[Federal Register Volume 62, Number 62 (Tuesday, April 1, 1997)]
[Rules and Regulations]
[Pages 15425-15428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8234]
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DEPARTMENT OF COMMERCE
50 CFR Part 648
National Oceanic and Atmospheric Administration
[Docket No. 970324064-7064-01; I.D. 021997B]
RIN 0648-AJ32
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustment 23
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 23 to the Northeast Multispecies Fishery
Management Plan (FMP). This rule closes Federal waters at the times
specified to vessels fishing with sink gillnet gear and other gillnet
gear capable of catching multispecies, with the exception of single
pelagic gillnets, in parts of the following right whale critical
habitat areas: Cape Cod Bay from March 27, 1997 through May 15, 1997,
and from January 1 through May 15 in subsequent years; and the Great
South Channel from April 1 through June 30, annually. The intent of
this action is to restrict multispecies fishing activities that have
been determined to jeopardize the continued existence of the northern
right whale.
EFFECTIVE DATE: March 27, 1997.
ADDRESSES: Copies of Amendment 7 to the FMP, its regulatory impact
review (RIR) and the final regulatory flexibility analysis (FRFA)
contained with the RIR, and its final supplemental environmental impact
statement, are available upon request from Paul Howard, Executive
Director, New England Fishery Management Council (Council), 5 Broadway,
Saugus, MA 01906-1097. Framework Adjustment 23 documents, the marine
mammal stock assessment report, and biological opinions are available
from Andrew A. Rosenberg, Ph.D, Regional Administrator, Northeast
Region, NMFS (Regional Administrator), One Blackburn Drive, Gloucester,
MA 01930-2298.
FOR FURTHER INFORMATION CONTACT: Lt. Dan Morris (NOAA Corps), Resource
Conservation Officer, NMFS, Northeast Region, Habitat and Protected
Resources Division, 508-281-9388.
SUPPLEMENTARY INFORMATION:
Background
Several marine species listed as threatened or endangered under the
Endangered Species Act (ESA) occur regularly in waters covered by the
FMP. The NMFS, the agency responsible for implementation of the FMP, is
required by section 7 of the ESA to consider what impacts fishing
activities governed by the FMP and its implementing regulations may
have on ESA-listed species. As a result of this deliberative process,
NMFS issued a biological opinion 1 on December 13, 1996,
concluding that the fishing activities governed by the FMP and its
implementing regulations are likely to jeopardize the continued
existence of the northern right whale (Eubalaena glacialis).
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\1\ See National Marine Fisheries Service Biological Opinion,
issued on November 30, 1993, relating to Amendment 5 of the
Multispecies FMP, for a discussion of the abundance, distribution,
and life history of right whales, along with a discussion of factors
contributing to the mortality of right whales, including
entanglements with sink gillnet gear and other gillnet gear capable
of catching multispecies.
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The northern right whale is the most endangered large whale species
in the Northwest Atlantic Ocean. The 1995 Stock Assessment Report
(Blaylock et al., 1995) prepared by NMFS pursuant to the 1994 Marine
Mammal Protection Act amendments reference the 1992 estimate of 295
(Knowlton et al., 1994) as the current minimum population estimate for
the northern right whale.
The Potential Biological Removal (PBR) level is the maximum number
of animals, not including natural mortalities, that may be removed from
a marine mammal stock while allowing the stock to reach and or sustain
its optimum sustainable population level. The PBR level for right
whales is currently set at 0.4 individuals per year, or two human-
induced whale mortalities or serious injuries every 5 years (Blaylock
et al., 1995). Based on a minimum estimate of known serious injuries or
mortalities, the current PBR level has been exceeded in 20 of the past
27 years. This level of interaction is based on actual reported
numbers, rather than an estimate based on extrapolations to total
shipping and fishing effort.
During January and February of 1996, an unprecedented number of
right whale deaths (six or seven) was reported from the Southeast right
whale critical habitat/calving grounds off Georgia and Florida. Because
the northern right whale population is so small and its reproductive
rate so low, anthropogenic impacts, such as ship strikes and fishery
entanglements, inhibit the species' recovery and may jeopardize the
population's continued existence. A report on these mortalities was
presented by the Right Whale Research Group of the New England Aquarium
to the New England and Southeast Right and Humpback Whale Recovery Plan
Implementation Teams along with information from 1995 and 1996 on
levels of known and estimated right whale mortality. This information
reflected a possible change in the status of the species, as measured
by the environmental baseline upon which all previous section 7
consultations had been conducted. Based on this new information, NMFS
reinitiated consultation on the FMP on October 29, 1996.
