05-24416. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Gulf of Mexico Essential Fish Habitat Amendment

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Generic Amendment 3 to the Fishery Management Plans (FMPs) of the Gulf of Mexico (EFH Amendment 3), which was prepared by the Gulf of Mexico Fishery Management Council (Council). EFH Amendment 3 amends each of the seven Council FMPs -shrimp, red drum, reef fish, coastal migratory pelagic resources, coral and coral reefs, stone crab, and spiny lobster- to describe and identify essential fish habitat (EFH); minimize to the extent practicable the adverse effects of fishing on EFH; and encourage conservation and management of EFH. This final rule establishes additional habitat areas of particular concern (HAPCs), restricts fishing activities within HAPCs to protect EFH, and requires a weak link in bottom trawl gear to protect EFH. The intended effect of this final rule is to facilitate long-term protection of EFH and, thus, better conserve and manage fishery resources in the Gulf of Mexico.

DATES:

This final rule is effective January 23, 2006, except for § 622.34(q), which is effective January 24, 2006.

ADDRESSES:

Copies of the Final Regulatory Flexibility Analysis (FRFA) are available from Peter Hood, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone: [phone]; fax: [phone]; e-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Peter Hood, telephone: [phone]; fax: [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

EFH Amendment 3 addresses fisheries under the FMPs for coral and coral reef resources, coastal migratory pelagics, red drum, reef fish, shrimp, spiny lobster, and stone crab. The FMPs were prepared by the Council, except for the FMPs for coastal migratory pelagics and spiny lobster that were prepared jointly by the South Atlantic and Gulf of Mexico Fishery Management Councils. All of these FMPs, except the spiny lobster and stone crab FMPs, are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic is implemented by regulations at 50 CFR part 640. The Fishery Management Plan for the Stone Crab Fishery of the Gulf of Mexico is implemented by regulations at 50 CFR part 654.

NMFS published a notice of availability for EFH Amendment 3 on September 15, 2005, and requested public comment on the amendment (70 FR 54518). On September 26, 2005, NMFS published the proposed rule to implement EFH Amendment 3 and requested public comment on the proposed rule (70 FR 56157). NMFS approved EFH Amendment 3 on December 12, 2005. The rationale for the measures in EFH Amendment 3 is provided in the amendment and in the preamble to the proposed rule and is not repeated here.

Comments and Responses

Following is a summary of the comments received on EFH Amendment 3 and the proposed rule along with NMFS′ responses.

Comment 1: Restrictions on anchoring in the Stetson, East Flower Garden, West Flower Garden, and McGrail Banks HAPCs should be constrained to only those areas where coral reefs are present, and not areas within the HAPCs where corals are not present.

Response: As stated in the amendment, the restrictions on the majority of the areas encompassed within East Flower Garden, West Flower Garden, and Stetson Banks HAPCs are consistent with restrictions already imposed by the statutes governing the Flower Garden Banks National Marine Sanctuary (Sanctuary), which has jurisdiction for these areas. The rationale for slightly larger HAPC boundaries is based on recent bathymetric and biological surveys that incorporate the entire physical area of these geological features and that serve as the basis for new boundaries for the Sanctuary that will be proposed in the near future.

McGrail Bank, although not managed by the Sanctuary, has extensive growth of reef-building corals. This bank runs linearly from the southeast to the northwest. To maximize the protection of these corals, north-south and east-west boundaries capturing the southeast and northwest extent of the bank were selected by the Council and NMFS to aid in enforcement of the area restrictions, simplify boundaries for the vessel operators to whom the restrictions apply, and maintain consistency with the boundary orientation of other northern Gulf of Mexico HAPCs.

Comment 2: Longline gear and bottom trawls should be restricted because they damage other fisheries.

Response: NMFS recognizes that these gears can damage habitats of some federally managed fishery species. Accordingly, the regulations implemented through this final rule will further restrict where and how these gear types can be used. NMFS believes these regulations restrict these gear types to the extent justified by the supporting analyses.

Comment 3: Longline fishing and anchoring restrictions in the entire Pulley Ridge HAPC would be harmful to many commercial fishermen dependent on this area.

