[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Rules and Regulations]
[Pages 55774-55778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27730]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 961021289-6289-01; I.D. 100196C]
RIN 0648-AJ26
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustment 19
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement measures contained in
Framework Adjustment 19 to the Northeast Multispecies Fishery
Management Plan (FMP). This rule changes the time and area of the
current multispecies Mid-coast Closure Area within the Gulf of Maine
(GOM) and establishes an exemption to allow sink gillnet vessels to
fish in the reopened area when utilizing acoustic devices (pingers) on
their nets. The intent of this action is to reduce the overall economic
impact of the area closure while achieving the objectives of the FMP.
EFFECTIVE DATE: October 24, 1996.
ADDRESSES: Copies of Amendment 7 to the Northeast Multispecies Fishery
Management Plan (Amendment 7), its regulatory impact review (RIR) and
the final regulatory flexibility analysis (RFA) contained within the
RIR, its final supplemental environmental impact statement, and
Framework Adjustment 19 documents are available upon request from
Christopher B. Kellogg, Acting Executive Director, New England Fishery
Management Council (Council), 5 Broadway, Saugus, MA, 01906-1097.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, NMFS, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION: Amendment 7 to the FMP (61 FR 27710, May 31,
1996), effective on July 1, 1996, established comprehensive measures to
rebuild the important multispecies stock complex primarily through
effort reduction controls and area closures. In addition to the year-
round closure areas on Georges Bank and Southern New England, several
alternative GOM area closures were considered by the Council during the
development of Amendment 7. However, due to the controversy and
complication of developing additional area closures and because of the
need to have measures in place as soon as possible, the Council adopted
the existing GOM harbor porpoise protection closures as the default
closures for multispecies until such time that these closures could be
modified through the framework adjustment procedure.
At the July 17-18, 1996, meeting, the Council initiated action to
replace the default GOM Mid-coast Area Closure with the intent to
minimize the time period and the size of the area. The purpose of this
action was to reduce the overall economic impact of the area closure
while achieving equivalent conservation value and to address concerns
about the distribution of economic impacts of the existing closure,
which may disproportionately affect small inshore vessels.
Based on the Northeast Fisheries Science Center analysis, several
alternatives to the current default closure were found to have
equivalent conservation value but resulted in significantly improved
revenues. At the final framework meeting on this action, held on
September 9, 1996, the Council proposed to close an area referred to as
Jeffreys Ledge (bounded by the following lines of coordinates:
43 deg.30' N. lat., 70 deg.00' W. long., 42 deg.30' N. lat., and
70 deg.30' W. long.) for the period May 1 through May 31, 1997, and,
for 1998 and beyond, to close the existing Mid-coast Closure Area but
with a change in time period to May 10 through May 30. Both of these
alternatives improve revenues by well over $2 million relative to the
existing time/area closure, without changing the impact on GOM cod. By
replacing the existing November through December Mid-coast Area Closure
with a spring closure, small vessels that are more constrained by
winter weather will be able to fish on their traditional grounds in
November
[[Page 55775]]
and December when alternatives are fewer than in May.
Although Council members were generally in agreement regarding the
Jeffreys Ledge closure in May, concern that vessels may be displaced to
a relatively small area shoreward of the Jeffreys Ledge area, possibly
resulting in increased gear conflicts, induced the Council to propose a
different closure for 1998 and beyond to address this potential
problem. To prevent the current default closure from taking effect on
November 1, 1996, the Council believed it necessary to move forward
with this alternative to alleviate unnecessary economic impacts until
such time as the Council is able to develop a proposal to satisfy all
concerns. In the unlikely event that the Council is unable to reach a
consensus in time for the 1998 fishing year, the revised closure would
serve as a fallback measure. Further explanation of this second-year
closure can be found in the comment and response section of this
preamble.
An issue of concern involves the fact that both the proposed change
to the current November/December Mid-coast Closure Area, and its
proposed default for 1998 and beyond, occur in the month of May. Since
May represents the beginning of the 1997 multispecies fishing year,
implementation of this proposal would result in the elimination of the
closure for the 1996 fishing year and the conservation benefits for
multispecies, particularly for GOM cod, would be foregone both for the
1996 calendar year and the fishing year. However, while delay of this
closure may negatively impact the target 1996 total allowable catches
(TACs) in the GOM, the conservation benefits that would accrue from
this area would be realized at the beginning of the 1997 fishing year,
a 6-month deferral as opposed to a full year. Also, since May
represents a period of time when catch rates are at their highest and
fish prices are at their lowest, a May replacement closure would be the
least economically burdensome to the fishing industry while still
achieving equivalent conservation benefits in relation to a November/
December closure.
