[Federal Register Volume 64, Number 240 (Wednesday, December 15, 1999)]
[Notices]
[Pages 69989-69991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32318]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 080999E]
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Pelagic Sargassum Habitat in the South Atlantic; Fishery Management
Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of agency action.
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SUMMARY: NMFS has disapproved the Fishery Management Plan for Pelagic
Sargassum Habitat of the South Atlantic Region (FMP) submitted by the
South Atlantic Fishery Management Council (Council). Under the
procedures of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act), NMFS determined that the FMP did not meet
the requirements for a fishery management plan.
FOR FURTHER INFORMATION CONTACT: Steve Branstetter, telephone: 727-570-
5305, fax: 727-570-5583, e-mail: steve.branstetter@noaa.gov.
SUPPLEMENTARY INFORMATION: Pelagic Sargassum is an abundant brown alga
that occurs near the surface in warm waters of the western North
Atlantic. According to the FMP, the standing crop of pelagic Sargassum
in the North Atlantic Ocean may be 4 to 11 million metric tons (roughly
9 to 24 billion lb). Two different scientific studies indicate that
Sargassum is capable of increasing its biomass by approximately 50
percent per week. The Sargassum habitat supports a diverse assemblage
of marine organisms. The Council designated pelagic Sargassum as
essential fish habitat (EFH) and as an essential fish habitat-habitat
area of particular concern (EFH-HAPC) for snapper-grouper species and
coastal migratory pelagic species in its Comprehensive Amendment
Addressing Essential Fish Habitat in Fishery Management Plans of the
South Atlantic Region (Habitat Plan).
The Council subsequently developed and submitted the FMP that
addresses 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.
The FMP would have: (1) Established the management unit for Sargassum;
(2) specified optimum yield (OY) for pelagic Sargassum as zero harvest;
(3) specified overfishing levels as occurring when the fishing
mortality rate is greater than zero; (4) identified EFH for Sargassum;
(5) established EFH-HAPCs for Sargassum; and (6) eventually prohibited
the harvest or possession of pelagic Sargassum in or from the exclusive
economic zone off the southern Atlantic states.
The FMP did not specify a maximum sustainable yield (MSY) for
pelagic Sargassum. Section 303(a)(3) of the Magnuson-Stevens Act
requires that any fishery management plan ``assess and specify the
present and probable future condition of, and the maximum sustainable
yield and optimum yield from, the fishery, and include a summary of the
information utilized in making such specification.'' As such, MSY is a
necessary FMP component, upon which other FMP measures such as an MSY
control rule, as specified in NMFS guidelines (see 50 CFR 600.310),
would depend. NMFS specifically invited comments on this aspect of the
FMP and on the propriety of the control rule measures such as an OY
specification of zero in the absence of any specification of MSY. Four
comments indicated that the establishment of MSY was irrelevant for
habitat, and three comments indirectly addressed this issue noting that
research should be conducted to develop a scientifically credible
management strategy.
One company has harvested a total of 448,000 lb (203,209 kg) of
pelagic Sargassum off the southern Atlantic states from 1976 to the
present. This harvest represents an average annual removal of less than
20,000 lb (9072 kg), which is 0.0002 to 0.00008 percent of the
estimated standing crop. Nevertheless, the Council concluded that any
removal of pelagic Sargassum constituted a net loss of EFH off the
southern Atlantic states, and, thus, was contradictory to the goals and
objectives of the Council's Habitat Plan; therefore, the Council set OY
equal to zero harvest. Section 303(a)(7) of the Magnuson-Stevens Act
requires the Councils to minimize, to the extent practicable, adverse
effects on EFH caused by fishing.
Based on the biological information available concerning the
standing crop and productivity of pelagic Sargassum, NMFS determined
that the FMP did not provide sufficient rationale that the historical
harvest had adversely impacted Sargassum EFH or the fauna associated
with Sargassum EFH.
