[Federal Register Volume 60, Number 217 (Thursday, November 9, 1995)]
[Rules and Regulations]
[Pages 56533-56537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27747]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 638

[Docket No. 950725190-5257-02; I.D. 070395A]
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: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 3 to the 
Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico 
(FMP). Amendment 3 prohibits 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; removes the prohibition 
on taking wild live rock by chipping between the Pasco/Hernando County 
and Levy/Dixie County, FL lines; establishes annual quotas for wild 
live rock harvesting for 1995 and 1996 in the Gulf EEZ; and reduces 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.

EFFECTIVE DATE: November 13, 1995.

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 

[[Page 56534]]
at 50 CFR part 638 under the authority of the Magnuson Fishery 
Conservation and Management Act (Magnuson Act).
    Detailed descriptions, backgrounds, and rationale for the 
management measures in Amendment 3 were included in the preamble to the 
proposed rule (60 FR 40150, August 7, 1995) and are not repeated here.

Comments and Responses

    A minority report was submitted by two Council members in 
opposition to Amendment 3. In addition, public comments on the proposed 
rule were accepted through September 18, 1995. One hundred and nine 
identical letters opposing the rule were forwarded by the American 
Aquarist Society (AAS). Also commenting against the rule were a 
representative of the Marine Aquarium Societies of North America 
(MASNA), a live rock harvester from Florida who also forwarded 14 
identical letters from his supporters, 2 other live rock harvesters, 
and 2 additional individuals.
    The U.S. Fish and Wildlife Service, the Center for Marine 
Conservation (CMC), and 28 individuals supported the proposed measures. 
The Professional Association of Diving Instructors (PADI) and several 
local governments and other organizations support an immediate and 
permanent ban on live rock harvesting. Specific comments are summarized 
below followed by NMFS' response.

Florida Panhandle Closure

    Comment: The minority report claims that the Council's decision to 
close the EEZ off Florida's Panhandle area to live rock harvesting 
``was made without a shred of new data or evidence to justify the 
action.'' AAS members believe that the proposed closure has no 
scientific basis and appears to be ``a blatant effort to accommodate 
the political interests of the State of Florida.'' MASNA and the live 
rock harvesters who commented also oppose the closure because of a 
perceived lack of scientific evidence to support it. In addition, one 
live rock harvester believes that the Council's decision in approving 
Amendment 3 was based on ``false testimony,'' and that the decision 
violates national standard 2 of the Magnuson Act.
    Response: There exists a considerable amount of scientific 
literature regarding the habitat value of reefs and rubble zones for a 
variety of commercial and recreational fish species. A list of 
references is included in Amendments 2 and 3 to the FMP. In addition, 
testimony was received by the Council documenting damage to 
recreational diving areas and reductions in availability of reef fish 
as a result of live rock harvesting. Impacts were said to be greatest 
in the areas of lowest abundance of hard bottom habitats, such as the 
northern Gulf. The NMFS Southeast Fisheries Science Center has 
certified that the management measures contained in Amendment 3 are 
based on the best scientific information available, as required by 
national standard 2.
    The State of Florida banned harvest of live rock from State waters 
in 1989. Florida representatives have maintained opposition to 
continued live rock harvesting in the EEZ off Florida, in part because 
of the difficulty of enforcing the State prohibition when Federal 
waters remain open. Thus, Florida has a legitimate interest in ending 
the EEZ live rock harvest off Florida.
    Comment: The minority report suggests that mitigation by 
replacement of wild live rock with quarried rocks is a viable 
alternative to the closure. A wild live rock harvester, who also holds 
an aquacultured live rock permit for a site in the Panhandle area, 
believes that the rock he has deposited for aquaculture purposes will 
mitigate impacts on naturally occurring substrate and that there has 
been a net gain of habitat off the Panhandle.
    Response: NMFS concurs with the Council's opinion that the 
deposition of quarried rocks for the purpose of live rock aquaculture 
does not mitigate the continued taking of wild live rock. Although 
aquacultured live rock has been shown to serve some of the purposes of 
wild live rock when placed in marine aquariums, it is not comparable in 
terms of the complexity of its species composition to naturally 
occurring substrate that may have been in place for centuries. Since 
aquacultured rock has been deposited at the site for the purpose of 
eventual retrieval and sale, it cannot result in a net gain in fishery 
habitat.
    Comment: The minority report and one live rock harvester claim that 
the closure of the Panhandle area to live rock harvesting is a 
violation of the Magnuson Act's national standard 4, which addresses 
fair and equitable allocation of fishing privileges.
    Response: For purposes of national standard 4, allocation means a 
direct and deliberate distribution of the opportunity to participate in 
a fishery among identifiable, discrete groups of fishermen. Area 
closures, however, only indirectly and incidentally result in 
allocation of fishing privileges by requiring individuals in certain 
areas to travel to other areas to fish. In the case of the closure of 
the Florida Panhandle area for conservation purposes, it will be 
necessary for certain fishermen in this area to relocate live rock 
harvesting operations to an area off the west central coast of Florida. 
The Council's action has no discriminatory intent and does not violate 
national standard 4. Additional discussion of national standard 4 
requirements may be found at 50 CFR 602.14 and 50 CFR 602, Subpt. B, 
App. A.
    Comment: CMC commented on the value of the resource to fishery 
habitat, the relative scarcity of reef areas in the northern Gulf, and 
the adverse impacts on recreational divers and reef fishermen from 
continued harvests of wild live rock. PADI believes that a direct 
degradation of the environment is being allowed in order to satisfy the 
narrow economic interests of a small group of individuals. One 
commenter sent copies of resolutions passed by local groups opposing 
live rock harvesting: Okaloosa and Walton County Board of 
Commissioners, the City of Destin, FL, Okaloosa County Economic 
Development Council, the Emerald Coast Convention and Visitors Bureau, 
the Elgin Yacht and Diving Club, the Destin Fishing Fleet, Inc., the 
Destin Fishermen's Cooperative Association, the Destin Charter Boat 
Association, and the South Walton Tourist Development Council.
    Response: NMFS agrees with the concerns expressed by the CMC 
regarding the environmental impacts of a continuing live rock harvest. 
Amendment 3 is designed to eliminate impacts on hard bottom habitats 
that may affect the value of recreational diving and commercial and 
recreational fishing in the Gulf of Mexico.

