[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Rules and Regulations]
[Pages 15704-15707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8049]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 990324080-9080-01; I.D. 031599D]
RIN 0648-AM10
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustment 28
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 28 of the Northeast Multispecies Fishery Management Plan
(FMP). This final rule allows the use, at specified times, of gillnets
in areas otherwise closed to gillnet gear, provided they are equipped
with pingers; removes the pinger specifications currently contained in
the regulations and references the pinger specifications found in the
Harbor Porpoise Take Reduction Plan (HPTRP); extends the Cape Cod South
and Massachusetts Bay Closure Areas (March 1-March 30) to December 1-
May 31; modifies the Mid-Coast Closure
[[Page 15705]]
Area coordinates in the regulations to comport with those specified in
the HPTRP; and replaces the framework adjustment procedure requiring
the New England Fishery Management Council's (Council's) Harbor
Porpoise Review Team to annually review harbor porpoise mortality goals
with a procedure using the information and recommendations provided by
the HPTRP's Harbor Porpoise Take Reduction Team. The intent of this
action is to make the regulations to protect harbor porpoise in the
Northeast multispecies fishery, issued under the authority of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) consistent, to the extent allowed by the Magnuson-Stevens
Act, with the HPTRP and the regulations issued under the authority of
the Marine Mammal Protection Act (MMPA) to implement the HPTRP.
DATES: Effective March 29, 1999.
ADDRESSES: Copies of Amendment 7 to the FMP, its regulatory impact
review (RIR), and the final regulatory flexibility analysis contained
within the RIR, its final supplemental environmental impact statement,
and Framework Adjustment 28 documents are available on request from
Paul J. Howard, Executive Director, New England Fishery Management
Council, 5 Broadway, Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: David M. Gouveia, Fishery Management
Specialist, 978-281-9280.
SUPPLEMENTARY INFORMATION: Framework Adjustment 28 was developed by the
Council to make the regulations to protect harbor porpoise in the
Northeast multispecies fishery, issued under the authority of the
Magnuson-Stevens Act, consistent, to the extent allowed by the
Magnuson-Stevens Act, with the HPTRP and the regulations issued under
the authority of the MMPA to implement the HPTRP.
The 1994 amendments to the MMPA require the preparation and
implementation of take reduction plans for strategic marine mammal
stocks that interact with Category I or II fisheries. A fishery is
designated by NMFS as a Category I fishery if it has frequent
incidental mortality and serious injury of marine mammals while a
fishery is designated by NMFS as a Category II fishery if it has
occasional serious injuries and mortalities of marine mammals. Based on
harbor porpoise bycatch information contained in the marine mammal
stock assessment reports, the Northeast multispecies sink gillnet
fishery was classified as a Category I fishery and the Mid-Atlantic
coastal gillnet fishery was classified as a Category II fishery.
In response to MMPA mandates, on December 2, 1998 (63 FR 66464),
NMFS issued regulations implementing the HPTRP. The HPTRP contains
measures to reduce harbor porpoise takes in the Gulf of Maine Northeast
multispecies gillnet fishery and the Mid-Atlantic coastal gillnet
fishery. Regulations issued under the authority of the Magnuson-Stevens
Act to implement the FMP also contain measures to achieve harbor
porpoise mortality reduction goals. However, some of the FMP
implementing regulations are inconsistent with the HPTRP and the
regulations issued to implement the HPTRP. This action would eliminate
the inconsistencies in the Magnuson-Stevens Act FMP implementing
regulations, to the extent allowed by the Magnuson-Stevens Act, by
allowing the use, at specified times, of gillnets in areas currently
closed to gillnet gear, provided they are equipped with pingers;
removing the pinger specifications currently contained in the
regulations and referencing the pinger specifications found in the
HPTRP; extending the Cape Cod South and Massachusetts Bay Closure Areas
(March 1-March 30) to December 1-May 31; modifying the Mid-Coast
Closure Area coordinates in the regulations to comport with those
specified in the HPTRP; and replacing the framework adjustment
procedure requiring the Council's Harbor Porpoise Review Team to
annually review harbor porpoise mortality goals with a procedure using
the information and recommendations provided by the HPTRP's Harbor
Porpoise Take Review Team. Because of the limitations of NMFS authority
in regulating fishing vessels without Federal permits that fish
exclusively in state waters, the multispecies regulations cannot mirror
state regulations on fishing activity as specified in the HPTRP and
HPTRP implementing regulations.
Abbreviated Rulemaking
NMFS is making these revisions 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 regulations, 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 with an 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 Administrator,
Northeast Region, NMFS, that the measures be published as a final rule
if certain conditions are met. NMFS may publish the measures as a final
rule, or as a proposed rule if additional public comment is necessary.