Response: As described in the environmental impact statement (EIS) for this amendment, although coral reefs are not common in the Gulf of Mexico, they support a wide array of finfish and invertebrate species. Many of these species, such as groupers and snappers, are important to Gulf of Mexico fisheries. As stated in the amendment and in the EIS, fishermen target these areas because of the abundance of these species. However, fishing activities such as the use of longlines and anchoring can damage coral reefs. Longlines, particularly during retrieval, can snag corals, thus breaking or upending them. Dragging and pulling anchors and anchor chains through corals has been documented to break and crush coral formations. Therefore, limiting these activities is necessary to protect this important habitat.

The deepest hermatypic coral reef known in American waters is located in the southern portion of the Pulley Ridge HAPC. The northern area of the HAPC does not contain living corals, but does show a unique mixed hard bottom habitat. Because the fishing restrictions outlined in this rule are designed to protect corals, only part of the southern half of this HAPC where the corals are abundant was designated for gear and anchoring restrictions. The Council selected this area because it provided the best balance between protecting corals while not resulting in substantial economic hardship to any particular fishery or fishing community.

Classification

The Administrator, Southeast Region, NMFS, determined that EFH Amendment 3 is necessary for the conservation and management of the shrimp, red drum, reef fish, coastal migratory pelagic resources, coral and coral reefs, stone crab, and spiny lobster fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared a FRFA that incorporates the initial regulatory flexibility analysis (IRFA) and a summary of the analyses completed to support the action. No significant issues were raised by public comments regarding the IRFA or the economic impacts of the rule. A summary of the FRFA follows.

This action will identify EFH, identify HAPC, and establish gear and fishing restrictions to protect this habitat. The purpose of this action is to prevent, minimize, or mitigate adverse fishing impacts to EFH and HAPC. The Magnuson-Stevens Act, as amended, provides the statutory basis for the rule.

No significant issues were raised by public comments in response to the IRFA or the economic impacts of the rule. Therefore, no changes were made in the final rule as a result of such comments.

No duplicative, overlapping, or conflicting Federal rules have been identified.

All commercial and for-hire fishing operations in the Gulf of Mexico could be affected by the final rule either directly by altering their gear usage or fishing locations, or indirectly by affecting fishery-wide harvest patterns. These commercial fishing operations include the shrimp, reef fish, spiny lobster, and stone crab fisheries. Participation in multiple fisheries by individual entities is common. The mobile and shallow depth-related nature of fishing for pelagic species should exclude those operations that exclusively fish for these species from the effects of the final rule. However, operations that fish for both pelagic and bottom species will be captured in the following discussion.

The Small Business Administration (SBA) defines a small business as one that is independently owned and operated and not dominant in its field of operation, and has annual receipts not in excess of $3.5 million in the case of commercial harvesting entities or $6.0 million in the case of for-hire entities, or has fewer than 500 employees in the case of fish processors, or fewer than 100 employees in the case of fish dealers.

The number of shrimp vessels operating in the Gulf of Mexico in the federal shrimp fishery is estimated to be approximately 2,951 vessels, while the number of smaller shrimp boats operating in state waters is estimated at less than 10,000. However, many of these shrimp fishing operations are not currently fishing due to a combination of poor economic conditions in the fishery and the destruction of vessels and infrastructure by hurricanes. Detailed economic and social information has not been collected from Gulf shrimp fishermen for over 10 years, although a socioeconomic survey of the shrimp fishery is presently underway. The historical estimate of average gross revenues for shrimp vessels is approximately $82,000. Given the economic conditions currently experienced by the fishery, present average revenues are likely substantially less. Although there are several individuals or corporations that own and operate more than one vessel in the shrimp fishery, their actual number and size is not known.

There are approximately 1,145 vessels permitted to fish in the commercial reef fish fishery of the Gulf of Mexico. An average reef fish vessel is estimated to generate revenues of approximately $65,000. Average revenue performance within the fleet varies, however, depending upon the gear utilized and the area fished, ranging from a low of approximately $24,000 for vertical line vessels fishing in the eastern Gulf to $117,000 for bottom longline vessels fishing Gulf-wide.

