[Federal Register Volume 61, Number 76 (Thursday, April 18, 1996)]
[Proposed Rules]
[Pages 16892-16894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9593]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 651

[Docket No. 960216032-6107-02; I.D. 032196D]
RIN 0648-AH70


Northeast Multispecies Fishery; Amendment 7; Resubmission of 
Disapproved Measure

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: NMFS proposes amending its proposed regulations published on 
March 5, 1996, to implement Amendment 7 to the Northeast Multispecies 
Fishery Management Plan (FMP) in order to implement a resubmitted part 
of the amendment that was initially disapproved on February 14, 1996. 
The New England Fishery Management Council (Council) has clarified that 
the proposed measure to increase fishing time would apply to all 
vessels using large mesh. The intended effect of this measure is to 
promote conservation by providing an equitably applied incentive to use 
nets constructed of mesh that are larger than the minimum size.

DATES: Comments on this proposed rule must be received by May 15, 1996.

ADDRESSES: Comments should be sent to Dr. Andrew A. Rosenberg, 
Director, Northeast Regional Office, NMFS, 1 Blackburn Drive, 
Gloucester, MA 01930. Mark on the outside of the envelope ``Comments on 
Large Mesh Individual DAS vessels.''

FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy 
Analyst, 508-281-9252.

SUPPLEMENTARY INFORMATION: The Council submitted Amendment 7 to the FMP 
on February 5, 1996. After a preliminary evaluation, the following 
three measures in the amendment were disapproved on February 14, 1996: 
An additional allowance of days at sea for trawl vessels enrolled in 
the Individual Days-at-Sea (DAS) category that use 8-inch (20.32-cm) 
mesh; a 300-lb (136.1-kg) possession limit of regulated species for 
vessels that use 8-inch (20.32-cm) mesh in an exempted fishery; and the 
establishment of a limited access category for vessels that fished in 
the Possession Limit Open Access category under Amendment 5. The 
remainder of

[[Page 16893]]

