[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Rules and Regulations]
[Pages 55207-55211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26759]



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DEPARTMENT OF COMMERCE
50 CFR Part 651

[Docket No. 951023256-5256-01; I.D. 101695E]


Northeast Multispecies Fishery; Framework Adjustment 12

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 12 to the Northeast Multispecies Fishery 
Management Plan (FMP). This rule expands and redefines the Mid-coast 
Closure Area for sink gillnet gear, in both area and time during 1995, 
to reduce the bycatch of harbor porpoise, while minimizing the loss of 
fishing opportunity to harvesters using sink gillnet gear.

EFFECTIVE DATE: November 1, 1995.

ADDRESSES: Copies of Amendment 5 to the Northeast Multispecies Fishery 
Management Plan (Amendment 5), its regulatory impact review (RIR) and 
the final regulatory flexibility analysis contained with the RIR, its 
final supplemental environmental impact statement, and Framework 
Adjustment 12 document are available upon request from Douglas G. 
Marshall, 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. 

[[Page 55208]]


SUPPLEMENTARY INFORMATION:

Background

    Regulations implementing Amendment 5 to the FMP were published on 
March 1, 1994 (59 FR 9872). One of Amendment 5's principal objectives 
is to reduce the bycatch of harbor porpoise in the Gulf of Maine sink 
gillnet fishery by the end of year 4 of implementation to a level not 
to exceed 2 percent of the population, based on the best available 
estimates of abundance and bycatch. In addition, Amendment 5 requires 
that by September 15 of each year, the Council's Harbor Porpoise Review 
Team (HPRT) complete an annual review of harbor porpoise bycatch and 
abundance data in the Gulf of Maine and evaluate the impacts of other 
measures that reduce harbor porpoise take. It also encouraged the HPRT 
to make recommendations on other ``reduction-of-take'' measures to 
achieve the harbor porpoise mortality reduction goals and established a 
framework procedure for timely implementation of appropriate measures.
    With the enactment of Framework Adjustment 4 to the Northeast 
Multispecies Fishery regulations (59 FR 26972, May 25, 1994), a series 
of time and area closures to sink gillnet gear were implemented based 
on an analysis by the Northeast Fisheries Science Center (NEFSC) of the 
seasonal and spatial distribution of harbor porpoise and sink gillnet 
fishing activity in the Gulf of Maine. The time and area closures 
established by Framework 4 remain in place except as modified by this 
action.
    On September 8, 1995, the HPRT met to complete its annual review 
and to develop recommendations concerning future measures that would 
allow the Council to achieve the ``reduction-of-take'' goals stated in 
Framework Adjustment 4. The HPRT also discussed the possible use of 
acoustic devices as part of a bycatch mitigation strategy, because 
independent research has shown that sound emitting devices placed on 
sink gillnet gear can be effective in deterring harbor porpoise.
    At this meeting, the HPRT reviewed data collected since 1990 from 
analyses prepared by the NEFSC and compared it with 1994, the first 
year in which the Council implemented time/area closures. Bycatch 
estimates for 1994 were not available from the NEFSC, but preliminary 
information on bycatch rates, including rates from previous years for 
comparison purposes, were used in addition to information on the 
location of incidental takes in the southern Gulf of Maine. The HPRT 
concluded that: (1) The time and area closures, as currently 
configured, are neither long enough nor large enough to achieve the 
bycatch reduction goals; (2) the first year goals were probably not met 
and the porpoise bycatch was very likely higher in 1994 than in 1993 
based on the higher bycatch rate in 1994 as an indicator; (3) the 
degree of effectiveness of existing measures cannot be fully evaluated 
until additional information of the distribution of fishing effort is 
available and; (4) the potential increase in bycatch appears to have 
been caused by an increase in the bycatch rates in the Mid-coast area 
in the fall.
    The recommendation of the HPRT, therefore, is to extend the timing 
of the Mid-coast closure as a means to achieve the bycatch rate 
reduction goals, and secondarily, to expand this area to include 
locations that have historically accounted for bycatch but were not 
included in the first year closures. The proposed area of expansion is 
directly to the east and south of the current area, incorporating an 
oceanographic feature described on nautical charts as ``Jeffreys 
Ledge.'' The specific area is found in Figure 8 of this rule. For the 
purposes of this action, the area of expansion is referred to as the 
``Jeffreys Ledge Band.''
    On September 11, 1995, the HPRT forwarded its recommendations to 
the Council, which initiated a framework procedure to adopt certain 
measures in response to the HPRT's recommendations. The Council did not 
adopt the recommendation regarding the Mid-coast area verbatim, because 
the regulatory process for implementing framework measures requires an 
opportunity for public comment and, therefore, would not allow 
completion of this process until approximately November 1, 1995. Thus, 
the framework measures proposed by the Council during its meeting to 
initiate Framework 12 on September 13-14, 1995, were to expand the 
closure area during 1995 by incorporating the Jeffreys Ledge Band into 
the Mid-coast Closure Area, and to close this reconfigured area to sink 
gillnet gear during the period November 1 through December 31, 1995. An 
alternative was requested by a member of the public to exempt a small 
portion of the Jeffreys Ledge Band known as Tillies Bank. The Council 
agreed to consider this request, pending further analysis. The Council 
also requested the Director, Northeast Region (Regional Director), to 
investigate the possibilities for additional experimental work on the 
use of acoustic devices, particularly in the Jeffreys Ledge Band, to 
mitigate harbor porpoise bycatch. The Regional Director agreed to 
investigate the feasibility of these devices in a separate action.
    On October 11, 1995, the Council held the second public meeting 
during which it adopted the framework adjustment measures. NMFS concurs 
with the Council's recommendation; this final rule implements Framework 
Adjustment 12 to address harbor porpoise bycatch by expanding the size 
of the Mid-coast Closure Area (including the Jeffreys Ledge Band but 
excluding Tillies Bank) during 1995 and by extending the duration of 
the Mid-coast Closure for 1995 (initially November 1-30) through 
November and December. While the Council and NMFS are concerned about 
other areas that were under consideration for closure but not closed by 
this action, e.g., the area east of 69 deg.30' W. long. and Tillies 
Bank, the Council noted that it will review these areas specifically 
during the next annual review.
    The expanded and redefined Mid-coast Closure Area with the Jeffreys 
Ledge Band depicted in Figure 8 of this part incorporated into it, is 
defined as follows:

