[Federal Register Volume 61, Number 177 (Wednesday, September 11, 1996)]
[Rules and Regulations]
[Pages 47827-47828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23190]
[[Page 47827]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 960830238-6238-01; I.D. 082096B]
RIN 0648-AJ07
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustment 15
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 15 to the Northeast Multispecies Fishery
Management Plan (FMP). This rule extends the timing of the Mid-coast
Closure Area for vessels fishing with sink gillnet gear from the
current November through December period to September 15 through
December 31. The intent of this action is to reduce further the
incidental mortality of harbor porpoise in the Gulf of Maine sink
gillnet fishery to meet porpoise bycatch reduction goals. This rule
also makes several corrections to the regulatory text.
EFFECTIVE DATE: September 6, 1996.
ADDRESSES: Copies of Amendment 7 to the Northeast Multispecies Fishery
Management Plan (Amendment 7), its regulatory impact review (RIR) and
the final regulatory flexibility analysis (FRFA) contained with the
RIR, its final supplemental environmental impact statement (FSEIS), and
Framework Adjustment 15 documents are available upon request from
Christopher Kellogg, Acting Executive Director, New England Fishery
Management Council (Council), 5 Broadway, Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, NMFS, Fishery Policy
Analyst, 508-281-9272.
SUPPLEMENTARY INFORMATION:
Background
In 1993, at the request of NMFS, the Council agreed to develop a
strategy to reduce the bycatch of harbor porpoise in the Gulf of Maine
sink gillnet fishery by integrating a mitigation plan with fishery
management measures. Subsequently, one of Amendment 5's (59 FR 9872,
March 1, 1994) principal objectives was to reduce the bycatch of harbor
porpoise in the Gulf of Maine sink gillnet fishery by the end of year 4
of the plan's implementation to a level not to exceed 2 percent of the
population, based on the best available estimates of abundance and
bycatch. Amendment 7 to the FMP (61 FR 27710, May 31, 1996),
implemented in July 1996 included an objective for harbor porpoise that
was revised to be consistent with the 1994 amendments to the Marine
Mammal Protection Act (MMPA). The Council's new provision requires
reductions in the incidental mortality and serious injury of harbor
porpoise in the Gulf of Maine sink gillnet fishery to the potential
biological removal (PBR) level identified for this stock through the
process described in section 117 of the MMPA by April 1, 1997, the date
required for compliance with section 118(f)(5)(A) of the MMPA. Based on
current population and life history information, the PBR level is 403
animals for Gulf of Maine harbor porpoise.
In view of the Council's revised objective, which is to reduce the
harbor porpoise bycatch to the PBR level by April 1, 1997, coupled with
the most recent bycatch estimate (2,000 harbor porpoise in 1994) and
the fact that the Mid-coast Closure Area in the fall accounts for more
than 50 percent of the harbor porpoise bycatch in the Gulf of Maine,
management action is necessary in order to make further progress toward
the Council's bycatch reduction goals. The 1995 bycatch estimate is not
yet available but is expected to be somewhat lower than the most recent
figure (2,000 animals in 1994). In addition, analysis of recent survey
data have resulted in a larger population estimate that will revise the
PBR level to 490 animals (pending approval by the Atlantic Scientific
Review Group). However, there is no preliminary information that
indicates that the current bycatch approaches even the newly projected
PBR level of 490 animals.
There are currently four time/area closures in place to protect
harbor porpoise. This action extends the existing Mid-coast Closure
Area in time to sink gillnet gear based on information collected for
the fall period, 1990-95. During the September through December period
analyzed, bycatch was highest in October and November. September and
December were months with more variability but, in some years,
accounted for a significant percentage of the fall bycatch. Framework
Adjustment 15 will close the Mid-coast Closure Area to gillnet gear
from September 15 through October 31. This will precede the November 1
through December 31 closure to all gear capable of catching
multispecies and will result in a total closure period for gillnet gear
in this area of September 15 through December 31.
The Council, in consideration of recommendations by the Harbor
Porpoise Review Team (HPRT) and Marine Mammal Committee, proposed this
September 15 through October 31 additional Mid-coast Closure Area
period and also requested the Director, Northeast Region, NMFS
(Regional Director), to investigate the possibility of the use of
acoustic deterrents as a condition or requirement to fish with sink
gillnets in the area to mitigate harbor porpoise bycatch. The Regional
Director agreed to investigate the feasibility of further use of the
devices in a concurrent action.
