[Federal Register Volume 64, Number 131 (Friday, July 9, 1999)]
[Proposed Rules]
[Pages 37082-37085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17489]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622 and 640
[Docket No. 990621165-9165-01; I.D. 022599A]
RIN: 0648-AL43
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Essential Fish Habitat (EFH) for Species in the South Atlantic;
Amendment 4 to the Fishery Management Plan for Coral, Coral Reefs, and
Live/Hard Bottom Habitats of the South Atlantic Region (Coral FMP)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmosphere Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
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SUMMARY: NMFS proposes to increase the size of the Oculina Bank Habitat
Area of Particular Concern (HAPC) and to incorporate two adjacent areas
within the Oculina Bank HAPC. NMFS also proposes regulatory changes to
reflect the South Atlantic Fishery Management Council's proposed
framework procedure for all its fishery management plans (FMPs) that
would allow for timely modification of definitions of EFH and
establishment or modification of EFH-HAPCs and Coral HAPCs. The
intended effect is to protect, conserve, and enhance EFH.
DATES: Written comments on this proposed rule must be received on or
before August 23, 1999.
ADDRESSES: Copies of the Habitat Plan for the South Atlantic Region
(Habitat Plan) and the EFH Amendment, which includes Amendment 4 to the
Coral FMP, a final supplemental environmental impact statement (FSEIS),
a regulatory impact review (RIR), and a social impact assessment/
fishery impact assessment may be obtained from the South Atlantic
Fishery Management Council (Council), One Southpark Circle, Suite 306,
Charleston, SC 29407-4699; telephone: 843-571-4366; fax: 843-769-4520.
Copies of the initial regulatory flexibility analysis (IRFA) prepared
by NMFS may be obtained from the Southeast Regional Office, NMFS, 9721
Executive Center Drive N., St. Petersburg, FL 33702.
Written comments on the proposed rule or the IRFA may be submitted
to the Southeast Regional Office, NMFS, 9721 Executive Center Drive N.,
St. Petersburg, FL 33702.
FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-570-5305.
SUPPLEMENTARY INFORMATION: The fisheries for shrimp, red drum, snapper-
grouper, coastal migratory pelagics, golden crab, spiny lobster, and
coral, coral reefs, and live/hard bottom habitat of the South Atlantic
are managed under the Council's FMPs, as approved and implemented by
NMFS. These FMPs were prepared solely by the Council, except for the
FMPs for coastal migratory pelagics and spiny lobster that were
prepared jointly by the Council and the Gulf of Mexico Fishery
Management Council. These FMPs are implemented under the authority of
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) by regulations at 50 CFR part 622, except for the FMP for
spiny lobster that is implemented by regulations at 50 CFR part 640.
The Magnuson-Stevens Act, as amended by the Sustainable Fisheries
Act, requires the Council to describe and identify EFH in all its FMPs,
including identification of adverse impacts from both fishing and non-
fishing activities on EFH and identification of actions required to
conserve and enhance EFH. This requirement is intended to provide a
basis for the Council and NMFS to protect, conserve, and enhance EFH
under management measures that are proposed, approved, and implemented
through amendments to FMPs or other means provided by the Magnuson-
Stevens Act, if appropriate, and for the Council and NMFS to fulfill
their consulting and commenting responsiblities regarding Federal and
state actions that may adversely affect EFH.
50 CFR 600.10 defines EFH as follows:
Essential fish habitat (EFH) means those waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to
maturity. For the purpose of interpreting the
[[Page 37083]]
definition of essential fish habitat: Waters include aquatic areas
and their associated physical, chemical, and biological properties
that are used by fish and may include aquatic areas historically
used by fish where appropriate; substrate includes sediment, hard
bottom, structures underlying the waters, and associated biological
communities; necessary means the habitat required to support a
sustainable fishery and the managed species' contribution to a
healthy ecosystem; and ``spawning, breeding, feeding, or growth to
maturity'' covers a species' full life cycle.
The Council may identify EFH that is judged to be particularly
important to the long-term productivity of populations of one or more
managed species, or to be particularly vulnerable to degradation, as an
HAPC. Such designation helps provide additional focus for conservation
efforts. EFH-HAPCs may be identified based on the following criteria:
(1) The importance of the ecological function provided by the habitat;
(2) the extent to which the habitat is sensitive to human-induced
environmental degradation; (3) whether, and to what extent, development
activities are, or will be, stressing the habitat type; and (4) the
rarity of the habitat type (50 CFR Sec. 600.815(a)(9)).
The Council prepared and submitted a Habitat Plan, which serves as
a source document for habitat data, and a Comprehensive Amendment
addressing EFH in FMPs of the South Atlantic Region (EFH Amendment).
