[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Proposed Rules]
[Pages 32450-32454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13558]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 030430107-3107-01; I.D. 040703A]
RIN 0648-AN87


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Pelagic Sargassum Habitat of the South Atlantic Region

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 the Fishery 
Management Plan for Pelagic Sargassum Habitat of the South Atlantic 
Region (FMP). This rule proposes to limit the harvest or possession of 
pelagic sargassum in or from the exclusive economic zone (EEZ) off the 
southern Atlantic states to 5,000 lb (2,268 kg) annually, restrict 
fishing for pelagic sargassum in the South Atlantic EEZ to an area no 
less than 100 nautical miles offshore of North Carolina and to the 
months of November through June, require vessel owners or operators to 
accommodate NMFS-approved observers on all pelagic sargassum fishing 
trips, and restrict the mesh and frame sizes of nets used to harvest 
pelagic sargassum. The FMP also identifies essential fish habitat 
(EFH); establishes EFH-habitat areas of particular concern (EFH-HAPCs); 
and defines management unit, maximum sustainable yield, optimum yield, 
and overfishing parameters. The intended effects are to conserve and 
manage pelagic sargassum and to protect EFH.

DATES: Comments on this proposed rule must be received no later than 5 
p.m., eastern time, on June 30, 2003.

ADDRESSES: Copies of the FMP may be obtained from the South Atlantic 
Fishery Management Council, One Southpark Circle, Suite 306, 
Charleston, SC 29407-4699; phone: 843-571-4366; fax: 843-769-4520; e-
mail: [email protected]. The FMP includes a Final Environmental Impact 
Statement (FEIS), a Regulatory Impact Review, and a Social Impact 
Assessment/Fishery Impact Statement.
    Written comments on this proposed rule must be mailed to Steve 
Branstetter, Southeast Region, NMFS, 9721 Executive Center Drive N., 
St.

[[Page 32451]]

Petersburg, FL 33702. Comments also may be sent via fax to 727-570-
5583. Comments will not be accepted if submitted via e-mail or 
Internet.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to Robert Sadler, Southeast Region, NMFS, at the 
above address, and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, phone: 727-570-
5305, fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The South Atlantic Fishery Management 
Council (Council) prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
The Council submitted its original FMP to NMFS in 1999 for Secretarial 
review. On November 24, 1999, NMFS disapproved the FMP based on the 
FMP's lack of a maximum sustainable yield (MSY) estimate and its 
failure to justify adequately an optimum yield (OY) of zero (64 FR 
69989, December 15, 2003).

Background and Rationale

    The FMP and this proposed rule address conservation and management 
of pelagic sargassum off the U.S. Atlantic coast from the North 
Carolina/Virginia boundary through the east coast of Florida, including 
the Atlantic side of the Florida Keys.
    Pelagic sargassum supports a diverse assemblage of marine 
organisms, including over 100 species of fish, fungi, micro- and macro-
epiphytes, at least 145 species of invertebrates, four species of sea 
turtles, and numerous marine birds. The Council has designated pelagic 
sargassum not only as EFH but also as an EFH-HAPC for snapper-grouper 
species and coastal migratory pelagic species, and is in the process of 
designating it as EFH and EFH-HAPC for dolphin and wahoo.

Proposed Management Measures

Annual Quota

    The Council concluded that the removal of pelagic sargassum 
constitutes a net loss of EFH off the southern Atlantic states. 
However, to lessen the negative impact of a total prohibition of 
harvest of pelagic sargassum, the Council decided that an annual 
harvest level of 5,000 lb (2,268 kg) would not jeopardize the continued 
viability of the resource and, therefore, would be in compliance with 
the habitat policies of the Council, NMFS, and NOAA and in conformance 
with the mandate of the Magnuson-Stevens Act to address EFH. 
Accordingly, this rule proposes an annual quota of 5,000 lb (2,268 kg) 
wet, landed weight.

Area and Seasonal Restrictions

    This rule proposes to restrict the harvest of pelagic sargassum in 
the South Atlantic EEZ to the area that is between 36[deg]34'55'' N. 
lat. (the latitude line of the Virginia/North Carolina boundary) and 
34[deg] N. lat., (a line closely approximating the North Carolina/South 
Carolina boundary), and more than 100 nautical miles offshore. This 
restriction would prevent any geographic expansion of the fishery in 
the South Atlantic EEZ. In addition, this rule proposes to seasonally 
restrict the harvest and possession of pelagic sargassum to the months 
of November through June. This seasonal restriction would lessen the 
incidental take of sea turtles. The summer and fall months are the 
months when the greatest density of post-hatchling sea turtles are 
expected to occur in weed lines of pelagic sargassum.

