[Federal Register Volume 60, Number 200 (Tuesday, October 17, 1995)]
[Proposed Rules]
[Pages 53730-53732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25721]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 638
[Docket No. 950929242-5242-01; I.D. 091295A]
RIN 0648-AH74
Coral and Coral Reefs Off the Southern Atlantic States; Amendment
3
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues this proposed rule to implement Amendment 3 to the
Fishery Management Plan for Coral and Coral Reefs off the Southern
Atlantic States (FMP). Amendment 3 would: Establish an aquacultured
live rock permit system applicable to the exclusive economic zone (EEZ)
off the southern Atlantic states; prohibit chipping of aquacultured
live rock; prohibit octocoral harvest north of Cape Canaveral, FL; and
prohibit anchoring of fishing vessels in the Oculina Bank habitat area
of particular concern (HAPC). In addition, NMFS proposes changes to
correct and clarify certain regulations, or conform them to current
standards. The intended effect is to establish a management program for
live rock aquaculture and to protect fishery habitat.
DATES: Written comments must be received on or before November 27,
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, a social impact assessment, and an environmental
assessment, should be sent to the South Atlantic Fishery Management
Council, Southpark Building, Suite 306, 1 Southpark Circle, Charleston,
SC 29407-4699, telephone: 803-571-4366, FAX: 803-769-4520.
FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.
SUPPLEMENTARY INFORMATION: The FMP was prepared by the South Atlantic
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). Upon
implementation of Amendment 3, if approved, the title of the FMP would
be changed to the Fishery Management Plan for Coral, Coral Reefs, and
Live/Hard Bottom Habitats of the South Atlantic Region. This title
change reflects the Council's intent to manage and protect essential
live/hard bottom habitats as well as coral resources.
Aquacultured Live Rock Permits
Amendment 3 proposes to adopt in the EEZ off the southern Atlantic
states (South Atlantic EEZ) the aquacultured live rock permit system
implemented for the Gulf of Mexico (Gulf) EEZ under Amendment 2 to the
Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico
and South Atlantic, with two special conditions: (1) Aquaculture
substrates must be geologically distinguishable from the naturally
occurring substrate, and (2) no chipping of aquacultured live rock is
permitted.
Under Amendment 2, the Gulf of Mexico Fishery Management Council
and the South Atlantic Council agreed to allow and facilitate live rock
aquaculture to replace the wild harvest that is being phased out.
Amendment 2 established 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 Sec. 638.27. The aquaculture permit also
authorizes an exception to the prohibition on taking and possession of
prohibited corals; a permitted individual harvesting aquacultured live
rock is exempt from the prohibition on taking prohibited coral with
regards to the prohibited coral attached to the aquacultured live rock.
Otherwise, an aquaculturalist would be prevented from harvesting the
aquaculture product if small polyps of such species were detected on
the aquaculture substrates.
Under the criteria for issuance of aquacultured live rock permits,
established under Amendment 2 for the Gulf EEZ, materials deposited on
the aquaculture site must be geologically or
[[Page 53731]]
otherwise distinguishable from the naturally occurring substrate or be
indelibly marked or tagged. Amendment 3 proposes to require in the
South Atlantic EEZ that the rock be geologically distinguishable,
without exception, to eliminate the possibility of marking wild live
rock and selling it as aquacultured product.
Prohibition on Chipping Aquacultured Live Rock
Chipping means breaking up rocks into fragments, usually with a
chisel and hammer. Amendment 3 proposes to prohibit chipping of
aquacultured live rock in the South Atlantic EEZ to prevent harvest of
naturally occurring corals under the guise of aquaculture. Otherwise,
the Council anticipates that individuals might claim prohibited corals
in their possession were chipped from aquacultured live rock when, in
fact, they were taken from natural substrates. This would confine
harvesters to loose, rubble rock only.
Restriction on Octocoral Harvest
The existing regulations provide an annual quota of 50,000
allowable octocoral colonies. In the South Atlantic EEZ, allowable
octocoral means an erect, nonencrusting species of the subclass
Octocorallia, except the sea fans Gorgonia flabellum and G. ventalina,
plus the attached substrate within 1 inch (2.54 cm) of the allowable
octocoral. Live octocorals are sold for display in marine aquaria.
