Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Essential Fish Habitat for Species in the South Atlantic; Amendment 4 to the Fishery Management Plan for Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region (Coral FMP)

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 4 to the Coral FMP. This final rule increases the size of the Oculina Bank Habitat Area of Particular Concern (HAPC) and incorporates two adjacent areas within the Oculina Bank HAPC. Within these areas, fishing with bottom longline, bottom trawl, dredge, pot, or trap is prohibited. Furthermore, fishing vessels may not anchor, use an anchor and chain, or use a grapple and chain in these areas. This final rule also implements regulatory changes to reflect the South Atlantic Fishery Management Council's (Council's) proposed framework procedure for all its fishery management plans (FMPs) that allows for timely modification of definitions of essential fish habitat (EFH) and establishment or modification of EFH-HAPCs and Coral HAPCs. The intended effect is to protect, conserve, and enhance EFH.

DATES:

This final rule is effective July 14, 2000.

ADDRESSES:

Copies of the final regulatory flexibility analysis (FRFA) prepared by NMFS may be obtained from the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT:

Michael Barnette, 727-570-5305, fax 727-570-5583, e-mail Michael.Barnette@noaa.gov.

SUPPLEMENTARY INFORMATION:

The fisheries for shrimp, red drum, snapper-grouper, coastal migratory pelagics, golden crab, spiny lobster, and coral, coral reefs, and live/hard bottom habitat of the South Atlantic are managed under the Council's FMPs, as approved and implemented by NMFS. These FMPs were prepared solely by the Council, except for the FMPs for coastal migratory pelagics and spiny lobster that were prepared jointly by the Council and the Gulf of Mexico Fishery Management Council. These 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, except for the FMP for spiny lobster that is implemented by regulations at 50 CFR part 640.

On March 5, 1999, NMFS announced the availability of the Comprehensive Amendment Addressing Essential Fish Habitat in Fishery Management Plans of the South Atlantic Region (EFH Amendment) and requested comments on the EFH Amendment (64 FR 10612). Amendment 4 to the Coral FMP was included within the EFH Amendment. On June 3, 1999, NMFS approved the EFH Amendment. On July 9, 1999, NMFS published a proposed rule to implement the measures in Amendment 4 and requested comments on the rule (64 FR 37082). On November 2, 1999, NMFS published a supplement to the proposed rule due to the inadvertent omission of information from the initial regulatory flexibility analysis (IRFA) summary in the proposed rule classification section, and requested comments on this supplemental information (64 FR 59152). The background and rationale for the measures in the EFH Amendment and proposed rule are contained in the preamble to the proposed rule and are not repeated here.

Comments and Responses

Thirteen comments and one group comment were received on the EFH Amendment, the proposed rule, and the supplement to the proposed rule. A summary of public comments and NMFS' responses follows.

Comment 1: One commenter and a group comment asserted that the Council's economic assessment in the EFH Amendment failed to evaluate the impacts on the bottom longline fishery for shark, golden tilefish, and grouper, a necessary exercise when implementing the EFH Amendment's management measures (Actions 3A (expanded Oculina HAPC) and 3B (two satellite Oculina HAPCs)). Therefore, they believe these actions are in violation of national standard 8 (conservation and management measures shall take into account the importance of fishery resources to fishing communities by providing for sustained community participation and minimizing adverse economic impacts).

Response: NMFS agrees that the Council's economic assessment in the EFH Amendment does not address potential economic impacts to the bottom longline fishery. However, NMFS disagrees that these actions are in violation of national standard 8. Prior to initiating Secretarial review of the EFH Amendment, NMFS reviewed the available data (summarized in the IRFA and FRFA) and it reveals substantial catches of shark, golden tilefish, and grouper by bottom longline gear from statistical grids that encompass the Oculina Bank HAPC. The statistical grids are larger than the Oculina Bank HAPC and, therefore, precise catches of shark, golden tilefish, and grouper originating from within the HAPC are unknown. However, the bottom longline fishery could potentially be adversely affected by the expanded and satellite Oculina HAPCs.