Revised Mid-Coast Closure Area

    This area will be closed from November 1 through December 31, 1995.

------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
MC1.............................  42 deg.30' N......  Massachusetts     
                                                       shoreline        
MC2.............................  42 deg.30' N......  70 deg.15' W.     
MC3.............................  42 deg.40' N......  70 deg.15' W.     
MC4.............................  42 deg.40' N......  70 deg.00' W.     
MC5.............................  43 deg.00' N......  70 deg.00' W.     
MC6.............................  43 deg.00' N......  69 deg.30' W.     
MC7.............................  43 deg.15' N......  69 deg.30' W.     
MC8.............................  43 deg.15' N......  69 deg.00' W.     
MC9.............................  Maine shoreline...  69 deg.00' W.     
------------------------------------------------------------------------

Comments and Responses

    This issue was discussed at a Marine Mammal Committee meeting held 
on September 12, 1995, and at the first of two Council meetings, 
required under the Amendment 5 framework adjustment process, held in 
Portland, ME, on September 13, 1995. 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 at least 5 days prior to the second meeting as required 
under the framework adjustment process, which was held on October 11, 
1995. Written comments were accepted until October 10, 1995. Comments 
on the Council's proposal were received from several individuals 

[[Page 55209]]
and from representatives of the following organizations: International 
Wildlife Coalition (IWC) and Humane Society of the United States/Marine 
Mammal Conservation Coalition (MMCC).
    Comment: Several individuals did not comment in opposition to the 
closure, but rather in support of keeping Tillies Bank open to 
gillnetting.
    Response: Tillies Bank has been excluded from the area incorporated 
into the closure because available data indicates that the harbor 
porpoise bycatch rate in this area appears to be substantially lower 
than elsewhere in the Jeffreys Ledge Band.
    Comment: The representative from IWC asked whether opening Tillies 
Bank and the area east of 69 deg.30' W. would hurt the chances for 
meeting the stated porpoise bycatch goals for 1995.
    Response: NMFS is aware that the closed area may have the effect of 
displacing effort to the area east of 69 deg.30' W. and to Tillies Bank 
and will monitor these areas to the extent possible with the observer 
and at-sea enforcement programs. NMFS did not have sufficient 
justification to disapprove the Council's recommendation to leave these 
areas open and further notes that no harbor porpoise bycatch has been 
observed in these areas during the regular monitoring period from 1990-
1994.
    Comment: Several commentors indicated concern that leaving open 
Tillies Bank and the area east of 69 deg.30' W. long. would not provide 
an alternative fishing area for all gillnetters displaced due to the 
extended closure. Their comments are summarized as follows: The area 
east of 69 deg.30' W. long. is not good gillnet bottom and is already 
fully utilized; Tillies Bank may sustain some additional effort, but it 
would be restricted to larger vessels from New Hampshire; mobile gear 
would move into the closed area and provide such disruption that the 
porpoise would be displaced into the open areas where gillnets would 
still be operating; and increasing conflict with mobile gear has forced 
gillnetters to concentrate their gear in the high relief areas (such as 
Jeffreys Ledge), which are not readily found outside the closed area.
    Response: NMFS recognizes that both the harbor porpoise fall 
distribution and changes in fishing strategies due to the closed area 
will be highly variable. These complicated variabilities make it 
difficult to predict the effects of this closure to either harbor 
porpoise bycatch or the fishery that is displaced by this action. The 
extension of the closure in both area and time is based on the best 
available information on observed harbor porpoise bycatch over the past 
4 years. The analyses of economic effects of the extended closure is 
