b).
* * * * *
4. Section 638.26, is revised to read as follows:
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) North and west of a line extending in a direction of 235 deg.
from true north from the Levy/Dixie County, Florida boundary, that is,
from a point at the mouth of the Suwannee River at 29 deg.17.25' N.
lat., 83 deg.09.9' W. long.; or
(2) South of 25 deg.20.4' N. lat. (extension of the Monroe/Collier
County, Florida boundary).
(b) Gear limitations. In the Gulf of Mexico EEZ from the line
described in paragraph (a)(1) of this section 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 other than by
hand, without tools, or by chipping with a nonpower-assisted, hand-held
hammer and chisel.
(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 ft\3\ (478.0 L)), applies to the harvest or
possession of wild live rock in or from the Gulf of Mexico EEZ from the
line described in paragraph (a)(1) of this section 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.
(d) Quota and closure.
(1) The annual quota for wild live rock from the EEZ from the line
described in paragraph (a)(1) of this section south to 25 deg.20.4' N.
lat. is 500,000 lb (226,796 kg) for the fishing years that begin
January 1, 1995, and January 1, 1996. Commencing with the fishing year
that begins January 1, 1997, the quota is zero.
(2) When the quota specified in paragraph (d)(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. Harvest and purchase, barter, trade, or sale, or attempted
purchase, barter, trade, or sale of wild live rock taken on or after
the effective date of such notification would be prohibited. But the
prohibition on purchase, barter, trade, or sale, or attempted purchase,
barter, trade, or sale, of wild live rock in or from the EEZ of the
Gulf of Mexico, after the effective date of the closure, would not
apply to wild live rock harvested and landed prior to that date.
[FR Doc. 95-19325 Filed 8-2-95; 10:20 am]
BILLING CODE 3510-22-W