[Federal Register Volume 63, Number 31 (Tuesday, February 17, 1998)]
[Rules and Regulations]
[Pages 7727-7731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3791]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 970829217-8025-02; I.D. 081597E]
RIN 0648-AJ79
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustment 18
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 18 to the Northeast Multispecies Fishery
Management Plan (FMP). Framework Adjustment 18 allows pelagic midwater
trawling for herring and mackerel in Multispecies Closed Areas I and
II, the Gulf of Maine (GOM) multispecies closure areas, and in the
Nantucket Lightship Closed Area, under certain conditions. The intent
of this rule is to provide greater economic opportunity for pelagic
midwater trawl vessels to harvest herring and mackerel while
maintaining the conservation benefits of the current multispecies
management measures.
DATES: Effective February 17, 1998.
ADDRESSES: Copies of Amendment 7 to the FMP, its regulatory impact
review (RIR), and the final regulatory flexibility analysis (FRFA)
contained within the RIR, its final supplemental environmental impact
statement, and Framework Adjustment 18 documents are available upon
request from Paul J. Howard, Executive Director, New England Fishery
Management Council, 5 Broadway, Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, NMFS, Fishery
Policy Analyst, 508-281-9279.
SUPPLEMENTARY INFORMATION:
Background
In 1994, at the request of the New England Fishery Management
Council (Council), NMFS, by emergency action, closed three large areas
of the Northeast multispecies fishery for the duration of the emergency
to all fishing gear capable of catching multispecies (59 FR 63926,
December 12, 1994, and amended at 60 FR 3102, January 13, 1995). These
areas, known as Closed Areas I and II and the Nantucket Lightship
Closed Area, cover approximately 4,800 square miles
[[Page 7728]]
(12432 sq. km.). In order to avoid a hiatus between the emergency
action and the implementation of Amendment 7, the Council proposed and
NMFS issued Framework Adjustment 9 (60 FR 19364, April 18, 1995) to
implement the emergency measures on a permanent basis while Amendment 7
was being developed to address a long term objective of stock
rebuilding. In 1996, Amendment 7 to the FMP continued the existing
year-round closures and closed seasonally three additional large areas
in the GOM (61 FR 27710, May 31, 1996). These areas currently remain
closed to all gear capable of catching multispecies, including pelagic
midwater trawls.
Recently, the Council was requested by industry participants to
allow pelagic midwater trawling for herring and mackerel in the
multispecies closed areas because these fisheries capture negligible
amounts of regulated multispecies due to the spatial separation of
pelagic and demersal species in the water column. Because of the low
value of herring and mackerel, it is important to the industry that
vessels have unimpeded access to these species throughout their
migrations to ensure that the harvesting and/or processing capacity of
the vessels is maximized. Large closed areas impede access and make
fishing for herring and mackerel economically less feasible. These
pelagic species are very important for commercial fishing vessels in
New England that participate in joint ventures or in the directed
domestic fishery. Due to the prohibition on fishing in closed areas and
an increased reliance on closed areas for multispecies mortality
reduction, it has become increasingly difficult to conduct these
pelagic fishing operations.
Further details concerning justification for, and development of,
Framework Adjustment 18 were provided in the preamble to the proposed
rule (62 FR 49193, September 19, 1997).
This framework allows pelagic midwater trawling for herring and
mackerel in Closed Areas I and II, the Nantucket Lightship Closed Area,
and in the GOM Closed Areas (Sec. 648.81(a), (b), and (c)) under the
following conditions: (1) Vessels must obtain and comply with a
midwater trawl letter of authorization (LOA)(as currently required
under Sec. 648.80(d)(2) for the midwater trawl gear exemption) from the
Administrator, Northeast Region, NMFS (Regional Administrator); (2)
harvesting or processing vessels must carry observers, if required by
NMFS (as currently required under the midwater trawl gear exemption),
and (3) if the Regional Administrator determines, on the basis of sea
sampling data or other credible information for this fishery, that the
bycatch of regulated multispecies for the fishery or for any individual
vessel exceeds, or is likely to exceed, 1 percent of herring and
mackerel harvested, by weight, the Regional Administrator may place
restrictions and/or conditions in the LOAs for any or all individual
fishing operations, or, after consulting with the Council, the Regional
Administrator may suspend or prohibit any or all midwater trawl
activities in the closed areas.
