05-19169. 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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues this proposed rule to implement Generic Amendment 3 to the Fishery Management Plans (FMPs) of the Gulf of Mexico (EFH Amendment 3) prepared by the Gulf of Mexico Fishery Management Council (Council). EFH Amendment 3 would amend 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 proposed rule would establish additional habitat areas of particular concern (HAPCs), restrict fishing activities within HAPCs to protect EFH, and require a weak link in bottom trawl gear to protect EFH. The intended effect of this proposed rule is to facilitate long-term protection of EFH and, thus, better conserve and manage fishery resources in the Gulf of Mexico.

DATES:

Written comments on the proposed rule must be received no later than 5 p.m., eastern time, on November 10, 2005.

ADDRESSES:

You may submit comments on the proposed rule by any of the following methods:

• E-mail: [e-mail]. Include in the subject line the following document identifier: 0648-AS66.
• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13^th Avenue South, St. Petersburg, FL 33701.
• Fax: [phone]; Attention: Peter Hood.

Copies of EFH Amendment 3, which includes a Regulatory Impact Review (RIR) and an Initial Regulatory Flexibility Analyses (IRFA), and the supporting Environmental Impact Statement (EIS) may be obtained from the Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; 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.

Background

In 1998, the Council prepared a generic amendment for the seven Council FMPs to describe and identify EFH, minimize to the extent practicable the adverse effects of fishing on EFH, and encourage the conservation and enhancement of EFH, as required by section 303(a)(7) of the Magnuson-Stevens Act. A coalition of environmental groups subsequently initiated litigation challenging NMFS' approval of the generic amendment. The court found that the environmental assessment for the generic amendment did not comply with the requirements of the National Environmental Policy Act (NEPA) and required NMFS to prepare a more thorough NEPA analysis. Consequently, NMFS entered into a Joint Stipulation with the plaintiff environmental organizations that required the Council to prepare an EIS. NMFS concluded the scope of the EIS should address all required EFH components as described in section 303(a)(7) of the Magnuson-Stevens Act.

To support the required description and identification of EFH and to address adverse fishing impacts on EFH related to all Council-managed fisheries, the Council undertook a detailed, two-year analysis of the physical environment; oceanographic features; estuarine, near shore, and offshore habitats; fishery resources; and marine mammals and protected species in the Gulf of Mexico. This analysis provided the basis for preparation of the EFH EIS addressing the seven Council FMPs. The Council used the EFH EIS as a decision-making tool in developing EFH Amendment 3, which this proposed rule would implement.

Provisions of This Proposed Rule

This proposed rule would: establish new HAPCs; implement restrictions on fishing gear within the HAPCs to protect EFH, including coral reef habitat; and require that any bottom trawl fished in the Gulf EEZ include a weak link in the trawl's tickler chain to minimize damage to EFH. 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.

The proposed rule would establish new HAPCs for Pulley Ridge off the southwest coast of Florida and for Stetson Bank and McGrail Bank located in the northwestern Gulf of Mexico. The proposed rule would also expand the HAPCs for East Flower Garden Bank and West Flower Garden Bank by 9.56 nm² (32.79 km²) and 13.14 nm² (45.07 km²), respectively. Within these HAPCs, the use of bottom-tending gear (e.g., bottom longlines, bottom trawls, pots, traps, and buoy gear) and bottom anchoring by fishing vessels would be prohibited year-round. The coordinates for these proposed HAPCs are specified in § 622.34 of this proposed rule.

Additional Provisions in EFH Amendment 3

In addition to the measures discussed above, EFH Amendment 3 would describe and identify EFH for the fisheries in each of the Council's seven FMPs. This newly defined EFH consists of areas of higher species density as determined based on the NOAA Gulf of Mexico species atlas and functional relationship analyses for red drum, reef fish, coastal migratory pelagics, shrimp, stone crab, and spiny lobster and based on known distributions for corals. The newly defined EFH would ensure that habitats most important to managed species (i.e., those shallower than 100 fathoms (183 m)) would remain protected as EFH.

EFH Amendment 3 also would identify numerous HAPCs in addition to those described under Provisions of This Proposed Rule above. These areas include: the Florida Middle Grounds; Madison-Swanson Marine Reserve; Tortugas North and South Ecological Reserves; and the individual reefs and banks of the Northwestern Gulf of Mexico (Sonnier Bank, MacNeil Bank, 29 Fathom, Rankin Bright Bank, Geyer Bank, Bouma Bank, Rezak Sidner Bank, Alderice Bank, and Jakkula Bank).

Finally, EFH Amendment 3 would establish an education program for recreational and commercial fishermen regarding protection of coral reefs when using various fishing gears in coral reef areas.

Additional background and rationale for the measures discussed above are contained in EFH Amendment 3, the availability of which was announced in the Federal Register (70 FR 54518, September 15, 2005).