The EFH Amendment proposes EFH definitions and EFH-HAPCs for the
management unit species in all of the Council's FMPs.
The EFH Amendment also would establish a framework procedure,
applicable to all of the Council FMPs, to allow for timely modification
of EFH definitions and establishment or modification of existing EFH-
HAPCs or Coral HAPCs. This framework procedure would allow the Council
to recommend to NMFS additions or modifications regarding EFH
definitions and EFH-HAPCs and Coral-HAPCs without requiring an
amendment to the appropriate FMP(s). This procedure would provide for a
streamlined Council process for obtaining public comment on the
Council's proposals and their expected biological, social, and economic
impacts. After receiving the Council's recommendations for additions or
modifications regarding EFH definitions, EFH-HAPCs, and Coral-HAPCs,
the NMFS Regional Administrator would decide whether to approve or
disapprove the Council's recommendations as well as whether to
implement any approved measures directly by a final rule or through a
proposed and final rule. Finally, the framework procedure would allow
these adjustments any time during the year. Although the FMP's
framework procedures refer to rulemaking, NMFS does not intend to
modify EFH definitions, EFH-HAPCs, or Coral-HAPCs in codified text.
However, NMFS would publish notice of the proposed changes in the
Federal Register and solicit public comment in accordance with the FMP
framework procedure. Details of the proposed framework procedure are
contained in section 4.2.8 of the EFH Amendment. This rule proposes
changes to 50 CFR Sec. 622.48 and 50 CFR Sec. 640.25 to reflect the
Council's proposed framework procedure.
The EFH Amendment contains Amendment 4 to the Coral FMP that would
expand the boundaries of the current Oculina Bank HAPC to encompass:
(1) An area bounded on the north by 28 deg.30' N. lat., on the south by
27 deg.30' N. lat., on the east by the 100-fathom (183-m) contour, as
shown on the latest edition of NOAA chart 11460, and on the west by
80 deg.00' W. long.; and (2) two adjacent areas, the first bounded on
the north by 28 deg.30' N. lat., on the south by 28 deg.29' N. lat., on
the east by 80 deg.00' W. long., and on the west by 80 deg.03' W.
long., and the second bounded on the north by 28 deg.17' N. lat., on
the south by 28 deg.16' N. lat., on the east by 80 deg.00' W. long.,
and on the west by 80 deg.03' W. long.
The current boundaries of the Oculina Bank HAPC were established by
the final rule to implement the Fishery Management Plan for Coral and
Coral Reefs of the Gulf of Mexico and South Atlantic (49 FR 29607, July
23, 1984). In the Oculina Bank HAPC, fishing with a bottom longline,
bottom trawl, dredge, pot, or trap is prohibited, and a fishing vessel
may not anchor, use an anchor and chain, or use a grapple and chain.
Subsequently, fishing for South Atlantic snapper-grouper in the
Oculina Bank HAPC was prohibited (59 FR 27242, May 26, 1994). The
purpose of this prohibition was to evaluate the benefits of marine
reserves. In effect, an experimental closed area was established for
South Atlantic snapper-grouper with the same boundaries as the original
Oculina Bank HAPC.
Amendment 4 to the Coral FMP would expand only the Oculina Bank
HAPC--the experimental closed area would not be expanded and its
restrictions on snapper-grouper fishing would not be changed or
expanded. The proposed expanded Oculina Bank HAPC also includes the
current area closed to rock shrimp trawling.
Expansion of the Oculina Bank HAPC is necessary to protect the
Oculina coral concentrations contained in the area of expansion.
Oculina coral, a slow growing, delicate stony coral, is easily damaged
by anchoring and use of bottom tending gear (e.g., trawls, traps).
Oculina coral provides important habitat for snapper-grouper species
and for rock shrimp and calico scallop spawning stock.
Availability of the Habitat Plan and EFH Amendment
Specifications of EFH and HAPCs and additional background and
rationale for the expansion of the Oculina Bank HAPC are contained in
the Habitat Plan and the EFH Amendment, which includes Amendment 4 to
the Coral FMP. Availability of the Habitat Plan and EFH Amendment was
announced in the Federal Register (63 FR 10612, March 5, 1998). The
preamble to the final rule will summarize and address all comments on
the EFH Amendment, including Amendment 4, the Habitat Plan, and this
proposed rule that are received during their respective comment
periods.
Classification
The Administrator, Southeast region, NMFS, determined that the EFH
Amendment is necessary for the conservation and management of the
Council's FMPs and it is consistent with the Magnuson-Stevens Act and
other applicable law on June 3, 1999.