Nevertheless, a likely consequence resulting from the delay of
these management measures is the possibility that the target TACs will
be exceeded. Due to this possibility, the Multispecies Monitoring
Committee will need to take these postponed reductions into account
when recommending target TACs for the 1997 fishing year.
In addition to changing the time/area closure for the Mid-coast
area, this action enables sink gillnet vessels to fish in the harbor
porpoise Mid-coast Closure Area provided pingers are employed on the
gear. The Council agreed to this based on information resulting from a
1994 experiment conducted by the New England Aquarium, Woods Hole
Oceanographic Institution, and the New Hampshire Commercial Fishermen's
Association and a 1995 experimental fishery that evaluated the
effectiveness of pinger use in the GOM sink gillnet fishery. Both of
these efforts indicated that, with the use of pingers, in the months of
November and December the harbor porpoise bycatch in the Mid-coast area
was reduced to insignificant levels. Based on the results of these
experiments, NMFS agrees that an exemption program is warranted in this
area during the November through December time period, provided the
nets are equipped with pingers as prescribed in the 1995 and 1996 NMFS-
authorized experimental fisheries.
This final rule changes the season termination date for Small Mesh
Area 1 from October 31 to November 15 for the 1997 fishing year. With
the implementation of Amendment 7 to the FMP, the harbor porpoise Mid-
coast Closure Area was expanded to all gear types capable of catching
multispecies. Due to this action, the termination date for Small Mesh
Area 1 was changed from November 15 to October 31 as this exemption
area lay completely within the November/December Mid-coast Closure
Area. This rule reestablishes the original season for this exempted
small mesh area. Additionally, since part of Small Mesh Area 2 lies
within and takes place during the 1998 default Mid-coast Closure Area,
this rule reduces the area of Small Mesh Area 2 during the time period
May 10 through May 30.
NMFS is making this adjustment to the regulations under the
framework abbreviated rulemaking procedure codified at 50 CFR part 648,
subpart F. This procedure requires the Council, when making
specifically allowed adjustments to the FMP, to develop and analyze the
actions over the span of at least two Council meetings. The Council
must provide the public with advance notice of both the proposals and
the analysis, and opportunity to comment on them prior to and at a
second Council meeting. Upon review of the analysis and public comment,
the Council may recommend to the Regional Administrator that the
measures be published as a final rule if certain conditions are met.
The Regional Administrator may publish the measures as a final rule, or
as a proposed rule if additional public comment is needed.
The public was provided the opportunity to express opinions at
numerous meetings beginning in February 1996. The following list
indicates the 1996 meetings at which this action was on the agenda,
discussed, and public comment was heard:
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Date Meeting Location
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February 27-28..................... Council....................................... Danvers, MA.
Apr. 11............................ Multispecies O/S.............................. Peabody, MA.
Apr. 17-18......................... Council....................................... Danvers, MA.
June 5-6........................... Council....................................... Danvers, MA.
June 11............................ Multispecies O/S.............................. Portland, ME.
July 9............................. Multispecies O/S.............................. Peabody, MA.
July 17-18......................... Council....................................... Peabody, MA.
Aug. 5............................. Subcommittee.................................. Saugus, MA.
Aug. 13............................ Multispecies O/S.............................. Peabody, MA.
Aug. 21-22......................... Council....................................... Danvers, MA.
Aug. 27............................ Multispecies O/S.............................. Woods Hole, MA.
Sept. 9............................ Council....................................... Peabody, MA.
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Documents summarizing the Council's proposed action, and the
analysis of biological and economic impacts of this and alternative
actions, were available for public review 5 days prior to the Council's
final September 9, 1996, meeting, which is required under the framework
adjustment process. Also, written comments were accepted
[[Page 55776]]
up to and at the September 9, 1996, Council meeting.
