[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Rules and Regulations]
[Pages 26-30]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32010]


[[Page Unknown]]

[Federal Register: January 3, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 651

[Docket No. 931243-3343; I.D. No. 112293A]

 

Northeast Multispecies Fishery

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

ACTION: Emergency interim rule.

-----------------------------------------------------------------------

SUMMARY: The Secretary of Commerce (Secretary) amends the regulations 
implementing the Fishery Management Plan for the Northeast Multispecies 
Fishery (FMP). This emergency interim rule implements: A 500-pound 
(226.8 kg) possession limit of haddock for all vessels permitted under 
50 CFR 651.4 and to all vessels in possession of haddock from or in the 
exclusive economic zone (EEZ), except scallop dredge vessels, which are 
prohibited from possessing or landing haddock; a January through May 
closure of the area known as Closed Area II, except for lobster pot 
vessels and scallop dredge vessels; an expansion of Closed Area II by 
20 minutes longitude to the west and 15 minutes latitude to the south, 
along its existing western and southern boundaries, intersecting with 
the Regulated Mesh Boundary line; a suspension of the February through 
May closure of the area known as Closed Area I, except for vessels 
using sink gillnet gear; a prohibition on transfer of fish at sea; and 
a ban on pair trawling in the multispecies fishery. The intended effect 
of this rule is to provide protection to depleted haddock and cod 
stocks.

EFFECTIVE DATES: January 3, 1994, through April 2, 1994.

ADDRESSES: Copies of the Environmental Assessment (EA) supporting this 
action may be obtained from Richard B. Roe, Regional Director, National 
Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Patricia A. Kurkul (Senior Fishery 
Policy Analyst, Northeast Region, NMFS), 508-281-9252.