The multispecies fishery includes the use of sink gillnets, a gear
type that is known to cause serious injury to right whales.
Approximately 15 right whale entanglements in gillnet gear were
recorded between 1970 and 1996; approximately 13 were sighted in
Massachusetts, the Great South Channel, the Bay of Fundy, and the Gulf
of Maine combined; and 5 were identified as monofilament or sink
gillnet gear. Given the historical record of right whale entanglements
in gillnet gear, the level of observed right whale mortalities over the
past 18 months from all sources (including ship strikes, fishery
interactions and natural causes), and the uncertainties about the
status of the population and its rate of recovery, NMFS, on December
13, 1996, concluded that the current and proposed fishing activities
carried out under the FMP are likely to jeopardize the continued
existence of the northern right whale.
When NMFS concludes that a Federal action is likely to jeopardize
the continued existence of a species, the
[[Page 15426]]
agency is required to recommend reasonable and prudent alternative(s)
to the action which, when implemented, would remove the threat of
jeopardy to the species in question. The reasonable and prudent
alternative in the Multispecies FMP Biological Opinion (December 13,
1996) includes the requirement that NMFS request the Council to
accomplish a framework adjustment action to close most of the Great
South Channel right whale critical habitat to sink gillnet gear and
other gillnet gear capable of catching multispecies, with the exception
of single pelagic gillnets, used in the bait fishery, during the period
of peak right whale abundance. NMFS made this request to the Council at
the December 11-12, 1996, meeting in order to allow the action to be
completed under the framework adjustment process prior to April 1,
1997, the deadline required by the biological opinion.
Concurrently, the Commonwealth of Massachusetts has prohibited
gillnets from the designated right whale critical habitat in Cape Cod
Bay within State waters from January 1 through May 15. As a portion of
the Cape Cod Bay Critical Habitat lies in Federal waters, NMFS has
requested that the Council act to implement restrictions consistent
with the State's in that Federal area, as well.
Implemented fully and in a timely manner, this measure will
directly reduce the likelihood of right whale entanglements in sink
gillnet gear and other gillnet gear capable of catching multispecies.
The exception for single pelagic gillnets (sometimes referred to as a
small-mesh pelagic net or baitnet by participants in the fishery)
provides for the use of this gear to harvest bait for the tuna and
lobster fisheries. Framework Adjustment 16 to the FMP (62 FR 9377,
March 3, 1997) referred to these single pelagic nets as small-mesh
pelagic gillnets, not longer than 300 ft (91.44 m) and not more than 6
ft (1.83 m) deep, with a maximum mesh size of 3 inches (7.62 cm), and
requires that the net be attached to the boat and fished in the upper
two-thirds of the water column. These small nets are constantly
monitored and should pose little risk of entanglement to right whales.
If a whale should become entangled in a legally deployed baitnet,
disentanglement efforts should begin immediately to minimize the threat
of the whale becoming injured seriously or killed. Accordingly, these
final regulations are applicable to all sink gillnets and other gillnet
gear capable of catching multispecies, except for single pelagic
gillnets as described in Sec. 648.81(f)(2)(ii). In addition, gillnet
gear modifications may be developed that would minimize the risk of
whale entanglement and/or minimize the chances that an entanglement
will result in the serious injury or mortality of a whale. If such gear
modifications are determined to represent an acceptable risk, the
Regional Administrator may authorize an experimental fishery in the
time/area closures under this action. Since the northern right whale is
an endangered species, the efficacy of proposed gear modifications
cannot be directly tested. Therefore, before implementation through an
experimental fishery, proposed gear modifications must be subjected to
rigorous technical review for practicability and potential
effectiveness. The process by which proposed gear modifications will
undergo technical review for potential effectiveness and practicability
is as follows:
Ideas for gear modifications will be sought from the
fishing industry, gear specialists, the academic community, and
conservation organizations.
Gear modification proposals will be reviewed and refined
by the Gear Modification Development Group. Among others, the Group
will include a core of engineers or other specialists who can provide
detailed technical review of proposals.
The Gear Modification Development Group will forward
acceptable proposals to the Council's Marine Mammal Committee and/or
responsible fisheries committee for its consideration.