Comment 2: One commenter and a group comment commented that large portions of the proposed expansion of the Oculina Bank HAPC do not include areas identified as Oculina EFH and, thus, are in violation of national standard 2 (conservation and management measures shall be based on the best scientific information available). The commenters maintain that the proposed expansion consists of large areas of flat mud bottom devoid of Oculina coral, and that the proposed actions will not provide any Oculina coral protection.

Response: NMFS recognizes that the proposed expansion of the Oculina Bank HAPC includes habitat areas aside from Oculina coral communities, but disagrees that it is in violation of national standard 2. When delineating the boundaries for the expanded Oculina Bank HAPC, the Council used the best available information to identify vulnerable Oculina coral communities. However, the Council included habitat areas other than Oculina coral to address enforcement concerns and regulatory consistency issues to achieve the desired conservation goals. The expansion includes areas adjacent to the Oculina coral communities, such as flat mud bottom, to provide a buffer from accidental incursions. Furthermore, it was necessary for the expanded area to be large enough to allow for effective enforcement; the expanded HAPC allows enforcement to more easily identify an incursion and prevent potential damage to coral habitat. The expansion also provides regulatory consistency between the rock shrimp and calico scallop industries by establishing identical prohibited areas for the two fleets; presently, the calico scallop fleet is permitted to fish in areas closed to the rock shrimp fleet. Therefore, the Council used the best available information in expanding the Oculina Bank HAPC. However, relevant enforcement and regulatory issues that may have jeopardized the effectiveness of the expanded Oculina Bank HAPC also influenced the proposed boundaries.

Comment 3: Two commenters requested an extension of the Notice of Availability comment period past May 4, 1999, based on their belief that the necessary documents were not available for distribution or review. Furthermore, they claim that the internet web sites that provide access to online versions of the documents were constantly malfunctioning.

Response: NMFS disagrees with this comment. Copies of the EFH Amendment and the associated Habitat Plan were available during the subject comment period as reflected by numerous other comments received from other groups. Although the Council's supply of documents was temporarily depleted, there was sufficient time for the public to receive the documents and review and comment within the statutory 60-day comment period. Furthermore, the EFH Amendment was available on the Council internet web site throughout the comment period. Claims that the internet web site was malfunctioning are unsubstantiated.

Comment 4: Four commenters supported the conservation and management efforts of the Habitat Plan and the EFH Amendment, including the proposed measures to expand the Oculina Bank HAPC to protect EFH. However, all groups noted that EFH and EFH-HAPC identification should be improved to be species specific in subsequent amendments to FMPs.

Response: NMFS agrees with these comments and believes the Council provided an exceptional source document on EFH in its Habitat Plan and is well on its way to improve EFH information.

Comment 5: Two commenters stated that the Council has not identified and minimized all fishing gear impacts. Additionally, one commenter claimed that few if any management measures have been implemented to protect EFH from the effects of a number of gears, providing the example of bottom trawls. The commenter contended that while bottom trawls are prohibited in and around the Oculina Bank HAPC, they are allowed elsewhere in the South Atlantic exclusive economic zone (EEZ) where there is a potential to damage other hard bottom habitat areas.

Response: NMFS disagrees with this comment. NMFS believes that the Council has done an adequate job minimizing fishing gear impacts to the extent practicable, as is required by the Magnuson-Stevens Act. Furthermore, NMFS disagrees with the comment that the Council allows bottom trawls in areas of hard bottom habitat elsewhere in the South Atlantic EEZ. Amendment 1 to the Fishery Management Plan for the Snapper Grouper Fishery in the South Atlantic Region (September 1988) prohibited the use of bottom tending (roller-rig) trawls in the snapper grouper fishery to prevent damage to sensitive hard and live bottom habitat.