SUPPLEMENTARY INFORMATION: The primary Northeast multispecies 
(groundfish) species have declined to record or near record low levels 
of stock abundance due largely to record high fishing mortality caused 
by increased fishing effort. To correct this, the New England Fishery 
Management Council (Council) developed Amendment 5 to the FMP, which 
has been submitted to the Secretary for review under the Magnuson 
Fishery Conservation and Management Act (Magnuson Act) and other 
applicable law. Amendment 5 contains proposals that the Council 
believes will eliminate the overfished condition of cod and yellowtail 
flounder over a 5-year period and haddock over a 10-year period. The 
measures proposed include: Reductions in fishing time; a moratorium on 
new permits; an increased minimum net mesh size; modifications to 
existing closed areas; additional closed areas and control areas for 
juvenile fish; possession limits on regulated species when possessing 
small mesh on board; and a possession limit on haddock. A proposed rule 
to implement these measures was published on October 27, 1993 (58 FR 
57774). However, a proposed possession limit of 5,000 pounds (2,268 kg) 
for haddock contained in Amendment 5 was disapproved on September 30, 
1993. The Director, Northeast Region, NMFS (Regional Director) advised 
the Council on September 30, 1993, that the proposed haddock possession 
limit offered inadequate protection for that species, and the Council 
should seriously consider whether any haddock should be landed.
    The Council previously recommended that an emergency action 
implemented last June, which prohibited the use of pair trawls and 
imposed a 2,500-pound (1,134-kg) haddock trip limit, be extended for an 
additional 90 days. This request was denied and the emergency action 
expired on September 7, 1993. The disapproval was based on the fact 
that haddock are not concentrated during the period of time covered by 
the extension and, therefore, the recommended management measures were 
not warranted under emergency rulemaking. The Regional Director 
requested the Council to consider more restrictive measures, including 
a meaningful trip limit for haddock. This was reiterated when the 
Council was informed that the 5,000-pound (2,268-kg) haddock trip limit 
proposed in Amendment 5 had been disapproved.
    Of particular concern are the haddock stocks on both Georges Bank 
and in the Gulf of Maine, which are at all-time low levels of 
abundance. Adult stock biomass is lower now than at any point since the 
inception of stock assessments. Haddock landings in 1993, which reflect 
stock condition, are expected to be the lowest in recorded history. The 
stock condition and landings will continue to decline until such time 
that meaningful measures are implemented that will eliminate the 
overfished condition of the stocks and reduce the exploitation rate to 
levels that will allow significant rebuilding to take place.
    The Council discussed this issue at its October 1993 meeting in 
conjunction with its discussion of an amendment to replace the 
disapproved portions of Amendment 5. The Council voted to develop an 
amendment to implement a 4,000-pound (1,814-kg) haddock trip limit and 
to increase the annual Closed Area II closed season from February 
through May, to January through June. The Council also voted to rescind 
the geographical expansion of Closed Area II proposed in Amendment 5, 
in part, as a compromise to the industry for imposing a longer time 
period for the closure. This represented a departure from Amendment 5, 
which calls for immediate expansion of the size of Closed Area II and, 
in year 3 and thereafter, an expansion in the duration of the closed 
season.
    After adopting amended language for the disapproved measure in 
Amendment 5, the Council voted to request emergency Secretarial action 
to implement the same measures beginning January 1, 1994. In addition, 
the Council requested emergency implementation, beginning January 1, 
1994, of a suspension of the closure of Closed Area I to vessels using 
other than sink gillnet gear and a prohibition on pair trawling, both 
of which are proposed in Amendment 5. NMFS determined, however, that 
some of the emergency measures recommended by the Council were 
inadequate to provide sufficient protection of these stocks, and that 
more restrictive measures must be implemented to provide essential 
protection particularly in light of new analysis of the condition of 
the haddock stocks.
    The Regional Director presented the new analysis of the condition 
of the stocks to the Council at its November 23 Multispecies Oversight 
Committee meeting and at its December 8-9 Council meeting and, in 
response, the Council amended its recommendation on emergency action. 
The Council proposed: An immediate closure of the expanded Closed Area 
II (beginning January 1, 1994); a prohibition on pair trawling; a 
haddock possession limit between 500 (226.8 kg) and 1,000 pounds (453.6 
kg), at the discretion of the Regional Director, and a request that the 
Regional Director consider whether scallop dredges should be prohibited 
from the haddock spawning area during the closure of Area II.
    The Secretary concurs with the Council's recommendation and the 
Regional Director's determination that the haddock possession limit 
should be 500 pounds (226.8 kg). In making these determinations, the 
Secretary took into consideration that the haddock stocks are severely 
depleted. The 1992 spawning stock level for the Georges Bank stock is 
estimated to be 13,000 metric tons (mt), which is significantly lower 
than the 130,000 mt required to provide a maximum sustainable yield of 
50,000 mt. The most recent assessment of the Georges Bank haddock stock 
conducted by the NMFS Stock Assessment Workshop determined that the 
fishing mortality rate in 1991 was 0.52. More recent information from a 
Canadian assessment indicates that the 1992 fishing mortality rate was 
0.6 and is likely to be higher in 1993.
    In determining an overfishing definition for the Georges Bank 
haddock stock, the Council chose a percent maximum spawning potential 
(%MSP) of 30 percent, which is equivalent to a fishing mortality rate 
of 0.4. If this rate were achieved, it would maintain the stock at its 
present level over the long term. Given the low stock level, though, 
this would not be enough to allow rebuilding to take place. Rebuilding 
can only be achieved if the fishing mortality rate is reduced well 
below this level. Based upon past history, it is estimated that an 
exploitation rate of about 0.1 (10 percent annual removal of the stock 
each year) would allow rebuilding to occur. This occurred for several 
years prior to a large incoming year class of haddock in 1975, which 
allowed the spawning stock to rebuild.
    The current exploitation rate of haddock is approximately 0.37. A 
500-pound (226.8 kg) haddock possession limit is expected to reduce the 
exploitation rate to about 0.1. Achieving this rate will be possible 
only if the trip limit is low enough to discourage targeting of haddock 
and highgrading, and it does not compromise enforcement efforts. The 
500-pound (226.8 kg) possession limit is considered to be the average 
number of pounds of haddock per trip that would still be caught 
incidental to fishing for other species. Although any possession limit 
can provide incentive to target a species, 500 pounds (226.8 kg) is 
believed to be low enough to discourage targeting if vessel operators 
comply with the limit. A trip limit could also encourage 
``highgrading,'' (i.e., filling the trip limit with the highest value 
fish and discarding the rest). The prevalence of this problem will 
depend to some extent on the willingness of vessel operators to move 
out of an area with concentrations of haddock. Both of these potential 
situations will be closely monitored and appropriate action taken by 
the Regional Director in the event they are determined to be problems. 
Finally, a trip limit is expected to make enforcement of these haddock 
measures problematic. Compliance with the measures will also be closely 
monitored, and should enforceability become compromised, appropriate 
action will be taken by the Regional Director, including the 
possibility of implementing a prohibition on the possession of haddock 
by all vessels. To improve enforceability, this rule prohibits transfer 
of fish at sea, requires haddock to be stored separately from other 
fish, and requires all vessels to carry a standardized tote so the 
amount of haddock on board can be measured at sea.
    The expansion of Closed Area II in area and time will provide 
additional protection to the concentrations of haddock that occur in 
the area in this time period. The January closure will ensure that 
haddock beginning to concentrate in the area are provided the fullest 
protection. The expansion in size of the closed area is based on 
information obtained from interviews with fishermen, which indicate 
that large amounts of haddock are taken just outside the closed area.
    Allowing the use of mobile gear in Closed Area I is justified 
because there have been few if any haddock present in the area for the 
last 10 years. This has been confirmed by research trawl surveys 
conducted by the NMFS Northeast Fisheries Science Center (NEFSC). The 
closure remains in effect for sink gillnet gear because of possible 
interaction between the gear and endangered or threatened marine 
mammals.
    In addition to the expansion and early closure, the Secretary has 
determined that, because scallop vessels fish in Closed Area II during 
the period when haddock are congregated to spawn, all scallop dredge 
vessels should be prohibited from landing or possessing haddock to 
ensure that such vessels do not target these concentrations of haddock. 
While the Council requested that the Regional Director consider the 
question of whether scallop dredges should be prohibited from the area 
during the closure, and not a prohibition on landings, the information 
provided by the NEFSC does not support precluding scallopers from the 
closed area. Therefore, the lesser action is taken to reduce the impact 
on scallopers yet provide some protection to spawning haddock.
    The Secretary has determined that it is appropriate to include a 
pair trawl prohibition in this emergency rule. Many in the fishing 
industry believe that a prohibition on pair trawl gear in the 
multispecies fishery is warranted as an emergency measure because it is 
a highly efficient gear, and its unlimited use during a period of 
severely declining haddock and cod stocks is counterproductive to the 
goal of reducing effort in an overfished fishery. Information from the 
NEFSC for 1992 indicates that, for some vessel classes, catch rates 
increase by a factor of 5.85 when using the gear. As a result, there 
has been an increase in its use in recent years. This prohibition is 
also included in proposed Amendment 5.