The Committee(s) will report to the full Council, and the
Council will recommend to the NMFS Regional Administrator what gear
modifications should be implemented as an experimental fishery in the
closed areas. The Regional Administrator will decide within 60 days
whether to authorize the experimental fishery under the Magnuson-
Stevens Fishery Conservation and Management Act.
The Council 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.
Adherence to Framework Procedure Requirements
The Council considered the public comments prior to making its
recommendation to the Regional Administrator under the provisions for
abbreviated rulemaking in this FMP. The Council requested 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. NMFS concurs with the Council's analysis.
Comments and Responses
NMFS requested that the Council initiate action on Framework
Adjustment 23 at its meeting on December 11-12, 1996. The proposed
action was discussed by the Council at that meeting and both the
Council and the public had the opportunity to comment at the next two
Council meetings (the minimum required under the FMP framework
adjustment process). The first meeting was held on January 16, 1997,
and the second meeting took place on January 29-30, 1997. Both Council
meetings were held in Danvers, MA. Documents summarizing the Council's
proposed action, the biological analyses upon which this decision was
based and potential economic impacts were available for public review 5
days prior to the second meeting as required under the framework
adjustment process. Written comments were accepted through January 30,
1997. Comments on the Council's proposal were received from a Council
member, the International Wildlife Coalition and Massachusetts
Gillnetters Association.
Comment 1: NMFS, in several forums and documents, has stated that
fishery entanglements are the known cause of a relatively small portion
of the observed right whale mortalities and that entanglement in sink
gillnet gear from a U.S. fisher has never been identified as cause of a
right whale's death.
Response: Of the 41 right whale mortalities observed since 1970
(New England Aquarium, unpublished data), 2 have been attributed to
fishery entanglements and 14 have been attributed to ship strikes. The
remainder of the mortalities are from unknown or natural causes. Since
1970, there was a total of approximately 31 records of right whale
entanglements in all types
[[Page 15427]]
of commercial fishing gear that did not result in immediate mortality
(NMFS, unpublished data). Although the gear type often cannot be
attributed to a specific fishery, gear types that have been identified
include a weir, traps, several types of nets, and pot/trap gear. As the
gear is often unmarked and the entangled whales can carry it for
hundreds of miles, the country of origin cannot always be determined.
Furthermore, entanglement in sink gillnet gear has been documented
in Canadian waters. Because this same gear type is used by U.S. fishers
in right whale high-use areas, there is a potential for entanglement in
U.S. gillnet gear.
Comment 2: Ship strikes are a far greater source of mortality, yet
the U.S. sink gillnet fishery is held responsible and restricted to
reduce mortalities. Gillnetters have been singled out as the single
culprit of a multi-faceted problem. Such an approach is illogical,
unconscionable, and probably ineffective.
Response: Recovery of the right whale population is a multi-faceted
problem involving the many water-borne activities that may affect the
whales. It is certain that ship strikes present a significant threat to
right whales. NMFS is aggressively working with the shipping community
on the problem. A sighting and reporting network has been established
to warn vessel traffic of the presence of whales in high use areas.
Other outreach programs are being developed; for example, NMFS is
helping to support a workshop on the problem for all components of the
shipping industry. The Commonwealth of Massachusetts, U.S. Navy, U.S.
Coast Guard, NMFS, and the Center for Coastal Studies have provided
resources for sighting and outreach efforts. Also, NMFS recently issued
an interim final rule that prohibits vessels from approaching right
whales to within 500 yd (460 m) (62 FR 6729, February 13, 1997).
As noted above, right whales are known to have become entangled in
gear types other than multispecies gillnet gear. Under separate
authority, NMFS intends to place restrictions on the lobster trap/pot
fishery (along with provisions for experimental fisheries with approved
gear modifications) similar to those imposed on the multispecies
gillnet fishery by this action. NMFS is not considering the impacts of
the sink gillnet fishery in isolation, but in combination with impacts
of other activities.
Comment 3: The proposed action allows fishing to continue in the
portion of the designated Great South Channel Critical Habitat to the
west of LORAN C 13710. While this regulation may limit the potential
for increased interaction between right whales and gillnets within the
critical habitat, the current lack of fishery activity within the time
and area of the proposed action results in little or no reduction in
the potential for entanglement. Therefore, the proposed action is
unlikely to meet its objective. The entire critical habitat should be
closed from April through June of each year.