Amendment 7 was published as a proposed rule on March 5, 1996 (61 FR 
8540). Pursuant to section 304(b)(3)(A) of the Magnuson Fishery 
Conservation and Management Act (Magnuson Act), the Council has 
resubmitted the measure that would allow additional DAS for vessels 
enrolled in the Large Mesh Individual DAS category as described in this 
proposed rule. The Council also resubmitted the proposal to allow a 
300-lb (136.1-kg) possession limit when fishing in an exempted fishery 
with 8-inch (20.32-cm) mesh, but this measure has been disapproved 
again and is not contained in this action. The third disapproved 
measure has not been resubmitted.
    The Large Mesh Individual DAS option that would grant additional 
DAS for vessels fishing for groundfish exclusively with large mesh was 
proposed by the Council based on its policy to provide incentives for 
using mesh larger than the minimum size. The original submission of 
this measure was disapproved, because it appeared to apply only to all 
trawl vessels and not to all gillnet vessels, which would have created 
an inequity and would, therefore, have been inconsistent with Magnuson 
Act National Standard 4.
    At its February 27-28, 1996, meeting, the Council clarified its 
intent and voted to resubmit a measure that proposes that additional 
DAS under the Large Mesh Individual DAS category apply to both trawl 
and gillnet vessels, thereby eliminating what was previously identified 
as an inequity. This rule proposes this measure and provides that an 
increase in DAS under the Large Mesh Individual DAS category would be 
equivalent to the Large Mesh Fleet increase in DAS, i.e., an additional 
12 percent in year 1 and 36 percent in year 2.
    As stated in the proposed rule to implement Amendment 7, this 
measure raises issues of concern. The first issue of concern is over 
how NMFS would calculate the number of DAS for any gillnet vessel that 
may appeal the number of Individual DAS assigned to it by NMFS. Second, 
as mesh selectivity studies for 7-inch (17.8-cm) and 8-inch (20.2-cm) 
mesh do not currently exist, it is impossible to know whether and how 
much the selectivity of this increased mesh would compensate for the 
additional allocation of DAS. Public comment is sought on both of these 
concerns.
    The Council also resubmitted the disapproved 300-lb (136.1-kg) 
regulated species possession limit for vessels fishing with 8-inch 
(20.32-cm) mesh in an exempted fishery, claiming that there would be a 
conservation benefit by creating an added incentive to use a mesh 
larger than the minimum regulated mesh of 6 inches (15.24 cm). This 
measure was initially disapproved, because it could not be reasonably 
calculated to promote conservation, and, therefore, would be 
inconsistent with National Standard 4.
    In its resubmission justification, the Council notes that in the 
event that a fishery is deemed exempt, because it has been determined 
that the bycatch of regulated species does not exceed the maximum 5-
percent standard, a vessel may still catch some groundfish when fishing 
with 6-inch (15.24-cm) mesh and consequently be forced to discard more 
and smaller fish than if it were fishing with 8-inch (20.32-cm) mesh. 
The Council further states that if a fishery is determined to meet the 
5 percent criteria with 6-inch (15.24-cm) mesh, providing an incentive 
to use a larger mesh than that on which the exemption is based would 
not increase the regulated species bycatch rate above 5 percent. The 
Council notes that, when fishing with larger mesh, vessels would have a 
lower regulated species bycatch rate and would be providing for the 
escapement of a greater proportion of juvenile and undersized 
groundfish. Therefore, the Council believes that the resubmitted 
measure would promote conservation and would be consistent with the 
objectives of the amendment. In resubmitting this measure the Council 
states that it is their belief that when provided an incentive to 
retain a 300-lb (136.1-kg) possession limit when fishing in an exempted 
fishery, vessels would be encouraged to use 8-inch (20.32-cm) mesh, 
thereby reducing overall groundfish mortality.
    Although it is possible that in some exempted fisheries discards 
may be reduced when fishing with 8-inch (20.32-cm) mesh as opposed to 
the current regulated mesh size, NMFS has disapproved this resubmitted 
measure for the same reason that it was initially disapproved, i.e., 
because it conflicts with the Council's proposed exempted fishery 
measure. The clear intent of the exemption program is to prevent any 
vessel, when not fishing under the DAS effort control program, from 
fishing in a fishery that has a bycatch of regulated species comprising 
5 percent or more of its total catch. The Council originally arrived at 
the 5 percent standard as a realistic measure to use in order to allow 
some fishing to continue when a vessel is not directing effort on 
groundfish. Just as the 500-lb (226.8-kg) possession limit under 
Amendment 5 provided an incentive for vessels to target groundfish when 
fishing outside of a DAS, it is believed that the 300-lb (136.1- kg) 
possession limit may do the same and would, therefore, counteract the 
conservation effect of the bycatch protection measure. Further, because 
the Council's proposal would allow a vessel to stow nets of mesh less 
than 8 inches (20.32 cm) on board its vessel when fishing in an 
exempted fishery, an enforcement concern is raised that some vessels 
would use net liners to harvest a groundfish bycatch. In addition, it 
would allow participants in certain exempted fisheries an advantage 
that participants in other exempted fisheries do not have, without any 
clear conservation benefit. For these reasons, this measure cannot be 
reasonably calculated to promote conservation and is, therefore, 
inconsistent with National Standard 4.
    In discussing this issue at its February Council meeting, it 
appears that the Council's recommendation for the 300-lb (136.1- kg) 
measure may be to allow a reasonable bycatch of regulated species in 
the monkfish fishery. This fishery is essentially unregulated, although 
the Council is moving forward with a plan amendment to add monkfish as 
a species regulated by the FMP. Depending upon which types of controls 
are placed on this fishery, the regulated species bycatch provision may 
be more appropriately considered in the development of monkfish 
conservation measures.
    NMFS notes that portions of the regulatory text proposed at 61 FR 
8540 on March 5, 1996, would be amended by this proposed rule.

Classification

    Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires 
NMFS to publish implementing regulations proposed by a Council within 
15 days of the receipt of an amendment and proposed regulations. At 
this time, NMFS has not determined whether the amendment this rule 
would implement is consistent with the national standards, other 
provisions of the Magnuson Act, and other applicable law. NMFS, in 
making that determination, will take into account the information, 
views and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The proposed measure contained in this rule is not modified from 
that included in the Council's initial Amendment 7 submission. As such, 
the final supplemental environmental impact statement (FSEIS), 
regulatory impact review (RIR), and the initial regulatory flexibility 
analysis (IRFA) on Amendment 7 considered this measure.

[[Page 16894]]

A separate regulatory flexibility analysis was not prepared for this 
action. Copies of the FSEIS/RIR/IRFA for Amendment 7 can be obtained by 
contacting Douglas G. Marshall, Executive Director, New England Fishery 
Management Council, 5 Broadway, Saugus, MA 01906-1097.
    A formal section 7 consultation under the Endangered Species Act 
was conducted for Amendment 7 to the FMP. A biological opinion was 
prepared by a formal section 7 consultation for Amendment 7 and it was 
determined that fishing activities conducted under the amendment and 
its implementing regulations may affect but are not likely to 
jeopardize the continued existence of endangered or threatened species 
or result in the destruction or adverse modification of critical 
habitat. This action does not change that conclusion.