Classification

    The Secretary has determined that this rule is necessary to respond 
to an emergency situation and is consistent with the Magnuson Act and 
other applicable law.
    The Secretary finds for good cause that the reasons justifying 
promulgation of this rule on an emergency basis also make it 
impracticable and contrary to the public interest to provide notice and 
opportunity for public comment upon, or to delay for 30 days the 
effective date of these emergency regulations, under the provisions of 
sections 553(b) and (d) of the Administrative Procedure Act. However, 
all of the measures have received some public comment during Council 
meetings and in connection with the development of Amendment 5 to the 
FMP. Implementation of these emergency measures will provide much 
needed immediate protection to the declining haddock and cod stocks.
    This rule is exempt from the requirements of the Regulatory 
Flexibility Act to prepare a regulatory flexibility analysis because 
the rule is issued without opportunity for prior public comment, and 
none has been prepared.

List of Subjects in 50 CFR Part 651

    Fishing, Fisheries, Vessel permits and fees.

    Dated: December 27, 1993.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, 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. In Sec. 651.2, the definitions for bottom-tending gillnet or 
sink gillnet gear, dredge or dredge gear, offload, pair trawl or pair 
trawling, scallop dredge vessel, standard box, standard tote, and 
transfer are temporarily added, in alphabetical order, effective 
January 3, 1994 through April 2, 1994, to read as follows:


Sec. 651.2  Definitions.