Classification

At this time, NMFS has not determined that EFH Amendment 3, which this proposed rule would implement, 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 on EFH Amendment 3 and the comment period on this proposed rule.

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

NMFS prepared an IRFA as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows.

This action would identify EFH, identify HAPCs, and establish gear and fishing restrictions to protect these habitats. The purpose of this action is to prevent, minimize, or mitigate adverse fishing impacts to EFH and HAPCs. The Magnuson-Stevens Act provides the statutory basis for the rule.

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

Almost all commercial and for-hire fishing operations in the Gulf of Mexico could be affected by the proposed action either through directly 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. Fishing for pelagic species is conducted predominantly near the surface with virtually no impact on bottom habitat; therefore, pelagic fisheries would not be impacted by the effects of the proposed 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 has historically been estimated to be as high as 3,500 to 5,000 vessels, while the number of smaller shrimp boats operating in state waters has been estimated at about 13,000. However, many of these shrimp fishing operations are not currently fishing due to poor economic conditions in the fishery, and less than 3,000 vessels are currently permitted to operate in the Federal fishery. More precise numbers for state vessels are not available. 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 businesses that operate a fleet of shrimp vessels, the actual size and number of such businesses is unknown.

As of October 2003, there were 1,158 active commercial reef fish permits for the Gulf of Mexico. An average 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 less than $14,000 per participant.

From 1985-94, 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 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 234 average participating larger vessels, then the average gross revenue would amount to about $136,427.

As of October 2003, there were 1,552 active for-hire vessel 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 proposed amendment to the extent that the measures affect harvests. There are 142 federally permitted 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 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 the average employment within the dealer sector would not surpass the SBA employment benchmark.

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 dealers potentially affected by the proposed regulations are considered small entities.

None of the measures considered in this amendment would alter existing reporting and recordkeeping requirements. None of the proposed compliance requirements would require additional professional skills.

The proposed 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 proposed 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 vessel operations affected by the proposed rule are considered small business entities, so the issue of disproportionality does not arise.

The profitability question is: Do the regulations significantly reduce profit for a substantial number of small entities? The designation of EFH or HAPCs would not have any direct effect on fishing activity or profits because designation itself does not impose fishing restrictions. The anchoring prohibition would 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, similarly, other protected areas--does not encompass the entirety of the statistical area within which it lies, any harvest reduction attributed to the anchoring restriction would be expected to be less than the total area contribution.

The prohibition on the use of bottom trawls, bottom longlines, and buoy gear would primarily affect fishermen using these gears in the coral areas of Pulley Ridge, Stetson Bank, and McGrail Bank. As previously stated, the coral areas within Pulley Ridge lie completely within the broader NMFS Statistical Area 2. Logbook data for the entire area show 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 would 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 NMFS Statistical Area 2. This relocation may have some minor, but unquantifiable, effect on fishing costs. Relocation of buoy gear fishing would similarly be expected to affect fishing costs. However, it is unknown how much, if any, buoy gear fishing occurs in the proposed protected areas. Similar effects would be expected regarding Stetson Bank and McGrail Bank.

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

It is not anticipated that any trap fishermen (fish, lobster, or stone crab) would be impacted by the proposed measures because this gear is not believed to be utilized to any significant degree in the proposed 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 EFH. The no-action alternative would have eliminated the potential adverse impacts of the proposed actions but would not have achieved 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 would not have sufficiently achieved the Council's objectives for habitat protection and would have contained provisions that were either impractical in terms of conducting an economically viable fishery, e.g. limiting the deployment of gear, or increased the adverse economic impacts to fishery participants over those impacts in the proposed rule.

In addition to the requirements of the second alternative, the third alternative would have 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, the adverse economic impacts of the second alternative would not have been reduced.

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; prohibited the use of all traps, pots, bottom longline, and buoy gear on coral reefs; and prohibited the use of anchors on coral. This alternative would have increased the inefficiency of trawl gear and would have resulted in lower catch rates and lower economic returns, thereby increasing the adverse impacts to fishery participants.

The fifth alternative would have prohibited the use of all gear and fishing activities that have adverse impacts on EFH in the EEZ. Although resulting in the greatest protection to the environment, the restrictions of this alternative were greater than the Council believed necessary to achieve the objectives of the action and would have imposed 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 in terms of conducting an operationally and economically viable fishery, and the longline provisions could reduce the economic efficiency of vessels, thereby increasing adverse economic impacts without clearly demonstrable benefits. Further, a seasonal shrimp trawling closure to protect EFH and HAPCs is difficult to justify given (1) the inability to determine, absent vessel monitoring systems, exactly where fishing effort occurs and (2) 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 proposed rule.

Copies of the IRFA are available (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

Dated: September 21, 2005.

John Oliver

Deputy Assistant Administrator for Operations, 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: 16 U.S.C. 1801 et seq.

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

§ 622.31

Prohibited gear and methods.

* * * * *

(l) 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, paragraphs (d) introductory text, (d)(1), and (j) are revised, 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″