Comments and Responses
Comment 1: A Council member presented comments from small-boat
fishers in New Hampshire and Newburyport, MA, that the proposed
Jeffreys Ledge Closure Area for the month of May could force a large
number of small boats inshore to the area known as Ipswich Bay, because
they are physically limited from fishing elsewhere. The fishers are
concerned that the increased density of fishing activity would be
detrimental to the resource in Ipswich Bay and would increase the
incidence of gear conflicts.
Response: The Council adopted a second-year plan that would close
the entire Mid-coast Closure Area from May 10 through May 30. While
this may result in requiring some vessels to tie up during this period,
the time of the closure is reduced by 11 days as compared to the 1997
Jeffreys Ledge closure, and it applies over a broader area. This is a
risk-averse approach that will implement a more conservative measure
unless the Council determines that the measure for 1997 is effective
and does not have the effort-displacement problems anticipated by some
fishers. If the Council makes such a determination, it would have to
make an adjustment through the framework process before May 1998.
Comment 2: One commentor stated that this proposed action would
change the Mid-coast Closure Area for all vessels capable of catching
multispecies, it does not automatically open this area to gillnetting
since the area is also closed to protect harbor porpoise. The NMFS-
authorized experiment to test the use of pingers in this area indicated
that they are effective in reducing harbor porpoise bycatch.
Response: The Council added a measure that would allow gillnets
equipped with pingers to fish in the area during November and December
as supported by experimental fishery results.
Comment 3: Two inshore trawl fishers from Gloucester commented that
they supported the Multispecies Committee's recommendation to close
just Jeffreys Ledge, and that the closure of the larger 1998 default
Mid-coast Closure Area would force them to fish offshore.
Response: The Council noted that the proposed action retains the
committee's recommendation for the first year but that it is including
the broader closure for the second year as a conservative default
strategy to address concerns of other industry members about increased
density of fishing activity in a small inshore area. The Council will
monitor the area for effort shifts during 1997 and may adjust the
second-year measure if the problem anticipated by those fishers does
not occur in the first year.
Comment 4: A member of the industry commented that an area closure
unfairly impacts only those vessels displaced by the closure and those
that fish in nearby areas where the displaced boats will fish. He
suggested that a fairer system would be to reduce days-at-sea equally
for all vessels.
Response: The Council recognizes that area closures may have
differential impacts on vessels that fish in or near the affected area.
However, the area closures are designed as a conservation measure to
protect fish in that area, and closures exist throughout the region
that affect only segments of the entire fleet. The Council also
indicated that it had considered the days-at-sea reduction schedule in
the development of Amendment 7 and that it was not going to adjust the
schedule at this early point in the amendment's implementation.
Comment 5: An industry representative from Maine and a
representative of the fishing industry in Gloucester, MA, commented
that fishing for pelagic species with a mid-water trawl is still
prohibited in the proposed closure area(s) despite its insignificant
bycatch of multispecies and that it should be allowed.
Response: The Council has directed the Multispecies Committee to
address this issue and make a recommendation that could be implemented
before the May closure. Adherence to Framework Procedure Requirements
The Council considered public comment prior to making its
recommendation to the Regional Administrator under the provisions for
abbreviated rulemaking in this FMP. The Council requests publication of
these management measures as a final rule after considering the
required factors stipulated under the framework measures in the FMP, 50
CFR 648.90, and has provided supporting analyses for each factor
considered. Classification.
The Assistant Administrator for Fisheries, NOAA (AA) finds there is
good cause to waive prior notice and opportunity for public comment
under 5 U.S.C. 553(b)(B). Public meetings held by the Council to
discuss the management measures implemented by this rule provided
adequate prior notice and an opportunity for public comment to be heard
and considered; therefore, further notice and opportunity to comment is
unnecessary. The AA finds that under 5 U.S.C. 553(d), the need to have
this regulation in place by November 1, 1996, is good cause to waive
the 30-day delay in effectiveness of this regulation. Implementation of
this regulation by November 1, 1996, would relieve a restriction on
vessels that have traditionally fished in the Mid-coast Closure Area
during the months of November and December.
Because a general notice of proposed rulemaking is not required to
be published for this rule by 5 U.S.C. 553 or by any other law, this
rule is exempt from the requirement to prepare an initial or final RFA
under the Regulatory Flexibility Act. As such, none has been prepared.
