Coral and Coral Reefs of the Gulf of Mexico; Amendment 3

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 638

[Docket No. 950725190-5190-10; I.D. 062695A]

RIN 0648-AH71

Coral and Coral Reefs of the Gulf of Mexico; Amendment 3

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 3 to the

Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico

(FMP). Amendment 3 would prohibit the taking of wild live rock in the

exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) off Florida

north and west of the Levy/Dixie County line; remove the prohibition on

taking wild live rock in the EEZ by chipping between the Pasco/Hernando

County and Levy/Dixie County, Florida lines; establish annual quotas

for wild live rock harvesting for 1995 and 1996 in the Gulf EEZ; and

reduce the amount of substrate that may be taken with allowable

octocorals in the Gulf EEZ. The intended effect is to protect the live

rock resource and fishery habitat in the Gulf EEZ and to simplify the

regulations implementing the FMP.

DATES: Written comments must be received on or before September 18,

1995.

ADDRESSES: Comments on the proposed rule must be sent to the Southeast

Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,

FL 33702.

Requests for copies of Amendment 3, which includes a regulatory

impact review and an environmental assessment, or for copies of a

minority report on Amendment 3 by two Council members, should be sent

to the Gulf of Mexico Fishery Management Council, 5401 W. Kennedy

Boulevard, Suite 331, Tampa, FL 33609-2486, FAX 813-225-7015.

FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.

.

Requests for copies of Amendment 3, which includes a regulatory

impact review and an environmental assessment, or for copies of a

minority report on Amendment 3 by two Council members, should be sent

to the Gulf of Mexico Fishery Management Council, 5401 W. Kennedy

Boulevard, Suite 331, Tampa, FL 33609-2486, FAX 813-225-7015.

FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.

SUPPLEMENTARY INFORMATION: The FMP was prepared by the Gulf of Mexico

Fishery Management Council (Council) and is implemented through

regulations at 50 CFR part 638 under the authority of the Magnuson

Fishery Conservation and Management Act (Magnuson Act).

Background

Under Amendment 2 to the FMP, the harvest of wild live rock in the

Gulf EEZ off Florida north of Monroe County is being phased out and the

taking of wild live rock elsewhere in the Gulf is prohibited. Effective

January 1, 1997, all wild live rock harvests are prohibited in the Gulf

EEZ. Amendment 2 also established certain restrictions on wild live

rock harvesting and possession, required permits and reporting during

the phase-out period, and established an aquacultured live rock permit

system. The intent of Amendment 2 was to protect an essentially

nonrenewable resource and prevent a net loss of fishery habitat.

Florida has the only reported live rock landings from the EEZ; live

rock harvesting is banned in Florida waters. The final rule to

implement Amendment 2 was published December 28, 1994 (59 FR 66776).

During development of Amendment 2, the Council was concerned about

the continuing effects of wild live rock harvesting in the northern

Gulf, especially the Florida Panhandle area, because live rock is

relatively scarce in

d live rock landings from the EEZ; live

rock harvesting is banned in Florida waters. The final rule to

implement Amendment 2 was published December 28, 1994 (59 FR 66776).

During development of Amendment 2, the Council was concerned about

the continuing effects of wild live rock harvesting in the northern

Gulf, especially the Florida Panhandle area, because live rock is

relatively scarce in

these areas. Accordingly, Amendment 2 included a prohibition on taking

of wild live rock by chipping north of the Pasco/Hernando County,

Florida line, but allowed harvest of loose, rubble rock in the EEZ

north of that line.

Subsequent testimony by local governments, recreational divers, and

environmental groups indicated that the measures of Amendment 2 were

insufficient to protect hard bottom resources, especially north and

west of the Levy/Dixie County line, where the abundance of hard bottom

resources declines sharply.