Comments and Responses
Five comments were received concerning Framework Adjustment 18.
Three of the comments were strongly supportive of the proposed rule and
substantiate the finding in the Initial Regulatory Flexibility Act
(IRFA) that this action will have a positive economic impact on small
business entities. Two other comments were concerned about the
potential bycatch of regulated multispecies and marine mammals.
Comment 1: A representative from a pelagic fishing company wrote in
support of Framework Adjustment 18. The commenter stated that pelagic
midwater trawl vessels have no bycatch of groundfish or marine mammals
and disputed assertions to the contrary. To satisfy any perceived
problems, the commenter stated that the pelagic trawl industry is
willing to take observers, if requested to do so.
Response: Available herring and mackerel sea sampling data shows a
minimal bycatch of regulated multispecies. NMFS will continue to
collect sea sampling data and other information on these fisheries.
This information will be essential for any future decision making
purposes. A condition in the LOA necessary to participate in the
pelagic midwater trawl fishery states that vessels must carry
observers, if required by NMFS. On the basis of sea sampling data or
other credible information for this fishery, if bycatch of regulated
multispecies exceeds, or is likely to exceed, 1 percent of the catch of
herring and mackerel, by weight, the Regional Administrator may place
restrictions or conditions on the required midwater trawl LOA or, in
consultation with the Council, suspend all midwater trawl activities in
any or all of the closed areas. These precautions should alleviate any
real or perceived problems with bycatch in the closed areas.
Comment 2: A representative from a commercial pelagic fishing
association submitted written comments supporting Framework Adjustment
18. The commenter stated that allowing midwater trawl vessels into the
multispecies closed areas would facilitate the orderly development of
the offshore herring fishery. The commenter wrote that, as the herring
fishery management plan is developed, it will be essential to gather
accurate scientific data and information to respond to any concerns
regarding marine mammal interactions with pelagic trawl gear.
Response: NMFS concurs. This final rule could facilitate the
orderly development of the industry and provide important additional
information on fishery bycatch and pelagic species biology.
Comment 3: A representative from a commercial fishing association
submitted written comments supporting Framework Adjustment 18,
indicating that it will provide greater economic opportunity for
pelagic midwater trawl vessels to harvest herring and mackerel and
maintain the conservation benefits of current multispecies management
measures.
Response: NMFS concurs. The intent of this framework is to allow
pelagic midwater trawling in the multispecies closed areas only if it
does not adversely impact current efforts to rebuild depleted
groundfish stocks. The RIR/IRFA concluded that this action will have a
positive economic impact on small businesses.
Comment 4: A representative of the commercial fishing industry
submitted a written comment expressing concern about bycatch of
regulated multispecies (specifically cod, haddock, and pollock) in the
midwater trawl fishery, if these areas are reopened to pelagic midwater
trawl gear. The commenter wrote that groundfish occasionally leave the
sea bottom and may, therefore, be vulnerable to capture with midwater
trawl gear. The commenter emphasized that this is why 100-percent
observer coverage should be required in the midwater trawl fishery. The
commenter also questioned the validity of the data provided on the cost
of 100-percent observer coverage in relation to the economic value of
the pelagic fishery. The commenter stated that the cost of observers
would be minimal compared with the value of the herring and mackerel
caught in the areas and with the value of assured protection to
groundfish.
Response: The Council and NMFS have been aware of the concern with
multispecies bycatch throughout the development of Framework Adjustment
18. An important factor in the decision to allow midwater trawling is
the fact
[[Page 7729]]
that available herring and mackerel sea sampling data and mackerel
weighout data do not show a bycatch of regulated multispecies. The data
do indicate some bycatch of nonregulated multispecies (whiting) and
scup. Monitoring of data will continue with the implementation of
Framework Adjustment 18, and appropriate action will be taken if the
bycatch of regulated multispecies exceeds 1 percent, by weight, of
harvested herring and mackerel. Since many of the vessels operating in
these fisheries will be reporting their landings under the mackerel and
multispecies fishery management plans, data will be available.
