[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Rules and Regulations]
[Pages 57375-57379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25149]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 030430107-3236-02; 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: Final rule.
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SUMMARY: NMFS issues this final rule to implement the Fishery
Management Plan for Pelagic Sargassum Habitat of the South Atlantic
Region (FMP). This final rule limits 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, restricts
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, requires vessel owners or operators to
accommodate NMFS-approved observers on all pelagic sargassum fishing
trips, and restricts the mesh and frame sizes of nets used to harvest
pelagic sargassum. The FMP also defines the management unit, maximum
sustainable yield (MSY), optimum yield (OY), and overfishing
parameters. In addition, NMFS informs the public of the approval by the
Office of Management and Budget (OMB) of the collection-of-information
requirements contained in this final rule and publishes the OMB control
numbers for those collections. The intended effects are to conserve and
manage pelagic sargassum and to protect essential fish habitat.
DATES: This final rule is effective November 3, 2003.
ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA)
may be obtained from the Southeast Regional Office, NMFS, 9721
Executive Center Drive N., St. Petersburg, FL 33702.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to Robert Sadler, Southeast Region, NMFS,
at the above address, and by e-mail to [email protected], or
fax to (202) 395-7285.
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 (SAFMC) prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
On April 17, 2003, NMFS announced the availability of the FMP and
requested comments on it (68 FR 18942). NMFS published a proposed rule
to implement the FMP and requested comments on the proposed rule
through June 30, 2003 (68 FR 32450, May 30, 2003). NMFS partially
approved the FMP on July 11, 2003; the designation of essential fish
habitat (EFH), EFH-habitat areas of particular concern (EFH-HAPCs), and
the estimate of maximum fishing mortality threshold (MFMT) were
disapproved. The rationale for the measures in the FMP is provided in
the preamble to the proposed rule and is not repeated here.
Comments and Responses
NMFS received 22 letters on the FMP and proposed rule. Of those, 18
were in general support of the actions identified in the FMP, 2 were
opposed, and 2 letters focused on future research needs regarding the
role of pelagic sargassum as habitat in the open ocean environment. A
summary of those comments and NMFS's responses are provided below.
Comment 1: Sargassum is extremely important habitat for a variety
of marine species. NMFS is urged to approve this FMP and its
implementing regulations, which would limit the harvest of sargassum
and protect the resource as essential fish habitat (EFH) and EFH
habitat areas of particular concern (EFH-HAPC).
Response: NMFS recognizes the importance of sargassum as EFH for
managed species, and sargassum's general importance as habitat in the
open ocean environment. NMFS has partially approved the FMP, and
regulations implemented through this rule will prohibit the harvest of
sargassum south of 34[deg] N. lat. in the SAFMC's area of jurisdiction,
and restrict the allowable harvest to 5,000 lb (2,268 kg) annually from
waters greater than 100 nautical miles offshore of the North Carolina
coast. These actions are intended to provide protection to sargassum
habitat, which is designated as EFH for snappers, groupers, and coastal
migratory pelagic fishes, and is known to be used by threatened and
endangered sea turtles and large quantities of other marine life.
Comment 2: Because of the importance of sargassum as habitat, and
its designation as EFH and HAPC for several managed finfish species,
all harvest of sargassum should be prohibited.
Response: NMFS previously informed the SAFMC that there was
insufficient justification to prohibit all harvest of sargassum.
Section 303(a)(7) of the Magnuson-Stevens Act requires that the
Councils minimize to the extent practicable adverse effects on EFH
caused by fishing, but clearly this does not, in every instance,
preclude some loss or damage to EFH from fishing impacts. Given the
suggested standing crop of sargassum is 9 to 24 billion lbs (4 to 11
million mt) and there has been a documented harvest of 448,000 lb (203
mt) over a 22-year period, NMFS determined that the administrative
record does not provide sufficient evidence that there has been an
adverse impact on sargassum as EFH, or that harvest should be
prohibited.
Comment 3: Quantities of sargassum found off of the east coast of
Florida have declined in recent years. The ongoing harvest of sargassum
is detrimental to Florida's offshore fisheries and should not be
allowed.
Response: Given that sargassum is dispersed northward from the
Sargasso Sea to the north Atlantic Ocean via the Gulf Stream and
prevailing winds,
[[Page 57376]]
NMFS does not believe that the intermittent and limited harvest of
sargassum off North Carolina between 1976 and 1997 affected the
quantities of sargassum occurring off of more southerly coastlines.
NMFS is unaware of any harvest of sargassum in the South Atlantic EEZ
during the last 6 years (see also Comment 5). The abundance and density
of sargassum off Florida would more likely be affected by changes in
local currents and prevailing winds, such as occurred during the El
Nino events of 1998 and 2002. Nevertheless, NMFS agrees that sargassum
is important habitat to numerous fishes, and many fisheries operate by
fishing near sargassum habitat. Regulations implemented by the
promulgation of this rule will prohibit the harvest of any sargassum
except from areas more than 100 nautical miles from shore off North
Carolina.
