[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Rules and Regulations]
[Pages 8492-8495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5016]



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DEPARTMENT OF COMMERCE
50 CFR Part 651

[Docket No. 960226048-6048-01; I.D. 020996A]
RIN 0648-AI79


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 measures contained in 
Framework Adjustment 14 to Amendment 5 of the Northeast Multispecies 
Fishery Management Plan (FMP). This rule implements a spring closure 
for gillnet gear in the Revised Mid-coast Closure Area and establishes 
a new Cape Cod South Closure Area off Southern New England. The intent 
of this rule is to further reduce harbor porpoise mortality in the Gulf 
of Maine sink gillnet fishery to meet the New England Fishery 
Management Council's (Council) bycatch reduction goals.

EFFECTIVE DATES: The addition of Sec. 651.32(a)(1)(iv) and Figure 9 is 
effective March 8, 1996. The amendment to Sec. 651.32(a)(1)(ii)(B) is 
effective March 25, 1996.

ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR) 
and the final regulatory flexibility analysis (FRFA) contained with the 
RIR, its final supplemental environmental impact statement (FSEIS), and 
Framework Adjustment 14 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: E. Martin Jaffe, 508-281-9272.

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 
was to reduce the bycatch of harbor porpoise in the Gulf of Maine sink 
gillnet fishery by the end of Year 4 of plan 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 
established a requirement 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 issuance of implementing regulations for Framework 
Adjustment 4 to Amendment 5 of the Northeast Multispecies Fishery 
Management Plan (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.
    This action is necessary in order to make further progress toward 
the Council's bycatch reduction goals for Year 2 (1995-96) of the 
Program. The target adopted by the Council was a 40 percent reduction 
in the bycatch or approximately 780 animals. Due in part to the 
increased bycatch rates in the Mid-coast region, incidental take of 
harbor porpoise for that year may still exceed 1,500 animals. This 
information and the fact that porpoise takes had also been well 
documented in late March, April and May of 1995 in the Revised Mid-
coast Closure Area creates a situation in which total bycatch for the 
1994-95 season had likely exceeded target levels. Prior to the proposed 
framework adjustment, there have been no closures implemented to reduce 
entanglement as animals move northward into the northern Gulf of Maine 
and the Bay of Fundy in the spring.
    This final rule implements a spring closure from March 25 through 
April 25 in the Revised Mid-coast Closure Area (see Figure 8), 
establishes an additional closure area--the Cape Cod South Closure 
Area--south of Massachusetts and Rhode Island (Figure 9), and 
implements the closure of that area from March 8 through March 30 in 
1996 and from March 1 through March 30 in subsequent years. These 
closure areas will be monitored to determine whether displaced gillnet 
activity, if it occurs, results in increased porpoise takes.

Revised Mid-coast Closure Area--Figure 8

    This area is closed from March 25 through April 25 for each fishing 
year.

------------------------------------------------------------------------
             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               69 deg.00' W.       
                                shoreline                               
------------------------------------------------------------------------

Cape Cod South Closure Area--Figure 9

    This area is closed from March 1 through March 30 of each fishing 
year, except in 1996 when the area is closed from March 8 through March 
30. 

[[Page 8493]]


------------------------------------------------------------------------
              Point                      Latitude           Longitude   
------------------------------------------------------------------------
CCS1............................  RI shoreline           71 deg.45' W.  
CCS2............................  40 deg.40' N.          71 deg.45' W.  
CCS3............................  40 deg.40' N.          70 deg.30' W.  
CCS4............................  MA shoreline           70 deg.30' W.  
------------------------------------------------------------------------