also based on the historic use of the areas. NMFS assessed such impacts 
to the extent possible in the Framework document. Effects of the 
closure, including any resulting displacement of fishing effort and of 
harbor porpoise, will be investigated by ongoing observer effort and 
reported to the Council for further consideration.
    Comment: A commentor pointed out that while some gillnetters do 
switch to hook gear, they do not switch to otter trawls or shrimp 
trawls as stated in the Framework Adjustment 12 document.
    Response: While some, mostly larger vessels are capable of 
switching to different alternative fishing gears, NMFS agrees that most 
gillnet vessels would only be capable of switching to hook gear.
    Comment: A commentor asked whether NMFS could keep the option to 
incorporate a trigger mechanism into the closure, which would allow the 
area to remain open until it could be determined that harbor porpoise 
have moved into the area. He added that an analysis of the use of a 
trigger mechanism for porpoise closures was to be provided to the 
Council by November 30.
    Response: No trigger mechanisms can be developed in time for the 
1995 closure. The analysis of trigger mechanisms will be made available 
to the Council for its consideration in devising measures to reduce 
harbor porpoise bycatch in the future.
    Comment: A commentor noted that the closure was for 1995 and asked 
about 1996 and beyond.
    Response: The Council will be discussing new closure measures 
combined with phased-in pinger use in subsequent years, as discussed by 
the HPRT. If no new action is forthcoming, the Council has indicated 
its intent that the closure measures of Framework Adjustment 4 be the 
default.

Experimental Fishery

    The Regional Director is considering an experimental fishery in the 
``Jeffreys Ledge Band.'' This experimental fishery would gather 
information pertaining to the use of acoustic devices called 
``pingers'' in a commercial fishery, including insights on pinger 
usage, durability and failure rate under commercial fisheries 
conditions, and additional data on pinger effectiveness in mitigating 
bycatch. The following comments were received on issues related to this 
experiment:
    Comment: The representative from IWC asked why an operational 
``pinger'' pilot study was planned for a high bycatch area when it 
could be delayed for testing in a lower bycatch time/area. The 
representative from MMCC requested that the planned study be conducted 
in a lower bycatch time/area.
    Response: While Framework Adjustment 12 does not implement an 
operational ``pinger'' study, the Council recommended further study of 
deterrent devices, specifically in the Jeffreys Ledge Band. Some 
Council members thought, and NMFS agrees, that if approved, the 
experiment should occur in an area where fishing activity and harbor 
porpoise concentrations occur concurrently in order to be effective. 
NMFS believes, based on an analysis of available information, that this 
experiment would not preclude attainment of the harbor porpoise 
mortality reduction goals specified in Amendment 5 (Framework 
Adjustment 4).
    Comment: The representative from MMCC asked how NMFS will 
coordinate reporting requirements if a new 48 hour Marine Mammal 
Reporting Form, which is being developed for reporting mortalities 
under the Marine Mammal Protection Act (MMPA), is implemented.
    Response: Fishers are already required to submit Fishing Vessel 
Trip Report forms. If the new MMPA forms become effective during the 
experimental fishery, if implemented, they will have to be submitted 
under the time frames stipulated by that statute.
    Comment: A commentor stated that the small day trip vessels 
operating out of Portsmouth, NH, who participated in the 1994 pinger 
experiment, would be unable to fish outside the extended closure area.
    Response: An experimental fishery is presently under consideration 
that would permit such vessels meeting the requirements of the 
experimental design to participate. If approved, NMFS recognizes, 
however, that some vessels may not be able to participate due to the 
location of the experimental fishery area and pinger availability.