Response: Of all the right whale sightings in the Great South
Channel Critical Habitat from April through June, 97 percent have been
in the area to the east of LORAN C 13710 (Dr. James Hain, NEFSC, report
to the Large Whale Take Reduction Team). This action removes sink
gillnets and other gillnet gear capable of catching multispecies
finfishes, with the exception of a single pelagic gillnet (as described
in Sec. 648.81(f)(2)(ii)), from this area and accordingly, could reduce
the likelihood of a right whale becoming entangled in a gillnet in the
critical habitat area by 97 percent. Arguably, the closure of the
entire critical habitat area would affect more fishers more
significantly than the proposed action and may provide considerable
incentive for the industry to develop and operationally test a range of
methods and gear modifications. On the other hand, the broader closure
would not offer any significant additional risk reduction while
impacting a significantly larger number of fishing vessels that utilize
the western portion of the critical habitat area in the spring.
Comment 4: Under the action, experimental fisheries may be
authorized in the closed areas if gear modifications are developed that
would reduce the risks of entanglement and/or minimize the injurious
effect of potential entanglements. To ensure timely and consistent
review of proposed gear modifications, NMFS needs to establish a
technical review process.
Response: NMFS has developed a process for review and development
of gear modifications that would potentially minimize the risks of
right whale entanglements. The process would establish first a Gear
Modification Development Group, consisting of a core of engineers and
gear specialists, which would solicit, review for potential
effectiveness and practicability, and provide technical advice on gear
modification proposals from the fishing industry, academic community,
conservation organizations, and the general public. Next, under the
process, the Gear Modification Development Group would report its
findings to the Marine Mammal Committee and/or Responsible Fisheries
Committee of the Council for their consideration. The Committees would
then report to the full Council, and the Council would recommend to the
Regional Administrator what acceptable gear modifications should be
implemented as an experimental fishery or other appropriate measures in
the closed areas.
Comment 5: NMFS should initiate and/or finance the development of
gear modifications.
Response: The financing of gear development is being considered by
NMFS. Presently, no funds are earmarked for this purpose.
Classification
Because prior notice and opportunity for comment are not required
for this regulation by 5 U.S.C. 553 or by any other law, under 5 U.S.C.
603 and 604, preparation of an initial or final regulatory flexibility
analysis is not required by the Regulatory Flexibility Act and none has
been prepared.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
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) of the Administrative Procedure Act (APA).
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. The AA finds
that under 5 U.S.C. 553(d), the need to have this regulation in place
by April 1, 1997, is good cause to waive the 30-day delay in
effectiveness of this regulation. Delay of implementation of this
regulation beyond April 1, 1997, would likely jeopardize the continued
existence of northern right whales.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 26, 1997.
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.
[[Page 15428]]
2. Section 648.14(a)(89) is revised to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(89) Fail to remove, use, set, haul back, fish with, or possess on
board a vessel, unless stowed in accordance with Sec. 648.81(e)(4),
sink gillnet gear and other gillnet gear capable of catching
multispecies, with the exception of single pelagic gillnets (as
described in Sec. 648.81(f)(2)(ii)), in the areas and for the times
specified in Sec. 648.87 (a) and (b), except as provided in
Secs. 648.81(f)(2)(ii) and 648.87 (a) and (b), or unless otherwise
authorized in writing by the Regional Director.
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3. Section 648.87 is amended by revising the section heading and
paragraph (a) and paragraph (b) to read as follows:
Sec. 648.87 Gillnet requirements to reduce or prevent marine mammal
takes.