* * * * *
    Bottom-tending gillnet or sink gillnet means any gillnet, anchored 
or otherwise, that is designed to be, capable of being, or is fished on 
or near the bottom in the lower third of the water column.
    Dredge or dredge gear means gear consisting of a mouth frame 
attached to a holding bag constructed of metal rings, or any other 
modification to this design, that can or is used in the harvest of 
Atlantic sea scallops.
    Offload means to begin to remove, to remove, to pass over the rail, 
or otherwise take away fish from any vessel.
    Pair trawl or pair trawling means to tow or towing a single net 
between two vessels for the purpose of, or that is capable of, catching 
multispecies finfish.
    Scallop dredge vessel means any fishing vessel that uses or is 
equipped for using dredge gear and that has been issued or has applied 
for a Federal scallop permit.
    Standard box means a box, typically constructed of wax-saturated 
cardboard or wood, designed to hold 125 pounds (56.6 kg) of fish plus 
ice, and that has a volume of not more than 5,100 cubic inches (2.95 
cubic feet or 83.57 cubic dm).
    Standard tote means a box typically constructed of plastic, 
designed to hold 100 pounds (45.3 kg) of fish plus ice, and that has a 
liquid capacity of 70 liters, or a volume of not more than 4320 cubic 
inches (2.5 cubic feet or 70.79 cubic dm).
    Transfer means to begin to remove, to pass over the rail, or 
otherwise take away fish from any vessel and move them to another 
conveyance.
* * * * *
    3. In Sec. 651.7, paragraphs (a)(3), (a)(4), (a)(5), (a)(6), 
(a)(7), (b)(15), (b)(16), (b)(17), (b)(18), (b)(19), (b)(20), and 
(b)(21) are temporarily added and paragraph (b)(11) is temporarily 
suspended effective January 3, 1994, through April 2, 1994, to read as 
follows:


Sec. 651.7  Prohibitions.

    (a) * * *
    (3) Land haddock from, or possess haddock on board, a sea scallop 
dredge vessel as specified in Sec. 651.28(a).
    (4) Land, or possess on board a vessel, more than 500 pounds (226.8 
kg) of haddock as specified in Sec. 651.28(b) or violate any of the 
other provisions specified in Sec. 651.28(b).
    (5) Land or possess multispecies finfish harvested by means of pair 
trawling except under the provisions of Sec. 651.20(d).
    (6) Fish for multispecies finfish by means of pair trawling.
    (7) Land, offload, remove, or otherwise transfer or attempt to 
land, offload, remove, or otherwise transfer fish from one vessel to 
another vessel.
    (b) * * *
    (15) Use, set, haul back, fish with, or have on board a vessel a 
sink gillnet in the area and during the time period described in 
Sec. 651.21(c)(1).
    (16) Enter the area described in Sec. 651.21(c)(2) on a fishing 
vessel during the time period specified in Sec. 651.21(c)(2), except as 
specified in Sec. 651.21(c)(3).
    (17) Land haddock from, or possess haddock on board, a sea scallop 
dredge vessel as specified in Sec. 651.28(a).
    (18) Land, or possess on board a vessel, more than 500 pounds 
(226.8 kg) of haddock in, or harvested from, the EEZ as specified in 
Sec. 651.28(b) or violate any of the other provisions specified in 
Sec. 651.28(b).
    (19) Land or possess multispecies finfish harvested in, or from, 
the EEZ by means of pair trawling, except under the provisions of 
Sec. 651.20(d).
    (20) Fish for multispecies finfish in the EEZ by means of pair 
trawling.
    (21) Land, offload, remove, or otherwise transfer, or attempt to 
land, offload, remove or otherwise transfer multispecies finfish from 
one vessel to another vessel, unless the multispecies finfish were 
harvested by a recreational fishing vessel or such vessels have not 
been issued a Federal multispecies permit and fish for multispecies 
finfish exclusively in state waters.
* * * * *
    4. In Sec. 651.20, paragraph (g) is temporarily added effective 
January 3, 1994, through April 2, 1994, to read as follows:


Sec. 651.20  Regulated mesh area and gear limitations.

* * * * *
    (g) No vessel issued a permit under Sec. 651.4 may pair trawl for 
multispecies finfish, as defined under Sec. 651.2, except under the 
provisions of paragraph (d) of this section.
    5. In Sec. 651.21, paragraphs (a) introductory text, (a)(1), 
(a)(2), and (a)(3) are temporarily suspended, and paragraph (c) is 
temporarily added effective January 3, 1994, through April 2, 1994, to 
read as follows:


Sec. 651.21  Closed areas.

* * * * *
    (c) Georges Bank. No person or vessel may fish within the following 
areas subject to the conditions and/or exceptions of this section.
    (1) Closed Area I. No fishing vessel or person on a fishing vessel 
may use, set, haul back, fish with, or have on board a vessel a sink 
gillnet during the months of February through May in the area known as 
Closed Area I (Figure 6), which is bounded by six straight lines 
connecting the following points in the order stated: 

------------------------------------------------------------------------
  Point              Latitude                       Longitude           
------------------------------------------------------------------------
CI1.......  40 deg.53' N.                68 deg.53' W.                  
CI2.......  41 deg.35' N.                68 deg.30' W.                  
CI3.......  41 deg.50' N.                68 deg.45' W.                  
CI4.......  41 deg.50' N.                69 deg.00' W.                  
CI5.......  41 deg.30' N.                69 deg.00' W.                  
CI6.......  41 deg.30' N.                69 deg.23' W.                  
CI1.......  40 deg.53' N.                68 deg.53' W.                  
------------------------------------------------------------------------


    (2) Closed Area II. No fishing vessel or person on a fishing vessel 
may fish in, or be in, the area known as Closed Area II (Figure 6) 
during the months of January through May, except as specified in 
paragraph (c)(3) of this section. Closed Area II is bounded by four 
straight lines connecting the following points in the order stated:

------------------------------------------------------------------------
  Point               Latitude                       Longitude          
------------------------------------------------------------------------
CII1......  41 deg.00' N.                 67 deg.20' W.                 
CII2......  41 deg.00' N.                 66 deg.35.8' W.               
G5........  41 deg.18.6' N.               66 deg.24.8' W. (the U.S.-    
                                           Canada Maritime Boundary)    
CII3......  42 deg.22' N.                 67 deg.20' W. (the U.S.-Canada
                                           Maritime Boundary)           
CII1......  41 deg.00' N.                 67 deg.20' W.                 
------------------------------------------------------------------------


    (3) Exceptions. Paragraph (c)(2) of this section does not apply to 
persons on fishing vessels or fishing vessels:
    (i) Fishing with or using pot gear designed and used to take 
lobsters;
    (ii) Fishing with or using dredges designed and used to take 
scallops; or
    (iii) Seeking safe haven from storm conditions in waters adjacent 
to the western edge of Closed Area II. Such fishing vessels may transit 
through Closed Area II providing that:
    (A) Gale, storm or hurricane conditions are posted for the area by 
the National Weather Service;
    (B) Such vessels do not fish in the area;
    (C) Fishing gear is stowed in accordance with Sec. 651.20(f); and
    (D) The vessel provides notice to patrolling U.S. Coast Guard 
aircraft or vessel in the vicinity of Georges Bank by high frequency 
radio (2.182 khz) of its intention to transit the closed area and the 
time and position when the vessel enters the area and the time and 
position when the vessel exits the closed area.
    6. Sections 651.28 and 651.29 are temporarily added effective 
January 3, 1994, through April 2, 1994, to read as follows:


Sec. 651.28  Haddock possession limits.

    (a) Scallop dredge vessels.
    (1) No person owning or operating a scallop dredge vessel issued a 
permit under Sec. 651.4 may land, or possess on board a vessel, 
haddock.
    (2) No person operating a scallop dredge vessel may possess haddock 
in, or harvested from, the EEZ.
    (b) Other vessels.
    (1) No person owning or operating a vessel issued a permit under 
Sec. 651.4 may land, or possess on a vessel, more than 500 pounds 
(226.8 kg) of haddock.
    (2) No person may possess on a vessel more than 500 pounds (226.8 
kg) of haddock in, or harvested from, the EEZ.
    (3) Vessels subject to the haddock possession limit shall have on 
board the vessel at least one standard box or one standard tote.
    (4) The haddock stored on board the vessel shall be retained 
separately from the rest of the catch and shall be readily available 
for inspection and for measurement by placement of the haddock in a 
standard box or standard tote if requested by an authorized officer.
    (5) The haddock possession limit is equal to 500 pounds (226.8 kg) 
or its equivalent as measured by the volume of 4 standard boxes or 5 
standard totes.


Sec. 651.29  Transfer-at-sea.

    (a) Vessels permitted under Sec. 651.4 are prohibited from 
transferring or attempting to transfer fish from one vessel to another 
vessel.
    (b) All vessels are prohibited from transferring or attempting to 
transfer multispecies finfish from one vessel to another vessel.
    7. Figure 2 to part 651 is temporarily suspended, effective January 
3, 1994, through April 2, 1994, and Figure 6 is temporarily added 
effective January 3, 1994, through April 2, 1994.

BILLING CODE 3510-22-P

TR03JA94.009


[FR Doc. 93-32010 Filed 12-28-93; 3:22 pm]
BILLING CODE 3510-22-C