Comment 6: One commenter stated that the EFH Amendment exceeds Congressional intent and is overly broad. They claimed that the Council's broad EFH description implies that EFH is not unique and that it detracts from the benefits of the EFH designation process. Furthermore, the commenter stated that an overly broad range of non-fishing activities are identified as potential threats to EFH without adequate justification. The commenter also stated that the proposed rule, in particular the amended framework procedures, reflects the same problems.

Response: NMFS disagrees with this comment. The Magnuson-Stevens Act defines EFH as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. Therefore, the geographic scope of EFH must be sufficiently broad to encompass the biological requirements of the species. As for the comment regarding non-fishing activities, one of the stated purposes of the Sustainable Fisheries Act of 1996, which amended the Magnuson-Stevens Act, is to promote the protection of EFH through the review of projects, including non-fishing activities, conducted under Federal permits, licenses, or other authorities that have the potential to affect EFH adversely. NMFS' EFH-related recommendations to Federal agencies on non-fishing activities are advisory in nature. Federal agencies will be required to consult only on those activities that may adversely affect EFH, based on an assessment of the particular activity at issue.

The amended framework procedures under the EFH Amendment are procedural in nature and do not have immediate substantive impacts. These amended framework procedures of the Councils' FMP simply allow the Council and NMFS to undertake a more timely modification of EFH definitions and establishment or modification of existing EFH-HAPCs and coral HAPCs without requiring an amendment to the appropriate FMP. This framework procedure will involve assessment of all expected biological and socioeconomic impacts of the proposed action and an opportunity for public comment prior to final agency action.

Comment 7: One commenter commented that the EFH Amendment and Habitat Plan do not comply with the National Environmental Policy Act (NEPA), the Regulatory Flexibility Act (RFA), and the Paperwork Reduction Act (PRA).

Response: NMFS disagrees with this comment and believes that all requirements of these statutes were fully met. The Council prepared draft and final supplemental environmental impact statements (DSEIS and FSEIS) for the EFH Amendment; both the DSEIS and FSEIS contained all elements required by NEPA, the Council on Environmental Quality's regulations implementing NEPA (40 CFR Parts 1500-1508), and NOAA's Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act). All proper NEPA procedures were followed and the DSEIS and FSEIS were filed with the Environmental Protection Agency (EPA) for publication of notices of availability for public comment. EPA published a notice of the availability of the DSEIS on July 17, 1998 (63 FR 38643). EPA published a notice of availability of the FSEIS on April 9, 1999 (68 FR 17362). EPA cited no inadequacies of the DSEIS or FSEIS. Specific NEPA-related discussions of alternatives and expected environmental impacts and other NEPA analysis elements are contained in the EFH Amendment's Sections 1.0, 2.0, 3.0, 4.0, 8.0, and 9.0 and in the cover sheet (viii), table of contents (pages i-v), and summary of NEPA elements (page x).

Section 4.8 of the EFH Amendment contains the Council's discussion intended to meet RFA requirements; additional discussion and information regarding impacts on small entities, as required by RFA, is provided in Sections 4.2.7.5 and 4.2.7.6. Also, NMFS determined, in conjunction with publication of the proposed rule for the EFH Amendment, that this action would have significant impacts on a substantial number of small entities and prepared an initial regulatory flexibility analysis (IRFA) as required by the RFA. NMFS announced the availability of the IRFA for public comment in the proposed rule (64 FR 37082; July 9, 1999) and in a supplement to the proposed rule (64 FR 59152). This final rule announces the availability of the FRFA as prepared by NMFS.

The Council did not propose any measures under the EFH Amendment that will involve increased paperwork or consideration under the PRA. The EFH Amendment provides for a voluntary vessel monitoring system (VMS) to be established as soon as possible for the rock shrimp fishery that would involve a collection-of-information requirement. NMFS approved this provision in approving the EFH Amendment. Since the voluntary VMS would involve only 2-3 vessels, this collection is not subject to the PRA.

