[Federal Register Volume 59, Number 93 (Monday, May 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11764]
[[Page Unknown]]
[Federal Register: May 16, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 638
[Docket No. 940425-4125; I.D. 040694D]
Coral and Coral Reefs of the Gulf of Mexico and the South
Atlantic
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency interim rule.
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SUMMARY: NMFS publishes this interim emergency rule at the request of
the Gulf of Mexico Fishery Management Council (Gulf Council) to
prohibit the taking of live rock in the exclusive economic zone (EEZ)
of the Gulf of Mexico (Gulf) from the Pasco/Hernando County line in
Florida to the Alabama/Mississippi boundary; and, in the Gulf EEZ off
Florida south of the Pasco/Hernando County line, to prohibit the use of
power-assisted tools to break up or dislodge pieces of live rock and to
establish a daily vessel harvest and possession limit for live rock of
25 5-gallon (19-liter) buckets. The intended effect of this rule is to
protect live rock resources and fishery habitat in the Gulf.
EFFECTIVE DATES: May 16, 1994 through August 14, 1994.
ADDRESSES: Copies of documents supporting this action, including an
environmental assessment, may be obtained from Georgia Cranmore,
Southeast Regional Office, NMFS, 9721 Executive Center Drive, St.
Petersburg, FL 33702.
FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-893-3161.
SUPPLEMENTARY INFORMATION: Coral and coral reefs in the EEZ off the
southern Atlantic states and in the Gulf are managed under the Fishery
Management Plan for Coral and Coral Reefs of the Gulf of Mexico and the
South Atlantic (FMP). The FMP was prepared by the Gulf Council and the
South Atlantic Fishery Management Council (South Atlantic Council) and
is implemented through regulations at 50 CFR part 638 under the
authority of the Magnuson Fishery Conservation and Management Act
(Magnuson Act).
Live rock consists of living marine organisms, or an assemblage
thereof, attached to a hard substrate, including dead coral or rock
(excluding mollusk shells), and therefore is a ``fish'' within the
meaning of the Magnuson Act. Live rock is collected by SCUBA divers and
sold to the marine aquarium industry, which markets it as the basis for
mini-reef aquaria. In 1992, reported live rock landings in Florida from
the EEZ totaled 783,145 lbs (355,228 kg) with an ex-vessel value of
$864,521. (Florida had previously banned the harvest of live rock in
its waters.) In 1992, Florida implemented regulations to phase out
landings of live rock from the EEZ off Florida over a 3-year period
ending in 1995.
In 1993 a Federal court overturned these regulations (Southeastern
Fisheries Ass'n, Inc. v. Chiles, 979 F.2d 1504 (11th Cir. 1992).
At the request of Gulf Council members from Florida and Alabama,
the Gulf and South Atlantic Councils initiated development of Amendment
2 to the FMP to address management of live rock in the EEZ. Similar to
coral reefs, the current focus of the FMP, live rock resources are
essentially nonrenewable and serve as habitat for a variety of other
organisms.
In the recent public review process during the development of
Amendment 2, the Gulf and South Atlantic Councils received testimony
that rock outcroppings, that are important reef fish habitats, are
being removed and sold as live rock for marine aquariums. Testimony
from about 60 divers and fishermen indicated that removal of live rock
by harvesters in the northern Gulf is causing severe damage to the
limited outcroppings or rock ledges and reefs that occur in state and
Federal waters. Divers and fishermen testified that some small banks
have disappeared and many ledges off the Florida Panhandle have been
seriously damaged. Such outcroppings are not nearly as abundant in this
area as they are off southern Florida. These nonrenewable resources
serve as essential habitat for reef fish and invertebrates.
Accordingly, the Gulf Council requested an emergency rule to prohibit
the taking of live rock in the EEZ of the Gulf from the Pasco/Hernando
County line in Florida to the Alabama/Mississippi boundary.
The Gulf and South Atlantic Councils also heard testimony that
pneumatic drills and hammers are being used to break large rock ledges
into harvestable pieces. This results in large-scale destruction of
reef fish habitat. Testimony indicated that large vessels with numerous
divers and equipped with power-assisted gear can devastate a rock ledge
very quickly. To prevent further acceleration of harvest of live rock
before the management measures proposed for inclusion in Amendment 2
can be implemented, the Gulf Council also requested a prohibition on
the use of power-assisted tools and a daily vessel harvest and
possession limit, both of which would apply to the harvest of live rock
in the EEZ of the Gulf south of the Pasco/Hernando County line.
Live rock or live bottom habitats are at such a premium in the
northern Gulf that local government and private organizations have been
active in constructing artificial reefs to supplement natural habitats
off the coasts of Alabama and Florida. Loss of these natural,
nonrenewable, habitat areas because of live rock collections presents a
serious threat to marine habitat resources.
According to the Florida Department of Environmental Protection,
the closure of the Gulf EEZ from Florida's Pasco/Hernando County line
to the Alabama/Mississippi boundary to live rock collecting will affect
approximately 16 fishermen and live rock dealers who reported landings
of live rock in Florida and Alabama in 1993.