Comment 4: Excessive quantities of sargassum impede navigation for
the U.S. Navy, Coast Guard and merchant marine vessels, clogging
cooling water intake ports. Given these issues, there does not appear
to be a need to restrict or prohibit harvest. The total 22-year harvest
of 448,000 lb (203 mt) is minuscule compared to the potential of the
sargassum standing stock to increase its biomass by as much as 1 to 2.4
billion lb (0.4 to 1.1 million mt) within a few day's time.
Response: NMFS agrees that the biological potential for growth of
sargassum makes it a highly renewable natural resource. Nevertheless,
NMFS agrees with the SAFMC regarding the benefits of maintaining
adequate quantities of sargassum as habitat for numerous marine
species, including sea turtles, in an environment that is otherwise
devoid of much structure and protective habitat. In addition, limiting
harvest to areas offshore of North Carolina, during time periods when
turtles and other marine life are expected to be least abundant in the
sargassum, is intended to reduce the potential incidental capture and
mortality of these species.
Comment 5: Allowing a harvest of 5,000 lb (2,268 kg) wet weight or
500 lb (227 kg) dry weight of sargassum per year would put the one
known processing firm out of business. The firm is currently processing
twice that amount in a month's time, and anticipates an expansion of
its sales that would require an annual harvest of 240,000 lb (108.9 mt)
wet weight annually. Additionally, very little sargassum is found off
North Carolina from November through June, thus year-round harvest
would provide the firm with the flexibility to select times when
sargassum was most abundant and weather conditions were conducive to
taking a vessel offshore.
Response: NMFS and the SAFMC were unaware that the one known
processing firm was actively engaged in processing sargassum until the
firm submitted these comments. NMFS and the SAFMC were under the
impression that no harvesting activity had occurred since 1997. The
SAFMC's choices for optimum yield (OY) and total allowable catch (TAC)
were based on average annual harvest levels from the most recent data
available. To ensure that the SAFMC's proposed actions, and NMFS'
decisions, were based on the best available information, NMFS contacted
the firm's owner to request updated information regarding the harvest
of sargassum in the SAFMC's area of jurisdiction.
The owner reported that the firm was not actively fishing for
sargassum; the firm's fishing vessel had been sold. The firm was
purchasing sargassum from vendors who had harvested the product from
areas outside the SAFMC's area of jurisdiction. According to the firm's
comment letter, its current monthly use of 10,000 lb (4.54 mt) wet
weight of sargassum is approximately half its historical (1976-1997)
average annual harvest. Therefore, it appears that the proposed
harvesting restrictions would not affect the firm's opportunity to
continue its operations. There is no information available to evaluate
the firm's current mode of operation of buying raw product compared to
purchasing and operating its own vessel to harvest sargassum.
Comment 6: Some of the preferred alternatives identified in the
FMP, if modified to include additional considerations, would better
address the conservation and management of sargassum.
Response: The Magnuson-Stevens Act, at Section 304(a)(3), provides
the Secretary of Commerce (Secretary), or NMFS as the Secretary's
designee, with the authority to approve, disapprove, or partially
approve the preferred alternative in any FMP or FMP amendment submitted
by a fishery management council. The Secretary does not have
discretionary authority to select a rejected alternative, or develop a
substitute alternative, for approval and implementation.
Comment 7: Several scientific studies have documented the use of
sargassum by various forms of marine life, including sea turtles. NMFS
is encouraged to develop better estimates of densities of sea turtle
neonates in sargassum habitat. Additional questions that need to be
addressed include: What quantity of harvest is acceptable, and what is
too much? What seasons are least disruptive in regards to the use of
sargassum by the various life stages of finfish and invertebrate
species that associate with sargassum? The decision to establish a
fishing season appears to be based entirely on an assumption of post-
hatchling turtle utilization of the habitat, without accounting for
seasonal use of sargassum as a nursery ground by numerous fish species.
Response: NMFS acknowledges that there is a paucity of data
regarding the abundance of turtles in sargassum habitat. Several
studies, mostly focusing on the western edge of the Gulf Stream, have
reported numbers of turtles seen during transect surveys, giving a
rough estimate of densities of turtles along this western boundary. The
western boundary would be the area that hatchling turtles first
encounter during their migration from the nesting beach. Thus, it is
likely that densities may decrease toward the eastern Gulf Stream
boundary and beyond into the open ocean realm. The FMP notes (page 18)
that ``Regional trends in the mean abundance of and biomass of young
fish show a decrease in abundance across the continental shelf and into
the Gulf Stream and Sargasso Sea, and a decrease from spring through
fall. Species richness is generally highest on the outer shelf during
spring and summer and further offshore during the fall and winter.''