Live Rock Quota

    Comment: A live rock harvester and 14 of his supporters oppose the 
establishment of a quota for live rock taken south of the Panhandle 
area off Florida because of the financial hardship that this might 
place on aquaculturalists. He believes that the closure of wild live 
rock harvests by 1997 and the daily trip limit established under 
Amendment 2 to the FMP sufficiently limit the amount of live rock 
collected. Another live rock harvester also opposes this provision 
because he believes the daily vessel limit, inclement weather, and 
dangerous effects of nitrogen buildup in the deep waters of the Gulf 
already limit the amount of harvest.
    Response: Live rock landings from the Gulf EEZ off Florida reported 
to Florida's Department of Environmental Protection increased from 
nearly 200,000 lb (90,718 kg) in 1991 to over 600,000 lb (272,155 kg) 
in 1994. During 1994, the landings nearly doubled. NMFS concurs with 
the Council's 

[[Page 56535]]
decision to place a cap on the harvest during the phaseout period to 
prevent further increases. The intent of the phaseout established under 
Amendment 2 was to maintain approximately current levels of harvest to 
allow those fishermen dependent on live rock harvesting some time for a 
transition to other activities.

Allowable Octocoral Definition

    Comment: AAS, MASNA, and two live rock harvesters oppose the 
reduction in the amount of substrate that may be taken with an 
allowable octocoral. These commenters indicated that attached substrate 
up to 3 inches (7.6 cm) from a holdfast is necessary to ensure that an 
octocoral survives transport.
    Response: Amendment 2 redefined 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 included as allowable octocoral only a limited amount of 
attached substrate: 1 inch (2.5 cm) in the EEZ off the southern 
Atlantic states and 3 inches (7.6 cm) in the Gulf EEZ. However, Florida 
recently implemented a rule allowing only 1 inch (2.5 cm) of substrate 
from the attachment of the octocoral. 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. 
There are no reported landings of octocorals outside Florida. 
Therefore, under Sec. 638.3(c), the 1-inch (2.5-cm) rule will apply to 
the Gulf EEZ off Florida, whether or not Amendment 3 is implemented. 
Further, the Council and NMFS agreed 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 and that a 1-
inch (2.5 cm) limit is sufficient to allow proper anchoring of the 
octocoral in an aquarium.

