[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
