[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