List of Subjects in 50 CFR Part 651

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 12, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR Part 651 is 
proposed to be 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. 651.20, the proposed rule published at 61 FR 8540 on 
March 5, 1996, is proposed to be amended by revising paragraphs 
(a)(2)(ii), (c)(2)(ii), and (d)(2)(ii) to read as follows:


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

* * * * *
    (a)* * *
    (2)* * *
    (ii) Large Mesh vessels. When fishing in the GOM/GB regulated mesh 
area, the minimum mesh size for any sink gillnet on a vessel, or used 
by a vessel, fishing under a DAS in the Large Mesh DAS programs 
specified in Sec. 651.22(b)(6) and (7) shall be 7-inch (17.78-cm) 
diamond mesh throughout the entire net. The minimum mesh size for any 
trawl net on a vessel, or used by a vessel, fishing under a DAS in the 
Large Mesh DAS programs shall be 8-inch (20.32-cm) diamond mesh 
throughout the entire net. This restriction does not apply to nets or 
pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft 
(0.81 m2)), or to vessels that have not been issued a Federal 
multispecies permit under Sec. 651.4 and that are fishing exclusively 
in state waters.
* * * * *
    (c)* * *
    (2)* * *
    (ii) Large Mesh vessels. When fishing in the SNE regulated mesh 
area, the minimum mesh size for any sink gillnet on a vessel, or used 
by a vessel, fishing under a DAS in the Large Mesh DAS programs 
specified in Sec. 651.22(b)(6) and (7) shall be 7-inch (17.78-cm) 
diamond mesh throughout the entire net. The minimum mesh size for any 
trawl net on a vessel, or used by a vessel, fishing under a DAS in the 
Large Mesh DAS programs shall be 8-inch (20.32-cm) diamond mesh 
throughout the entire net. This restriction does not apply to nets or 
pieces of nets smaller than 3 x 3 ft (0.9 x 0.9 m), (9 ft2 (0.81 
m2)), or to vessels that have not been issued a Federal 
multispecies permit under Sec. 651.4 and that are fishing exclusively 
in state waters.
* * * * *
    (d)* * *
    (2)* * *
    (ii) Large Mesh vessels. When fishing in the MA regulated mesh 
area, the minimum mesh size for any sink gillnet on a vessel, or used 
by a vessel, fishing under a DAS in the Large Mesh DAS programs 
specified in Sec. 651.22(b)(6) and (7) shall be 7-inch (17.78-cm) 
diamond mesh throughout the entire net. The minimum mesh size for any 
trawl net on a vessel, or used by a vessel, fishing under a DAS in the 
Large Mesh DAS programs shall be 8-inch (20.32-cm) diamond mesh 
throughout the net. This restriction does not apply to nets or pieces 
of nets smaller than 3 x 3 ft (0.9 x 0.9 m), (9 ft2 (0.81 
m2)), or to vessels that have not been issued a Federal 
multispecies permit under Sec. 651.4 and that are fishing exclusively 
in state waters.
* * * * *
    3. In Sec. 651.22, the proposed rule published at 61 FR 8540 on 
March 5, 1996, is proposed to be amended by revising paragraph (b)(6) 
and adding paragraph (b)(7) to read as follows:


Sec. 651.22  Effort control program for limited access vessels.

* * * * *
    (b)* * *
    (6) Large Mesh Individual DAS Category--(i) DAS allocation. Vessels 
fishing under the Large Mesh Individual DAS category shall be allocated 
a DAS increase that is equivalent to 12 percent in year 1 and 36 
percent in year 2 beyond the DAS allocations specified in paragraph 
(b)(1)(i) of this section. To be eligible to fish under the Large Mesh 
Individual DAS permit category a vessel, while fishing under the DAS 
program, must fish with gillnet gear with a minimum mesh net of 7-inch 
(17.78-cm) diamond or trawl gear with a minimum mesh size of 8-inch 
(20.32-cm) diamond, for the entire fishing year, as described under 
Sec. 651.20(a)(2)(ii), (c)(2)(ii), and (d)(2)(ii).
    (ii) Initial assignment. No vessel shall be initially assigned to 
the Large Mesh Individual DAS category. Any vessel that is initially 
assigned to the Individual DAS, Fleet DAS, or Small Vessel permit 
category may request and be granted a change in category into this 
category as specified in Sec. 651.4(f)(3).
    (7) Large Mesh Fleet DAS Category--(i) DAS allocation. Vessels 
fishing under the Large Mesh Fleet DAS category shall be allocated 155 
DAS for the 1996 fishing year, and 120 DAS for the 1997 fishing year 
and beyond. To be eligible to fish under the Large Mesh Fleet DAS 
permit category a vessel, while fishing under the DAS program, must 
fish with gillnet gear with a minimum mesh net of 7-inch (17.78-cm) 
diamond or trawl gear with a minimum mesh size of 8-inch (20.32-cm) 
diamond, for the entire fishing year, as described under 
Sec. 651.20(a)(2)(ii), (c)(2)(ii), and (d)(2)(ii).
    (ii) Initial assignment. No vessel shall be initially assigned to 
the Large Mesh Fleet DAS category. Any vessel that is initially 
assigned to the Individual DAS, Fleet DAS, or Small Vessel permit 
category may request and be granted a change in category into this 
category as specified in Sec. 651.4(f)(3).
* * * * *
[FR Doc. 96-9593 Filed 4-15-96; 4:42 pm]
BILLING CODE 3510-22-F