[Federal Register Volume 59, Number 137 (Tuesday, July 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17437]
[[Page Unknown]]
[Federal Register: July 19, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Part 651
[Docket No. 940796-4196; I.D. 061094B]
RIN 0648-AG84
Northeast Multispecies Fishery
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 Framework Adjustment
3 to the Northeast Multispecies Fishery Management Plan (FMP). The
intent of this rule is to reduce the potential for vessels to direct
fishing effort on regulated multispecies finfish with mesh smaller than
the regulated minimum size. This rule limits the amount of regulated
species allowed on board vessels fishing with small mesh to either 500
lb (226.8 kg) or 10 percent of the weight of non-regulated species,
whichever is less.
EFFECTIVE DATE: August 17, 1994.
ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR)
and the initial regulatory flexibility analysis contained within the
RIR, its final supplemental environmental impact statement (FSEIS), and
Framework Adjustment 3 are available upon request from Douglas G.
Marshall, Executive Director, New England Fishery Management Council, 5
Broadway, Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, NMFS, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION:
Background
NMFS approved Amendment 5 to the FMP on January 3, 1994. The
primary purpose of Amendment 5 is to eliminate the overfished condition
of the primary stocks of the multispecies complex by increasing the
spawning stock biomass per recruit. This objective is to be achieved
primarily through an effort reduction program supplemented by an
increase in the minimum mesh size that vessels can use while fishing
for regulated species.
By increasing mesh size, fishing mortality rates on fully recruited
ages would not have to be reduced as much to achieve the same increase
in spawning stock biomass per recruit. Therefore, under Amendment 5,
vessels fishing for non-regulated species and using nets with mesh
smaller than the regulated minimum size were limited to 500 lb (226.8
kg) of regulated species. The intent of this limited allowance was to
enable legitimate small-mesh fisheries to continue without compromising
efforts to conserve regulated species through the mesh-size increase.
NMFS implemented minimum mesh size increases, regulated mesh areas,
and the 500-lb (226.8-kg) possession limit of regulated species that
applies to fishing vessels fishing with small mesh included in
Amendment 5 on March 1, 1994 (59 FR 9872). The New England Fishery
Management Council (Council) developed Framework Adjustment 3 in
response to industry concerns that, under current stock conditions, the
500-lb (226.8-kg) possession limit is sufficient incentive for vessel
operators to target regulated species with small-mesh nets. When the
Council began development of Amendment 5, a 500-lb (226.8-kg)
possession limit was considered too low to encourage targeting. Since
then, the stocks have further deteriorated and, as a result, catch
rates are reduced to the point where 500 lb (226.8 kg) is viewed as an
opportunity to catch what many vessel operators now consider a
reasonable day's catch in less time, using small mesh. Therefore,
instead of directing their effort during times and in areas where
small-mesh species are traditionally caught with a relatively small
(less than 10 percent) bycatch of regulated species, these vessels
could target areas where regulated species have historically been
caught, with a potentially far greater impact on those stocks.
The Council's and NMFS' intent is to prevent vessels from targeting
regulated species with small-mesh nets, consistent with the explicit
objectives of Amendment 5. From the time Amendment 5 was approved in
January 1994, fishermen and their association representatives have
described to the Council how vessels are gearing up to target regulated
species with small-mesh nets under the 500-lb (226.8-kg) possession
limit. The purpose of this framework adjustment is to preserve the
continuation of legitimate small mesh fisheries, with limited
incidental catches of regulated species, while preventing a directed
small-mesh fishery for regulated species under the 500-lb (226.8-kg)
possession limit. Restricting the amount of regulated species a vessel
may retain on board, or land per trip, while fishing with small mesh
nets, unless the vessel is fishing under the net stowage exemption
specified under Sec. 651.20(c)(3)(i) or (d)(3)(ii), to 10 percent of
the weight of non-regulated species, to a maximum of 500 lb (226.8 kg),
will not impose any significant restrictions on existing small-mesh
fisheries, but will create a disincentive for vessels to begin
targeting regulated species with small mesh. Therefore, this framework
action preserves the Council's intent by: (1) Discouraging this
practice, (2) allowing a reasonable bycatch in legitimate small-mesh
fisheries, and (3) allowing a 500-lb (226.8-kg) trip limit for vessels
targeting regulated species using nets with the regulated minimum mesh
size.