The primary intent for this action is to reduce economic impacts on
small fishing vessels by changing the timing and location of the area
closure, which will allow small vessels to be able to fish on their
traditional grounds in November and December when fishing alternatives
are fewer.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: October 23, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
to read as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.14, paragraph (a)(52) is revised and paragraph
(a)(89) is added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(52) Enter, be on a fishing vessel in, or fail to remove gear from
the EEZ portion of the areas described in Sec. 648.81 (f)(1) through
(i)(1) during the time period specified, except as provided in
Sec. 648.81(d), (f)(2), (g)(2), (h)(2), and (i)(2).
* * * * *
(89) Fish with, set, haul back, possess on board a vessel, unless
stowed in accordance with Sec. 648.23(b), or fail to remove a sink
gillnet from the EEZ portion of the areas, and for the times specified
in Sec. 648.87 (a) and (b), except as provided in Sec. 648.87(b)(1)(i),
or unless authorized in writing by the Regional Director.
[[Page 55777]]
3. In Sec. 648.80, paragraph (a)(8) is revised to read as follows:
Sec. 648.80 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(a) * * *
(8) Small Mesh Area 1/Small Mesh Area 2. (i) Vessels subject to the
minimum mesh size restrictions specified in paragraph (a)(2) of this
section may fish with or possess nets with a mesh size smaller than the
minimum size specified from July 15 through November 15 when fishing in
Small Mesh Area 1, and from January 1 through June 30 when fishing in
Small Mesh Area 2 in 1997 and in 1998 and beyond, except as specified
in paragraph (a)(8)(ii) of this section. A vessel may not fish for,
possess on board, or land any species of fish other than: Butterfish,
dogfish, herring, mackerel, ocean pout, scup, squid, silver hake, and
red hake, except for the following species, with the restrictions
noted, as allowable bycatch species: Longhorn sculpin; monkfish and
monkfish parts--up to 10 percent, by weight, of all other species on
board; and American lobster--up to 10 percent, by weight, of all other
species on board or 200 lobsters, whichever is less. These areas are
defined by straight lines connecting the following points in the order
stated (copies of a map depicting these areas are available from the
Regional Director upon request):
Small Mesh Area 1
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
SM1................................ 43 deg.03' 70 deg.27'
SM2................................ 42 deg.57' 70 deg.22'
SM3................................ 42 deg.47' 70 deg.32'
SM4................................ 42 deg.45' 70 deg.29'
SM5................................ 42 deg.43' 70 deg.32'
SM6................................ 42 deg.44' 70 deg.39'
SM7................................ 42 deg.49' 70 deg.43'
SM8................................ 42 deg.50' 70 deg.41'
SM9................................ 42 deg.53' 70 deg.43'
SM10............................... 42 deg.55' 70 deg.40'
SM11............................... 42 deg.59' 70 deg.32'
SM1................................ 43 deg.03' 70 deg.27'
------------------------------------------------------------------------
Small Mesh Area 2
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
SM13.............................. 43 deg.20.3' 69 deg.59.4'
SM14.............................. 43 deg.25.9' 69 deg.45.6'
SM15.............................. 42 deg.49.5' 69 deg.40'
SM16.............................. 42 deg.41.5' 69 deg.40'
SM17.............................. 42 deg.34.9' 70 deg.00'
SM13.............................. 43 deg.20.3' 69 deg.59.4'
------------------------------------------------------------------------
(ii) In 1998 and thereafter, the portion of Small Mesh Area 2 that
is north of 43 deg.00.0' N. lat. shall be closed to all fishing during
the period May 10 through May 30 to coincide with the Mid-coast Closure
Area specified in Sec. 648.81(g)(1). Therefore, during the May 10
through May 30 time period in 1998 and beyond, Small Mesh Area 2 is
defined by straight lines connecting the following points in the order
stated:
Small Mesh Area 2
[May 10-May 30, 1998 and beyond]
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
SM18.............................. 43 deg.00.0' 69 deg.41.6'
SM15.............................. 42 deg.49.5' 69 deg.40'
SM16.............................. 42 deg.41.5' 69 deg.40'
SM17.............................. 42 deg.34.9' 70 deg.00'
SM19.............................. 43 deg.00.0' 69 deg.59.7'
SM18.............................. 43 deg.00.0' 69 deg.41.6'
------------------------------------------------------------------------
* * * * *
4. In Sec. 648.81, paragraphs (d) and (g)(1) are revised and
paragraph (i) is added to read as follows:
Sec. 648.81 Closed areas.
