00-20847. Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 35 to the Northeast Multispecies Fishery Management Plan

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement measures contained in Framework Adjustment 35 (Framework 35) to the Northeast Multispecies Fishery Management Plan (FMP) to exempt a fishery from the Gulf of Maine (GOM)/Georges Bank (GB) Regulated Mesh Area mesh size regulations and closed area restrictions. Framework 35 establishes an exempted small mesh whiting fishery in the GOM. The exempted fishery is authorized in an area near Provincetown, MA, from September 1 through November 20 each year, and requires the use of raised footrope trawl gear.

DATES:

Effective September 1, 2000.

ADDRESSES:

Copies of the Framework 35 document, its Regulatory Impact Review (RIR), the Environmental Assessment, and other supporting documents for the framework adjustment are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. These documents are also available online at http://www.nefmc.org.

Comments regarding the collection-of-information requirements contained in this final rule should be sent to Patricia A. Kurkul, Regional Administrator, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Peter Christopher, Fishery Policy Analyst, 978-281-9288.

SUPPLEMENTARY INFORMATION:

The Northeast Multispecies regulations, at 50 CFR 648.80(a)(7)(i)(A), specify that in order for any fishery to occur in the GOM/GB Regulated Mesh Area, it must be shown to have a bycatch of regulated multispecies that is less than 5 percent of the catch of all species. This regulation is intended to prevent the bycatch and discard of large amounts of regulated multispecies that could be caught in fisheries targeting other species. Small mesh bottom trawl fisheries are of particular concern because of the interactions of bottom fish, the limited selectivity of small mesh, and the high potential of regulated multispecies bycatch. However, to provide for the ability to conduct fisheries that have a bycatch of regulated multispecies that is low, the Northeast Multispecies regulations allow fisheries to occur if they can be proven to have less than 5 percent bycatch of regulated multispecies.

In 1995, the Massachusetts Division of Marine Fisheries (MADMF) began testing the raised footrope trawl design with a single Provincetown otter trawl vessel in a small area in Cape Cod Bay to determine whether modified whiting trawl gear would sufficiently reduce bycatch of regulated multispecies. A raised footrope trawl was designed so that the mouth of the net fished above the ocean floor, thereby reducing bycatch of flatfish, lobster, and other bottom dwelling species while still catching species that remain above the ocean floor, such as whiting. After developing a gear that successfully reduced bycatch of flatfish and caught whiting undamaged by bottom debris and hard-bodied, bottom dwelling species, the MADMF proceeded with an expansion of the fishery in 1996. From 1996 through 1999, the fishery was expanded to a maximum of 43 vessels. Expansion of the fishery allowed the MADMF to evaluate the effectiveness of the modified gear when used by a relatively large number of vessels. Enforceability of the gear requirements, fishermen's willingness to change gear specifications, and ease of adapting to and using the new gear were examined. In addition, expansion of the fishery provided the ability for the MADMF to collect significant amounts of data through observed fishing trips and vessel trip reports. Expansion to additional areas was also authorized by NMFS through experimental fisheries.

In the fall of 1999, the MADMF requested that NMFS exempt the fishery based on the low bycatch rates of regulated multispecies, particularly flatfish. In order to meet the qualifications for an exempted fishery under the FMP, data collected from the experimental fishery must demonstrate that the fishery results in bycatch of regulated multispecies that is less than 5 percent, by weight, of the total catch and that such exemption will not jeopardize fishing mortality objectives (50 CFR 648.80(a)(7)(i)(A)). NMFS takes a conservative approach in applying the 5 percent criteria by requiring that it be met on a trip-by-trip basis as recommended by the New England Fishery Management Council (Council). NMFS informed the MADMF that because of the trip-by-trip requirement the fishery did not qualify for an exemption.

Recognizing the success of the gear in dramatically reducing bycatch, the Council, at its January 18, 2000, meeting, initiated Framework 35 to establish the raised footrope trawl exempted small mesh whiting fishery based on the significant reductions of bycatch of regulated species encountered in the fishery.

While the fishery has not met the trip-by-trip bycatch reductions, the overall reduction of regulated multispecies bycatch has been significant with the raised footrope trawl gear compared to landings and bycatch of regulated multispecies in regulated multispecies directed fisheries. The overall percentage of raised footrope trawl discards in 1999 compared to January through November 1999, landings in the directed regulated multispecies fisheries ranged from 2.2 percent (GOM winter flounder) to less than 0.01 percent. GOM cod bycatch in the 1999 raised footrope trawl fishery represented approximately 0.93 percent of the landings of cod in the directed regulated multispecies fishery from January through November 1999. In addition, bycatch of regulated multispecies in the 1999 raised footrope trawl fishery represented a relatively low percentage of overall regulated multispecies discards, ranging from 0.02 percent for witch flounder to 5.95 percent for GOM cod. Also, the raised footrope trawl has demonstrated significant overall reductions in bycatch compared to traditional whiting trawl gear. In the area near Provincetown in 1997, for example, regulated flatfish bycatch with traditional whiting nets was approximately 66 lb (29.9 kg) per hour. With the raised footrope trawl, the bycatch rate was approximately 7 lb (3.18 kg) per hour—a reduction of approximately 89 percent. Results in 1998 and 1999 were similar. Since bycatch of cod and other roundfish was known to be a continued problem with the modified gear, the MADMF prosecuted the fishery in areas low in cod and other roundfish concentrations.

During October and November, the area encompassed by this exempted fishery falls almost entirely within the October/November GOM rolling closure area (Rolling Closure V). Framework 35 allows the exempted fishery to operate within the closed area under a letter of authorization. Operation of this fishery in the closed area should not pose a threat to flatfish, but could pose a threat to cod if high concentrations are present. However, cod bycatch is not expected to be significant. First, the season for this exempted fishery is September 1 through November 20. Historically, cod bycatch in the experimental raised footrope trawl fishery increased in November and cod bycatch after November 20 has represented 50 percent of the bycatch of cod for the entire experimental fishing season (September through December). Second, during the development of Framework 33 to the FMP, the Northeast Fishery Science Center (NEFSC) provided evidence that cod concentrations in the southern portion of block 124 (the portion of the closed area overlapped by the exempted area) is low. Cod concentrations appear to be approximately five times higher in the northwestern and west-central parts of block 124 (areas not overlapped by the proposed exempted fishery area), in the autumn, based on NEFSC trawl survey data from 1994 through 1998. Further, the use of exempted fishery authorization letters will allow NMFS to identify vessels participating in the fishery on a day-to-day basis, providing the ability for simplified monitoring of the fishery.

Framework 35 establishes the exempted whiting raised footrope trawl fishery in an area in upper Cape Cod Bay. The exempted area is a modification of the areas authorized for previous experimental fisheries, but falls completely within the areas studied under the experiment. The exempted area is based on the highest concentrations of observed and reported fishing activity during the experimental fisheries.

Requirements of the exempted fishery include gear specifications for the raised footrope trawl and bycatch restrictions. Gear restrictions include: minimum mesh size; prohibition on net strengtheners; headrope specifications including number and distribution of floats; ground gear (legs) specifications; footrope specifications; drop chain specifications (with an option for a sweepless net configuration); and chain-sweep specifications. Because Small Mesh Areas 1 and 2 in the GOM (already exempted fisheries) require the use of a raised footrope trawl, these specifications also apply in those areas, with the exception of the minimum mesh size and prohibition on net strengthener use. The only modifications to the current gear requirements in Small Mesh Areas 1 and 2 is an option to use a sweepless raised footrope trawl net and a change of the footrope length specification. The change to the footrope length is implemented through this framework to correct the regulations which mistakenly stated that the footrope must be at least 20 ft (6.1 m) longer than the headrope. To be consistent with the original design of the MADMF's net, the footrope must be no greater than 20 ft (6.1 m) longer than the headrope. Modifying the mesh size and strengthener requirements in Small Mesh Areas 1 and 2 is outside the scope of this framework.

While enrolled in the raised footrope trawl whiting fishery, vessels are restricted to retaining only the following species: Whiting, offshore hake, red hake, butterfish, dogfish, herring, mackerel, scup, and squid, up to the amounts allowed by the regulations for each species. Retention of all other species is prohibited. Vessels fishing in the raised footrope trawl fishery may fish in other small mesh fisheries, but are subject to the most restrictive measures, regardless of where they are fishing.

Economic Impact Analysis

The economic impacts of exempting the raised footrope trawl whiting fishery were analyzed in the RIR section of the Council's framework document and the supplement to that document. When compared to taking no action, implementation of the exempted fishery under Framework 35 is likely to generate approximately $1.25 million in revenues for vessels fishing primarily out of the ports of Gloucester and Provincetown, MA, based on 1997 through 1999 averages. Existing area closures, gear restrictions, and fishing effort controls would otherwise limit the potential participants. Other alternatives, such as gear modifications and additional areas, were considered throughout the development of the fishery and during the experimental fishery phase. However, the gear specifications included in this framework maximize flexibility of the industry while minimizing bycatch. Exemption in additional areas is not warranted due to insufficient information to determine bycatch levels. Framework 35 also results in minor modifications to the gear specifications in Small Mesh Areas 1 and 2. These modifications are expected to result in minimal costs to vessels. Vessels that fish in Small Mesh Areas 1 and 2 are already required to use raised footrope trawl gear and only minimal costs would be required to modify their existing gear, if any modifications need to be made at all.

Abbreviated Rulemaking

NMFS is making these adjustments to the regulations under the framework abbreviated rulemaking procedure in 50 CFR part 648, subpart F. This procedure requires the Council, when making specifically allowed adjustments to the FMP, to develop and analyze the action over the span of at least two Council meetings where public comments are accepted. The Council must provide the public with advance notice of both the framework proposals and the associated analyses, and provide an opportunity to comment on them specifically prior to and at the second Council meeting. Upon review of the analyses and public comments, the Council may recommend to the Regional Administrator, Northeast Region (Regional Administrator), that the measures be published as a final rule, or as a proposed rule if additional public comment is necessary.

The initial and final meetings for Framework 35 at which public comment was received were on January 18, 2000, and May 3, 2000, respectively. The Council also discussed the raised footrope whiting exempted fishery at previous meetings on other actions, including the Council meeting on November 16 through 19, 1999, the Council's Groundfish Committee on December 13, 1999, and January 14, 2000, and at the Groundfish Committee Advisory Panel meetings on December 13, 1999, and January 13, 2000. Documents summarizing the Council's proposed action and the analyses of biological, economic, and social impacts of this action and alternative actions were available for public review 1 week prior to the final meeting, as is required under the framework adjustment process. No written comments were received.

Classification

This final rule has been determined to be not significant for the purposes of E.O. 12866.

Notwithstanding any other provisions of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB control number.

This final rule contains collection-of-information requirements subject to the PRA. These requirements have been approved by OMB. The OMB Control numbers and estimated response times are as follows:

1. Call-in to NMFS Region for enrollment into Raised Footrope Trawl Exempted Whiting Fishery (§ 648.80(a)(14)(i)(A)) approved under 0648-0422 at 2 minutes/response.

2. Call-in to NMFS Region to withdraw from the Raised Footrope Trawl Exempted Whiting Fishery (§ 648.80(a)(14)(i)(A)) approved under 0648-0422 at 2 minutes/response.

The estimated response times include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of the data requirements, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 et seq., or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. Nevertheless, the socioeconomic impacts on affected small entities were considered in the EA/RIR contained in the supporting analyses for Framework 35 and the supplement to Framework 35. The economic impacts are described in the SUPPLEMENTARY INFORMATION section of the preamble to this final rule.

The Assistant Administrator for Fisheries, NOAA (AA), finds that, because public meetings held by the Council to discuss the management measures implemented by this final rule provided adequate prior notice and opportunity for public comment, further notice and opportunity to comment on this final rule is unnecessary. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds good cause exists to waive prior notice and additional opportunity for public comment.

This final rule establishes an exempted small mesh whiting fishery in the Gulf of Maine and vessel operators who choose to participate in this fishery would be required to use a raised footrope trawl gear. Existing area closures, gear restrictions, and fishing effort controls would otherwise limit vessel operators from fishing for whiting in this area. Therefore, this action relieves a restriction, under 5 U.S.C. 553(d)(1) and is not subject to a 30-day delay in effectiveness. This final rule also results in minor modifications to the gear specifications in Small Mesh Areas 1 and 2. Vessels that fish in these areas are already required to use raised footrope trawl gear. The minor modifications made by this rule will provide vessels with an option to use sweepless raised footrope trawl net and will clarify that the footrope may not be more than 20 ft longer than the headrope. By providing another gear option, this rule does not impose a restriction. Furthermore, complying with the clarified requirement that the footrope be no more than 20 ft longer than the headrope will require only a minimal amount of time. In addition, participation in the raised footrope trawl gear fishery is voluntary and vessel operators can choose whether or not to modify their gear, if necessary, to participate in this fishery. Therefore, it is not necessary to delay for 30 days implementation of the gear modification provisions associated with this final rule.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: August 11, 2000.

William T. Hogarth,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons stated 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 § 648.14, paragraphs (a)(35) and (a)(43) are revised to read as follows:

§ 648.14

Prohibitions.