Based on the FMP's lack of an MSY estimate for pelagic Sargassum
and its failure to justify adequately an OY of zero, NMFS disapproved
the FMP. Nevertheless, NMFS supports the Council's intent to maintain a
healthy quantity of pelagic Sargassum habitat for numerous managed and
non-managed species, including threatened, endangered, or otherwise
protected species. NMFS has suggested that the Council develop an
alternative management mechanism, such as an amendment to an existing
FMP where Sargassum is designated as EFH, that would effectively manage
and maintain sustainable quantities of this renewable natural resource.
Comments and Responses
Comments were received from 304 individuals, 9 sport fishing
organizations, 17 environmental or citizens groups, 4 businesses, 4
state agencies, 4 Federal agencies, and the Council.
Comment 1: In response to NMFS' specific request for comments on
the appropriateness of an FMP that did not contain an estimate of MSY,
several commenters questioned the relevance of MSY to a recognized
essential habitat, pointing out that the biomass is less important than
its spatial and temporal distribution. These commenters believed that
OY could be set at zero to provide the overall greatest benefit to
society when considering ecosystem integrity and protection. Also,
commenters noted that there was a precedent for setting OY equal to
zero harvest since a similar management strategy was employed for
organisms/habitat such as coral and live rock managed under other
fishery management plans.
Another commenter stated that the FMP did not provide sufficient
rationale to support an OY of zero harvest, and recommended that, given
the lack of fishing thresholds and targets, the goals and objectives of
the FMP would be better accomplished by establishing Sargassum as EFH
under existing FMPs instead of attempting to develop all the
requirements for a separate FMP. Commenters also addressed this issue
indirectly, noting that data were insufficient to calculate control
rule parameters and that research should be conducted to provide
answers to key questions concerning the Sargassum ecosystem structure
so that a scientifically credible management strategy could be
established.
[[Page 69990]]
Response: NMFS recognizes the importance of Sargassum habitat to
the offshore pelagic community. NMFS approved the Council's Habitat
Plan, which designated Sargassum as EFH for snapper-grouper and coastal
migratory species. Nevertheless, the Council, in developing an FMP, is
treating Sargassum habitat as a fishery resource. MSY is a necessary
component of an FMP; thus NMFS determined that the FMP, as submitted by
the Council, was inconsistent with the Magnuson-Stevens Act because it
failed to specify MSY, and disapproved it. NMFS agrees that alternative
management actions, other than an FMP, could be proposed to address the
resource conservation issues.
Analogies between coral/live rock EFH and Sargassum as EFH are
inapposite for purposes of determining the appropriate level of
protection. Coral and organisms that create live rock are slow growing,
and, in some instances, such growth is not renewable; harvest of some
of these organisms permanently damages or destroys that particular
coral colony and/or reef structure. Additionally, the Council allows
the harvest of octocorals, which would comprise part of the coral
habitats designated as EFH. By contrast, Sargassum is prolific and
capable of generating its own biomass in a few weeks. Sargassum would
be more appropriately compared to other faster growing organisms that
create habitat, such as oysters. Oyster reefs have been designated as
EFH and as EFH-HAPC for penaeid shrimp, red drum, snapper-grouper, and
coastal migratory pelagic fish management units, yet these reefs are
extensively harvested. Section 303(a)(7) of the Magnuson-Stevens Act
requires that all fishery management councils minimize to the extent
practicable adverse effects on EFH caused by fishing, but clearly this
does not, in every instance, preclude recoverable impacts to EFH due to
fishing efforts.
Comment 2: A total of 311 commenters supported the implementation
of the FMP, which would prohibit the harvest of Sargassum. These
comments noted that Sargassum is an important habitat for numerous
species of fishes and invertebrates, as well as endangered and
threatened sea turtles and protected sea birds. An additional 25
comments simply expressed concern that, without management,
exploitation of the resource would increase, which could lead to
destruction of habitat. Several comments indicated support for the
proposed FMP because its implementation would designate Sargassum as
EFH.
The Environmental Protection Agency provided a separate comment on
the Final Environmental Impact Statement (FEIS) pursuant to sections
102(2)(C) of the National Environmental Policy Act and to section 309
of the Clean Air Act. The Council also commented on the FEIS. Both
supported the proposed suspension of the Sargassum fishery.