In this rule, NMFS is also adding language to the small-mesh
provisions for the Mid-Atlantic area and the Southern New England area
to clarify that small mesh may not be used to harvest more than the
possession limit of regulated species.
NMFS is amending the multispecies regulations following the
framework abbreviated rulemaking procedure established by Amendment 5
and codified at 50 CFR part 651, subpart C. The Council followed the
procedure required in 50 CFR part 651 when making specifically allowed
adjustments to the FMP, by developing and analyzing the actions over
the span of a minimum of two Council meetings on March 17, and April 7,
1994. The Council provided the public with advance notice of both the
proposal and the analysis, and an opportunity to comment on them prior
to and at the second Council meeting on April 7. Upon review of the
analysis and public comment, the Council recommended to the Director,
Northeast Region, NMFS (Regional Director), that the measures contained
in Framework 3 be published as a final rule. The Regional Director has
further determined that the measures in Framework 3 are appropriate to
publish as a final rule.
Since the Council undertook development of Amendment 5, the
condition of several stocks of regulated species has deteriorated
further. In fact, each new assessment of multispecies stocks underlines
the urgency of implementing rigorous and effective management measures.
The framework adjustment that this rule implements will enhance the
conservation impact of the FMP without generating a significant
economic or social impact.
Comments and Responses
During the period following the approval of Amendment 5 and
preceding the Council's formal initiation of this framework adjustment,
a number of industry members and interested members of the public
commented on the problems with the current possession limit rule for
regulated species. All comments were in support of the Council
expeditiously making the adjustment contained in this rule. During this
pre-framework period, two individuals submitted written comments
alerting the Council to the problem and urging it to take appropriate
action.
During the comment period spanning the two required Council
meetings, the Council received written comments from the West End
Fishermen's Association and one individual. Oral comments were made to
the Council by representatives of the Conservation Law Foundation, Mid-
Atlantic Fisheries Management Council, Point Judith Fishermen's Co-
operative Association, Offshore Mariner's Association, Gloucester
Fisheries Commission, and two individuals.
After the Council submitted its recommendations to NMFS, NMFS
received additional written comments from the New Hampshire Commercial
Fishermen's Association and 37 individuals.
Comment: During the period in which the Council was developing the
framework recommendation, four associations and one individual stated
support for the proposed adjustment. After the Council submitted its
recommendation, one association submitted comments to NMFS, also in
support.
Response: The comments have been noted and the adjustment has been
approved.
Comment: Two associations questioned whether the rule is a
``possession limit,'' enforced at sea, or a ``trip limit,'' enforced at
the dock at the end of the trip.
Response: The 500-lb (226.8-kg) possession limit and the 10 percent
limit of regulated species when using small mesh will be enforced at
sea and at the dock. However, the Coast Guard acknowledged the
difficulty in enforcing the percentage of the total catch at sea and
indicated that discretion will have to be used by the boarding official
when evaluating the catch for regulated versus non-regulated species.
Comment: During the period in which the Council was developing the
framework recommendation, three individuals opposed adding the
percentage aspect of the rule. After the Council submitted its
recommendation, 37 individuals submitted comments to NMFS also opposing
adding the percentage aspect of the rule. They maintained that a
straight 500-lb (226.8-kg) limit would enable small vessels to survive
economically and would not force these boats to search for and catch
non-regulated species in order to keep the limit of regulated species,
or to discard regulated species if the non-regulated species could not
be caught or landed. It was stated that a directed fishery on regulated
species with small mesh is only perceived as a problem and is not
substantiated. Further, it was maintained that there has been
sufficient time for public comment throughout the development of
Amendment 5 and that the 500-lb (226.8-kg) provision should be given a
chance to work.
Response: Based on Council findings and other public comments, the
potential of a directed small-mesh fishery on regulated species is
strong. This potential was not as evident at the time Amendment 5 was
approved. In adopting the original possession limit in Amendment 5, the
Council did not intend to allow directed small-mesh effort on regulated
species. Given the severely depleted state of the primary regulated
species, NMFS has determined that it must support the Council's
framework recommendation as a necessary, risk averse measure.