Observer Requirement

    This rule proposes to require an owner or operator of a vessel in 
the fishery to accommodate a NMFS-approved observer on trips. This 
requirement would facilitate the monitoring of pelagic sargassum 
catches, provide valuable information on the pelagic sargassum 
resource, and monitor the incidental take of sea turtles and other 
bycatch. The FMP specifies the proposed bycatch sampling methodology.

Net and Frame Size Limitations

    This rule proposes a minimum allowable mesh size for a net used for 
pelagic sargassum of 4 inches (10.2 cm), stretched mesh, which was the 
minimum mesh size historically employed in the fishery. This minimum 
mesh size would preclude any increase in incidental catch that might be 
associated with smaller mesh sizes.
    This rule also proposes a limit on the size of the frame used to 
hold a pelagic sargassum net. Such frame could be no larger than 4 ft 
by 6 ft (1.2 m by 1.8 m). This measure would control harvesting 
efficiency and would help limit the amount of any one bed of pelagic 
sargassum that would be harvested, thus preserving some habitat for the 
remaining larval and juvenile fish and juvenile sea turtles after 
harvesting occurs.

Additional Measures in the FMP

    In addition to the measures described above, for the management of 
pelagic sargassum, the FMP would establish the management unit; specify 
MSY, OY, maximum fishing mortality threshold (MFMT) (the fishing 
mortality rate which, if exceeded, constitutes overfishing), and 
minimum stock size threshold (MSST) (the stock size below which pelagic 
sargassum is overfished); and identify EFH and EFH-HAPC as follows:
    Management unit - The population of pelagic sargassum (Sargassum 
natans or S. fluitans) in the South Atlantic EEZ and in adjoining state 
waters.
    MSY - 100,000 mt (220,460,000 lb).
    OY - 5,000 lb (2,268 kg), wet weight.
    MFMT - 9.0 to 18.0 units per year (These values relate to the 
intrinsic rate of increase in the population).
    MSST - 25,000 mt (55,115,000 lb).
    EFH - Where pelagic sargassum occurs in the South Atlantic EEZ and 
adjoining state waters including the Gulf Stream.
    EFH-HAPC - Where pelagic sargassum occurs in the South Atlantic EEZ 
and adjoining state waters.

Availability of the FMP

    Additional background and rationale for management of sargassum are 
contained in the FMP. The availability of the FMP was announced in the 
Federal Register on April 17, 2003, (68 FR 18942). Written comments on 
the FMP must be received by June 16, 2003. NMFS will address all 
comments that are received on the FMP or on this proposed rule during 
their respective comment periods.

Classification

    At this time, NMFS has not determined that the FMP is consistent 
with the national standards of the Magnuson-Stevens Act and other 
applicable laws. In making that determination, NMFS 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 Council prepared a Draft Environmental Impact Statement (DEIS) 
for the original version of the FMP; a notice of its availability was 
published on July 17, 1998 (63 FR 38643). The comment period ended on 
August 24, 1998. The environmental impacts described in the DEIS are 
summarized as follows: The proposed actions are not expected to have 
any adverse effects on the ocean and coastal habitats. The pelagic 
sargassum fishery substantially

[[Page 32452]]