Adherence to Framework Procedure Requirements

    The Council considered the public comments prior to making its 
recommendation to the Regional Director under the framework provisions 
for the FMP. The Council requests publication of these management 
measures as a final rule after considering the required factors 
stipulated under the framework measures in the Northeast Multispecies 
FMP, 50 CFR 651.40, and has provided supporting analyses for each 
factor 

[[Page 55210]]
considered. NMFS determined that the framework adjustment to the FMP 
that this rule would implement is consistent with the national 
standards, other provisions of the Magnuson Conservation and Management 
Act, and other applicable law. NMFS, in making that determination, has 
taken into account the information, views, and comments received during 
the comment period of the FMP's framework adjustment mechanism in 50 
CFR 651.40.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Assistant Administrator for Fisheries, NOAA (AA) finds there is 
good cause to waive prior notice and an 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; further comment is unnecessary. The AA finds that under 
5 U.S.C. 553(d)(3) the need to have this regulation in place by 
November 1, 1995, to avoid delay that would likely impede the 
achievement of harbor porpoise mortality reduction goals constitutes 
good cause to waive the 30-day delay in effectiveness of this 
regulation.
    In that this regulation is not subject to the requirements to 
prepare a proposed rule 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.

List of Subjects in 50 CFR Part 651

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 24, 1995.
Richard H. Schaefer,
Acting 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. 651.32 paragraph (a)(1)(ii) is revised to read as 
follows:


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

    (a) * * *
    (1) * * *
    (ii) Mid-coast Closure Area. (A) During the period November 1 
through December 31 of each fishing year, except as specified in 
paragraph (B) of this section, the restrictions and requirements 
specified in the introductory text of paragraph (a) of this section 
shall apply to an area known as the Mid-coast Closure Area, which is an 
area bounded by straight lines connecting the following points in the 
order stated (see Figure 4 of this part).

                         Mid-Coast Closure Area                         
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
MC1.............................  42 deg.45' N......  Massachusetts     
                                                       shoreline.       
MC2.............................  42 deg.45' N......  70 deg.15' W.     
MC3.............................  43 deg.15' N......  70 deg.15' W.     
MC4.............................  43 deg.15' N......  69 deg.00' W.     
MC5.............................  Maine shoreline...  69 deg.00' W.     
------------------------------------------------------------------------

    (B) Notwithstanding any other provisions in this part, during the 
period November 1 through December 31, 1995, the restrictions and 
requirements specified in the introductory text of paragraph (a) of 
this section shall apply to an area known as the Revised Mid-Coast 
Closure Area, which is an area bounded by straight lines connecting the 
following points in the order stated (see Figure 8 of this part).

                     Revised Mid-Coast Closure Area                     
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
MC1.............................  42 deg.30' N......  Massachusetts     
                                                       shoreline.       
MC2.............................  42 deg.30' N......  70 deg.15' W.     
MC3.............................  42 deg.40' N......  70 deg.15' W.     
MC4.............................  42 deg.40' N......  70 deg.00' W.     
MC5.............................  43 deg.00' N......  70 deg.00' W.     
MC6.............................  43 deg.00' N......  69 deg.30' W.     
MC7.............................  43 deg.15' N......  69 deg.30' W.     
MC8.............................  43 deg.15' N......  69 deg.00' W.     
MC9.............................  Maine shoreline...  69 deg.00' W.     
------------------------------------------------------------------------

* * * * *
    3. The heading to Figure 4 to part 651 is revised to read as 
follows: ``Figure 4 to part 651--Closure Areas for Protection of Harbor 
Porpoise''.

PART 651--[AMENDED]

    4. Figure 8 to part 651 is added to read as follows:

BILLING CODE 3510-22-W

[[Page 55211]]


Figure 8 to Part 651--Revised Mid-Coast Closure Area for Protection 
of Harbor Porpoise
[GRAPHIC][TIFF OMITTED]TR30OC95.000


[FR Doc. 95-26759 Filed 10-25-95; 10:11 am]
BILLING CODE 3510-22-C