Safeguards have been included in the framework whereby the midwater
trawl fishery in the closed area(s) can be restricted or closed if the
bycatch of regulated multispecies for the fishery exceeds 1 percent, by
weight, of harvested herring and mackerel by any or all vessels. This
will ensure that bycatch of regulated multispecies is minimal.
Furthermore, vessels participating in these fisheries are not allowed
to retain regulated multispecies and, therefore, have no incentive to
capture them.
The Council considered requiring 100-percent observer coverage or
having observers present whenever fish are transferred from a
harvesting vessel to the processor, but it rejected these alternatives
due to prohibitive costs and limited observer availability. Observer
costs were found in the IRFA prepared by the Council to range from 8
percent to as much as 148 percent of ex-vessel revenues. These costs
would average 55 percent of gross revenues for ton-class 3 vessels, and
14 percent of gross revenues for ton-class 4 vessels based on available
herring catch rate data. Therefore, for vessels that land pelagics
ashore and for some freezer trawlers, it would be economically
unfeasible to require observers. That is why the alternative to require
mandatory observers was rejected.
Importantly, however, the framework does require vessels to obtain
and comply with the midwater trawl LOA, as described in
Sec. 648.80(d)(2), to fish in the closed areas. A condition in the LOA
states that vessels must carry observers, if required by NMFS. Also,
observers are currently required on processing vessels participating in
joint venture operations.
Comment 5: A representative of the commercial fishing industry
submitted a written comment stating that this rule could result in
increased interactions between pelagic midwater trawl gear and marine
mammals, especially harbor porpoise. The frequency of interactions
could increase because the GOM closures coincide with periods of high
harbor porpoise abundance, and the target species for both harbor
porpoise and the midwater trawl fleet is herring. The commenter
indicated that minimal sea sampling data is available upon which to
base a final rule and expressed concern regarding compliance with the
Marine Mammal Protection Act and the Endangered Species Act. Finally,
it was stated that Framework Adjustment 18 should not compromise
efforts already underway to rebuild groundfish and marine mammal
stocks.
Response: NMFS appreciates the commenter's detailed discussion of
the potential for bycatch of harbor porpoise and other marine mammals
in the midwater herring and mackerel trawl fisheries and the need for
observer coverage in these fisheries. The NMFS sea sampling program has
collected information on marine mammal bycatch in foreign and domestic
midwater trawl fisheries targeting mackerel in the Mid-Atlantic. Sample
sizes for herring and mackerel midwater trawl trips in the GOM are
small and provide limited information on marine mammal bycatch rates
for these fisheries. Based upon the available data on midwater trawl
fisheries, the 1996 marine mammal stock assessment report prepared by
NMFS indicated that no takes of harbor porpoise have been documented in
midwater trawl gear.
NMFS has the authority to place observers in the herring midwater
trawl fishery for purposes of monitoring fish harvests as well as for
monitoring any marine mammal and other endangered species bycatch.
An Endangered Species Act Section 7 consultation on this fishery
resulted in a Biological Opinion issued on December 13, 1996. Since the
conclusion of that consultation, Framework Adjustment 18 has been
revised. Therefore, consultation on Framework Adjustment 18 was
reinitiated. The new consultation concluded that impacts from fishing
activities conducted under Framework Adjustment 18 will not change the
basis for the December 13, 1996, determination that the overall
operation of the multispecies fishery under the FMP, without
modification, is likely to jeopardize the continued existence of the
northern right whale may affect but is not likely to jeopardize the
continued existence of other endangered or threatened species of whale,
sea turtles, and fish under NMFS jurisdiction and will not result in
adverse modification of critical habitat.