Recreational Harvests

    Comment: One of the form letters recommends that a recreational 
harvest of live rock be allowed as long as the commercial wild harvest 
remains open. MASNA and AAS strongly support a recreational harvest. 
MASNA believes that recreational use is allowed in all other fisheries 
and they see no reason for an exception in this case.
    Response: NMFS believes that the harvest of wild live rock is a 
take of an essentially nonrenewable resource and results in a net loss 
of fishery habitat. In developing Amendments 2 and 3, NMFS and the 
Council rejected a recreational harvest that could result in a total of 
up to 1,825 gal (6,908 L) of live rock per person per year. While NMFS 
agreed with the Councils' final recommendation in Amendment 2 to delay 
the ban on commercial harvests in order to mitigate adverse economic 
impacts on the industry and allow a transition to live rock 
aquaculture, this justification is not applicable to the recreational 
sector.
    Further, live rock is likely to contain prohibited corals. 
Commercial harvesters testified that they must carefully choose pieces 
to avoid taking prohibited corals. Occasional recreational divers may 
be less likely to be able to make these distinctions. As such, any 
allowable recreational take of live rock could result in increased 
takes of prohibited corals. Finally, the State of Florida banned both 
commercial and recreational harvest of live rock from State waters in 
1989.
    A recreational harvest in the EEZ off Florida could seriously 
complicate State enforcement efforts.
Economic Impacts
    Comment: The minority report states that ``Amendment 3 reneges on 
the Council's earlier commitment to allow investors currently in the 
Panhandle fishery sufficient time to convert their business investments 
to aquaculture.'' One live rock harvester who will be affected by the 
closure of the Panhandle area provided a videotape of his aquaculture 
site and asked for more time to continue his aquaculture operations: 
``Amendment 3 will stop this venture dead in its tracks as the revenue 
is needed from the wild harvest to fund the continued deployments.'' He 
stated that he has already placed over 30,000 lb (13,608 kg) of rock on 
his permitted site, has another 170,000 lb (77,111 kg) ready to 
deposit, and employs over 25 people. One employee commented that more 
time is needed to achieve a marketable live rock product and that 
Amendment 3 would ``drive some people from this billion dollar a year 
industry'' because the only live rock available would be imported. 
Another live rock harvester included copies of recent advertisements to 
demonstrate the availability of imported live rock, especially from the 
Marshall Islands, Tonga, and other areas of the Pacific. He believes 
that more time is needed to develop aquaculture products to compete 
with these imports.
    Response: Florida live rock harvesters have had several years to 
begin the transition to live rock aquaculture. Beginning in 1991, the 
State of Florida held a series of public hearings and technical 
workshops on live rock aquaculture options. The Council began its 
deliberations with a series of public hearings in 1993, culminating in 
passage of Amendment 2 in 1994. Amendment 2 provided for an additional 
2 years of live rock harvesting, until 1997, to allow time for this 
transition to aquaculture. Some businesses began aquaculture operations 
over 2 years ago on Florida lease sites or in the EEZ off Florida under 
permits issued by the U.S. Army Corps of Engineers. At least one 
company is already offering Gulf EEZ aquacultured live rock for sale. 
NMFS concurs with the Council's view that sufficient time has been made 
available under Amendments 2 and 3 for possible transitions from wild 
live rock harvesting to aquaculture operations.
    Contrary to the views expressed in the minority report, regulatory 
actions are based on the best available science, particularly in a 
highly regulated industry such as commercial fishing. The Council is 
required to design, apply, and adjust management measures in an ongoing 
manner. However, the impacts of the management measures must be 
considered and balanced pursuant to various legal requirements. In this 
case, the impacts of the measures are not unreasonable, given that the 
wild live rock fishery does in fact remain open until 1997, albeit with 
a closed area resulting from the Council's consideration of information 
indicating the necessity of that adjustment. In addition, Amendment 3 
will have no effect on authorized live rock aquaculture operations in 
the Gulf EEZ.
    Comment: One commenter indicated that he thought the drafting of 
Amendment 3 was a violation of national standard 7 of the Magnuson Act, 
because there was no demonstrated impact to the EEZ of continued 
harvesting and the amendment is a waste of taxpayers' money. This 
commenter also asked why the economic impact analysis prepared by the 
Council changed from the draft to the final amendment.
    Response: NMFS believes that Amendment 3 is needed to address 
continuing loss of fishery habitat. Also, public testimony on the draft 
amendment indicated that the harvests were having an adverse impact on 
recreational enjoyment of reef areas in the Gulf EEZ. Thus, the 
benefits of preventing a decrease in non-consumptive values were 
factored into the Council's economic analysis and Amendment 3 includes 
a conclusion that the benefits from the Panhandle closure may outweigh 
the costs to the affected producers.