In 2001, 2,235 fishermen possessed a spiny lobster trap certificate. Total revenues in the 2001 fishery were approximately $15 million, or an average of less than $7,000 per fisherman. Landings in 2001 were markedly lower than historical performance. Using peak revenues of approximately $30 million in 1999 and the same number of fisherman results in average revenues of still less than $14,000 per participant.

From 1985 to 1994, an average of 720 fishing craft operated in the stone crab fishery. Of these craft, an average of 234 were vessels greater than 5.0 net tons (4.5 net metric tons), and 486 were smaller boats. More recent estimates are not available. The highest annual total ex-vessel revenues from stone crab landings were registered in 1997 at $31.9 million, or an average of approximately $44,000 per vessel. On the assumption that the majority of harvests are made by the larger vessels, if all landings are attributed to the average of 234 participating larger vessels, then the average gross revenue would amount to about $136,427.

There are approximately 1,857 vessels with for-hire moratorium permits in the Gulf of Mexico, encompassing both charter and headboat operations. On average, charter boats are estimated to generate gross revenues ranging from $58,000 in the eastern Gulf to $81,000 in the western Gulf, or an overall average of $64,000. Headboats are estimated to generate gross revenues ranging from $281,000 in the eastern Gulf to $550,000 in the western Gulf, or an overall average of $400,000.

Fish dealers may also be affected by the measures in this final rule to the extent that the measures affect harvests. There are 227 Federally permitted reef fish dealers in the Gulf region. Average employment information per reef fish dealer is not known. Although dealers and processors are not synonymous entities, total employment in 1997 for reef fish processors in the entire Southeast was estimated at approximately 700 individuals, both part- and full-time. It is assumed all processors must be dealers, yet a dealer need not be a processor. Further, processing is a much more labor-intensive exercise than dealing. Therefore, given the employment estimate for the processing sector, it is assumed that all reef fish dealers are small businesses.

In 2002, 626 dealers were identified in the Gulf of Mexico shrimp fishery. This figure was a substantial increase from 1999-2001 when 310 to 320 dealers typically operated in the fishery. The increase, however, is believed to represent an attempt by more shrimp fishermen to market their product directly in response to depressed market conditions. Similar to the reef fish sector, employment data on shrimp dealers are not available. Total employment in the shrimp processing sector in 2002, however, was approximately 4,300 individuals across 74 firms, with the largest processor employing less than 500 individuals. Thus, as in the reef fish sector, all shrimp dealers are assumed to be small business entities.

Based on the SBA benchmark standards and the gross revenue and employment profiles presented above for the various fisheries, all commercial and for-hire fishing vessels and reef fish and shrimp dealers potentially affected by the final rule are considered small entities.

None of the measures considered in this rule will alter existing reporting and recordkeeping requirements. None of the compliance requirements will require additional professional skills.

The final rule could directly or indirectly affect all commercial and for-hire entities that operate in the Gulf of Mexico. All of these entities are considered small business entities. The final rule will, therefore, affect a substantial number of small entities.

The outcome of “significant economic impact″ can be ascertained by examining two issues: disproportionality and profitability. The disproportionality question is, do the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? All the business operations affected by the rule are considered small business entities, so the issue of disproportionality does not arise in the present case.

The profitability question is, do the regulations significantly reduce profit for a substantial number of small entities? The designation of EFH or HAPC will not have any direct effect on fishing activity or profits because designation does not impose fishing restrictions. The anchoring prohibition will primarily affect vessels using vertical lines over the live coral areas of Pulley Ridge, the East and West Flower Gardens, and the McGrail Bank. Landings data do not provide precise harvest or fishing locations, and the proposed restricted areas generally lie within larger geographical statistical grids. Total harvests from the grid within which Pulley Ridge lies (NMFS Statistical Area 2) accounted for only 3.1 percent of average annual total reef fish harvests from 2000-2002 and, although not quantified, similar results are expected for the other protected areas. Because Pulley Ridge and other protected areas do not encompass the entirety of the statistical areas within which they lie, any harvest reduction attributed to the anchoring restriction is expected to be less than the total area contribution.

