[Federal Register Volume 59, Number 158 (Wednesday, August 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20197]


[[Page Unknown]]

[Federal Register: August 17, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Part 651

[Docket No. 931076-4220; I.D. 071194C]

 

Northeast Multispecies Fishery

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

ACTION: Final rule; technical amendment.

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SUMMARY: NMFS issues this final rule to make corrections and 
clarifications to the regulations implementing Amendment 5 to the 
Northeast Multispecies Fishery Management Plan (FMP).

EFFECTIVE DATES: This final rule is effective August 12, 1994 except 
for Sec. 651.9(a)(14) which is effective September 12, 1994.

FOR FURTHER INFORMATION CONTACT: Christopher B. McCarron, NMFS, Fishery 
Management Specialist, 508-281-9139.

SUPPLEMENTARY INFORMATION: The New England Fishery Management Council 
(Council) submitted Amendment 5 to the FMP on September 27, 1993. Two 
measures of the amendment were disapproved on September 30, 1993--one 
measure pertaining to a haddock possession limit, and the other 
pertaining to winter flounder fishing in state waters. The remainder of 
Amendment 5 was approved on January 3, 1994. The final rule for 
Amendment 5 was published on March 1, 1994 (59 FR 9872). This action 
makes several corrections and clarifications to that rule.
    Amendment 5 requires vessels in the Fleet days-at-sea (DAS) 
program, for multispecies trips longer than 24 hours, to tie-up 
(layover) at the dock at the end of each trip for half the amount of 
DAS accrued on the trip. Since many vessels, when in harbor, tie-up at 
a mooring instead of a dock and/or move between locations in the harbor 
to attend to operational needs such as refueling, a definition for 
``tied-up to the dock'' has been added to Sec. 651.2 to clarify that a 
vessel may be tied to either a mooring or a dock and may move between 
locations in the same harbor during its layover period. This definition 
complies with the objectives of the FMP.
    From March 1 through July 31, vessels in the Stellwagen Bank/
Jeffreys Ledge (SB/JL) juvenile protection area are required by 
Sec. 651.20(a)(5) to have 6-inch (15.24-cm) square mesh in the last 140 
bars of the codend and extension piece of all mobile net gear. The 
final regulation inadvertently did not define square mesh. To clarify 
the square-mesh requirement, a definition of ``square mesh'' has been 
added to Sec. 651.2.
    The final rule for Amendment 5 set forth how diamond mesh would be 
measured for enforcement purposes but inadvertently omitted the 
measurement technique for square mesh. Language is added to 
Sec. 651.20(g) to set forth the measurement technique for square mesh.
    The regulations implementing Amendment 5 allow vessels fishing for 
non-regulated species, in the regulated mesh areas, to obtain an 
exemption permit to fish with midwater trawl or purse seine gear. 
Although the FMP only requires such a permit in those areas that do not 
allow the stowage of small-mesh nets, the regulations are not clear and 
seem to require that such a permit be obtained for all areas. Sections 
651.20(e) and 651.20(f) are revised to remove that ambiguity.
    According to the regulations as now written, a vessel, while its 
DAS are being appealed, may fish under the Fleet DAS program until a 
determination is made on the appeal. The regulations are not explicit, 
however, on whether a vessel that has received an initial allocation of 
individual DAS may fish pursuant to that initial allocation during an 
appeal of the amount of DAS allocated. In such a case, the vessel has 
received, independent of the appeal, authorization to fish under the 
individual DAS program. The fact that the vessel may be appealing the 
amount of DAS allocated does not preclude the vessel from fishing the 
individual DAS that are not in dispute. The regulations as originally 
written were intended only to define the rights of vessels that 
otherwise would not have any significant allocation of DAS while an 
appeal was pending. To clarify the intent, Sec. 651.22(b)(7) is revised 
to specify that vessels may elect to fish under the individual DAS 
program, while under appeal, if they have been initially allocated 
individual DAS, provided they do not exceed their initial allocation of 
DAS and remain in the individual DAS program for the remainder of the 
1994-95 fishing season.
    In the October 27, 1993, proposed rule for Amendment 5 (58 FR 
57774), dealer, operator and vessel permits were to expire upon the 
date specified in the permit. This was done to eliminate unnecessary 
renewal burdens to permit holders and to give the Regional Director the 
flexibility to deal efficiently with the administrative burden 
associated with permit renewals. The final regulatory language 
inadvertently specified that permits must be renewed annually. This was 
not the intent. Accordingly, changes are made to Sec. 651.4(i), 
Sec. 651.5(g), and Sec. 651.6(f) to remove the annual renewal 
requirement.
    A prohibition concerning the reporting requirements in 
Sec. 651.7(b)(1) was inadvertently omitted and is added at 
Sec. 651.9(a)(14). This prohibition requires federally permitted 
multispecies vessel operators to sell, barter, or trade multispecies 
finfish only to federally permitted multispecies dealers. This 
prohibition mirrors a prohibition at Sec. 651.9(e)(7) that prohibits 
federally permitted dealers from purchasing, possessing, or receiving 
multispecies from a vessel that does not hold a Federal multispecies 
permit, with the exception of vessels that fish exclusively in state 
waters.
    The regulation implementing Framework Adjustment 4 to the FMP (59 
FR 26972) implemented a series of time and area closures for the sink 
gillnet fishery. Since these regulations prohibit sink gillnet 
operators from possessing gillnet gear aboard their vessel while in the 
areas and for the times specified in Sec. 651.32(a), vessels would be 
prevented from transiting a closed area while in possession of gillnet 
gear. Based on a review of the record, it is clear that the Council did 
not intend that gillnet vessels be precluded from accessing open areas. 
This action clarifies the Council's intent by adding language that will 
allow for net stowage pursuant to Sec. 651.20(c)(4) so that a gillnet 
vessel may transit a closed area. The Regional Director, pursuant to 
Sec. 651.20(c)(4)(iv) may specify by letter to permit holders 
additional methods for lawfully storing gillnet gear while transiting a 
closed area.
     Currently, Sec. 651.30 prohibits the transfer at sea of 
multispecies finfish. A review of the record revealed that this 
prohibition should have been limited to the transfer of regulated 
species. Section 651.30(a) and Sec. 651.30(b) have been revised to 
correct this error, as have the corresponding prohibitions in 
Sec. 651.9(a)(7) and Sec. 651.9(e)(5).
    Finally, this action accomplishes three other corrections: The 
metric conversion for winter flounder in Sec. 651.23(a) is corrected; 
in Sec. 651.22(c)(1)(i)(B), ``multispecies'' is replaced by ``regulated 
species;'' and clearer, more detailed versions of figures 1 and 3 are 
provided.