[[Page 56536]]


Effective Dates

    Comment: Two live rock harvesters asked NMFS and the Council not to 
waive the 30-day period of delayed effectiveness under the 
Administrative Procedure Act (APA) to allow an additional 30 days of 
live rock harvesting under the 1995 quota. These commenters indicated 
that ``red tide'' has damaged their aquaculture sites, and they need 
additional income from a continued harvest of wild live rock.
    Response: A 30-day delay in effectiveness is likely to result in a 
quota overrun and possible habitat degradation contrary to the intent 
of the Council. Accordingly, as discussed below, good cause exists 
under the APA to waive the 30-day delay in effective date of this final 
rule. However, to provide time for notice to fishermen, the effective 
date is delayed for 3 days from its date of publication.

Changes from the Proposed Rule

    In Sec. 638.2, the definition of ``allowable octocoral'' is revised 
to clarify when nonencrusting species of the subclass Octocorallia, 
except the seafans Gorgonia flabellum and G. ventalina, are ``live 
rock'' rather than ``allowable octocoral.''
    In Sec. 638.26(d)(2), the language regarding a closure when the 
quota for wild live rock in the Gulf EEZ is reached is revised to 
conform to standard language for such closures, as contained in the 
current coral regulations at 50 CFR 638.24(b) and 50 CFR 638.25(c)(2).

Classification

    The Regional Director has determined that Amendment 3 is necessary 
for the conservation and management of the coral and coral reef 
resources of the Gulf of Mexico and that it is consistent with the 
Magnuson Act and other applicable law.
    This action 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 when the proposed rule was published 
that it would not have a significant economic impact on a substantial 
number of small entities. The reasons for this certification were 
published in the preamble to the proposed rule (60 FR 40152, August 7, 
1995). As a result, a regulatory flexibility analysis was not prepared.
    The conservation and management concerns, i.e., possible 
degradation of habitat and quota overruns, that lead the Council and 
NMFS to prohibit the taking of wild live rock in the EEZ of the Gulf 
off Florida north and west of the Levy/Dixie County line and to 
establish an annual quota for wild live rock in the Gulf EEZ makes a 
delay in effective date for these measures contrary to the public 
interest. Accordingly, the Assistant Administrator for Fisheries, NOAA, 
finds that good cause exists, under 5 U.S.C. 553(d)(3), to waive the 
30-day delay in effective date with respect to these measures. Removal 
of the prohibition on taking wild live rock in the EEZ by chipping 
between the Pasco/Hernando County and Dixie County, FL lines relieves a 
restriction. Thus, pursuant to 5 U.S.C. 553(d)(1), there is no need to 
delay the effective date of this provision. As explained in the 
proposed rule, reduction from 3 inches to 1 inch (7.6 cm to 2.5 cm) of 
the amount of substrate that may be taken with allowable octocoral in 
the Gulf EEZ is not a substantive change because all harvesters in the 
Gulf EEZ have been limited to 1 inch (2.5 cm) by Florida's rules. 
However, to provide time for notice to fishermen, NMFS is delaying the 
effective date of this final rule for 3 days from the date of its 
publication.

List of Subjects in 50 CFR Part 638

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 2, 1995.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 638 is 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. 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. 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) is 
considered to be live rock and not 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, FL 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, FL 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 (478.0 L)), applies to the harvest or possession 
of wild live rock in or from

[[Page 56537]]

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. 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 of the Gulf of Mexico and the 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 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.
[FR Doc. 95-27747 Filed 11-8-95; 8:45 am]
BILLING CODE 3510-22-F