Amendment 3

Amendment 3 proposes the following measures: Prohibit the taking of

wild live rock in the Gulf EEZ off Florida north and west of the Levy/

Dixie County line--the Panhandle area; remove the prohibition on taking

wild live rock by chipping between the Pasco/Hernando County and Levy/

Dixie County, Florida lines; establish a 500,000 lb (226,796 kg) annual

quota for 1995 and 1996 in the Gulf EEZ off Florida north of Monroe

County to the Levy/Dixie County line, which is the only area that would

remain open to live rock harvesting in the Gulf EEZ; and reduce the

amount of substrate that may be taken at the base of an allowable

octocoral in the Gulf EEZ from 3 inches (7.6 cm) to 1 inch (2.5 cm).

These measures constitute minor changes to the management regime

established for live rock in Amendment 2.

Prohibiting the harvest of wild live rock off the Panhandle area

would address the concerns discussed above regarding relative scarcity

of the resource in that area

bstrate that may be taken at the base of an allowable

octocoral in the Gulf EEZ from 3 inches (7.6 cm) to 1 inch (2.5 cm).

These measures constitute minor changes to the management regime

established for live rock in Amendment 2.

Prohibiting the harvest of wild live rock off the Panhandle area

would address the concerns discussed above regarding relative scarcity

of the resource in that area. According to testimony received by the

Council, this measure would benefit reef fish fishermen and

recreational divers who depend on the fishery habitat provided by live

rock resources in this area.

A total of 5 individuals in the Panhandle area are eligible for

vessel permits to take wild live rock until 1997. Closure of the

Panhandle area to commercial harvesting is not expected to have a

significant adverse impact on the live rock industry because: (1) This

area accounts for a relatively small percentage of total harvest; (2)

eligible participants can relocate operations to areas unaffected by

this closure; and (3) all current participants will have to cease wild

harvest operations by 1997, whether or not Amendment 3 is implemented.

The Council proposes removal of the prohibition on chipping of wild

live rock between the Pasco/Hernando County and Levy/Dixie County,

Florida lines because this 3-county area most closely resembles the

southern counties, in terms of availability of live rock and the

characteristics of the fishery, than the Panhandle area to the north.

Leaving the prohibition in place would result in three different kinds

of management regimes during the phase out--no taking of live rock in

the Panhandle area, taking of loose rubble rock only in the adjoining

3-county area, and taking by chipping in the area to the south

ties, in terms of availability of live rock and the

characteristics of the fishery, than the Panhandle area to the north.

Leaving the prohibition in place would result in three different kinds

of management regimes during the phase out--no taking of live rock in

the Panhandle area, taking of loose rubble rock only in the adjoining

3-county area, and taking by chipping in the area to the south. Thus,

the removal of the prohibition on chipping for the 3-county area would

simplify the regulations and enhance enforcement by standardizing the

harvesting restrictions throughout the range of allowable wild live

rock harvesting, i.e., from the Collier/Monroe County line to the Levy/

Dixie County line.

Amendment 3 proposes a cap on the allowable harvest of wild live

rock from the Gulf EEZ at the approximate current harvest level of

500,000 lb (226,796 kg) for 1995 and 1996. This quota would prevent

increases in harvest levels during the phaseout due to increased demand

and possible effort shifts from the Florida Keys to the Gulf EEZ. The

live rock fishery in the Atlantic EEZ off the Florida Keys will close

when the quota for that area is reached in 1995 and will not reopen in

1996 because the quota for 1996 and subsequent years is zero. Some

permitted vessels are expected to move into the Gulf and continue

harvesting during 1996.

Harvest and sale of wild live rock taken on or after the effective

date of the closure would be prohibited. But the prohibition on sale of

wild live rock after the effective date of the closure would not apply

to wild live rock harvested and landed prior to that date--wild live

rock is frequently maintained by harvesters for weeks or months before

sale. This would be consistent with the current rule for a closure of

the EEZ off the southern Atlantic states (Sec. 638.25(c)(2))

e would be prohibited. But the prohibition on sale of

wild live rock after the effective date of the closure would not apply

to wild live rock harvested and landed prior to that date--wild live

rock is frequently maintained by harvesters for weeks or months before

sale. This would be consistent with the current rule for a closure of

the EEZ off the southern Atlantic states (Sec. 638.25(c)(2)).

During the development of Amendment 2, some individuals who harvest

octocorals in the EEZ off Florida for sale to the aquarium industry

testified that attached substrate is needed to anchor the octocoral in

the aquarium. Such substrate could include live rock, possibly in

violation of the restrictions on the harvest of live rock. Accordingly,

Amendment 2 defined allowable octocorals to include the substrate

within 1 inch (2.5 cm) of the octocoral in the EEZ off the southern

Atlantic states and the substrate within 3 inches (7.6 cm) in the Gulf.

However, in accordance with 50 CFR 638.3(c), if a state has a landing

regulation that is more restrictive than a Federal landing restriction

for octocorals, a person landing in that state must comply with the

more restrictive state regulation.

Florida recently implemented a rule allowing only 1 inch (2.5 cm)

of substrate from the attachment of the octocoral. Therefore, an

individual harvesting octocoral from the Gulf EEZ and landing in

Florida must comply with the more restrictive 1-inch (2.5-cm) rule.

There are no reported landings of octocorals outside Florida. The

Council and NMFS agree with Florida's finding that a 3-inch (7.6 cm)

rule would allow the continued taking of excessive amounts of live rock

as bycatch under the octocoral quota. Therefore, Amendment 3 would

redefine allowable octocorals taken in the Gulf EEZ to include only the

substrate within 1 inch (2.5 cm) of an allowable octocoral

no reported landings of octocorals outside Florida. The

Council and NMFS agree with Florida's finding that a 3-inch (7.6 cm)

rule would allow the continued taking of excessive amounts of live rock

as bycatch under the octocoral quota. Therefore, Amendment 3 would

redefine allowable octocorals taken in the Gulf EEZ to include only the

substrate within 1 inch (2.5 cm) of an allowable octocoral. This FMP

change would result in an octocoral substrate measure for the Gulf of

Mexico that is consistent with the provision for the EEZ off the

southern Atlantic states and with the Florida rule. This change would

have negligible effects on industry practices and income. Taking of an

octocoral with more than 1 inch (2.5 cm) of attached substrate would

constitute taking of live rock.

Additional background and rationale for the measures discussed

above are contained in Amendment 3, the availability of which was

announced in the Federal Register on July 13, 1995 (60 FR 36093).

Minority Report

A minority report signed by two Council members raises objections

to Amendment 3's closure of the Panhandle area to live rock harvesting

before the 1997 closure of the Gulf EEZ established under Amendment 2.

These members believe that this measure is a reversal of the Council's

earlier commitment to allow Panhandle fishermen sufficient time to

convert to live rock aquaculture. Copies of the minority report are

available (see ADDRESSES). The final rule for Amendment 3 will include

responses to comments received on the proposed rule, including the

issue raised in the minority report.

Classification

Section 304(a)(1)(D) of the Magnuson Act requires the regulations

proposed by a council to be published within 15 days of receipt of an

amendment and regulations. At this time, the Assistant Administrator

for Fisheries, NOAA, (AA) has not determined that Amendment 3 is

consistent with the National Standards, other provisions of the

Magnuson Act, and other applicable laws. The AA, in making that

tion 304(a)(1)(D) of the Magnuson Act requires the regulations

proposed by a council to be published within 15 days of receipt of an

amendment and regulations. At this time, the Assistant Administrator

for Fisheries, NOAA, (AA) has not determined that Amendment 3 is

consistent with the National Standards, other provisions of the

Magnuson Act, and other applicable laws. The AA, in making that

determination, 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 Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. Under a previous rulemaking all current participants in

the wild live rock fishery must cease business by 1997. This proposed

rule merely accelerates the phaseout of wild live rock harvesting off

the Panhandle area and is expected to affect up to 5 small businesses,

which may relocate their operations from the closed area and continue

operations until 1997. The measures in Amendment 3 would not: (1)

Reduce annual gross revenues in excess of 5 percent; (2) significantly

increase compliance or production costs of participants; (3) require

capital investment to comply with the rule; or (4) require current

participants to cease business. All entities involved are small

entities. As a result, a regulatory flexibility analysis was not

prepared.

List of Subjects in 50 CFR Part 638

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: July 31, 1995.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 638 is

proposed to be amended as follows:

PART 638--CORAL AND CORAL REEFS OF THE GULF OF MEXICO AND SOUTH

ATLANTIC

alysis was not

prepared.

List of Subjects in 50 CFR Part 638

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: July 31, 1995.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 638 is

proposed to be amended as follows:

PART 638--CORAL AND CORAL REEFS OF THE GULF OF MEXICO AND 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. 638.2, the definition for ``Allowable octocoral'' is

revised to read as follows:

Sec. 638.2 Definitions.

* * * * *

Allowable octocoral means an erect, nonencrusting species of the

subclass Octocorallia, except the seafans Gorgonia flabellum and G.

ventalina, plus the attached substrate within 1 inch (2.54 cm) of an

allowable octocoral.

* * * * *

3. In Sec. 638.7, paragraphs (m), (n), and (p) are revised to read

as follows:

Sec. 638.7 Prohibitions.

* * * * *

(m) Harvest or possess wild live rock in the EEZ off the southern

Atlantic states north of 25 deg.58.5' N. lat., as specified in

Sec. 638.25(a), or in the Gulf of Mexico EEZ north and west of a line

extending in a direction of 235 deg. from true north from the Levy/

Dixie County, Florida boundary or south of 25 deg.20.4' N. lat., as

specified in Sec. 638.26(a).

(n) Harvest wild live rock by chipping or possess wild live rock

taken by chipping in the EEZ off the southern Atlantic states south of

25 deg.58.5' N. lat., as specified in Sec. 638.25(b).

* * * * *

(p) Harvest or possess in the Gulf of Mexico EEZ from a line

extending in a direction of 235 deg. from true north from the Levy/

Dixie County, Florida boundary to 25 deg.20.4' N. lat. wild live rock

taken other than by hand or by chipping with a nonpower-assisted, hand-

held hammer and chisel, as specified in Sec. 638.26(b).

* * * * *

4. Section 638.26, is revised to read as follows:

Sec. 638.26 Wild live rock in the Gulf of Mexico.

a

daily vessel limit of twenty-five 5-gallon (19-L) buckets, or volume

equivalent (16.88 ft\3\ (478.0 L)), applies to the harvest or

possession of wild live rock in or from the Gulf of Mexico EEZ from the

line described in paragraph (a)(1) of this section south to

25 deg.20.4' N. lat., regardless of the number or duration of trips.

Commencing January 1, 1997, the daily vessel limit is zero.

(d) Quota and closure.

(1) The annual quota for wild live rock from the EEZ from the line

described in paragraph (a)(1) of this section south to 25 deg.20.4' N.

lat. is 500,000 lb (226,796 kg) for the fishing years that begin

January 1, 1995, and January 1, 1996. Commencing with the fishing year

that begins January 1, 1997, the quota is zero.

(2) When the quota specified in paragraph (d)(1) of this section is

reached, or is projected to be reached, the Assistant Administrator

will file notification to that effect with the Office of the Federal

Register. Harvest and purchase, barter, trade, or sale, or attempted

purchase, barter, trade, or sale of wild live rock taken on or after

the effective date of such notification would be prohibited. But the

prohibition on purchase, barter, trade, or sale, or attempted purchase,

barter, trade, or sale, of wild live rock in or from the EEZ of the

Gulf of Mexico, after the effective date of the closure, would not

apply to wild live rock harvested and landed prior to that date.

[FR Doc. 95-19325 Filed 8-2-95; 10:20 am]

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