03-13558. 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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues this proposed rule to implement the Fishery Management Plan for Pelagic Sargassum Habitat of the South Atlantic Region (FMP). This rule proposes to limit 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, restrict 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, require vessel owners or operators to accommodate NMFS-approved observers on all pelagic sargassum fishing trips, and restrict the mesh and frame sizes of nets used to harvest pelagic sargassum. The FMP also identifies essential fish habitat (EFH); establishes EFH-habitat areas of particular concern (EFH-HAPCs); and defines management unit, maximum sustainable yield, optimum yield, and overfishing parameters. The intended effects are to conserve and manage pelagic sargassum and to protect EFH.

DATES:

Comments on this proposed rule must be received no later than 5 p.m., eastern time, on June 30, 2003.

ADDRESSES:

Copies of the FMP may be obtained from the South Atlantic Fishery Management Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699; phone: [phone]; fax: [phone]; e-mail: [e-mail]. The FMP includes a Final Environmental Impact Statement (FEIS), a Regulatory Impact Review, and a Social Impact Assessment/Fishery Impact Statement.

Written comments on this proposed rule must be mailed to Steve Branstetter, Southeast Region, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702. Comments also may be sent via fax to 727-570-5583. Comments will not be accepted if submitted via e-mail or Internet.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to Robert Sadler, Southeast Region, NMFS, at the above address, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Steve Branstetter, phone: [phone], fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The South Atlantic Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Council submitted its original FMP to NMFS in 1999 for Secretarial review. On November 24, 1999, NMFS disapproved the FMP based on the FMP's lack of a maximum sustainable yield (MSY) estimate and its failure to justify adequately an optimum yield (OY) of zero (64 FR 69989, December 15, 2003).

Background and Rationale

The FMP and this proposed rule address 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.

Pelagic sargassum supports a diverse assemblage of marine organisms, including over 100 species of fish, fungi, micro- and macro-epiphytes, at least 145 species of invertebrates, four species of sea turtles, and numerous marine birds. The Council has designated pelagic sargassum not only as EFH but also as an EFH-HAPC for snapper-grouper species and coastal migratory pelagic species, and is in the process of designating it as EFH and EFH-HAPC for dolphin and wahoo.

Proposed Management Measures

Annual Quota

The Council concluded that the removal of pelagic sargassum constitutes a net loss of EFH off the southern Atlantic states. However, to lessen the negative impact of a total prohibition of harvest of pelagic sargassum, the Council decided that an annual harvest level of 5,000 lb (2,268 kg) would not jeopardize the continued viability of the resource and, therefore, would be in compliance with the habitat policies of the Council, NMFS, and NOAA and in conformance with the mandate of the Magnuson-Stevens Act to address EFH. Accordingly, this rule proposes an annual quota of 5,000 lb (2,268 kg) wet, landed weight.

Area and Seasonal Restrictions

This rule proposes to restrict the harvest of pelagic sargassum in the South Atlantic EEZ to the area that is between 36°34′55″ N. lat. (the latitude line of the Virginia/North Carolina boundary) and 34° N. lat., (a line closely approximating the North Carolina/South Carolina boundary), and more than 100 nautical miles offshore. This restriction would prevent any geographic expansion of the fishery in the South Atlantic EEZ. In addition, this rule proposes to seasonally restrict the harvest and possession of pelagic sargassum to the months of November through June. This seasonal restriction would lessen the incidental take of sea turtles. The summer and fall months are the months when the greatest density of post-hatchling sea turtles are expected to occur in weed lines of pelagic sargassum.

Observer Requirement

This rule proposes to require an owner or operator of a vessel in the fishery to accommodate a NMFS-approved observer on trips. This requirement would facilitate the monitoring of pelagic sargassum catches, provide valuable information on the pelagic sargassum resource, and monitor the incidental take of sea turtles and other bycatch. The FMP specifies the proposed bycatch sampling methodology.

Net and Frame Size Limitations

This rule proposes a minimum allowable mesh size for a net used for pelagic sargassum of 4 inches (10.2 cm), stretched mesh, which was the minimum mesh size historically employed in the fishery. This minimum mesh size would preclude any increase in incidental catch that might be associated with smaller mesh sizes.

This rule also proposes a limit on the size of the frame used to hold a pelagic sargassum net. Such frame could be no larger than 4 ft by 6 ft (1.2 m by 1.8 m). This measure would control harvesting efficiency and would help limit the amount of any one bed of pelagic sargassum that would be harvested, thus preserving some habitat for the remaining larval and juvenile fish and juvenile sea turtles after harvesting occurs.