Comment 8: One commenter commented that the Habitat Plan fails to show any connection between silviculture activities and EFH, and it overemphasizes the importance of silviculture as a nonpoint source of water quality problems.

Response: While the Habitat Plan does not illustrate any specific examples of direct EFH degradation or adverse impact, studies cited within the Habitat Plan indicate that there is a potential for adverse impacts on EFH from silviculture or from activities related to silviculture. The Council intended the Habitat Plan to provide a wide spectrum of background information to aid in management, conservation, and enhancement of EFH. Therefore, NMFS supports the Council's inclusion of this pertinent material.

Comment 9: One commenter requested an extension of the comment period for the supplement to the proposed rule due to its inability to respond during the allotted time.

Response: NMFS is unable to extend the comment period due to Magnuson-Stevens Act time requirements for issuing final rules to implement approved fishery management plan amendments.

Comment 10: One commenter supported the proposed rule to expand the Oculina Bank HAPC and the establishment of the framework procedures in all fishery management plans.

Response: NMFS agrees with this comment.

Comment 11: One commenter commented that the expansion of the Oculina Bank HAPC would include areas of flat, mud bottom. The commenter states that this inclusion would not protect Oculina coral but would negatively impact bottom longline fisheries for tilefish, grouper, and shark. The commenter proposed a revised expanded area that was believed to offer better protection for Oculina coral while minimizing adverse economic impacts on longline fishermen.

Response: NMFS acknowledges that areas of flat, mud bottom are included in the Oculina Bank HAPC expansion. The rationale for including these areas is to facilitate enforcement and to implement regulations consistent with the South Atlantic Shrimp FMP. While the revised boundaries proposed by the commenter would isolate Oculina coral, it would create enforcement problems. Therefore, NMFS disagrees with this comment.

Comment 12: One commenter requested that further details of the socioeconomic impacts on affected fisheries be documented, especially the cumulative impacts of a number of federal regulatory actions for highly migratory species, snapper/grouper species, and tilefish.

Response: To the extent practicable, NMFS recognizes and considers cumulative impacts resulting from the implementation of a series of management measures that affect the fishery in question. The analysis of the potential impacts of this particular action was conducted based on the status quo. Since the status quo takes all previous management actions into account, any analysis of the impacts of additional regulations implicitly incorporates impacts of previous management actions. Further details of this analysis are found in the Regulatory Impact Review, the IRFA, and the FRFA written to accompany this rulemaking process. Thus, NMFS made a good faith effort to assess the impacts, including cumulative impacts, of the proposed actions on all affected entities.

Classification

The Administrator, Southeast Region, NMFS, determined that the EFH Amendment is necessary for the conservation and management of the Council's FMPs and it is consistent with the Magnuson-Stevens Act and other applicable law.

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

NMFS prepared a FRFA for this final rule implementing Amendment 4 to the Coral FMP. The FRFA was based on the IRFA and public comments that were received on the IRFA. A summary of the FRFA follows:

Except for EFH Amendment Actions 3A (expanded Oculina HAPC) and 3B (two satellite Oculina HAPCs), the amendment does not contain measures that would result in immediate economic effects. Actions 3A and 3B would enlarge the existing Oculina Bank HAPC and prohibit fishing with bottom tending gear. The Council originally determined that these regulations would affect trawling for calico scallops to some degree, but concluded that there would not be a significant impact and did not prepare an IRFA. NMFS subsequently gathered additional information on the potential impacts and prepared an IRFA. During the public comment period on the proposed rule, fishermen commented that their catches of shark, grouper, and tilefish would also be affected. In response to these comments, NMFS looked at its catch data for shark, grouper, and tilefish. The data indicated the possibility that these fishermen may also be affected by the rule.

The rule responds to the Magnuson-Stevens Act requirements to identify EFH and to minimize any fishing related damage to EFH. The overall objective of the rule is to protect, conserve, and enhance EFH.

