[Federal Register Volume 60, Number 151 (Monday, August 7, 1995)]
[Proposed Rules]
[Pages 40150-40152]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 95-19325]



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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.

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 

[[Page 40151]]
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. 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. 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)).
    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. 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 

[[Page 40152]]
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

    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) Closed areas. No person may harvest or possess wild live rock 
in the Gulf of Mexico EEZ--
    (1) North and west of a line extending in a direction of 235 deg. 
from true north from the Levy/Dixie County, Florida boundary, that is, 
from a point at the mouth of the Suwannee River at 29 deg.17.25' N. 
lat., 83 deg.09.9' W. long.; or
    (2) South of 25 deg.20.4' N. lat. (extension of the Monroe/Collier 
County, Florida boundary).
    (b) Gear limitations. In the Gulf of Mexico EEZ from the line 
described in paragraph (a)(1) of this section to 25 deg.20.4' N. lat., 
wild live rock may be harvested only by hand, without tools, or by 
chipping with a nonpower-assisted, hand-held hammer and chisel, and no 
person may possess in that area wild live rock taken other than by 
hand, without tools, or by chipping with a nonpower-assisted, hand-held 
hammer and chisel.
    (c) Harvest and possession limits. Through December 31, 1996, 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]
BILLING CODE 3510-22-W