impacts habitat that is essential to a number of species under the 
Council's management. The proposed actions will have a positive impact 
on the physical environment by limiting removal of pelagic sargassum. 
One firm that has harvested pelagic sargassum may be forced to cease 
operation unless an alternative source of pelagic sargassum can be 
economically accessed. The proposed actions are not expected to have a 
substantial adverse impact on public health or safety and are not 
expected to affect adversely a marine mammal population.
    The Council prepared a FEIS for the original version of the FMP; a 
notice of its availability was published on October 15, 1999 (64 FR 
55912). The comment period ended on November 15, 1999.
    After the Council revised the original FMP, NMFS prepared a 
Supplemental DEIS; a notice of its availability was published on 
January 11, 2002 (67 FR 1462). The comment period ended on February 25, 
2002.
    The current FEIS is included in the FMP. The basic conclusions 
regarding the environmental impacts described in the Supplemental DEIS 
and the current FEIS are not significantly changed from the DEIS. It 
should be noted however, that no harvest of sargassum has been recorded 
since 1997 by the one firm. No directed fishery for sargassum currently 
exists in the South Atlantic.
    Under section 7 of the Endangered Species Act, NMFS completed a 
consultation on the effect of the sargassum fishery on listed species, 
including loggerhead, green, leatherback, hawksbill, and Kemp's ridley 
sea turtles. The biological opinion (BO), dated March 21, 2003, 
concludes that the sargassum fishery, as proposed to be managed by the 
FMP, would not likely jeopardize the continued existence of these sea 
turtle species. The BO sets a level of incidental take and reasonable 
and prudent measures necessary and appropriate to minimize impacts of 
incidental take of sea turtles. This proposed rule would: limit the 
harvest or possession of pelagic sargassum in or from the EEZ off the 
southern Atlantic states to 5,000 lb (2,268 kg) annually; restrict 
fishing for pelagic sargassum in the South Atlantic EEZ to an area not 
less than 100 nautical miles offshore of North Carolina and to the 
months of November through June; require vessel owners or operators to 
accommodate NMFS-approved observers on all pelagic sargassum fishing 
trips; and restrict the mesh and frame sizes of nets used to harvest 
pelagic sargassum. The BO concludes that adoption of these measures 
would be beneficial to sea turtle populations because it would regulate 
and limit a fishery that was previously prosecuted without 
restrictions; limit direct take of sea turtles by the fishery; and 
limit loss of important pelagic habitat.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), 
based on the RIR, for this proposed rule. A summary of the IRFA 
follows.
    The Magnuson-Stevens Act provides the statutory basis for the rule. 
The objectives of the proposed rule are: establish a management 
structure to manage sargassum habitat; reduce the impact of the 
sargassum fishery on essential fish habitat; and reduce the potential 
for conflict. The proposed rule would: prohibit all harvest and 
possession of sargassum from the South Atlantic EEZ south of the 
latitude line representing the North Carolina/South Carolina border 
(34[deg] N. lat.); prohibit all harvest of sargassum from the South 
Atlantic EEZ within 100 nautical miles of shore between the 34[deg] N. 
lat. line and the latitude line representing the North Carolina/
Virginia border; limit harvest of sargassum from the South Atlantic EEZ 
to the months of November through June; establish an annual total 
allowable catch (TAC) of 5,000 lb (2,268 kg) landed wet weight; require 
that a NMFS-approved observer be present on each sargassum harvesting 
trip; and require that nets used to harvest sargassum be constructed of 
4-inch (10.2-cm) stretch mesh or larger fitted to a frame no longer 
than 4 ft by 6 ft (1.2 m by 1.8 m). This action is being considered 
because sargassum harvest represents removal of essential fish habitat 
or important developmental or foraging habitat for other federally 
managed species including threatened/endangered sea turtles; no 
management structure exists to protect sargassum; potential conflicts 
could arise if harvest occurs where recreational fishing is occurring; 
and limited information exists regarding distribution, production, and 
ecology of sargassum. This proposed rule would limit expansion of 
harvesting capacity.
    The proposed rule would require a NMFS-approved observer on board 
any vessel in the sargassum fishery to monitor harvest of sargassum and 
associated bycatch. No duplicative, overlapping or conflicting Federal 
rules have been identified.
    No directed fishery for sargassum currently exists in the South 
Atlantic. Therefore, no small business entities will be impacted by the 
proposed rule. One small business entity was an historical participant 
in the fishery. This firm harvested an average of 14,333 lb (6,501 kg) 
wet weight annually (1995-1997 average harvest), valued at $43,000 per 
year, and employed three persons on a full-time basis and other workers 
on an as needed, part-time basis. A total of 52 trips were made between 
1976 and 1997 resulting in the harvest of 448,000 lb (203,209 kg) wet 
weight (44,800 lb (20,321 kg) dry weight) of sargassum. Harvest peaked 
at 200,000 lb (90,719 kg) wet weight in 1990. The average harvest over 
the entire 1976-1997 harvest period was 8,615 lb (3,908 kg) wet weight 
per trip. Harvest was conducted either through contract with commercial 
finfish fishing vessels that harvested sargassum in conjunction with 
their regular fishing trip, or through the use of a converted 63-ft 
(19.2-m) snapper-grouper vessel acquired to conduct directed harvest 
trips. No information on harvesting or processing costs is available. 
Since a small business entity in the commercial fishery is defined as a 
firm that has annual gross receipts not in excess of $3.5 million, the 
historical firm, had it remained in the fishery, would be classified as 
a small business entity. However, no harvest by this firm or any other 
business entity has been recorded since 1997. The harvest that was 
collected in 1990 was stockpiled and processed over the 1990-1994 
period, so no harvest occurred from 1991-1994. The harvest history for 
the last years of recorded harvest, 1995-1997, does not appear 
sufficient to have supported similar stockpiling behavior. It is 
assumed, therefore, that both harvest and processing activities no 
longer occur. It is not known with complete certainty, however, whether 
this is the case with regards to processing.
    The determination of significant economic impact can be ascertained 
by examining two criteria, disproportionality and profitability. The 
disproportionality question is: will the regulations place a 
substantial number of small business entities at a significant 
competitive disadvantage to large business entities? Since no directed 
fishery for sargassum currently exists, no business entities, large or 
small, currently participate in the fishery. The sole historical 
participant, however, qualified as a small business entity. Since no 
participants in the fishery currently exist, and the sole historical 
participant was a small business entity, the issue of 
disproportionality does not arise.
    The profitability question is: Will the regulations significantly 
reduce profit for a substantial number of small entities? Since no 
directed fishery for sargassum currently exists, the regulations do not 
significantly reduce profit for a substantial number of small

