Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Pelagic Sargassum Habitat in the South Atlantic; Fishery Management Plan

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: [email protected].

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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