The public was provided the opportunity to comment on the
management measures contained in Framework 28 at the Council's January
28, 1999, and February 24, 1999, meetings. 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 one week prior to the final February 24, 1999, meeting, as is
required under the framework adjustment procedures. Written comments
could be submitted up to and during that meeting. No comments were
received.
Classification
This rule makes the regulations protecting harbor porpoise in the
Northeast multispecies fishery in the FMP implementing regulations
consistent, to the extent allowed by the Magnuson-Stevens Act, with the
HPTRP and the regulations implementing the HPTRP. Notice and
opportunity for public comment were provided to discuss the management
measures implemented by this final rule. In addition, this framework
needs to be filed with the Office of the Federal Register as soon as
possible in order to allow gillnet vessels to fish in the Mid-Coast
Closure Area, as allowed under the HPTRP. Therefore, the Assistant
Administrator for Fisheries, NOAA (AA), finds for good cause, under 5
U.S.C. 553(b)(B), that additional prior notice and additional
opportunity for public comment are unnecessary and contrary to the
public interest.
Because Framework Adjustment 28 relieves more stringent measures by
providing industry the opportunity to fish with gillnet gear equipped
with pingers in areas currently closed to gillnet gear, under 5 U.S.C.
553(d)(1), it is not subject to a 30-day delay in effectiveness.
Because prior notice and an opportunity for public comment are not
required to be provided for this rule by 5 U.S.C. 553, or by any other
law, the analytical requirements of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., are inapplicable. A Final Regulatory Flexibility
Analysis (FRFA) was prepared as part of the referenced Environmental
Assessment for the HPTRP. Although the FRFA indicates that the HPTRP is
significant because of the increased operating costs caused by
[[Page 15706]]
the HPTRP, this analysis is not applicable to this framework action.
This action merely results in eliminating a more stringent measure in
order to achieve consistency with the HPTRP.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 29, 1999.
Andrew A. Rosenberg,
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. In Sec. 648.14, paragraphs (a)(90) and (c)(10) are revised to
read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(90) Use, set, haul back, fish with, fail to remove, or possess on
board a vessel, unless stowed in accordance with Sec. 648.81(e)(4),
sink gillnets and other gillnet gear capable of catching multispecies,
with the exception of pelagic gillnets (conforming to all requirements
for the use of such gillnets in Sec. 648.81(f)(2)(ii)) or gillnet gear
equipped with pingers (as described in Sec. 229.33(b) of this title),
in the areas and for the times specified in Sec. 648.87 (a) and (b),
except as provided in Sec. 648.81(f)(2)(ii) and Sec. 648.87 (a) and
(b), or unless otherwise authorized in writing by the Regional
Administrator.
* * * * *
(c) * * *
(10) Enter, fail to remove sink gillnets and other gillnet gear
capable of catching multispecies from, or be in the areas, and for the
times, described in Sec. 648.87 (a) and (b), except as provided in
Sec. 648.81(d), and (f)(2), and in Sec. 648.87(a)(1)(ii), (a)(2)(ii),
and (a)(3)(ii).
* * * * *
3. In Sec. 648.87, paragraphs (a) and (c) are revised 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. Section 648.81(f) sets forth a closed
area restriction 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), (a)(2), and (a)(3) of this section must
remove all of their sink gillnets and other gillnet gear capable of
catching multispecies, with the exception of pelagic gillnets
(conforming to all requirements for the use of such gillnets in
Sec. 648.81(f)(2)(ii)) or gillnet gear equipped with pingers (as
described in Sec. 229.33(b) of this title), 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 and other gillnet
gear capable of catching multispecies, with the exception of pelagic
gillnets (conforming to all requirements for the use of such gillnets
in Sec. 648.81(f)(2)(ii)) or gillnet gear equipped with pingers (as
described in Sec. 229.33(b) of this title) in the EEZ portion of the
areas and for the times specified in paragraphs (a)(1), (a)(2), and
(a)(3) of this section. Also, all persons owning or operating vessels
issued a limited access multispecies permit must remove all of their
sink gillnets and other gillnet gear capable of catching multispecies,
with the exception of pelagic gillnets (conforming to all requirements
for the use of such gillnets in Sec. 648.81(f)(2)(ii)) or gillnet gear
equipped with pingers (as described in Sec. 229.33(b) of this title),
from the areas and for the times specified in paragraphs (a)(1),
(a)(2), and (a)(3) 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 and other gillnet gear
capable of catching multispecies, with the exception of pelagic
gillnets (conforming to all requirements for the use of such gillnets
in Sec. 648.81(f)(2)(ii)) or gillnet gear equipped with pingers (as
described in Sec. 229.33(b) of this title) in the areas and for the
times specified in paragraphs (a)(1), (a)(2), and (a)(3) of this
section.