Amendment 3 proposes to prohibit the taking of octocorals north of
Cape Canaveral, FL. No landings have been reported from this area. The
Council intends to prevent a shift of effort from south Florida, where
landing of about 20,000 colonies of octocorals are reported annually,
to northeast Florida, Georgia, South Carolina, and North Carolina.
Octocoral/sponge assemblages are the primary component of live bottom
communities in the area south of Cape Hatteras, NC, to Cape Canaveral,
FL, and an essential element of the available fisheries habitat,
according to the Council's Coral Advisory Panel.
Prohibition on Anchoring in the Oculina Bank HAPC
The FMP established HAPCs to provide special protection to
environmentally significant coral areas. The Oculina Bank HAPC is a 4 x
23 nautical mile (nm) (7.4 x 42.6 km) area in the South Atlantic EEZ
off central Florida characterized by extensive tree-like colonies of
Oculina spp. The FMP prohibits fishing with bottom longlines, traps,
pots, dredges, or bottom trawls in the Oculina Bank HAPC. Amendment 3
proposes to add a prohibition on anchoring of fishing vessels. Anchors
can break fragile coral colonies, dislodge reef framework, and scar
corals, thereby opening lesions for infection.
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 September 21, 1995 (60 FR 48960).
Additional Changes Proposed by NMFS
NMFS proposes to change the title of part 638 from Coral and Coral
Reefs of the Gulf of Mexico and the South Atlantic to Coral and Coral
Reefs of the Gulf of Mexico and off the Southern Atlantic States in
order to more correctly indicate the geographical scope of the
regulations. NMFS also proposes changes to the regulations to correct
errors in existing cross-references and to restructure the regulations
for consistency and clarity. A note has been added to the definition of
``Allowable octocoral'' to clarify the distinction between allowable
octocoral and live rock.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of an
amendment and regulations. At this time, NMFS has not determined that
Amendment 3 is consistent with the national standards, other provisions
of the Magnuson Act, and other applicable laws. NMFS, 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 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. All participants in the live rock fishery are
considered small entities for purposes of the Regulatory Flexibility
Act. The proposed rule would establish an aquaculture live rock permit
system that is a minor modification of the permit system already in
place in the Gulf of Mexico EEZ. Aquaculture is expected to benefit
live rock fishermen by providing an alternative to the wild live rock
harvest that is being phased out under a previous FMP amendment because
of its damage to natural fishery habitats. No adverse economic effects
are expected from the prohibition on taking of octocorals north of Cape
Canaveral, Florida, since currently there are no reported landings in
this area. The proposed prohibition on the anchoring of fishing vessels
in the Oculina Bank HAPC off east central Florida is expected to have
only minimal impact on fishermen in this area since anchoring while
fishing for snapper-grouper is already prohibited under the Fishery
Management Plan for the Snapper-Grouper Fishery of the South Atlantic.
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: October 10, 1995.
Rolland A. Schmitten,
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 OFF THE
SOUTHERN ATLANTIC STATES
1. The authority citation for part 638 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. The title of part 638 is revised to read as set forth above.
Sec. 638.1 [Amended]
3. In Sec. 638.1, in paragraph (a), the phrase ``Fishery Management
Plan for Coral and Coral Reefs off the Southern Atlantic States'' is
removed and ``Fishery Management Plan for Coral, Coral Reefs, and Live/
Hard Bottom Habitats of the South Atlantic Region'' is added in its
place.
4. In Sec. 638.2, a note is added to the end of paragraph (2) of
the definition for ``Allowable octocoral'', to read as follows:
Sec. 638.2 Definitions.
* * * * *
Allowable octocoral * * * (2) * * * Note: An erect, nonencrusting
species of the subclass Octocorallia, except the seafans Gorgonia
flabellum and G. ventalina, with attached substrate exceeding 1 inch
(2.54 cm) or 3 inches (7.62 cm) in or from the EEZ off the southern
Atlantic states or the Gulf of Mexico, respectively, is considered to
be live rock and not allowable octocoral.
* * * * *
5. In Sec. 638.4, the last sentence in paragraph (a)(1)(v) is
revised to read as follows:
[[Page 53732]]
Sec. 638.4 Permits and fees.