[[Page 32453]]

entities. Had the sole historical participant in the fishery continued 
operation, the allowable TAC would have reduced average harvest and 
revenues by 65 percent, from 14,333 lb (6,501 kg) wet weight (1995-1997 
average harvest) to 5,000 lb (2,268 kg), with revenues reduced from 
$43,000 to $15,000. Although profit figures are not available, it is 
obvious that the reduction in profit would also be significant. 
However, as previously stated, no directed fishery exists, so no 
reduction in profits will occur for any small business entities.
    Since there is no directed fishery for sargassum and no current 
processing of stockpiled product is assumed to be occurring, the 
proposed rule would not generate any negative economic impacts on small 
entities. Therefore, the issue of significant alternatives to mitigate 
economic impacts is not relevant. However, in the event that directed 
harvest is attempted, only the proposed harvest restrictions would 
result in direct economic impacts. The proposed harvest restrictions 
are not believed to be sufficient to allow sustained participation in a 
directed fishery for sargassum since the allowable harvest is only 
5,000 lb (2,268 kg) wet weight per year. Two other alternatives, 
allowing no harvest and prohibiting harvest after January 1, 2001, 
would similarly not support sustained participation in the fishery and 
are, therefore, not relevant significant alternatives in that they 
would not mitigate the negative economic impacts of the proposed rule.
    The no action alternative and an alternative establishing the TAC 
at 100,000 metric tons wet weight would effectively allow unrestricted 
harvest. Additional alternatives would specify TAC at 20,000 lb (9,072 
kg) wet weight and 200,000 lb (90,720 kg) wet weight, which would allow 
harvests greater than the historical average harvest per year (8,615 lb 
(3,908 kg) wet weight for 1976-1997 or 14,333 lb (6,501 kg) wet weight 
for 1995-1997). Any of these alternatives would, therefore, eliminate 
the negative economic impacts on a directed fishery. These 
alternatives, however, are inconsistent with the Council's intent to 
both discontinue unregulated harvest of sargassum and limit expansion 
of a sargassum fishery. The Council concluded that severe limitation on 
harvest is likely to increase productivity of marine life in the 
ecosystem and thus increase consumptive, non-consumptive, and indirect 
(value to other species as habitat) use values. Furthermore, the 
Council concluded that maintaining these consumptive, non-consumptive, 
and indirect use benefits greatly outweigh the costs resulting from 
severely limiting harvest. In addition, there was overwhelming public 
support for a measure to prohibit the directed harvest of sargassum.
    Copies of the IRFA and RIR are available upon request(see 
ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number.
    This proposed rule contains the collection-of-information 
requirements subject to review and approval by OMB under the PRA. These 
requirements have been submitted to OMB for approval. The public 
reporting burden is estimated to be 45 minutes per vessel for vessel 
identification requirements and 5 minutes for notification prior to a 
trip. Public comment is sought regarding: whether these proposed 
collections-of-information are necessary for the proper performance of 
the functions of the agency, including whether the information has 
practical utility; the accuracy of the burden estimates; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burdens of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collections of information to NMFS 
and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: May 23, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
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: Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  622.1, table 1, the following entry is added in 
alphabetical order to read as follows:


Sec.  622.1  Purpose and scope.