The Council is making this adjustment to the regulations under the
abbreviated framework 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 Director that the measures be
published as a final rule if certain conditions are met. The Regional
Director may publish the measures as a final rule, or as a proposed
rule if additional public comment is needed.
This final rule implements an additional closure period from
September 15 through October 31 and results in an expanded period for
the Mid-coast Closure Area for vessels using gillnet gear. This area
will thus be closed to gillnet gear from September 15 through December
31 of each fishing year.
This issue was discussed at a Marine Mammal Committee meeting held
on May 21, 1996, and at two Council meetings, the minimum required
under the Northeast Multispecies FMP framework adjustment process. Both
Council meetings were held in Danvers, MA, the first on June 5, 1996,
and the second on July 17, 1996. 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 required under the framework
adjustment process. Written comments were accepted through July 16,
1996. Comments on the Council's proposal were received at
[[Page 47828]]
meetings from individuals and representatives of the International
Wildlife Coalition, Cape Ann Gillnetters Association and the Mass
Netters Association.
Finally, this rule contains corrections to Sec. 648.87.
Specifically, incorrect paragraph references are corrected in
Sec. 648.87, paragraphs (b)(1) and (b)(2), and, in paragraph (b)(2), an
inconsistent reference to the ``Cape Cod South Closure Area'' is
corrected, an incorrect closure date is corrected, and the word ``map''
is changed to ``chart''.
Comments and Responses
Comment: Several individuals addressed the need to continue to
reduce harbor porpoise bycatch in the fall months.
Response: The Council concurred based on biological analyses
provided by the Northeast Fisheries Science Center (NEFSC) and the
recommendation of the HPRT. Information collected during 1990-95
indicates a pattern of high takes of harbor porpoise in the sink
gillnet fishery throughout the fall months. The bycatch is highest,
however, in October and November. The Mid-coast Closure Area is already
closed to most gear to protect multispecies finfish during the months
of November and December under Amendment 7 to the FMP. The September 15
to December 31 closure period would remain in effect for the sink
gillnet fishery to protect harbor porpoise even if changes occur to the
closures implemented for multispecies conservation.
Comment: Several fishermen commented that the MMPA and Council
goal of reaching the PBR level by April 1997 is neither realistic nor
warranted.
Response: The PBR level goal and the process for determining the
PBR level have a strong biological basis and were developed to meet
requirements of other applicable law. This includes the MMPA, which was
reauthorized in 1994 to include the PBR level stipulations.
Adherence to Framework Procedure Requirements
The Council considered the public comments received prior to making
its recommendation to the Regional Director 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.
Classification
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). 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 September 15, 1996, is good cause to
waive the 30-day delay in effectiveness of this regulation. Delay of
implementation of this regulation beyond September 15, 1996, would
likely impede the achievement of harbor porpoise mortality reduction
goals.
Because this regulation is not being published as a general notice
of proposed rulemaking under 5 U.S.C. 553 or any other law, this rule
is exempt from the requirement to prepare an initial or final
regulatory flexibility analysis under the Regulatory Flexibility Act.
As such, none has been prepared.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: September 5, 1996.
N. Foster,
Deputy 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.
2. In Sec. 648.87, paragraph (b)(1) and the heading and first
sentence of paragraph (b)(2) are revised to read as follows:
Sec. 648.87 Sink gillnet requirements to reduce harbor porpoise takes.
* * * * *
(b) * * *
(1) Mid-coast Closure Area. From March 25 through April 25 and from
September 15 through October 31 of each fishing year, the restrictions
and requirements specified in paragraph (b) of this section apply to
the Mid-coast Closure Area, as defined under Sec. 648.81(g)(1).
(2) Cape Cod South Closure Area. From March 1 through March 30 of
each fishing year, the restrictions and requirements specified in
paragraph (b) 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. * * *
* * * * *
[FR Doc. 96-23190 Filed 9-6-96; 11:37 am]
BILLING CODE 3510-22-F