* * * * *
(d) Transiting. Vessels may transit Closed Area I, the Nantucket
Lightship Closed Area, the NE Closure Area, the Mid-coast Closure Area,
the Massachusetts Bay Closure Area, and the Jeffreys Ledge Closure
Area, as defined in paragraphs (a)(1), (c)(1), (f)(1), (g)(1), (h)(1),
and (i)(1), respectively, of this section, provided that their gear is
stowed in accordance with the provisions of paragraph (e) of this
section.
* * * * *
(g) * * * (1) For the calendar year 1997, vessels are subject to
the Jeffreys Ledge Closure Area restrictions specified under paragraph
(i) of this section. For all other years beyond 1997, during the period
May 10 through May 30, no fishing vessel or person on a fishing vessel
may enter, fish in, or be in, and no fishing gear capable of catching
multispecies, unless otherwise allowed in this part, may be in, the
area known as the Mid-coast Closure Area, as defined by straight lines
connecting the following points in the order stated, except as
specified in paragraphs (d) and (g)(2) of this section: (Copies of a
map depicting this area are available from the Regional Director upon
request):
Mid-Coast Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
MC1................................ 42 deg.30' (1)
MC2................................ 42 deg.30' 70 deg.15'
MC3................................ 42 deg.40' 70 deg.15'
MC4................................ 42 deg.40' 70 deg.00'
MC5................................ 43 deg.00' 70 deg.00'
MC6................................ 43 deg.00' 69 deg.30'
MC7................................ 43 deg.15' 69 deg.30'
MC8................................ 43 deg.15' 69 deg.00'
MC9................................ (2) 69 deg.00'
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.
* * * * *
(i) Jeffreys Ledge Closure Area. (1) For the calendar year 1997,
during the period May 1 through May 31, no fishing vessel or person on
a fishing vessel may enter, fish in, or be in, and no fishing gear
capable of catching multispecies, unless otherwise allowed in this
part, may be in, the area known as the Jeffreys Ledge Closure Area, as
defined by straight lines connecting the following points in the order
stated, except as specified in paragraphs (d) and (i)(2) of this
section (copies of a map depicting this area are available from the
Regional Director upon request):
Jeffreys Ledge Closure Area
------------------------------------------------------------------------
Point N. lat W. long.
------------------------------------------------------------------------
JL8................................ 43 deg.30' (1)
JL9................................ 43 deg.30' 70 deg.00'
JL10............................... 42 deg.30' 70 deg.00'
JL11............................... 42 deg.30' 70 deg.30'
JL12............................... (1) 70 deg.30'
------------------------------------------------------------------------
\1\ Maine shoreline.
(2) Paragraph (i)(1) of this section does not apply to persons on
fishing vessels or fishing vessels that meet the criteria in paragraph
(f)(2)(i), (f)(2)(ii), or (f)(2)(iii) of this section.
5. In Sec. 648.87, paragraph (b)(1) is revised to read as follows:
Sec. 648.87 Sink gillnet requirements to reduce harbor porpoise takes.
* * * * *
(b) * * *
(1) Mid-coast Closure Area. (i) From March 25 through April 25 and
from September 15 through December 31 of each fishing year, the
restrictions and requirements specified in this paragraph (b) apply to
the Mid-coast Closure Area, as defined under Sec. 648.81(g)(1), except
as provided in paragraph (b)(1)(ii) of this section.
(ii) Sink gillnet vessels subject to the restrictions and
regulations specified in this paragraph (b) may fish in the Mid-coast
Closure Area, as defined under Sec. 648.81(g)(1), from November 1
through December 31 of each fishing year, provided that an acoustic
deterrent device (``pinger'') is attached at the end of each string of
nets and at the bridle of every net within a string of nets, and
[[Page 55778]]
is maintained as operational and functioning. Each pinger, when
immersed in water, must broadcast a 10kHz 2kHz sound at
132 dB 4dB re 1 micropascal at 1 m. This sound must last
300 milliseconds and repeat every 4 seconds.
* * * * *
[FR Doc. 96-27730 Filed 10-24-96; 4:44 pm]
BILLING CODE 3510-22-W