Response: NMFS agrees that Sargassum is an important EFH. On June
3, 1999, NMFS approved the Council's Habitat Plan, which designated
Sargassum as EFH for several fish species. NMFS intends to ensure that
healthy quantities of pelagic Sargassum habitat are maintained for
numerous managed and non-managed species, including threatened,
endangered, or otherwise protected species.
NMFS disagrees that a total prohibition of harvest is necessary to
protect, conserve, and enhance the abundance of this prolific renewable
natural resource or to protect the fauna comprising the Sargassum
habitat community. According to the FMP, the standing crop of pelagic
Sargassum in the North Atlantic Ocean may be 9 to 24 billion lb (4 to
11 million metric tons), and two different scientific studies indicate
that Sargassum is capable of increasing its biomass between 10 and 100
percent per week. The average annual harvest of Sargassum is
approximately 20,000 lb (9072 kg). This harvest represents only 0.0002
to 0.00008 percent of the estimated standing crop. Based on the
biological information available concerning the standing crop and
productivity of pelagic Sargassum, NMFS determined that the FMP did not
adequately justify zero harvest as necessary to effectively conserve
and maintain this important renewable natural resource (see also the
Response to Comment 1).
NMFS has suggested to the Council several less restrictive
management options that would allow the continued, but restricted,
harvest of Sargassum, while ensuring minimal impacts to the habitat and
the fauna associated with the Sargassum habitat, including the use of
an on-board observer.
Comment 3: Three commenters opposed the prohibition of Sargassum
harvest. One commenter pointed out that oyster reefs provide EFH for a
multitude of marine species, but that the oysters comprising these
reefs are harvested intensively. All three comments noted that the
current harvest level is minimal compared with the existing standing
crop of Sargassum.
Response: NMFS agrees that the designation of a particular habitat
as EFH does not preclude the continued use of that habitat. NMFS
disagrees with the Council's position that any removal of pelagic
Sargassum represents a net loss of EFH and thus is contradictory to the
goals and objectives of the Council's Comprehensive Habitat Plan for
the South Atlantic Region or to the Magnuson-Stevens Act. That position
is inconsistent with other designations of EFH and EFH-HAPC in the
Council's Habitat Plan. The Council allows the harvest of octocorals,
which are part of the overall coral complex designated as EFH. Oyster
reefs and shell hash areas are designated as EFH and as EFH-HAPC for
penaeid shrimp, red drum, snapper-grouper, and coastal migratory
pelagic fish management units, and these reefs are extensively
harvested. 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 recoverable impacts to EFH due to fishing efforts.
Comment 4: One environmental group stated that NMFS had caused
unacceptable delays in promulgating regulations related to this FMP;
NMFS did not publish the Notice of Availability (NOA) of the FMP
``immediately'' within 5 days of receipt of the FMP, nor did NMFS
publish a proposed rule to promulgate the actions outlined in the FMP
for public comment.
Response: An FMP or amendment is not deemed to be transmitted from
the Council to the Secretary until it is complete, including any
necessary regulations and supporting analyses. Additionally, NMFS may
not publish the proposed regulations for public comment if the proposed
regulations are determined, subsequent to transmittal, to be
inconsistent with the FMP or amendment, the Magnuson-Stevens Act, or
other applicable law.
Comment 5: One environmental organization stated that the wording
in the NOA and in the letter to the Council returning the proposed
regulations indicated that NMFS intended to disapprove the FMP prior to
receiving and fairly considering public comment.
Response: Section 303(a)(3) mandates that an FMP must assess and
specify the present and probable future condition of the fishery and
the MSY and OY from the fishery. As such, MSY is a necessary component
of an FMP. Therefore, in the NOA, NMFS specifically requested public
comment on the FMP's lack of an MSY and the propriety of control rule
measures such as an OY specification of
[[Page 69991]]
zero in the absence of any specification of MSY. NMFS disagrees that by
requesting such comment, it prejudiced the results of the NOA.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 8, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-32318 Filed 12-14-99; 8:45 am]
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