This same kind of distribution can be assumed for sea turtles as well.
To that end, this final rule will prohibit the harvest of sargassum
within 100 nautical miles of shore off North Carolina, and during the
spring through fall period. The intent of this restriction is to limit
the interaction with bycatch during harvesting efforts. The gear
restrictions imposed by this final rule are intended to limit those
impacts; harvesting nets must be constructed of 4-inch (10.2-cm)
stretch mesh or larger fitted to a frame no larger than 4 ft by 6 ft
(1.3 m by 2.0 m), which should allow many organisms to escape.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
NMFS prepared an FRFA, based on the Regulatory Impact Review, for
this final rule. A summary of the FRFA follows:
The Magnuson-Stevens Act provides the statutory basis for this
final rule. The objectives of the FMP are: establish a management
structure to manage sargassum habitat; reduce the impact of the
sargassum fishery on essential fish habitat; reduce the potential for
conflict;
[[Page 57377]]
and direct needed research to better determine distribution,
production, and ecology of sargassum habitat. The final rule prohibits
all harvest and possession of sargassum from the South Atlantic EEZ
south of 34[deg] N. lat., the latitude line representing the North
Carolina/South Carolina border; prohibits all harvest of sargassum from
the South Atlantic EEZ within 100 nautical miles of shore between
34[deg] N. lat. and the latitude line representing the North Carolina/
Virginia border; limits harvest of sargassum from the South Atlantic
EEZ to the months of November through June; establishes an annual total
allowable catch (TAC) of 5,000 lbs (2,268 kg) landed wet weight;
requires that a NMFS-approved observer be present on each sargassum
harvesting trip; and requires 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 (1.3 m by 2.0 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 on distribution, production, and
ecology of sargassum exists. The rule establishes strict limits on
allowable harvest of sargassum.
This final rule will require an observer on board the vessel to
monitor harvest of sargassum and associated bycatch. No other projected
reporting, record keeping or other compliance requirements are
proposed. 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
this final rule. One small business entity was a historical participant
in the fishery. This firm harvested an average annual harvest of 14,333
lb (6,501 kg) wet weight (1995-1997 average harvest), valued at $43,000
per year, and employed three persons on a full-time basis and other
workers on a part-time basis as needed. 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 (90,718 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 sole historical participant in the fishery has
maintained the processing side of the business operation through the
purchase of product from vendors harvesting outside the SAFMC's area of
jurisdiction. There is no known harvest, therefore, within the SAFMC's
area of jurisdiction that would be adversely impacted.
No significant issues were raised by public comments in response to
the IRFA. Therefore, no changes were made in the final rule as a result
of such comments.
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 entities.
Had the sole historical participant in the fishery continued operation
and been dependent upon product harvested from areas within the
Council's jurisdiction, 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), valued at
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, this final rule
does 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 harvest restrictions will result in direct economic
impacts. The 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 allow unrestricted harvest.
Additional alternatives would specify TAC at 20,000 lb (9,072 kg) wet
weight and 200,000 lb (90,718 kg) wet weight, which would allow
harvests greater than the historic 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
all 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 the productivity of marine life in the
ecosystem and, thus, increase consumptive, non-consumptive, and in-
direct (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 FRFA 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
[[Page 57378]]
collection of information displays a currently valid OMB control
number.
This final rule contains the collection-of-information requirements
subject to review and approval by OMB under the PRA. These requirements
have been approved by OMB under OMB control number 0648-0205 for
notification prior to a fishing trip and OMB control number 0648-0358
for vessel identification requirements. 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, per
response, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding these burden estimates, or any other aspects of the
collections of information, including suggestions for reducing the
burden, 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: September 29, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 622 is amended as
follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
0
1. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
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
FMP title management Geographical area
council(s)
------------------------------------------------------------------------
* * * * *
FMP for Pelagic Sargassum SAFMC South Atlantic
Habitat of the South Atlantic
Region.
* * * * *
------------------------------------------------------------------------
0
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.
* * * * *
0
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--
* * * * *
0
5. In Sec. 622.8, paragraphs (a), (b) introductory text, and (c)
introductory text are revised to read as follows:
Sec. 622.8 At-sea observer coverage.
(a) Required coverage--(1) Pelagic sargassum. 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. 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:
* * * * *
(c) Observer accommodations and access. An owner or operator of a
vessel on which a NMFS-approved observer is embarked must:
* * * * *
0
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 restrictions--(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.
0
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.
0
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.
0
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 fished for 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
[[Page 57379]]
harvested and landed ashore prior to the effective date of the closure.
* * * * *
[FR Doc. 03-25149 Filed 10-2-03; 8:45 am]
BILLING CODE 3510-22-P