The daily vessel harvest and possession limit and the prohibition
on the use of power tools were widely supported by industry
representatives during the last three public hearings conducted in
conjunction with Gulf Council meetings. These restrictions are expected
to affect only a few individuals who allegedly are taking up to 10,000
lbs (4,536 kg) of live rock per trip using power tools.
Amendment 2 is scheduled to be submitted for Secretarial review by
the Councils in July 1994. It is expected that Amendment 2 will
implement the measures in this emergency interim rule on a more
permanent basis and include a phase-out schedule for live rock harvests
in other areas.
Compliance With NMFS Guidelines for Emergency Rules
The Gulf Council and NMFS have concluded that the present situation
constitutes biological and conservation emergencies, which are properly
addressed by this emergency interim rule, and that the situation meets
NMFS's policy guidelines for the use of emergency rules, published on
January 6, 1992 (57 FR 375). The situation (1) results from recent,
unforeseen events or recently discovered circumstances; (2) presents a
serious management problem; and (3) realizes immediate benefits from
the emergency interim rule that outweigh the value of advance notice,
public comment, and deliberative consideration expected under the
normal rulemaking process. The basis for the conclusions regarding
emergency guidelines (1) and (2) was summarized above.
Regarding the realization of immediate benefits, the Gulf Council
has determined that an emergency rule under section 305(c) of the
Magnuson Act is the only means for immediately addressing the
biological emergency involving the Gulf live rock resources.
Going through the formal FMP amendment process would delay
implementation of the required measures and would result in substantial
damage to live rock resources and fishery habitats in the Gulf. This
emergency interim rule will prevent live rock collection in the
northern Gulf and slow the harvesting rate in the rest of the Gulf EEZ
until annual quotas and a phase-out can be implemented under Amendment
2 through the normal FMP amendment and rulemaking process.
NMFS concurs with the Gulf Council's findings about the biological
emergency regarding Gulf live rock resources and the need for immediate
regulatory action. Accordingly, NMFS publishes this emergency interim
rule, effective initially for 90 days, as authorized by section 305(c)
of the Magnuson Act. By agreement of NMFS and the Gulf Council, this
emergency interim rule may be extended for an additional period of 90
days.
Classification
The Assistant Administrator for Fisheries, NOAA (Assistant
Administrator), has determined that this rule is necessary to respond
to an emergency situation and is consistent with the Magnuson Act and
other applicable law.
This emergency interim rule has been determined to be ``not
significant'' for purposes of E.O. 12866.
The Assistant Administrator finds for good cause under section
553(b)(B) of the Administrative Procedure Act (APA) that the need to
prevent further environmental damage and loss of fishery habitat makes
it impracticable and contrary to the public interest to provide prior
notice and opportunity for public comment on this rule. Similarly, to
implement measures to address the conservation and biological
emergencies in a timely manner, the Assistant Administrator finds for
good cause under section 553(d)(3) of the APA that the effective date
of this rule should not be delayed.
List of Subjects in 50 CFR Part 638
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 10, 1994.
Charles Karnella,
Acting Program Management Officer, 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. 638.5, effective May 16, 1994, through August 14, 1994,
paragraphs (o), (p), and (q) are added to read as follows:
Sec. 638.5 Prohibitions.
* * * * *
(o) Harvest or possess live rock in or from the EEZ of the Gulf of
Mexico from 28 deg.26'N. lat. north and west to 88 deg.23'12''W. long.,
as specified in Sec. 638.27(b).
(p) Use a power-assisted tool to break up or dislodge pieces of
live rock in the EEZ of the Gulf of Mexico south of 28 deg.26'N. lat.,
or possess live rock taken with such a power-assisted tool in or from
that area; as specified in Sec. 638.27(c).
(q) Exceed the daily vessel harvest and possession limit of 25 5-
gallon (19-liter) buckets, or volume equivalent, applicable to the
harvest or possession of live rock in or from the EEZ of the Gulf of
Mexico south of 28 deg.26'N. lat., as specified in Sec. 638.27(d).
3. In subpart B, effective May 16, 1994, through August 14, 1994,
Sec. 638.27 is added to read as follows:
Sec. 638.27 Live rock.
(a) Definition. Live rock means living marine organisms, or an
assemblage thereof, attached to a hard substrate, including dead coral
or rock (excluding mollusk shells).
(b) Closed area. No person may harvest or possess live rock in or
from the EEZ of the Gulf of Mexico from 28 deg.26' N. lat. (extension
of the Pasco/Hernando County, Florida, boundary) north and west to
88 deg.23'12'' W. long. (a line due south from the seaward terminus of
the Alabama/Mississippi state line).
(c) Gear limitations. No person may use a power-assisted tool to
break up or dislodge pieces of live rock in the EEZ of the Gulf of
Mexico south of 28 deg.26' N. lat., and no person may possess live rock
taken with such a power-assisted tool in or from that area.
(d) Harvest and possession limit. A daily vessel limit of 25 5-
gallon (19-liter) buckets, or volume equivalent, applies to the harvest
or possession of live rock in or from the EEZ of the Gulf of Mexico
south of 28 deg.26' N. lat.
[FR Doc. 94-11764 Filed 5-13-94; 8:45 am]
BILLING CODE 3510-22-P