Nevertheless, the new possession limit measure will still allow vessels
fishing with small mesh to continue with a minimum allowance for
incidentally caught regulated species. Accordingly, there should be no
negative impact on traditional small-mesh fisheries.
Classification
This regulation is not subject to the requirements to prepare a
proposed rule because adequate opportunity was provided for prior
public comment when the action was proposed and discussed over the
course of two Council meetings. Because no proposed rule was required,
this action is exempt from the procedures of the Regulatory Flexibility
Act.
This final rule is exempt from review under E.O. 12866.
The Assistant Administrator for Fisheries, NOAA, finds there is
good cause to waive prior notice 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 opportunity for public
comment to be considered. Thus, additional opportunity for public
comment is unnecessary.
List of Subjects in 50 CFR Part 651
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 12, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 651 is amended
as follows:
PART 651--NORTHEAST MULTISPECIES FISHERY
1. The authority citation for part 651 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 651.9 is amended by revising paragraphs (b)(1), (d), and
(e)(2) introductory text to read as follows:
Sec. 651.9 Prohibitions.
* * * * *
(b) * * *
(1) Possess at any time during a trip, or land per trip, more than
the possession limit of regulated species per trip as specified in
Sec. 651.27(a), after accruing the vessel's annual DAS allocation or
when not participating under the DAS program pursuant to Sec. 651.22.
* * * * *
(d) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a possession-limit-only permit under Sec. 651.4(c) to
possess at any time during a trip, or land per trip, more than the
possession limit of regulated species as specified in Sec. 651.27(a).
(e) * * *
(2) Possess at any time during a trip, or land per trip, more than
the possession limit of regulated species as specified in
Sec. 651.27(a) unless:
* * * * *
3. Section 651.20 is amended by revising paragraphs (a)(3)(i),
(a)(4)(i)(A), (c)(3)(i), (c)(3)(ii), (d)(3)(i), (d)(3)(ii), (e)(1)(iv),
and (f)(4) to read as follows:
Sec. 651.20 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(a) * * *
(3) * * *
(i) Possession limit exemption. A vessel may not possess on board
at any time during a trip, or land per trip, more than the possession
limit of regulated species as specified in Sec. 651.27(a).
* * * * *
(4) * * *
(i) * * *
(A) A bycatch limit not to exceed the possession limit of regulated
species as specified in Sec. 651.27(a).
* * * * *
(c) * * *
(3) * * *
(i) Possession limit exemption. Vessels in the Southern New England
regulated mesh area may fish with nets of mesh size smaller than the
minimum size specified in paragraph (c)(2) of this section, provided
such vessels do not possess at any time during a trip, or land per
trip, more than the possession limit of regulated species as specified
in Sec. 651.27(a).
(ii) Net stowage exemption. Vessels may possess more than the
possession limit of regulated species as specified in Sec. 651.27(a)
while in possession of nets with mesh less than the minimum size
specified in paragraph (c)(2) of this section, provided that the nets
are stowed and are not available for immediate use in accordance with
paragraph (c)(4) of this section, and provided that more than the
possession limit of regulated species were not harvested by nets of
mesh size smaller than the minimum mesh size specified in paragraph
(c)(2) of this section.
* * * * *
(d) * * *
(3) * * *
(i) Possession limit exemption. Vessels in the Mid-Atlantic
regulated mesh area may fish with nets of mesh size smaller than the
minimum size specified in paragraph (d)(2) of this section, provided
such vessels do not possess or land per trip more than the possession
limit of regulated species as specified in Sec. 651.27(a).
(ii) Net stowage exemption. Vessels may possess more than the
possession limit of regulated species as specified in Sec. 651.27(a)
while in possession of nets with mesh less than the minimum size
specified in paragraph (d)(2) of this section, provided that the nets
are stowed and are not available for immediate use in accordance with
paragraph (c)(4) of this section, and provided that more than the
possession limit of regulated species were not harvested by nets of
mesh size smaller than the minimum mesh size specified in paragraph
(d)(2) of this section.
(e) * * *
(1) * * *
(iv) The bycatch does not exceed the possession limit of regulated
species as specified in Sec. 651.27(a).