Changes in the Final Rule From the Proposed Rule
Some changes from the proposed rule were necessary to make
Framework Adjustment 18 more succinct and to eliminate duplicative
regulations. Other changes were made to more accurately reflect Council
intent and to serve administrative purposes.
Section 648.80(d)(2) of the final rule requires vessels to have on
board a midwater trawl LOA when fishing in the Gulf of Maine/Georges
Bank (GOM/GB) and Stellwagen Bank/Jeffreys Ledge (SB/JL) Areas and the
portion of the Nantucket Lightship Closed Area not within the GOM/GB
and the SB/JL Areas. The proposed rule, while not substantively
different, independently listed six other multispecies closed areas as
being subject to the LOA requirement. Because these closed areas are
subareas lying completely within the larger GOM/GB and SB/JL Areas, the
final rule does not independently list them.
Section 648.80(d)(3) of the final rule allows vessels in the
midwater trawl exemption in areas north of 42 deg.20' N. lat. and in
three specified multispecies closed areas to fish for, possess, or land
only Atlantic herring, blueback herring, or mackerel. The proposed rule
listed all seven of the multispecies closed areas. Because four of
these multispecies closed areas are north of 42 deg.20' N. lat., the
final rule does not independently list them.
In Sec. 648.80(d), paragraph 5 is added which requires vessels
fishing under the midwater trawl exemption to carry a NMFS- approved
sea sampler/observer, if requested by the Regional Administrator. This
provision is already in the midwater trawl LOA and is specifically
mentioned in the Council framework document. Adding this provision
makes the regulations consistent with the LOA and better reflects
Council intent.
In Sec. 648.81(a)(2)(iii), the final rule specifies that the
Regional Administrator shall determine the percent bycatch of regulated
multispecies on the basis of sea sampling data and other credible
information for the fishery. This was implied in the proposed rule but
required clarification. The change from the proposed rule was made to
more clearly reflect Council intent and to facilitate the
administration of the regulation. Information on which to make
decisions will be available on a fishery-wide basis and not only on
limited data basis from the closed areas. This is consistent with
NMFS's objective to reopen the multispecies
[[Page 7730]]
closed areas to midwater trawl vessels in a cautious manner while
ensuring that the bycatch of regulated multispecies is minimal.
Classification
The Regional Administrator, Northeast Region, NMFS, determined that
Framework Adjustment 18 is consistent with the Magnuson-Stevens Act and
other applicable law.
Because this rule relieves restrictions on a sector of the fishing
industry by allowing fishing for mackerel and herring to occur in areas
currently closed to such fishing, under 5 U.S.C. 553(d)(1) it is not
subject to a 30-day delay in effective date.
This action is authorized by 50 CFR part 648 and has been
determined not to be significant for purposes of E.O. 12866.
The Council prepared an IRFA that describes the impact this rule
would have on small entities. This action would have a significant, but
positive, impact on small business entities because it is expected to
increase the annual gross revenues of a substantial number of small
business entities by more than 5 percent. The IRFA concluded that this
action could affect all of the approximately 35 pelagic midwater trawl
vessels (which are small business entities) participating in the
fisheries by allowing them to fish in areas currently closed to them,
thereby increasing their annual gross revenues by more than 5 percent.
Ten to twelve additional vessels could enter these fisheries in the
next year. However, it is unlikely that more vessels will enter the
fisheries because of the expense, which is estimated to range from
$75,000 to $250,000 depending on the changes made, to convert
conventional trawl vessels into competitive midwater trawls. Because of
the conversion expenses, many vessels would be precluded from entering
these fisheries.
This action could improve the economic competitiveness of all U.S.
Atlantic herring and mackerel harvesting operations and preserve the
enforceability and effectiveness of the multispecies closed areas. The
IRFA indicated that it is difficult to predict the exact increase in
annual gross revenues as a result of allowing fishing in the currently
closed areas due to the unpredictability of herring and mackerel
migrations, but overall annual ex-vessel revenues for the fleet may
potentially rise from between $255,684 to $767,051, as compared to
taking no action.