The Council prepared a final SEIS (FSEIS) for the EFH Amendment,
including Amendment 4 to the Coral FMP. The Environmental Protection
Agency (EPA) published a notice of the availability of the draft SEIS
on July 17, 1998 (63 FR 19120). EPA published a notice of availability
of the FSEIS on April 19, 1999, (64 FR 17362). The environmental
impacts described in the FSEIS are summarized as follows. Expanding the
Oculina Bank HAPC to include the Oculina coral and the hard bottom/soft
coral habitat within the area north of the current Oculina Bank HAPC
boundary and in two adjacent areas would provide additional protection
for essential fish habitat. The expansion would reduce the gear-related
impact of the rock shrimp and calico scallop fisheries on live/hard
bottom and coral habitat by eliminating the use of trawl gear in the
expanded area. It would also eliminate damage from other fishing gear
that contacts the bottom.
Trawl damage occurs from direct contact with live/hard bottom,
including Oculina coral. Oculina is only known to be distributed in
bank formation south of 29 deg. N. lat. Therefore, prohibiting the use
of trawl gear in the expanded area will help prevent the loss
[[Page 37084]]
of this essential snapper grouper habitat and will enhance its
biological integrity.
There is concern that repetitive trawling of the limited fishable
bottom over the years has and may continue to impact the benthic
habitat and the fishery resources it sustains. Therefore, an additional
benefit of protecting these habitats would be protection of a portion
of the rock shrimp and calico scallop spawning stock. This would help
the fishery recover in years when recruitment is low due to poor
environmental conditions.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
The EFH Amendment does not contain measures that would result in
immediate economic effects, except for Actions 3A and 3B. These actions
would enlarge the existing Oculina Bank HAPC, create two ``satellite
HAPC'' areas, and prohibit fishing with a bottom longline, bottom
trawl, dredge, pot, or trap in these areas. The Council determined that
the prohibition on trawling for calico scallops would not have a
significant impact on a substantial number of small entities. NMFS
reviewed the Council's determination and made an independent
determination that certain criteria for significance, in particular the
NMFS criterion of a 5 percent negative impact on revenues, may be met.
Accordingly, NMFS determined there would be a significant impact on a
substantial number of small entities and prepared an IRFA. However,
NMFS notes that the information on economic impacts associated with the
proposed rule is incomplete and is specifically requesting public
comment on the extent and nature of economic impacts that may be
associated with a prohibition on calico scallop trawling in expanded
Oculina HAPC. The IRFA prepared by NMFS was based on information in the
EFH Amendment and on other available information. A summary of the IRFA
follows.
The proposed action responds to the Magnuson-Stevens Act
requirements to identify essential fish habitats and to minimize any
fishing related damage to these habitats. The overall objective of the
proposed rule is to identify and maintain essential fish habitats. The
Magnuson-Stevens Act provides the legal basis for the rule. Most of the
provisions of the proposed rule would result in regulations that would
not have cost or revenue effects on small entities. However, a proposal
to enlarge an existing protected area, called the Oculina Bank HAPC,
would also prohibit trawling for calico scallops in the expanded HAPC.
This portion of the proposed rule would apply to about 25 small fishing
businesses that have historically participated in the fishery. Most of
the vessels used by these small businesses were not built specifically
for harvesting calico scallops but are shrimp trawling vessels using
modified gear. In 1997, the industry had landings that generated gross
revenues of $1.3 million dollars, and this indicates that gross revenue
per vessel averaged about $52,000. Complete information regarding
variability of revenues among vessels does not exist, but it is known
with reasonable certainty that the actual landings of calico scallops
and the associated revenues would show a considerable amount of
variation among the 25 vessels in the industry, and differential
impacts are expected. There are no additional reporting, recordkeeping,
or other compliance costs associated with the proposed action, and no
existing duplicative, overlapping, or conflicting Federal rules have
been identified. Two alternatives were considered and rejected. One of
the alternatives considered was no action. While this option obviously
would have no impact on small business entities, it was rejected since
it would provide no additional protection for essential fish habitats.
The other alternative would expand the Oculina Bank HAPC by a greater
area than required by the proposed alternative. This option would
provide additional protection to essential fish habitats but would
result in the closure of a major portion of the known historic fishing
grounds for calico scallops and would result in major negative impacts
on the calico scallop industry. The resulting negative economic impacts
were deemed to be greater than the benefits that would accrue from the
additional protection for essential fish habitats, and the alternative
was rejected on that basis.
Copies of the IRFA are available (see ADDRESSES).
List of Subjects
50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
50 CFR Part 640
Fisheries, Fishing, Incorporation by reference, Reporting and
recordkeeping requirements.
Dated: July 1, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 622 and 640
are proposed to be amended as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
1. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 622.35, paragraph (g) is removed and paragraph (c) is
revised to read as follows:
Sec. 622.35 South Atlantic EEZ seasonal and/or area closures.