* * * * *
(f) * * *
(4) The bycatch of regulated species does not exceed the possession
limit of regulated species as specified in Sec. 651.27(a).
* * * * *
4. Section 651.22 is amended by revising paragraphs (c)(1)(i)
heading, (c)(1)(i)(B), and (d)(2)(ii) to read as follows:
Sec. 651.22 Effort-control program for limited access vessels.
* * * * *
(c) * * *
(1) * * *
(i) Days in which vessels may not possess more than the possession
limit of regulated species as specified in Sec. 651.27(a).
* * * * *
(B) During each period of time declared, the applicable vessel may
not possess more than the possession limit of regulated species as
specified in Sec. 651.27(a).
* * * * *
(d) * * *
(2) * * *
(ii) A sink gillnet vessel greater than 45 ft (13.7 m) in length
that intends to fish for, possess or land, or does possess or land,
more than the possession limit of regulated species as specified in
Sec. 651.27(a) with gear other than sink gillnet gear, or has other
gear on board that is not stowed as described in Sec. 651.20(c)(4), at
any time during a calendar year may fish under and shall be subject to,
the DAS effort reduction program of this part, except on trips that
qualify for the exemption set forth in paragraph (d)(2)(i) of this
section;
* * * * *
5. Section 651.27 is amended by revising paragraphs (a) heading,
(a)(1), (a)(2), and (a)(4) to read as follows:
Sec. 651.27 Possession limits.
(a) Regulated Species possession limit.--(1)(i) Vessels fishing
with nets of mesh size as specified in Sec. 651.20. Vessels subject to
the effort control programs specified in Sec. 651.22 and issued a
limited access permit under Sec. 651.4(a) that are not fishing under
the DAS program, or have declared out of the DAS program, vessels
subject to effort control programs specified in Sec. 651.22 that have
used up their DAS allocations, vessels issued hook-gear-only permits
that are fishing with gear other than hook gear, vessels fishing
exclusively with a sink gillnet permit that are fishing with gear other
than gillnet gear, and vessels issued a possession-limit-only permit
under Sec. 651.4(c) are prohibited from possessing on board at any time
during a trip, or landing per trip, more than 500 lb (226.8 kg) of
regulated species, provided that the regulated species were not
harvested by nets of mesh size smaller than the minimum mesh size
specified in Sec. 651.20 (a)(2), (b)(2), (c)(2), and (d)(2).
(ii) Vessels fishing with nets of mesh smaller than the minimum
mesh size as specified in Sec. 651.20. (A) Any vessel fishing with or
possessing on board nets of mesh smaller than the regulated minimum
size as specified Sec. 651.20(a) while fishing in the small-mesh
exemption area as described under Sec. 651.20(a)(3), or any vessel
fishing with nets of mesh smaller than the regulated minimum size as
specified in Sec. 651.20 (c) and (d), is prohibited from possessing on
board at any time during a trip, or landing per trip, regulated species
in excess of 10 percent, by weight, of all other species on board, or
500 lb (226.8 kg), whichever is less.
(B) While fishing in areas as specified in Sec. 651.20 (c) and (d),
vessels may possess on board at any time during a trip, or land per
trip, regulated species in excess of 10 percent, by weight, of all
other species on board, up to a maximum of 500 lb (226.8 kg) while in
possession of nets of mesh smaller than the minimum size if these nets
are stowed and are not available for immediate use in accordance with
Sec. 651.20 (c)(4) and (d)(3)(i), provided that more than the
possession limit of regulated species were not harvested by nets of
mesh size smaller than the minimum mesh size specified in Sec. 651.20
(c) and (d).
(2) Vessels subject to the regulated species possession limit shall
have on board the vessel at least one standard box or one standard
tote.
* * * * *
(4) The maximum possession limit of regulated species, as specified
in paragraph (a)(1) of this section, is equal to 500 lb (226.8 kg) or
its equivalent as measured by the volume of four standard boxes or five
standard totes. The 10-percent requirement, specified under paragraph
(a)(1)(ii) of this section, may be measured volumetrically.
* * * * *
[FR Doc. 94-17437 Filed 7-18-94; 8:45 am]
BILLING CODE 3510-22-W