The prohibition on the use of bottom trawls, bottom longlines, and buoy gear will primarily affect fishermen using these gears in the coral areas of Pulley Ridge. As previously stated, the coral areas within Pulley Ridge lie completely within NMFS Statistical Area 2. Logbook data for the entire area show that the value of all longline reef fish and shark landings from 2000 through 2003 averaged $662,000, or 4.1 percent of the Gulf-wide total for these species. However, it is not anticipated that these landings and revenues will be removed from the fishery because it is expected that most, if not all, of this fishing effort will relocate to adjacent areas where fishing activity already exceeds that of Statistical Area 2. This relocation may have some minor, but unquantifiable, effect on fishing costs. Relocation of buoy gear fishing will similarly be expected to affect fishing costs. However, it is unknown how much, if any, buoy gear fishing occurs in the proposed protected areas.

The prohibition on bottom trawls is not expected to affect fishing behavior because trawl fishermen are expected to currently avoid these areas because shrimp are generally not abundant over coral, and the costs associated with gear entanglement and damage is not consistent with efficient trawling activity.

It is not anticipated that any trap fishermen (fish, lobster, or stone crab) will be impacted by the rule because this gear is not believed to be utilized to any significant degree in the restricted areas.

The requirement for a weak link in the tickler chain of bottom trawls used over all habitats is expected to have minor impacts on gear costs and may reduce harvests and increase costs if gear is lost due to entanglement and link separation. Successful trawling operation encourages the avoidance of entanglements. A weak link may increase this behavior, potentially changing where trawling occurs, costs of operation, and harvest rates. It is not possible, however, to quantify these effects.

Several alternatives were considered to the gear restrictions intended to prevent, minimize, or mitigate adverse fishing impacts on the essential fish habitat. The no action alternative would have eliminated the potential adverse impacts of the rule but would not achieve the Council's objectives.

The second alternative to the gear restrictions would have prohibited bottom trawling over coral reefs, required aluminum doors on trawls, limited the length and deployment rate (number of sets per day) of bottom longline sets on hard bottom, required circle hooks on vertical lines and limited sinker weights, and required buoys on anchors. This alternative lacked the habitat protection afforded by the anchoring and trap/pot prohibitions of the final rule and would not, therefore, have achieved the habitat protection of the final rule. The Council also concluded that the longline set and sinker restrictions were impractical and would have increased the adverse economic impacts to fishery participants over the final rule. In total, this alternative would not have met the Council's objectives of providing practical habitat protection while minimizing adverse economic impacts.

The third alternative contained all the provisions of the second alternative and would have additionally limited tickler chains, headropes, and vessel length for trawl vessels, and prohibited trotlines when using traps or pots. Although this alternative would have increased the habitat protection over the second alternative, this alternative still would not have included the full extent of the habitat protection afforded by the anchoring and trap/pot prohibitions fo the final rule. Further, the adverse economic impacts associated with the impractical longline set and sinker restrictions of the second alternative would not be reduced. Thus, this alternative would still not have met the Council's objectives of providing practical habitat protection while minimizing adverse economic impacts.

The fourth alternative would have increased the headrope and vessel length restrictions of the third alternative and prohibited the use of tickler chains on all bottoms; the use of all traps, pots, bottom longline, and buoy gear on coral reef; and the use of anchors on coral. While this alternative would have increased the protection of habitat relative to the second and third alternatives, this alternative would have also unnecessarily reduced the efficiency of trawl gear, thereby increasing the adverse impacts of the action on fishery participants.

The fifth alternative would have prohibited the use of all gear and fishing activities that have adverse impacts on essential fish habitat in the EEZ. This alternative would have resulted in the greatest protection to the environment. However, since virtually all fishing methods except for surface trawling have the potential to result in adverse impacts on essential fish habitat, this alternative would result in whole-scale elimination of fisheries, with severe adverse economic impacts. The Council determined that such protection would be greater than necessary to protect the environment while maintaining sustainable fisheries. This alternative, therefore, exceeded the objectives of the action and would impose an excessive economic burden on fishery participants.