Additional Measures in the FMP

In addition to the measures described above, for the management of pelagic sargassum, the FMP would establish the management unit; specify MSY, OY, maximum fishing mortality threshold (MFMT) (the fishing mortality rate which, if exceeded, constitutes overfishing), and minimum stock size threshold (MSST) (the stock size below which pelagic sargassum is overfished); and identify EFH and EFH-HAPC as follows:

Management unit - The population of pelagic sargassum (Sargassum natans or S. fluitans) in the South Atlantic EEZ and in adjoining state waters.

MSY - 100,000 mt (220,460,000 lb).

OY - 5,000 lb (2,268 kg), wet weight.

MFMT - 9.0 to 18.0 units per year (These values relate to the intrinsic rate of increase in the population).

MSST - 25,000 mt (55,115,000 lb).

EFH - Where pelagic sargassum occurs in the South Atlantic EEZ and adjoining state waters including the Gulf Stream.

EFH-HAPC - Where pelagic sargassum occurs in the South Atlantic EEZ and adjoining state waters.

Availability of the FMP

Additional background and rationale for management of sargassum are contained in the FMP. The availability of the FMP was announced in the Federal Register on April 17, 2003, (68 FR 18942). Written comments on the FMP must be received by June 16, 2003. NMFS will address all comments that are received on the FMP or on this proposed rule during their respective comment periods.

Classification

At this time, NMFS has not determined that the FMP is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making that determination, NMFS will take into account the data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for purposes of E.O. 12866.

The Council prepared a Draft Environmental Impact Statement (DEIS) for the original version of the FMP; a notice of its availability was published on July 17, 1998 (63 FR 38643). The comment period ended on August 24, 1998. The environmental impacts described in the DEIS are summarized as follows: The proposed actions are not expected to have any adverse effects on the ocean and coastal habitats. The pelagic sargassum fishery substantially impacts habitat that is essential to a number of species under the Council's management. The proposed actions will have a positive impact on the physical environment by limiting removal of pelagic sargassum. One firm that has harvested pelagic sargassum may be forced to cease operation unless an alternative source of pelagic sargassum can be economically accessed. The proposed actions are not expected to have a substantial adverse impact on public health or safety and are not expected to affect adversely a marine mammal population.

The Council prepared a FEIS for the original version of the FMP; a notice of its availability was published on October 15, 1999 (64 FR 55912). The comment period ended on November 15, 1999.

After the Council revised the original FMP, NMFS prepared a Supplemental DEIS; a notice of its availability was published on January 11, 2002 (67 FR 1462). The comment period ended on February 25, 2002.

The current FEIS is included in the FMP. The basic conclusions regarding the environmental impacts described in the Supplemental DEIS and the current FEIS are not significantly changed from the DEIS. It should be noted however, that no harvest of sargassum has been recorded since 1997 by the one firm. No directed fishery for sargassum currently exists in the South Atlantic.

Under section 7 of the Endangered Species Act, NMFS completed a consultation on the effect of the sargassum fishery on listed species, including loggerhead, green, leatherback, hawksbill, and Kemp's ridley sea turtles. The biological opinion (BO), dated March 21, 2003, concludes that the sargassum fishery, as proposed to be managed by the FMP, would not likely jeopardize the continued existence of these sea turtle species. The BO sets a level of incidental take and reasonable and prudent measures necessary and appropriate to minimize impacts of incidental take of sea turtles. This proposed rule would: limit the harvest or possession of pelagic sargassum in or from the EEZ off the southern Atlantic states to 5,000 lb (2,268 kg) annually; restrict fishing for pelagic sargassum in the South Atlantic EEZ to an area not less than 100 nautical miles offshore of North Carolina and to the months of November through June; require vessel owners or operators to accommodate NMFS-approved observers on all pelagic sargassum fishing trips; and restrict the mesh and frame sizes of nets used to harvest pelagic sargassum. The BO concludes that adoption of these measures would be beneficial to sea turtle populations because it would regulate and limit a fishery that was previously prosecuted without restrictions; limit direct take of sea turtles by the fishery; and limit loss of important pelagic habitat.

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), based on the RIR, for this proposed rule. A summary of the IRFA follows.