NMFS received a number of comments on the possible economic effects of the rule. One commenter stated that the economic assessment failed to include any evaluation of the bottom longline fisheries for shark, golden tilefish, and grouper. NMFS agrees that the Council's EFH Amendment did not address those potential economic impacts. However, prior to initiation of Secretarial review of the EFH Amendment, NMFS determined that substantial catches of shark, golden tilefish, and grouper may be affected, resulting in adverse economic impacts.

Another commenter stated that the EFH Amendment did not comply with NEPA, RFA, and the PRA. NMFS disagrees with this comment. The combined Council and NMFS efforts addressed all relevant requirements of NEPA (including preparation of a DSEIS and FSEIS) and RFA (including preparation of an IRFA and FRFA). The Council did not propose any measures under the EFH Amendment that will involve increased paperwork or consideration under the PRA.

Another commenter indicated that the expansion of the Oculina Bank HAPC includes areas of flat, mud bottom and would negatively impact bottom longline fisheries for tilefish, grouper, and shark. NMFS acknowledges that areas of flat, mud bottom are included, but incorporating these areas into the closed area would facilitate enforcement and result in regulations consistent with the South Atlantic Shrimp FMP.

One commenter suggested that further details of the socioeconomic impact to affected fisheries should have been documented, especially the collective impacts of Federal actions taken over a period of time. To the extent practicable, NMFS recognizes and considers cumulative impacts resulting from the implementation of a series of management measures that affect the fishery in question. The analysis of the potential impacts of this particular action was conducted based on the status quo. Since the status quo takes all previous management actions into account, any analysis of the impacts of additional regulations implicitly incorporates impacts of previous management actions. Further details of this analysis are found in the Regulatory Impact Review, the IRFA, and the FRFA written to accompany this rulemaking process. Thus, NMFS made a good faith effort to assess the impacts, including cumulative impacts, of the proposed actions on all affected entities.

Consideration of the public comments did not result in changes to the rule.

The rule would apply to a total of 45-60 small business entities that engage in the harvest of calico scallops, sharks, tilefish, and grouper. The scallop fishermen utilize shrimp trawling vessels with modified gear and generate annual gross revenues of approximately $52,000 per vessel. Fishermen targeting sharks, tilefish, and grouper utilize fishing craft in the 30- to 49-ft (9.1- to 14.9-m) category, take trips that average 7 to 10 days, incur variable annual expenses of $3,683, generate annual gross revenues ranging from $5,954 to $7,145 per trip, and realize annual returns to the owner, captain and crew that range from $34,000 to $51,000.

No additional reporting, recordkeeping, or other compliance requirements by small entities are contained in the rule.

The Council considered two alternatives in addition to the proposed alterative (Actions 3A and 3B). The status quo obviously would have no impact on small business entities, and was rejected because it would not meet the objective of providing additional protection for EFH. The other alternative considered and rejected by the Council would expand the Oculina Bank HAPC by an area larger than in the preferred alternative. This option was rejected because it would result in the closure of a major portion of the known historic fishing grounds for calico scallops; the resulting negative economic impacts were deemed to be greater than the benefits that would accrue from the additional protection for EFH. Accordingly, the Council chose the alternative that would meet the objective of providing additional protection for EFH while attempting to minimize the economic impact on small entities.

Copies of the FRFA are available (see ADDRESSES).

List of Subjects

50 CFR Part 622

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

50 CFR Part 640

• Fisheries
• Fishing
• Incorporation by reference
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, 50 CFR parts 622 and 640 are 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 § 622.35, paragraph (g) is removed and paragraph (c) is revised to read as follows:

3. In § 622.48, the introductory text and paragraphs (c), (f), (g), and (h) are revised; and paragraphs (k) and (l) are added to read as follows:

PART 640—SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH ATLANTIC

4. The authority citation for part 640 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

5. Section 640.25 is revised to read as follows: