[Federal Register Volume 59, Number 84 (Tuesday, May 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10521]


[[Page Unknown]]

[Federal Register: May 3, 1994]


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


DEPARTMENT OF COMMERCE
50 CFR Part 651

[Docket No. 940421-4121; I.D. 042594B]
RIN 0648-AG64

 

Northeast Multispecies Fishery

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 1 to the Northeast Multispecies Fishery Management 
Plan (FMP). NMFS implemented parts of Amendment 5 to the FMP on March 
1, 1994, but delayed implementation of some provisions, including the 
effort-reduction program, until May 1, to provide the industry and NMFS 
sufficient time to prepare for this unprecedented and far-reaching 
change to the regulations. The effect of this delay is that the first-
year's effort reduction requirements are compressed into eight months 
with different impacts on different segments of the fleet. The 
adjustment in the fishing year implemented by this rule will establish 
May 1 through April 30 as the annual fishing year for the effort 
reduction program contained in Amendment 5.

EFFECTIVE DATE: May 1, 1994.

ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR) 
and the final regulatory flexibility analysis contained within the RIR, 
its final supplemental environmental impact statement, and Framework 
Adjustment #1 are available upon request from Douglas G. Marshall, 
Executive Director, New England Fishery Management Council, 5 Broadway 
(Route 1), Saugus, MA 01906-1097.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, NMFS, Fishery Policy 
Analyst, 508-281-9272.

SUPPLEMENTARY INFORMATION:

Background

    The New England Fishery Management Council (Council) submitted 
Amendment 5 to the NMFS on September 27, 1993, after spending more than 
2 years on its development. The primary purpose of Amendment 5 is to 
eliminate the overfished condition of the primary stocks of the 
multispecies complex through an effort-reduction program. The effort-
reduction program consists of annual reductions in the numbers of days 
that vessels are allowed to spend at sea as a method to limit fishing 
effort for groundfish. Vessels have a choice whether to fish under an 
individual allocation of days-at-sea (DAS), based on each vessel's 
history of fishing for groundfish, or to fish under the fleet DAS 
option, wherein vessels must declare blocks of time out of the fishery 
and lay over in port for a period proportional to the time fishing for 
groundfish.
    NMFS published the proposed rule for Amendment 5 on October 27, 
1993 (58 FR 57774), and informed the Council on January 3, 1994, that 
Amendment 5 had been approved. At that time, the Director, Northeast 
Region, NMFS (Regional Director) indicated that the expected 
implementation date for the amendment was to be March 1, 1994. The 
Council immediately realized that the implementation of this 
comprehensive amendment would require NMFS' starting a number of new 
administrative programs. The Council acknowledged the procedural and 
administrative difficulties and stated that it wanted NMFS to implement 
the effort-reduction program only when the agency was ready. The 
Council also communicated its intent that Amendment 5's effort-
reduction program be implemented on a full-year basis, rather than on a 
part-year basis for the first year, and initiated Framework Adjustment 
#1 on February 16 to adjust the final rule for Amendment 5.
    The Council is making this adjustment to the final rule for 
Amendment 5 (59 FR 9872, March 1, 1994) under the framework abbreviated 
rulemaking procedure established by Amendment 5 and contained in 50 CFR 
part 651, subpart C. This procedure requires the Council, when making 
certain adjustments to the FMP, to develop and analyze the actions over 
the span of at least two Council meetings. The Council provides the 
public with advance notice of both the proposals and the analysis and 
an opportunity to comment on them prior to and at the second Council 
meeting. Upon review of the analysis and public comment, the Council 
may recommend to the Regional Director that the measures of a given 
framework adjustment 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.
    When the Council began developing Amendment 5, groundfish stocks 
were overfished and the prospects were dim for improvement without the 
effort-reduction program. Since then, the condition of the stocks has 
deteriorated to the point where NMFS, with Council support, implemented 
emergency regulations to protect haddock. Each new assessment of 
groundfish stocks underlines the urgency of implementing rigorous and 
effective management measures.
    The Council designed the management program using annual 
incremental reductions in fishing effort. The result of implementing 
the effort-reduction program for less than 12 months in the first year 
is that vessels fishing under the individual allocation option would 
have their annual allocation compressed into eight months, while 
vessels under the fleet DAS would be required to meet the annual time-
out requirement over eight months, instead of the full year. Since the 
vessels in the individual DAS category generally choose to be in that 
group because of their higher allocation of opportunity than under the 
fleet group, the conservation benefits of the first year's reductions 
in allocation would be negated if the same allocation were distributed 
over only 8 months, instead of 12.
    On the other hand, vessels in the fleet DAS category would be 
disproportionately burdened if they were required to declare the same 
amount of time out of groundfishing over 8 months, that they would have 
to take over 12 months had Amendment 5 been implemented beginning on 
January 1. Many of the vessels in this category ordinarily would meet 
their time-out requirement during the first few months of the year when 
the weather limits fishing opportunity, or when they are in other 
winter fisheries such as northern shrimp.
    A further need for Framework Adjustment #1 arises from the 
Amendment 5 requirement that all vessels declare one 20-day block out 
of groundfishing during the spawning months of March, April, and May. 
Since NMFS decided to implement the effort-reduction program on May 1, 
that requirement would be compressed into the month of May for the 
first year. As a result, at least two-thirds of the fleet would be 
required to be out of groundfishing at the same time, unless Framework 
Adjustment #1 were implemented. Many fishermen are unable to plan how 
to best use their time and resources during the required period out of 
groundfishing given the relatively short notice, and the substantial 
impact that the sudden loss of two-thirds of the domestic supply of 
groundfish might have on the processing sector and the market.
    This final rule will adjust the rule implementing the effort-
reduction program so that each allocation of DAS (fleet or individual) 
is done on a 365-day program year beginning with the first full year of 
implementation of Amendment 5.

Comments and Responses

    During the period following the approval of Amendment 5 and 
preceding the Council's formal initiation of the framework adjustment, 
a number of individual fishermen, interested members of the public, and 
industry association representatives commented on the problems with the 
current effort-reduction program implementation schedule. Since the 
comment period had not begun, these comments were not tabulated; 
however, all comments were in support of the Council's expeditiously 
making the adjustment that is contained in this rule.
    During the comment period spanning the two required Council 
meetings, the Council received written comments from one individual and 
two associations--the Provincetown Draggermen's Association and the 
Seafood Harvester's Association of New York. Oral comments were 
submitted by three individuals. All of the public comments supported 
the Council's action and urged expeditious implementation. No negative 
comments were received on the proposed action during or outside the 
comment period.
    The Council requested publication of the management measures as a 
final rule after considering the required factors stipulated under the 
Framework Measures in Amendment 5 and providing supporting analysis for 
each factor considered. The Assistant Administrator for Fisheries, NOAA 
(AA) determined that the framework adjustments to the FMP that this 
rule would implement are consistent with the national standards, other 
provisions of the Magnuson Act, and other applicable law. The AA, in 
making that determination, has taken into account the information, 
views, and comments received during the two public hearings and comment 
period under the FMP's framework adjustment mechanism as specified in 
50 CFR 651.40. Considering the opportunity for public comment at 
Council meetings on January 12 through 13, February 16 through 17, 
March 17, and April 6 through 7, and Groundfish Committee meetings on 
February 2 through 3 and February 24, and considering the need for 
immediate resource protection for the groundfish stocks, the provisions 
for continuing evaluation of the adjusted measures, and the timing of 
the rule relative to the requirement that all vessels take twenty days 
out of the fishery during May, 1994, the AA has waived for good cause 
the proposed rules and additional comment period.

Classification

    This final rule has been determined to be ``not significant'' for 
purposes of E.O. 12866.
    The AA finds there is good cause to waive prior notice under 5 
U.S.C. 553(b) of the Administrative Procedure Act (APA). Prior notice 
is impracticable and contrary to the public interest because it would 
cause undue burdens on some members of the groundfish fishing industry 
and would further delay full implementation of conservation measures 
intended to replenish groundfish stocks. Further, the AA finds that the 
public meetings held by the Council to discuss designation of beginning 
and ending dates for the fishing year for this fishery provided 
opportunity for public comment to be considered. The AA finds that 
under section 553(d) of the APA the need to have this regulation in 
place by May 1, 1994, is good cause to waive the 30-day delay in 
effectiveness of this regulation.

List of Subjects in 50 CFR Part 651

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 27, 1994.
Rolland A. Schmitten,
Assistant Administrator National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 651 is revised 
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 651.2 is amended by adding the definition of ``fishing 
year'', in alphabetical order, to read as follows:


Sec. 651.2  Definitions.

* * * * *
    Fishing year means the 12-month period beginning May 1 and 
extending through April 30 of the following year.
* * * * *
    3. Section 651.22 is amended by revising paragraphs (b)(1)(i), the 
first sentence of (b)(3)(i), paragraphs (b)(3)(ii), (b)(3)(iv), (b)(7), 
(c)(1)(i) heading, (c)(1)(i)(A), (c)(1)(i)(E) and (c)(1)(i)(F) to read 
as follows:


Sec. 651.22  Effort-control program for limited access vessels.

* * * * *
    (b) * * *
    (1) * * *
    (i) Beginning on May 1, 1994, any vessel that is greater than 45 ft 
(13.7 m) in length and eligible for a limited access permit, except a 
combination vessel, may elect to fish under the Individual DAS program 
by making such election at the time of application for or renewal of a 
limited access permit. For fishing year 1996 and thereafter, the vessel 
must remain in the DAS program assigned to it in fishing year 1995.
* * * * *
    (3) * * *
    (i) Each vessel participating in the Individual DAS program shall 
be allocated, for each fishing year, the maximum number of days at sea 
it may fish in the multispecies finfish fishery according to the 
criteria and table specified in paragraph (b)(3)(ii) of this section. * 
* *
    (ii) Annual DAS allocations. Vessels fishing under the Individual 
DAS program will receive and be subject to annual allocations of DAS 
based on a fishing year as specified in the following table. These 
allocations are determined by reducing the vessel's Individual DAS as 
calculated under paragraph (b)(2) of this section by 10 percent each 
fishing year, including the first year, for the first 5 fishing years 
of the effort reduction program. Each fishing year shall begin on May 1 
and extend 12 months through April 30 of the following year. 

                    Individual-DAS Allocation=X Days                    
------------------------------------------------------------------------
                   Fishing year                       Annual allocation 
------------------------------------------------------------------------
1994..............................................  x-10% days.         
1995..............................................  x-20% days.         
1996..............................................  x-30% days.         
1997..............................................  x-40% days.         
1998..............................................  x-50% days.         
------------------------------------------------------------------------

* * * * *
    (iv) All vessels fishing under the Individual DAS program must 
declare out of the multispecies finfish fishery for at least one 20-day 
period between May 1 and May 31, or between March 1 and April 30, of 
each fishing year using the notification requirements specified under 
Sec. 651.29(a). If a vessel owner has not declared, or taken, the 
period of time required between May 1 and May 31 or between March 1 and 
April 10, of each fishing year on or before April 11 of each such year, 
the vessel is subject to the possession limit specified under 
Sec. 651.27(a) during the period April 11 through April 30, inclusive.
* * * * *
    (7) Status of vessels pending appeal of DAS allocations. All 
vessels, while appealing their Individual-DAS allocation, may fish 
under the Fleet-DAS program and are subject to all requirements 
applicable to the Fleet-DAS program unless otherwise exempted, until 
the Regional Director has made a final determination on the appeal. Any 
DAS spent fishing for multispecies finfish shall be counted against the 
Individual-DAS allocation that the vessel may ultimately receive. If 
before this appeal is decided, a vessel exceeds the number of days it 
is finally allocated after appeal, the excess days will be subtracted 
from the vessel's allocation of days in fishing year 1995.
* * * * *
    (c) * * *
    (1) * * *
    (i) Days in which a vessel may not possess more than 500 lbs (226.8 
kg) of regulated species.
    (A) During each fishing year, beginning with 1994, vessel owners of 
all such vessels must declare periods of time out of the multispecies 
fishery totaling at least the minimum number of days listed for each 
such fishing year in the following schedule. Each period of time 
declared must be at least 20 consecutive days. At least one 20-
consecutive-day period must be declared or taken between May 1 and May 
31, or between March 1 and April 10, of each fishing year. Each fishing 
year shall begin on May 1 and extend 12 months through April 30 of the 
following year.

------------------------------------------------------------------------
                                                          Days out of   
                     Fishing year                         multispecies  
                                                            fishing     
------------------------------------------------------------------------
1994.................................................                 80
1995.................................................                 80
1996.................................................                128
1997.................................................                165
1998.................................................                200
1999.................................................               233 
------------------------------------------------------------------------

* * * * *
    (E) If a vessel owner has not declared, or taken, the period of 
time required between May 1 and May 31, or between March 1 and April 
10, of each fishing year on or before April 11 of each such year, the 
vessel is subject to the possession limit specified under 
Sec. 651.27(a) during the period April 11 through April 30, inclusive.
    (F) If a vessel owner has not declared, or taken, any or all of the 
remaining periods of time required under paragraph (c)(1)(i) of this 
section, by the last possible date to meet the requirement, the vessel 
is subject to the possession limit specified under Sec. 651.27(a) from 
that date through the end of the fishing year.

[FR Doc. 94-10521 Filed 4-28-94; 4:06 pm]
BILLING CODE 3510-22-P