As mentioned earlier, the Council had considered requiring the 100-
percent observer coverage or having observers present when fish was
transferred from the harvesting vessel to the processor, but rejected
these alternatives because they were considered too costly for the
fleet. No additional alternatives to minimize the economic impacts were
considered by the Council because all the impacts are beneficial and
need not be minimized. A copy of the IRFA analysis is available from
the Council (see ADDRESSES). The FRFA incorporates the IRFA findings
with the response to comments received, and addressed above, regarding
the proposed rule. Framework Adjustment 18 is expected to increase the
annual gross revenues of a substantial number of small business
entities by more than 5 percent. Framework Adjustment 18 will have a
significant, but positive, economic impact on a substantial number of
small business entities.
This rule refers to a collection of information which is subject to
the Paperwork Reduction Act and which has been approved under OMB
control number 0648-0202.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 10, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
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. Section 648.80 is amended by revising paragraphs (d)(2) and
(d)(3), and by adding paragraph (d)(5) to read as follows:
Sec. 648.80 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(d) * * *
(2) When fishing under this exemption in the GOM/GB and SB/JL
Areas, and in the area described in Sec. 648.81(c)(1), the vessel has
on board a letter of authorization issued by the Regional
Administrator, and complies with all restrictions and conditions
thereof.
(3) The vessel only fishes for, possesses, or lands Atlantic
herring, blueback herring, or mackerel in areas north of 42 deg.20' N.
lat. and in the areas described in Sec. 648.81(a)(1), (b)(1), and
(c)(1); and Atlantic herring, blueback herring, mackerel, or squid in
all other areas south of 42 deg.20' N. lat.; and
* * * * *
(5) The vessel must carry a NMFS-approved sea sampler/ observer, if
requested by the Regional Administrator.
* * * * *
3. Section 648.81 is amended by adding paragraph (a)(2)(iii), and
by revising paragraphs (a)(2)(ii), (b)(2) introductory text, (c)(2)(i),
and (f)(2)(ii) to read as follows:
Sec. 648.81 Closed areas.
(a) * * *
(2) * * *
(ii) Fishing with or using pelagic hook or longline gear or harpoon
gear, provided that there is no retention of regulated species, and
provided that there is no other gear on board capable of catching NE
multispecies; or
(iii) Fishing with pelagic midwater trawl gear, consistent with
Sec. 648.80(d), provided that the Regional Administrator shall review
information pertaining to the bycatch of regulated multispecies, and,
if the Regional Administrator determines, on the basis of sea sampling
data or other credible information for this fishery, that the bycatch
of regulated multispecies exceeds, or is likely to exceed, 1 percent of
herring and mackerel harvested, by weight, in the fishery or by any
individual fishing operation, the Regional Administrator may place
restrictions and conditions in the letter of authorization for any or
all individual fishing operations or, after consulting with the
Council, suspend or prohibit any or all midwater trawl activities in
the closed areas.
(b) * * *
(2) Paragraph (b)(1) of this section does not apply to persons on
fishing vessels or fishing vessels fishing with gears as described in
paragraph (a)(2) of this section, or that are transiting the area
provided--
* * * * *
(c) * * *
(2) * * *
(i) Fishing with gears as described in paragraph (a)(2) of this
section;
* * * * *
(f) * * *
(2) * * *
(ii) That are fishing with or using exempted gear as defined under
this part, subject to the restrictions on midwater trawl gear in
Sec. 648.81(a)(2)(iii), and excluding pelagic gillnet gear capable of
catching multispecies, except vessels may fish with a single pelagic
gillnet, not longer than 300 ft (91.44 m.) and not greater
[[Page 7731]]
than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches (7.62
cm), provided the net is attached to the boat, is fished in the upper
two-thirds of the water column, and is marked with the owner's name and
vessel identification number and provided there is no other gear on
board capable of catching multispecies finfish; or
* * * * *
[FR Doc. 98-3791 Filed 2-10-98; 4:46 pm]
BILLING CODE 3510-22-F