* * * * *
(c) Oculina Bank--(1) HAPC. The Oculina Bank HAPC encompasses an
area bounded on the north by 28 deg.30' N. lat., on the south by
27 deg.30' N. lat., on the east by the 100-fathom (183-m) contour, as
shown on the latest edition of NOAA chart 11460, and on the west by
80 deg.00' W. long.; and two adjacent areas: the first bounded on the
north by 28 deg.30' N. lat., on the south by 28 deg.29' N. lat., on the
east by 80 deg.00' W. long., and on the west by 80 deg.03' W. long.;
and the second bounded on the north by 28 deg.17' N. lat., on the south
by 28 deg.16' N. lat., on the east by 80 deg.00 W. long., and on the
west by 80 deg.03' W. long.
In the Oculina Bank HAPC, no person may:
(i) Use a bottom longline, bottom trawl, dredge, pot, or trap.
(ii) If aboard a fishing vessel, anchor, use an anchor and chain,
or use a grapple and chain.
(iii) Fish for rock shrimp or possess rock shrimp in or from the
area on board a fishing vessel.
(2) Experimental closed area. Within the Oculina Bank HAPC, the
experimental closed area 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. No person may fish for South
Atlantic snapper-grouper in the experimental closed area, and no person
may retain South Atlantic snapper-grouper in or from the area. In the
experimental closed area, any South Atlantic snapper-grouper taken
incidentally by hook-and-line gear must be released immediately by
cutting the line without removing the fish from the water.
* * * * *
3. In Sec. 622.48, the introductory text and paragraphs (c), (f),
(g), and (h) are
[[Page 37085]]
revised; and paragraphs (j) and (k) are added to read as follows:
Sec. 622.48 Adjustment of management measures.
In accordance with the framework procedures of the applicable FMPs,
the RD may establish or modify the following items:
* * * * *
(c) Coastal migratory pelagic fish. For cobia or for a migratory
group of king or Spanish mackerel: MSY, overfishing level, TAC, quota
(including a quota of zero), bag limit (including a bag limit of zero),
minimum size limit, vessel trip limits, closed seasons or areas, gear
restrictions (ranging from regulation to complete prohibition),
reallocation of the commercial/recreational allocation of Atlantic
group Spanish mackerel, permit requirements, definitions of essential
fish habitat, and establishment or modification of essential fish
habitat HAPCs or Coral HAPCs.
* * * * *
(f) South Atlantic snapper-grouper and wreckfish. For species or
species groups: Target dates for rebuilding overfished species, MSY,
ABC, TAC, quotas, trip limits, bag limits, minimum sizes, gear
restrictions (ranging from regulation to complete prohibition),
seasonal or area closures, definitions of essential fish habitat, and
establishment or modification of essential fish habitat HAPCs or Coral
HAPCs.
(g) South Atlantic golden crab. MSY, ABC, TAC, quotas (including
quotas equal to zero), trip limits, minimum sizes, gear regulations and
restrictions, permit requirements, seasonal or area closures, time
frame for recovery of golden crab if overfished, fishing year
(adjustment not to exceed 2 months), observer requirements, authority
for the RD to close the fishery when a quota is reached or is projected
to be reached, definitions of essential fish habitat, and establishment
or modification of essential fish habitat HAPCs or Coral HAPCs.
(h) South Atlantic shrimp. Certified BRDs and BRD specifications,
definitions of essential fish habitat, and establishment or
modification of essential fish habitat HAPCs or Coral HAPCs.
* * * * *
(j) Atlantic coast red drum. Definitions of essential fish habitat
and establishment or modification of essential fish habitat HAPCs or
Coral HAPCs.
(k) South Atlantic coral, coral reefs, and live/hard bottom
habitats. Definitions of essential fish habitat and establishment or
modification of essential fish habitat HAPCs or Coral HAPCs.
PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH
ATLANTIC
3. The authority citation for part 640 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. A new Sec. 640.25 is added to subpart B to read as follows:
Sec. 640.25 Adjustment of management measures.
In accordance with the framework procedure of the Fishery
Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and
South Atlantic, the RD may establish or modify the following items:
definitions of essential fish habitat, Essential Fish Habitat-Habitat
Areas of Particular Concern, Coral-Habitat Areas of Particular Concern,
limits on the number of traps fished by each vessel, construction
characteristics of traps, specification of gear and vessel
identification requirements, specification of allowable or prohibited
gear in a directed fishery, specification of bycatch levels in non-
directed fisheries, changes to soak or removal periods and requirements
for traps, recreational bag and possession limits, changes in fishing
seasons, limitations on use, possession, and handling of undersized
lobsters, and changes in minimum size.
[FR Doc. 99-17489 Filed 7-8-99; 8:45 am]
BILLING CODE 3510-22-F