(a) * * *
(1) * * *
(v) * * * A person who has been issued an aquacultured live rock
permit is exempt from the requirement to obtain a permit for prohibited
coral that is attached to aquacultured live rock.
* * * * *
6. In Sec. 638.7, in paragraph (k), the reference to ``(c)'' is
removed and ``(c)(1)'' is added in its place; in paragraph (q), the
reference to ``Sec. 635.26(c)'' is removed and ``Sec. 638.26(c)'' is
added in its place; and new paragraphs (x), (y), and (z) are added to
read as follows:
Sec. 638.7 Prohibitions.
* * * * *
(x) Harvest allowable octocoral in the EEZ off the southern
Atlantic states, north of Cape Canaveral, FL (28 deg. 35.1'' N. lat.--
due east of the NASA Vehicle Assembly Building) or possess allowable
octocoral in or from that area, as specified in Sec. 638.21(b).
(y) Anchor a fishing vessel, or use an anchor and chain or grapple
and chain on board a fishing vessel, in the Oculina Bank HAPC, as
specified in Sec. 638.23(c)(2).
(z) Harvest aquacultured live rock by chipping in the EEZ off the
southern Atlantic states; possess chipped aquacultured live rock in or
from that area; remove allowable octocoral or prohibited coral from
aquacultured live rock; or, while in possession of aquacultured live
rock, possess prohibited coral not attached to aquacultured live rock
or allowable octocoral, as specified in Sec. 638.27(c).
7. Section 638.21 is revised to read as follows:
Sec. 638.21 Harvest limitations.
(a) Incidental harvest. 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.
(b) Allowable octocoral harvest. Harvest of allowable octocoral in
the EEZ off the southern Atlantic states, north of Cape Canaveral, FL
(28 deg. 35.1'' N. lat.--due east of the NASA Vehicle Assembly
Building) or possession of allowable octocoral in or from that area is
prohibited. See the note included in the definition of ``Allowable
octocoral'' for clarification of the distinction between allowable
octocoral and live rock.
8. In Sec. 638.23, in paragraphs (a)(1) and (b)(1), the references
to ``Sec. 634.4'' are removed and ``Sec. 638.4'' is added in both
places; and paragraph (c) is revised to read as follows:
Sec. 638.23 Habitat areas of particular concern.
* * * * *
(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. N. lat., on the east by 79 deg. 56'' W. long., and on the west
by 80 deg. 00'' W. long. The following restrictions apply in the HAPC:
(1) 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.
(2) Anchoring of fishing vessels, or using an anchor and chain or
grapple and chain on board a fishing vessel, is prohibited.
9. In Sec. 638.27, in the first sentence of paragraph (a), the
phrase ``from the Gulf of Mexico EEZ'' is removed; paragraph (b)(2) is
revised; and two sentences are added at the end of paragraph (c) to
read as follows:
Sec. 638.27 Aquacultured live rock.
* * * * *
(b)* * *
(2) Material deposited on the aquaculture site--
(i) May not be placed over naturally occurring reef outcrops,
limestone ledges, coral reefs, or vegetated areas;
(ii) Must be free of contaminants;
(iii) Must be nontoxic;
(iv) Must be placed on the site by hand or lowered completely to
the bottom under restraint, that is, not allowed to fall freely;
(v) Must be placed from a vessel that is anchored;
(vi) In the Gulf of Mexico EEZ must be distinguishable,
geologically or otherwise (for example, be indelibly marked or tagged),
from the naturally occurring substrate; and
(vii) In the EEZ off the southern Atlantic states must be
geologically distinguishable from the naturally occurring substrate
and, in addition, may be indelibly marked or tagged.
* * * * *
(c) * * * In addition, the following activities are prohibited off
the southern Atlantic states: Chipping of aquacultured live rock in the
EEZ; possession of chipped aquacultured live rock in or from the EEZ;
removal of allowable octocoral or prohibited coral from aquacultured
live rock in or from the EEZ; and possession of prohibited coral not
attached to aquacultured live rock or allowable octocoral, while
aquacultured live rock is in possession. See the note included in the
definition of ``Allowable octocoral'' for clarification of the
distinction between allowable octocoral and live rock.
* * * * *
[FR Doc. 95-25721 Filed 10-12-95; 5:02 pm]
BILLING CODE 3510-22-F