(a) Areas closed to gillnet gear capable of catching multispecies
to reduce harbor porpoise takes. Sections 648.81 (f) through (h) set
forth closed area restrictions to reduce the take of harbor porpoise
consistent with the harbor porpoise mortality reduction goals. Further,
all persons owning or operating vessels in the EEZ portion of the areas
and times specified in paragraphs (a) (1) and (2) of this section must
remove all of their sink gillnet gear and other gillnet gear capable of
catching multispecies, with the exception of single pelagic gillnets
(as described in Sec. 648.81(f)(2)(ii)), and may not use, set, haul
back, fish with, or possess on board, unless stowed in accordance with
the requirements of Sec. 648.81(e)(4), sink gillnet gear or other
gillnet gear capable of catching multispecies, with the exception of
single pelagic gillnet gear (as described in Sec. 648.81(f)(2)(ii)) in
the EEZ portion of the areas and for the times specified in paragraphs
(a) (1) and (2) of this section. Also, all persons owning or operating
vessels issued a limited access multispecies permit must remove all of
their sink gillnet gear and other gillnet gear capable of catching
multispecies, with the exception of single pelagic gillnets (as
described in Sec. 648.81(f)(2)(ii)), from the areas and for the times
specified in paragraphs (a) (1) and (2) of this section, and, may not
use, set, haul back, fish with, or possess on board, unless stowed in
accordance with the requirements of Sec. 648.81(e)(4), sink gillnets or
other gillnet gear capable of catching multispecies, with the exception
of single pelagic gillnets (as described in Sec. 648.81(f)(2)(ii)) in
the areas and for the times specified in paragraphs (a) (1) and (2) of
this section.
(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 paragraph (a) of this
section apply to the Mid-coast Closure Area, as defined under
Sec. 648.81(g)(1), except as provided in paragraph (a)(1)(ii) of this
section.
(ii) Vessels subject to the restrictions and regulations specified
in paragraph (a) of this section 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 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.
(2) Cape Cod South Closure Area. From March 1 through March 30 of
each fishing year, the restrictions and requirements specified in
paragraph (a) of this section apply to the Cape Cod South Closure Area
(copies of a chart depicting this area are available from the Regional
Director upon request), which is the area bounded by straight lines
connecting the following points in the order stated.
Cape Cod South Closure Area
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Point N. Latitude W. Longitude
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CCS1............................ (\1\).............. 71 deg.45' W
CCS2............................ 40 deg.40' N....... 71 deg.45' W
CCS3............................ 40 deg.40' N....... 70 deg.30' W
CCS4............................ (\2\).............. 70 deg.30' W
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\1\ RI Shoreline.
\2\ MA Shoreline.
(b) Areas closed to gillnet gear capable of catching multispecies
to prevent right whale takes. All persons owning or operating vessels
must remove all of their sink gillnet gear and gillnet gear capable of
catching multispecies, with the exception of single pelagic gillnets
(as described in Sec. 648.81(f)(2)(ii)), from the EEZ portion of the
areas and for the times specified in (b) (1) and (2) of this section,
and may not use, set, haul back, fish with, or possess on board, unless
stowed in accordance with the requirements of Sec. 648.81(e)(4), sink
gillnet gear or gillnet gear capable of catching multispecies, with the
exception of single pelagic gillnet gear (as described in
Sec. 648.81(f)(2)(ii)) in the EEZ portion of the areas and for the
times specified in paragraphs (b) (1) and (2) of this section.
(1) Cape Cod Bay Critical Habitat Closure Area. From March 27, 1997
through May 15, 1997 and from January 1 through May 15 of each
subsequent year, the restrictions and requirements specified in
paragraph (b) of this section apply to the Cape Cod Bay Critical
Habitat Closure Area (copies of a chart depicting this area are
available from the Regional Director upon request), which is the area
bounded by straight lines connecting the following points in the order
stated.
Cape Cod Bay Critical Habitat Closure Area
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Point N. Latitude W. Longitude
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CCB1........................... 42 deg.12' N...... 70 deg.30' W
CCB2........................... 42 deg.12' N...... 70 deg.15' W
CCB3........................... 42 deg.08' N...... 70 deg.12.4' W
Then westerly along the 3 NM state boundary to
CCB4........................... 42 deg.08' N...... 70 deg.30' W
Then due north to CCB1.
------------------------------------------------------------------------
(2) Great South Channel Critical Habitat Closure Area. From April 1
through June 30 of each year, the restrictions and requirements
specified in paragraph (b) of this section apply to the Great South
Channel Critical Habitat Closure Area (copies of a chart depicting this
area are available from the Regional Director upon request), which is
the area bounded by straight lines connecting the following points in
the order stated.
Great South Channel Critical Habitat Closure Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
GSC1........................... 41 deg.02.2' N.... 69 deg.02' W
GSC2........................... 41 deg.43.5' N.... 69 deg.36.3' W
GSC3........................... 42 deg.10' N...... 68 deg.31' W
GSC4........................... 41 deg.38' N...... 68 deg.13' W
------------------------------------------------------------------------
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[FR Doc. 97-8234 Filed 3-27-97; 4:41 pm]
BILLING CODE 3510-22-P