(a) * * *

(35) Fish with, use, or have on board within the area described in § 648.80(a)(1), nets with mesh size smaller than the minimum mesh size specified in § 648.80(a)(2), except as provided in § 648.80(a)(3) through (6), (a)(8), (a)(9), (a)(14), (d), (e), and (i), unless the vessel has not been issued a multispecies permit and fishes for NE multispecies exclusively in state waters, or unless otherwise specified in § 648.17.

* * * * *

(43) Violate any of the provisions of § 648.80, including paragraphs (a)(3), the small-mesh northern shrimp fishery exemption area; (a)(4), the Cultivator Shoal whiting fishery exemption area; (a)(8), Small-mesh Area 1/Small-mesh Area 2; (a)(9), the Nantucket Shoals dogfish fishery exemption area; (a)(11), the Nantucket Shoals mussel and sea urchin dredge exemption area; (a)(12), the GOM/GB monkfish gillnet exemption area; (a)(13), the GOM/GB dogfish gillnet exemption area; (a)(14), the Raised Footrope Trawl Exempted Whiting Fishery; (b)(3), exemptions (small mesh); (b)(5), the SNE monkfish and skate trawl exemption area; (b)(6), the SNE monkfish and skate gillnet exemption area; (b)(7), the SNE dogfish gillnet exemption area; (b)(8), the SNE mussel and sea urchin dredge exemption area; or (b)(9), the SNE little tunny gillnet exemption area. A violation of any provision of the paragraphs in § 648.80 is a separate violation.

3. In § 648.80, paragraphs (a)(6)(iii)(C), (a)(8)(ii)(C) and (D) are revised and paragraph (a)(14) is added to read as follows:

§ 648.80

Multispecies regulated mesh areas and restrictions on gear and methods of fishing.

* * * * *

(a) * * *

(6) * * *

(iii) * * *

(C) Vessels do not fish for, possess on board, or land any fish, except when fishing in the areas specified in paragraphs (a)(4), (a)(9), (a)(14), (b), and (c) of this section. Vessels may retain exempted small mesh species as provided in paragraphs (a)(4)(i), (a)(9)(i), (a)(14)(i), (b)(3), and (c)(3) of this section.

* * * * *

(8) * * *

(ii) * * *

(C) The footrope must be longer than the length of the headrope, but not more than 20 ft (6.1 m) longer than the length of the headrope. The footrope must be rigged so that it does not contact the ocean bottom while fishing.

(D) The raised footrope trawl may be used with or without a chain sweep. If used without a chain sweep, the drop chains must be a maximum of 3/8 inch (0.95 cm) diameter bare chain and must be hung from the center of the footrope and each corner (the quarter, or the junction of the bottom wing to the belly at the footrope). Drop chains must be hung at intervals of 8 ft (2.4 m) along the footrope from the corners to the wing ends. If used with a chain sweep, the sweep must be rigged so it is behind and below the footrope, and the footrope is off the bottom. This is accomplished by having the sweep longer than the footrope and having long drop chains attaching the sweep to the footrope at regular intervals. The forward end of the sweep and footrope must be connected to the bottom leg at the same point. This attachment, in conjunction with the headrope flotation, keeps the footrope off the bottom. The sweep and its rigging, including drop chains, must be made entirely of bare chain with a maximum diameter of 5/16 inch (0.8 cm). No wrapping or cookies are allowed on the drop chains or sweep. The total length of the sweep must be at least 7 ft (2.1 m) longer than the total length of the footrope, or 3.5 ft (1.1 m) longer on each side. Drop chains must connect the footrope to the sweep chain, and the length of each drop chain must be at least 42 inches (106.7 cm). One drop chain must be hung from the center of the footrope to the center of the sweep, and one drop chain must be hung from each corner. The attachment points of each drop chain on the sweep and the footrope must be the same distance from the center drop chain attachments. Drop chains must be hung at intervals of 8 ft (2.4 m) from the corners toward the wing ends. The distance of the drop chain that is nearest the wing end to the end of the footrope may differ from net to net. However, the sweep must be at least 3.5 ft (1.1 m) longer than the footrope between the drop chain closest to the wing ends and the end of the sweep that attaches to the wing end.