Classification

    Because this rule only corrects omissions and other errors or makes 
clarifications of intent to an existing set of regulations for which 
full prior notice and opportunity for comment have been given, no 
useful purpose would be served by providing prior notice and 
opportunity for comment for this rule. Accordingly, under 5 U.S.C. 
553(b)(B) it is unnecessary to provide such notice and opportunity for 
comment.
    All but one provision of this rule impose no new requirements on 
anyone subject to these regulations and many provisions remove or 
relieve restrictions. Accordingly, under 5 U.S.C. 553(d), they may be 
made immediately effective. Section 651.9(a)(14) adds a new prohibition 
which is effective 30 days from the date of filing with the Office of 
the Federal Register.
    This rule is exempt from OMB review under E.O. 12866.

List of Subjects in 50 CFR Part 651

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 12, 1994.
Gary Matlock,
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. In Sec. 651.2, the definitions for ``square mesh'' and ``tied-
up to the dock'' are added, in alphabetical order, to read as follows:


Sec. 651.2   Definitions.

* * * * *
    Square mesh means mesh in which the horizontal bars of the mesh run 
perpendicular to the long axis of the net so when the net is placed 
under a strain the mesh remains open to a square-like shape. Square 
mesh can be formed by hanging diamond mesh ``on the square'', if the 
resulting mesh conforms with the above description of square mesh.
* * * * *
    Tied-up to the dock means to tie-up at a dock, on a mooring, or 
within the harbor.
* * * * *
    3. Section 651.4(i) is revised to read as follows:


Sec. 651.4   Vessel permits.

* * * * *
    (i) Expiration. A permit will expire upon the renewal date 
specified in the permit.
* * * * *
    4. Section 651.5(g) is revised to read as follows:


Sec. 651.5   Operator permits.

* * * * *
    (g) Expiration. A permit will expire upon the renewal date 
specified in the permit.
* * * * *
    5. Section 651.6(f) is revised to read as follows:


Sec. 651.6  Dealer permits.