(1) Mid-coast Closure Area. (i) From September 15 through May 31 of
each fishing year, the restrictions and requirements specified in
paragraph (a) of this section apply to the Mid-coast Closure Area
(copies of a chart depicting this area are available from the Regional
Administrator upon request), except as provided in paragraph (a)(1)(ii)
of this section, which is the area bounded by straight lines connecting
the following points in the order stated.
Mid-Coast Closure Area
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Point N. latitude W. longitude
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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.30' 69 deg.30'
MC8............................. 43 deg.30' 69 deg.00'
MC9............................. (\2\) 69 deg.00'
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\1\ Massachusetts shoreline.
\2\ Maine shoreline.
(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 paragraph (a)(1)(i) of this section, from
September 15 through May 31 of each fishing year, provided that pingers
are used in accordance with the requirements found at Sec. 229.33(b) of
this title.
(2) Cape Cod South Closure Area. (i) From December 1 through May 31
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
Administrator upon request), except as provided in paragraph (a)(2)(ii)
of this section, 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'
CCS2............................ 40 deg.40' 71 deg.45'
CCS3............................ 40 deg.40' 70 deg.30'
CCS4............................ (\2\) 70 deg.30'
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\1\ RI Shoreline.
\2\ MA Shoreline.
(ii) Vessels subject to the restrictions and regulations specified
in paragraph (a) of this section may fish in the Cape Cod South Closure
Area, as defined under paragraph (a)(2)(i) of this section, from
December 1 through the last day of February and April 1 through May 31
of each fishing year, provided that pingers are used in accordance with
the requirements found at Sec. 229.33(b) of this title.
(3) Massachusetts Bay Closure Area. (i) From December 1 through May
31 of each fishing year, the restrictions and requirements specified in
paragraph (a) of this section apply to the Massachusetts Bay Closure
Area (copies of a chart depicting this area are available from the
Regional Administrator upon request), except as
[[Page 15707]]
provided in paragraph (a)(3)(ii) of this section, which is the area
bounded by straight lines connecting the following points in the order
stated.
Massachusetts Bay Closure Area
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Point N. latitude W. longitude
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MB1............................. 42 deg.30' (\1\)
MB2............................. 42 deg.30' 70 deg.30'
MB3............................. 42 deg.12' 70 deg.30'
MB4............................. 42 deg.12' 70 deg.00'
MB5............................. (\2\) 70 deg.00'
MB6............................. 42 deg.00' (\2\)
MB7............................. 42 deg.00' (\1\)
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\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.
(ii) Vessels subject to the restrictions and regulations specified
in paragraph (a) of this section may fish in the Massachusetts Bay
Closure Area, as defined under paragraph (a)(3)(i) of this section,
from December 1 through the last day of February and April 1 through
May 31 of each fishing year, provided that pingers are used in
accordance with the requirements found at Sec. 229.33(b) of this title.
* * * * *
(c) Framework adjustment. (1) The Harbor Porpoise Take Reduction
Team will provide the NEFMC with the best available information on the
status of Gulf of Maine harbor porpoise, including estimates of
abundance and estimates of bycatch in the sink gillnet fishery.
(2) After receiving and reviewing the Harbor Porpoise Take Review
Team's findings and recommendations, the NEFMC shall determine whether
adjustments or additional management measures are necessary to avoid
inconsistencies with the Harbor Porpoise Take Reduction Plan. If the
NEFMC determines that adjustments or additional management measures are
necessary, it shall develop and analyze appropriate management actions
over the span of at least two NEFMC meetings.
(3) The NEFMC shall provide the public with advance notice of the
availability of the proposals, appropriate rationale, economic and
biological analyses, and opportunity to comment on them prior to and at
the second NEFMC meeting. The NEFMC's recommendation on adjustments or
additions to management measures must come from one or more of the
categories specified under Sec. 648.90(b)(1).
(4) If the NEFMC recommends that the management measures should be
issued as a final rule, the NEFMC must consider at least the factors
specified in Sec. 648.90(b)(2).
(5) The Regional Administrator may accept, reject, or with NEFMC
approval, modify the NEFMC's recommendation, including the NEFMC's
recommendation to issue a final rule, as specified under
Sec. 648.90(b)(3).
[FR Doc. 99-8049 Filed 3-29-99; 3:08 pm]
BILLING CODE 3510-22-P