Comments and Responses

    The Council has considered information, views and comments made at 
a meeting of its Marine Mammal Committee (MMC) held in Saugus, MA on 
November 28, 1995; at an informal meeting between Council staff and 
southern New England gillnet fishermen in Tiverton, RI on December 7, 
1995; and at a full Council meeting (the first meeting for initiating 
the framework action) held in Danvers, MA on December 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 5 days prior to the second 
meeting required under the framework adjustment process. Written 
comments were accepted up to and at the January 25, 1996, Council 
meeting in Danvers, MA, at which time the decision to finalize this 
framework adjustment was made. Several individuals commented on the 
Council's proposal.
    Comment 1: A gillnet representative requested that the 
Massachusetts Bay Closure Area continue to be effective from March 1 
through March 30.
    Response: The MMC proposed no change to that closure area. The 
Council and NMFS agree and the Massachusetts Bay Closure will remain as 
is, i.e., closed from March 1 through March 30.
    Comment 2: A gillnet fisherman from Rhode Island asked that the 
Cape Cod South Closure Area period be from the last 2 weeks in February 
through the first 2 weeks in March.
    Response: The analysis prepared by the NEFSC indicates that the 
harbor porpoise takes for that area are highest in March. There have 
been no takes observed in February.
    Comment 3: A member of the HPRT recommended that the spring Mid-
coast area closure be longer than just April.
    Response: The MMC recommended, and the Council and NMFS agree, that 
effecting the Revised Mid-coast Closure Area from March 25 through 
April 25 will provide the maximum harbor porpoise bycatch reduction 
while minimizing the loss of fishing opportunity to harvesters using 
gillnet gear, as determined by the NEFSC analysis. The Council may seek 
to adjust this closure period at some future date.
    Comment 4: A member of the HPRT recommended that the spring closure 
in Massachusetts Bay be extended from February 1 through March 30. The 
commenter also noted that it may be necessary to extend the closures in 
the Mid-coast and Cape Cod South Closure Areas once additional data are 
available.
    Response: The Council considered several changes to the 
Massachusetts Bay area closure times and determined that it had no 
basis for making a change. All area closures and experimental fisheries 
will be evaluated annually by the HPRT and recommendations for 
adjustments will be made as necessary.
    Comment 5: A member of the HPRT commented that the Council action 
represented the best that could be done until more data become 
available to gauge the effectiveness of previous closures.
    Response: The Council will consider modifying its harbor porpoise 
bycatch reduction goal to match the MMPA goal established under the 
1994 amendments.
    The Council also received several comments pertaining to an 
experimental fishery using small acoustic devices called pingers to 
deter harbor porpoise bycatch in the sink gillnet fishery. The Council 
forwarded these comments to the Regional Director requesting that such 
an experimental fishery be established in the closure areas during the 
closure periods. The Regional Director is considering such fisheries, 
which may mitigate negative economic impacts of the closures for some 
fishermen. The Council considered the public comments pertaining to 
this framework adjustment prior to making its recommendation to the 
Regional Director under the framework provisions for the FMP.

Adherence to Framework Procedure Requirements

    Data were not available for a proposed rule, and the need for 
regulations to be in place for an entire fishing season is not an issue 
for this particular action. The public was provided adequate 
opportunity to express opinions at several meetings. These 
opportunities were provided at the Council's MMC held in Saugus, MA, on 
November 28, 1995; at an informal meeting between Council staff and 
southern New England gillnet fishermen in Tiverton, RI, on December 7, 
1995; and at two full Council meetings held in Danvers, MA, on December 
13, 1995, and January 25, 1996. There is an immediate need to provide 
more protection for the harbor porpoise beyond the existing management 
measures. There will be further evaluation of these management measures 
based on landings data, enforcement activity, and an expected 
experimental fishery. NMFS has 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

    In that this regulation is not subject to the requirement to 
publish a general notice of proposed rulemaking 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.
    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) as such notice and public procedure thereon 
are unnecessary. 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. The AA finds that under 5 U.S.C. 553(d), the need to have 
the closure of the Revised Mid-coast Closure Area effective March 25 
and the closure of the Cape Cod South Closure Area effective as soon as 
possible after March 1 while at the same time providing fishermen 
adequate notice to comply, to avoid delay that would likely impede the 
achievement of harbor porpoise mortality reduction goals, constitutes 
good cause to waive a portion of the 30-day delay in effectiveness of 
this regulation. Accordingly, the closure of the Revised Mid-coast 
Closure Area is effective March 25, 1996, and the closure of the Cape 
Cod South Closure Area is effective March 8, 1996.

List of Subjects in 50 CFR Part 651

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 28, 1996.
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: 

[[Page 8494]]


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 the first sentence of paragraph (a)(1)(ii)(B) is 
revised and paragraph (a)(1)(iv) is added to read as follows:


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

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) Notwithstanding any other provisions in this part, from March 
25 through April 25 of each fishing year the restrictions and 
requirements specified in the introductory text of paragraph (a) of 
this section 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). * * *
    (iv) Cape Cod South Closure Area. From March 6 through March 30 of 
fishing year 1996 and from March 1 through March 30 of subsequent 
fishing years, the restrictions and requirements specified in the 
introductory text of paragraph (a) of this section apply to an area 
known as the Cape Cod South Closure Area, which is an area bounded by 
straight lines connecting the following points in the order stated (see 
Figure 9 of this part).

                       Cape Cod South Closure Area                      
------------------------------------------------------------------------
              Point                      Latitude           Longitude   
------------------------------------------------------------------------
CCS1............................  RI shoreline           71 deg.45' W.  
CCS2............................  40 deg.40' N           71 deg.45' W.  
CCS3............................  40 deg.40' N           70 deg.30' W.  
CCS4............................  MA shoreline           70 deg.30' W.  
------------------------------------------------------------------------

* * * * *
    3. Figure 9 is added to part 651 to read as follows:

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[[Page 8495]]
[GRAPHIC] [TIFF OMITTED] TR05MR96.004



Figure 9 to Part 651--Cape Cod South Closure Area for the Protection of 
Harbor Porpoise

[FR Doc. 96-5016 Filed 3-1-96; 9:26 am]
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