* * * * *
    (f) Expiration. A permit will expire upon the renewal date 
specified in the permit.
* * * * *
    6. In Sec. 651.9, paragraphs (a)(7), (a)(13), (e)(5), and (e)(31) 
are revised and paragraph (a)(14) is added to read as follows:


Sec. 651.9  Prohibitions.

    (a) * * *
    (7) Land, offload, remove, or otherwise transfer, or attempt to 
land, offload, remove, or otherwise transfer fish from one vessel to 
another vessel or other floating conveyance unless authorized in 
writing by the Regional Director pursuant to Sec. 651.30(a).
* * * * *
    (13) Fish with, set, haul back, possess on board a vessel, unless 
stowed in accordance with Sec. 651.20(c)(4), or fail to remove a sink 
gillnet from the area and for the times specified in Sec. 651.32(a), 
unless authorized in writing by the Regional Director.
* * * * *
    (14) Sell, barter, trade, or transfer, or attempt to sell, barter, 
trade, or otherwise transfer, for a commercial purpose, other than 
transport, any multispecies, unless the transferee has a dealer permit 
issued under Sec. 651.6.
* * * * *
    (e) * * *
    (5) Land, offload, remove, or otherwise transfer, or attempt to 
land, offload, remove or otherwise transfer multispecies finfish from 
one vessel to another vessel, unless both vessels qualify under the 
exception specified in paragraph (e)(1)(ii) of this section, or unless 
authorized in writing by the Regional Director pursuant to 
Sec. 651.30(a).
* * * * *
    (31) Fish with, set, haul back, possess on board a vessel, unless 
stowed in accordance with Sec. 651.20(c)(4), or fail to remove a sink 
gillnet from the EEZ portion of the areas, and for the times specified 
in Sec. 651.32(a), unless authorized in writing by the Regional 
Director.
* * * * *
    7. In Sec. 651.20, the first sentence of paragraph (c)(4) 
introductory text, paragraph (a)(5), (e) heading, (e)(1) introductory 
text, (e)(2), (f) introductory text, and (g) are revised to read as 
follows:


Sec. 651.20  Regulated mesh areas and restrictions on gear and methods 
of fishing.

* * * * *
    (a) * * *
    (5) Stellwagen Bank/Jeffreys Ledge (SB/JL) juvenile protection 
area. During the period March 1 through July 31 of each year, the 
minimum mesh size for nets in the following area shall be 6 inches 
(15.24 cm) in all sink gillnets and 6 inches (15.24 cm) square mesh in 
the last 140 bars of the codend and extension piece of all mobile net 
gear except as provided for in (e) and (f) of this section.
* * * * *
    (c) * * *
    (4) Net stowage requirements. Except as provided in paragraphs 
(c)(3)(i) and (d)(3)(i) of this section, a vessel holding a valid 
Federal multispecies permit under this part and fishing in the Southern 
New England or Mid-Atlantic regulated mesh areas, may not have 
available for immediate use any net, or any piece of a net, not meeting 
the requirements specified in paragraphs (c)(2) and (d)(2) of this 
section; and a vessel, holding a valid multispecies permit while in the 
areas and for the times specified under Sec. 651.32(a), and any vessel 
while in the EEZ portion of the areas and for the times specified under 
Sec. 651.32(a), may not have available for immediate use any sink 
gillnet gear. * * *
* * * * *
    (e) Midwater trawl gear exemption. (1) For the GOM/GB, JL/SB, and 
Nantucket Lightship regulated mesh areas south of 42 deg.20' N. lat., 
fishing for Atlantic herring or blueback herring, mackerel, and squid 
may take place throughout the fishing year with midwater trawl gear of 
mesh size less than the regulated size, provided that:
* * * * *
    (2) For the GOM/GB and JL/SB regulated mesh areas north of 
42 deg.20' N. lat., fishing for Atlantic herring or blueback herring, 
and for mackerel may take place throughout the fishing year with 
midwater trawl gear of mesh size less than the regulated size, provided 
that the requirement of paragraphs (e)(1) (i) through (iv) of this 
section are met.
    (f) Purse seine gear exception. For the GOM/GB, JL/SB, and 
Nantucket Lightship regulated mesh areas, fishing for Atlantic herring 
or blueback herring, mackerel, and menhaden may take place throughout 
the fishing year with purse seine gear of mesh size less than the 
regulated size, provided that:
* * * * *
    (g) Mesh measurements--(1) Net gauge. Mesh sizes are measured by a 
wedged-shaped gauge having a taper of 2 cm in 8 cm and a thickness of 
2.3 mm, inserted into the meshes under a pressure or pull of 5 kg.
    (2) Square-mesh measurement. Square mesh in the regulated portion 
of the net shall be measured by placing the net gauge along the 
diagonal line that connects the largest opening between opposite 
corners of the square. The square mesh size will be the average of the 
measurements of 20 consecutive adjacent meshes from the terminus 
forward along the long axis of the net. The square mesh shall be 
measured at least five meshes away from the lacings of the net.
    (3) Diamond-mesh measurement. Diamond mesh in the regulated portion 
of the net will be measured running parallel to the long axis of the 
net. The mesh size will be average of the measurements of any series of 
20 consecutive meshes. The mesh shall be measured at least five meshes 
away from the lacings of the net.
* * * * *
    8. In Sec. 651.22, paragraphs (b)(7) and (c)(1)(i)(B) are revised 
to read as follows:


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

* * * * *
    (b) * * *
    (7) Status of vessels pending appeal of DAS allocations. All vessel 
owners, while their Individual DAS allocation is under appeal, may fish 
under the Fleet DAS program, or the Individual DAS program if they have 
been initially allocated DAS under the Individual DAS program, at their 
election, and are subject to all the requirements applicable to the DAS 
program they choose, unless otherwise exempted, until the Regional 
Director has made a final determination on the appeal.
    (i) Vessels fishing under the Fleet DAS program during appeal. Any 
DAS spent fishing for regulated species by a vessel that has elected 
the Fleet DAS program while that vessel's initial DAS allocation is 
under appeal, 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 
allocations of days in fishing year 1995.
    (ii) Vessels fishing under the Individual DAS program during 
appeal. A vessel fishing under the Individual DAS program while its 
initial DAS allocation is under appeal may only fish up to its initial 
allocation of DAS, pending the outcome of its appeal, and is required 
to remain in the Individual DAS program for the remainder of the 1994 
multispecies fishing year.
* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (B) During each period of time declared, the applicable vessel may 
not possess more than the possession limit (226.8 kg) of regulated 
species.
* * * * *


Sec. 651.23   [Amended]

    9. In Sec. 651.23, the table in paragraph (a) is amended by 
removing the entry, ``Winter flounder (blackback).... 12 (27.9 cm)'' 
and adding in its place ``Winter flounder (blackback).... 12 (30.48 
cm)''.
    10. Section 651.30 is revised to read as follows:


Sec. 651.30   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, unless authorized in writing by the Regional Director, except 
that no vessel permitted under Sec. 651.4 may be authorized to transfer 
regulated species.
    (b) All vessels, unless authorized in writing from the Regional 
Director under paragraph (a) of this section, are prohibited from 
transferring or attempting to transfer multispecies finfish from one 
vessel to another vessel while in the EEZ.
    11. In Sec. 651.32, paragraphs (a) introductory text and (a)(1) 
introductory text are revised to read as follows:


Sec. 651.32   Sink gillnet requirements to reduce harbor porpoise 
takes.

    (a) General. In addition to the measures specified in Secs. 651.20 
and 651.21, persons owning or operating vessels using, possessing on 
board a vessel, unless stowed in accordance with Sec. 651.20(c)(4), or 
fishing with, sink gillnet gear are subject to the following 
restrictions unless otherwise authorized in writing by the Regional 
Director:
    (1) Areas closed to sink gillnets. All persons owning or operating 
vessels must remove all of their sink gillnet gear from, and may not 
use, set, haul back, fish with, or possess on board a vessel, unless 
stowed in accordance with Sec. 651.20(c)(4), a sink gillnet in, the EEZ 
portion of the areas and for the times specified in paragraphs 
(a)(1)(i) through (iii) of this section; and, all persons owning or 
operating vessels issued a Federal Multispecies Limited Access Permit 
must remove all of their sink gillnet gear from, and may not use, set, 
haul back, fish with or possess on board a vessel, unless stowed in 
accordance with Sec. 651.20(c)(4), a sink gillnet in, the entire areas 
and the times specified in paragraphs (a)(1)(i) through (iii) of this 
section.
* * * * *
    12. Figures 1 and 3 to part 651 are revised to read as follows:

BILLING CODE 3510-22-W

TR17AU94.002


TR17AU94.003


[FR Doc. 94-20197 Filed 8-12-94; 4:26 pm]
BILLING CODE 3510-22-W