* * * * *

(14) Raised Footrope Trawl Exempted Whiting Fishery. Vessels subject to the minimum mesh size restrictions specified in paragraph (a)(2) of this section may fish with, use, or possess nets in the Raised Footrope Trawl Whiting Fishery area with a mesh size smaller than the minimum size specified, if the vessel complies with the requirements specified in paragraph (a)(14)(i) of this section. The Raised Footrope Trawl Whiting Fishery area (copies of a map depicting the area are available from the Regional Administrator upon request) is defined by straight lines connecting the following points in the order stated:

RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA

Point	N. Lat.	W. Long.
RF 1	42°01.9′	70°14.7′
RF 2	41°59.45′	70°23.65′
RF 3	42°07.85′	70°30.1′
RF 4	42°15.05′	70°08.8′
RF 5	42°08.35′	70°04.05′
RF 6	42°04.75′	70°16.95′
RF 1	42°01.9′	70°14.7′

(i) Requirements. (A) A vessel fishing in the Raised Footrope Trawl Whiting Fishery under this exemption must have on board a valid letter of authorization issued by the Regional Administrator. To obtain a letter of authorization, vessel owners must write to or call during normal business hours the Northeast Region Permit Office and provide the vessel name, owner name, permit number, and the desired period of time that the vessel will be enrolled. Since letters of authorization are effective the day after they are requested, vessel owners should allow appropriate processing and mail time. To withdraw from a category, vessel owners must write to or call the Northeast Region Permit Office. Withdrawals are effective the day after the date of request. Withdrawals may occur after a minimum of 7 days of enrollment.

(B) Up to and including April 30, 2002, all nets must comply with a minimum mesh size of 2.5-inch (6.35-cm) square or diamond mesh, subject to the restrictions as specified in paragraph (a)(14)(i)(D) of this section. An owner or operator of a vessel enrolled in the raised footrope whiting fishery may not fish for, possess on board, or land any species of fish other than whiting and offshore hake subject to the applicable possession limits as specified in § 648.86, except for the following allowable incidental species: Red hake; butterfish; dogfish; herring; mackerel; scup; and squid.

(C) Beginning May 1, 2002, in addition to the requirements specified in paragraph (a)(14)(i)(B) of this section, all nets must comply with a minimum mesh size of 3-inch (7.62-cm) square or diamond mesh, subject to the restrictions as specified in paragraph (a)(14)(i)(D) of this section. An owner or operator of any vessel enrolled in the raised footrope whiting fishery may not fish for, possess on board, or land any species of fish other than: Silver hake and offshore hake—up to 10,000 lb (4,536 kg); red hake; butterfish; dogfish; herring; mackerel; scup; and squid.

(D) All nets must comply with the minimum mesh sizes specified in paragraphs (a)(14)(i)(B) and (C) of this section. Counting from the terminus of the net, the minimum mesh size is applied to the first 100 meshes (200 bars in the case of square mesh) from the terminus of the net for vessels greater than 60 ft (18.28 m) in length and the first 50 meshes (100 bars in the case of square mesh) from the terminus of the net for vessels less than or equal to 60 ft (18.28 m) in length.

(E) Raised footrope trawl gear is required and must be configured as specified in paragraphs (a)(8)(ii)(A) through (D) of this section.

(F) Fishing may only occur from September 1 through November 20 of each fishing year.

(G) A vessel enrolled in the Raised Footrope Trawl Whiting Fishery may fish for small-mesh multispecies in exempted fisheries outside of the Raised Footrope Trawl Whiting Fishery exemption area, provided that the vessel complies with the more restrictive gear, possession limit and other requirements specified in the regulations of that exempted fishery for the entire participation period specified on the vessel's letter of authorization. For example, a vessel may fish in both the Raised Footrope Trawl Whiting Fishery and the Cultivator Shoal Whiting Fishery Exemption Area and would be restricted to a minimum mesh size of 3 inches (7.62 cm), as required in the Cultivator Shoal Whiting Fishery Exemption Area, the use of the raised footrope trawl, and the catch and bycatch restrictions of the Raised Footrope Trawl Whiting Fishery, except for red hake, which is restricted to 10 percent of the total catch under the Cultivator Shoal Whiting Fishery.

(ii) Sea sampling. The Regional Administrator shall conduct periodic sea sampling to evaluate the bycatch of regulated species.

* * * * *

4. In § 648.81, paragraph (g)(2)(v) is added to read as follows:

§ 648.81

Multispecies closed areas.

* * * * *

(g) * * *

(2) * * *

(v) That are fishing in the Raised Footrope Trawl Exempted Whiting Fishery, as specified in § 648.80(a)(14), and in the Gulf of Maine Rolling Closure Area V, as specified in paragraph (g)(1)(v) of this section.

* * * * *