The final alternative would have established restrictions applicable to fishing over live hard bottom and would have limited the length and deployment rate of bottom longline sets, prohibited trotlines when using traps or pots, prohibited all anchoring, and enacted a seasonal closure for shrimp trawl fishing. The longline and anchoring provisions of this alternative are impractical, and the longline provisions could reduce the efficiency of vessels, thereby increasing adverse economic impacts without clearly demonstrable benefits. Further, a seasonal shrimp trawling closure is difficult to justify given the inability to determine, absent vessel monitoring systems, exactly where fishing effort occurs and the apparent low fishing pressure in the areas that are the most likely candidates for closure. Overall, this alternative would not meet the Council′s objectives as well as the final rule.

Copies of the FRFA are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

Dated: December 20, 2005.

James W. Balsiger,

Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

1. The authority citation for part 622 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. In § 622.31, paragraph (m) is added to read as follows:

§ 622.31

Prohibited gear and methods.

* * * * *

(m) Weak link. A bottom trawl that does not have a weak link in the tickler chain may not be used to fish in the Gulf EEZ. For the purposes of this paragraph, a weak link is defined as a length or section of the tickler chain that has a breaking strength less than the chain itself and is easily seen as such when visually inspected.

3. In § 622.34, paragraph (d) introductory text, and paragraphs (d)(1), and (j) are revised; paragraph (q) is reserved; and paragraphs (r), (s), and (t) are added to read as follows:

§ 622.34

Gulf EEZ seasonal and/or area closures.

* * * * *

(d) Tortugas marine reserves HAPC. The following activities are prohibited within the Tortugas marine reserves HAPC: Fishing for any species and bottom anchoring by fishing vessels.

(1) EEZ portion of Tortugas North. The area is bounded by rhumb lines connecting the following points: From point A at 24°40′00″ N. lat., 83°06′00″ W. long. to point B at 24°46′00″ N. lat., 83°06′00″ W. long. to point C at 24°46′00″ N. lat., 83°00′00″ W. long.; thence along the line denoting the seaward limit of Florida′s waters, as shown on the current edition of NOAA chart 11434, to point A at 24°40′00″ N. lat., 83°06′00″ W. long.

* * * * *

(j) West and East Flower Garden Banks HAPC. The following activities are prohibited year-round in the HAPC: Fishing with a bottom longline, bottom trawl, buoy gear, dredge, pot, or trap and bottom anchoring by fishing vessels.

(1) West Flower Garden Bank. West Flower Garden Bank is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	27°55′22.8″	93°53′09.6″
B	27°55′22.8″	93°46′46.0″
C	27°49′03.0″	93°46′46.0″
D	27°49′03.0″	93°53′09.6″
A	27°55′22.8″	93°53′09.6″

(2) East Flower Garden Bank. East Flower Garden Bank is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	27°59′14.4″	93°38′58.2″
B	27°59′14.4″	93°34′03.5″
C	27°52′36.5″	93°34′03.5″
D	27°52′36.5″	93°38′58.2″
A	27°59′14.4″	93°38′58.2″

* * * * *

(r) Pulley Ridge HAPC. Fishing with a bottom longline, bottom trawl, buoy gear, pot, or trap and bottom anchoring by fishing vessels are prohibited year-round in the area of the HAPC bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	24°58′18″	83°38′33″
B	24°58′18″	83°37′00″
C	24°41′11″	83°37′00″
D	24°40′00″	83°41′22″
E	24°43′55″	83°47′15″
A	24°58′18″	83°38′33″

(s) Stetson Bank HAPC. Fishing with a bottom longline, bottom trawl, buoy gear, pot, or trap and bottom anchoring by fishing vessels are prohibited year-round in the HAPC, which is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	28°10′38.3″	94°18′36.5″
B	28°10′38.3″	94°17′06.3″
C	28°09′18.6″	94°17′06.3″
D	28°09′18.6″	94°18′36.5″
A	28°10′38.3″	94°18′36.5″

(t) McGrail Bank HAPC. Fishing with a bottom longline, bottom trawl, buoy gear, pot, or trap and bottom anchoring by fishing vessels are prohibited year-round in the HAPC, which is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	27°59′06.0″	92°37′19.2″
B	27°59′06.0″	92°32′17.4″
C	27°55′55.5″	92°32′17.4″
D	27°55′55.5″	92°37′19.2″
A	27°59′06.0″	92°37′19.2″