* * * * *

                Table 1.--FMPs Implemented Under Part 622
------------------------------------------------------------------------
                                             Responsible
                                               fishery     Geographical
                 FMP Title                   management        area
                                             council(s)
------------------------------------------------------------------------
* * * * * * *                               ............  ..............
FMP for Pelagic Sargassum Habitat of the           SAFMC  South Atlantic
 South Atlantic Region
* * * * * * *                               ............  ..............
------------------------------------------------------------------------

    3. In Sec.  622.2, the definition of ``Pelagic sargassum'' is added 
in alphabetical order to read as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Pelagic sargassum means the species Sargassum natans or S. 
fluitans, or a part thereof.
* * * * *
    4. In Sec.  622.6, paragraph (a)(1)(i) introductory text is revised 
to read as follows:


Sec.  622.6  Vessel and gear identification.

    (a) * * *
    (1)
    (i) Official number. A vessel for which a permit has been issued 
under Sec.  622.4, and a vessel that fishes for or possesses pelagic 
sargassum in the South Atlantic EEZ, must display its official number--
* * * * *
    5. In Sec.  622.8, paragraph (a), paragraph (b) introductory text, 
and paragraph (c) introductory text are revised to read as follows:


Sec.  622.8  At-sea observer coverage.

    (a) Required coverage--(1) Pelagic sargassum. The owner or operator 
of a vessel that harvests or possesses pelagic sargassum on any trip in 
the South Atlantic EEZ must carry a NMFS-approved observer.
    (2) Golden crab. The owner or operator of a vessel for which a 
Federal commercial permit for golden crab has been issued must carry a 
NMFS-approved observer, if the vessel's trip is selected by the SRD for 
observer coverage.
    (b) Notification to the SRD. When observer coverage is required, an 
owner or operator must advise the SRD in writing not less than 5 days 
in advance of each trip of the following:
* * * * *

[[Page 32454]]

    (c) Observer accommodations and access. An owner or operator of a 
vessel on which a NMFS-approved observer is embarked must:
* * * * *
    6. In Sec.  622.35, paragraph (g) is added to read as follows:


Sec.  622.35  South Atlantic EEZ seasonal and/or area closures.

    * * * * *
    (g) Pelagic sargassum area and seasonal restrictionsl--(1)Area 
limitations. (i) No person may harvest pelagic sargassum in the South 
Atlantic EEZ between 36[deg]34'55'' N. lat. (directly east from the 
Virginia/North Carolina boundary) and 34[deg] N. lat., within 100 
nautical miles east of the North Carolina coast.
    (ii) No person may harvest or possess pelagic sargassum in or from 
the South Atlantic EEZ south of 34[deg] N. lat.
    (2) Seasonal limitation. No person may harvest or possess pelagic 
sargassum in or from the South Atlantic EEZ during the months of July 
through October. This prohibition on possession does not apply to 
pelagic sargassum that was harvested and landed ashore prior to the 
closed period.
    7. In Sec.  622.41, paragraph (k) is added to read as follows:


Sec.  622.41  Species specific limitations.

* * * * *
    (k) Pelagic sargassum. The minimum allowable mesh size for a net 
used to fish for pelagic sargassum in the South Atlantic EEZ is 4.0 
inches (10.2 cm), stretched mesh, and such net must be attached to a 
frame no larger than 4 ft by 6 ft (1.2 m by 1.8 m). A vessel in the 
South Atlantic EEZ with a net on board that does not meet these 
requirements may not possess any pelagic sargassum.
    8. In Sec.  622.42, paragraph (g) is added to read as follows:


Sec.  622.42  Quotas.

* * * * *
    (g) Pelagic sargassum. The quota for all persons who harvest 
pelagic sargassum in the South Atlantic EEZ is 5,000 lb (2,268 kg), 
wet, landed weight. See Sec.  622.35(g)(1) for area limitations on the 
harvest of pelagic sargassum.
    9. In Sec.  622.43, paragraph (a)(7) is added and paragraph (b)(2) 
is revised to read as follows:


Sec.  622.43  Closures.

* * * * *
    (a) * * *
    (7) Pelagic sargassum. Pelagic sargassum may not be harvested or 
possessed in the South Atlantic EEZ and the sale or purchase of pelagic 
sargassum in or from the South Atlantic EEZ is prohibited.
* * * * *
    (b) * * *
    (2) The prohibition on sale/purchase during a closure for allowable 
octocoral in paragraph (a)(2) of this section or for pelagic sargassum 
in paragraph (a)(7) of this section does not apply to allowable 
octocoral or pelagic sargassum that was harvested and landed ashore 
prior to the effective date of the closure.
* * * * *
[FR Doc. 03-13558 Filed 5-29-03; 8:45 am]
BILLING CODE 3510-22-S