The Magnuson-Stevens Act provides the statutory basis for the rule. The objectives of the proposed rule are: establish a management structure to manage sargassum habitat; reduce the impact of the sargassum fishery on essential fish habitat; and reduce the potential for conflict. The proposed rule would: prohibit all harvest and possession of sargassum from the South Atlantic EEZ south of the latitude line representing the North Carolina/South Carolina border (34° N. lat.); prohibit all harvest of sargassum from the South Atlantic EEZ within 100 nautical miles of shore between the 34° N. lat. line and the latitude line representing the North Carolina/Virginia border; limit harvest of sargassum from the South Atlantic EEZ to the months of November through June; establish an annual total allowable catch (TAC) of 5,000 lb (2,268 kg) landed wet weight; require that a NMFS-approved observer be present on each sargassum harvesting trip; and require 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 (1.2 m by 1.8 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 exists regarding distribution, production, and ecology of sargassum. This proposed rule would limit expansion of harvesting capacity.

The proposed rule would require a NMFS-approved observer on board any vessel in the sargassum fishery to monitor harvest of sargassum and associated bycatch. 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 the proposed rule. One small business entity was an historical participant in the fishery. This firm harvested an average of 14,333 lb (6,501 kg) wet weight annually (1995-1997 average harvest), valued at $43,000 per year, and employed three persons on a full-time basis and other workers on an as needed, part-time basis. 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 (90,719 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 harvest that was collected in 1990 was stockpiled and processed over the 1990-1994 period, so no harvest occurred from 1991-1994. The harvest history for the last years of recorded harvest, 1995-1997, does not appear sufficient to have supported similar stockpiling behavior. It is assumed, therefore, that both harvest and processing activities no longer occur. It is not known with complete certainty, however, whether this is the case with regards to processing.

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, 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), with revenues reduced 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 and no current processing of stockpiled product is assumed to be occurring, the proposed rule would 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 proposed harvest restrictions would result in direct economic impacts. The proposed 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 effectively allow unrestricted harvest. Additional alternatives would specify TAC at 20,000 lb (9,072 kg) wet weight and 200,000 lb (90,720 kg) wet weight, which would allow harvests greater than the historical 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 the 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 productivity of marine life in the ecosystem and thus increase consumptive, non-consumptive, and indirect (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 IRFA and RIR 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 collection of information displays a currently valid OMB control number.

This proposed rule contains the collection-of-information requirements subject to review and approval by OMB under the PRA. These requirements have been submitted to OMB for approval. 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. Public comment is sought regarding: whether these proposed collections-of-information are necessary for the proper performance of the functions of the agency, including whether the information has practical utility; the accuracy of the burden estimates; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burdens of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collections of information 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: May 23, 2003.

Rebecca Lent,

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

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be 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: Authority: 16 U.S.C. 1801 et seq.

2. In § 622.1, table 1, the following entry is added in alphabetical order to read as follows:

§ 622.1

Purpose and scope.

* * * * *

Table 1.—FMPs Implemented Under Part 622

FMP Title	Responsible fishery management council(s)	Geographical area
* * * * * * *
FMP for Pelagic Sargassum Habitat of the South Atlantic Region	SAFMC	South Atlantic
* * * * * * *

3. In § 622.2, the definition of “Pelagic sargassum” is added in alphabetical order to read as follows:

§ 622.2

Definitions and acronyms.

* * * * *

Pelagic sargassum means the species Sargassum natans or S. fluitans, or a part thereof.

* * * * *

4. In § 622.6, paragraph (a)(1)(i) introductory text is revised to read as follows:

§ 622.6

Vessel and gear identification.

(a) * * *

(1)

(i) Official number. A vessel for which a permit has been issued under § 622.4, and a vessel that fishes for or possesses pelagic sargassum in the South Atlantic EEZ, must display its official number--

* * * * *

5. In § 622.8, paragraph (a), paragraph (b) introductory text, and paragraph (c) introductory text are revised to read as follows:

§ 622.8

At-sea observer coverage.

(a) Required coverage—(1) Pelagic sargassum. The owner or operator of 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. The owner or operator of 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:

* * * * *

6. In § 622.35, paragraph (g) is added to read as follows:

§ 622.35

South Atlantic EEZ seasonal and/or area closures.

* * * * *

(g) Pelagic sargassum area and seasonal restrictionsl--(1) Area limitations. (i) No person may harvest pelagic sargassum in the South Atlantic EEZ between 36°34′55″ N. lat. (directly east from the Virginia/North Carolina boundary) and 34° 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° 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.

7. In § 622.41, paragraph (k) is added to read as follows:

§ 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.

8. In § 622.42, paragraph (g) is added to read as follows:

§ 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 § 622.35(g)(1) for area limitations on the harvest of pelagic sargassum.

9. In § 622.43, paragraph (a)(7) is added and paragraph (b)(2) is revised to read as follows:

§ 622.43

Closures.

* * * * *

(a) * * *

(7) Pelagic sargassum. Pelagic sargassum may not be harvested 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 harvested and landed ashore prior to the effective date of the closure.

* * * * *