[Federal Register Volume 61, Number 177 (Wednesday, September 11, 1996)]
[Rules and Regulations]
[Pages 47827-47828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23190]



[[Page 47827]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 960830238-6238-01; I.D. 082096B]
RIN 0648-AJ07


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 15

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 15 to the Northeast Multispecies Fishery 
Management Plan (FMP). This rule extends the timing of the Mid-coast 
Closure Area for vessels fishing with sink gillnet gear from the 
current November through December period to September 15 through 
December 31. The intent of this action is to reduce further the 
incidental mortality of harbor porpoise in the Gulf of Maine sink 
gillnet fishery to meet porpoise bycatch reduction goals. This rule 
also makes several corrections to the regulatory text.

EFFECTIVE DATE: September 6, 1996.

ADDRESSES: Copies of Amendment 7 to the Northeast Multispecies Fishery 
Management Plan (Amendment 7), 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 15 documents are available upon request from 
Christopher Kellogg, Acting 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.

SUPPLEMENTARY INFORMATION:

Background

    In 1993, at the request of NMFS, the Council agreed to develop a 
strategy to reduce the bycatch of harbor porpoise in the Gulf of Maine 
sink gillnet fishery by integrating a mitigation plan with fishery 
management measures. Subsequently, one of Amendment 5's (59 FR 9872, 
March 1, 1994) 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 the plan's implementation to a level not to exceed 2 percent of the 
population, based on the best available estimates of abundance and 
bycatch. Amendment 7 to the FMP (61 FR 27710, May 31, 1996), 
implemented in July 1996 included an objective for harbor porpoise that 
was revised to be consistent with the 1994 amendments to the Marine 
Mammal Protection Act (MMPA). The Council's new provision requires 
reductions in the incidental mortality and serious injury of harbor 
porpoise in the Gulf of Maine sink gillnet fishery to the potential 
biological removal (PBR) level identified for this stock through the 
process described in section 117 of the MMPA by April 1, 1997, the date 
required for compliance with section 118(f)(5)(A) of the MMPA. Based on 
current population and life history information, the PBR level is 403 
animals for Gulf of Maine harbor porpoise.
    In view of the Council's revised objective, which is to reduce the 
harbor porpoise bycatch to the PBR level by April 1, 1997, coupled with 
the most recent bycatch estimate (2,000 harbor porpoise in 1994) and 
the fact that the Mid-coast Closure Area in the fall accounts for more 
than 50 percent of the harbor porpoise bycatch in the Gulf of Maine, 
management action is necessary in order to make further progress toward 
the Council's bycatch reduction goals. The 1995 bycatch estimate is not 
yet available but is expected to be somewhat lower than the most recent 
figure (2,000 animals in 1994). In addition, analysis of recent survey 
data have resulted in a larger population estimate that will revise the 
PBR level to 490 animals (pending approval by the Atlantic Scientific 
Review Group). However, there is no preliminary information that 
indicates that the current bycatch approaches even the newly projected 
PBR level of 490 animals.
    There are currently four time/area closures in place to protect 
harbor porpoise. This action extends the existing Mid-coast Closure 
Area in time to sink gillnet gear based on information collected for 
the fall period, 1990-95. During the September through December period 
analyzed, bycatch was highest in October and November. September and 
December were months with more variability but, in some years, 
accounted for a significant percentage of the fall bycatch. Framework 
Adjustment 15 will close the Mid-coast Closure Area to gillnet gear 
from September 15 through October 31. This will precede the November 1 
through December 31 closure to all gear capable of catching 
multispecies and will result in a total closure period for gillnet gear 
in this area of September 15 through December 31.
    The Council, in consideration of recommendations by the Harbor 
Porpoise Review Team (HPRT) and Marine Mammal Committee, proposed this 
September 15 through October 31 additional Mid-coast Closure Area 
period and also requested the Director, Northeast Region, NMFS 
(Regional Director), to investigate the possibility of the use of 
acoustic deterrents as a condition or requirement to fish with sink 
gillnets in the area to mitigate harbor porpoise bycatch. The Regional 
Director agreed to investigate the feasibility of further use of the 
devices in a concurrent action.
    The Council is making this adjustment to the regulations under the 
abbreviated framework rulemaking procedure codified at 50 CFR part 648, 
subpart F. This procedure requires the Council, when making 
specifically allowed adjustments to the FMP, to develop and analyze the 
actions over the span of at least two Council meetings. The Council 
must provide the public with advance notice of both the proposals and 
the analysis and opportunity to comment on them prior to and at a 
second Council meeting. Upon review of the analysis and public comment, 
the Council may recommend to the Regional Director that the measures be 
published as a final rule if certain conditions are met. The Regional 
Director may publish the measures as a final rule, or as a proposed 
rule if additional public comment is needed.
    This final rule implements an additional closure period from 
September 15 through October 31 and results in an expanded period for 
the Mid-coast Closure Area for vessels using gillnet gear. This area 
will thus be closed to gillnet gear from September 15 through December 
31 of each fishing year.
    This issue was discussed at a Marine Mammal Committee meeting held 
on May 21, 1996, and at two Council meetings, the minimum required 
under the Northeast Multispecies FMP framework adjustment process. Both 
Council meetings were held in Danvers, MA, the first on June 5, 1996, 
and the second on July 17, 1996. 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 through July 16, 
1996. Comments on the Council's proposal were received at

[[Page 47828]]

meetings from individuals and representatives of the International 
Wildlife Coalition, Cape Ann Gillnetters Association and the Mass 
Netters Association.
    Finally, this rule contains corrections to Sec. 648.87. 
Specifically, incorrect paragraph references are corrected in 
Sec. 648.87, paragraphs (b)(1) and (b)(2), and, in paragraph (b)(2), an 
inconsistent reference to the ``Cape Cod South Closure Area'' is 
corrected, an incorrect closure date is corrected, and the word ``map'' 
is changed to ``chart''.

Comments and Responses

     Comment: Several individuals addressed the need to continue to 
reduce harbor porpoise bycatch in the fall months.
     Response: The Council concurred based on biological analyses 
provided by the Northeast Fisheries Science Center (NEFSC) and the 
recommendation of the HPRT. Information collected during 1990-95 
indicates a pattern of high takes of harbor porpoise in the sink 
gillnet fishery throughout the fall months. The bycatch is highest, 
however, in October and November. The Mid-coast Closure Area is already 
closed to most gear to protect multispecies finfish during the months 
of November and December under Amendment 7 to the FMP. The September 15 
to December 31 closure period would remain in effect for the sink 
gillnet fishery to protect harbor porpoise even if changes occur to the 
closures implemented for multispecies conservation.
     Comment: Several fishermen commented that the MMPA and Council 
goal of reaching the PBR level by April 1997 is neither realistic nor 
warranted.
     Response: The PBR level goal and the process for determining the 
PBR level have a strong biological basis and were developed to meet 
requirements of other applicable law. This includes the MMPA, which was 
reauthorized in 1994 to include the PBR level stipulations.

Adherence to Framework Procedure Requirements

    The Council considered the public comments received prior to making 
its recommendation to the Regional Director under the provisions for 
abbreviated rulemaking in this FMP. The Council requested publication 
of these management measures as a final rule after considering the 
required factors stipulated under the framework measures in the FMP, 50 
CFR 648.90, and has provided supporting analyses for each factor 
considered. NMFS concurs.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA) finds there is 
good cause to waive prior notice and 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. The AA finds that under 5 U.S.C. 553(d), the need to 
have this regulation in place by September 15, 1996, is good cause to 
waive the 30-day delay in effectiveness of this regulation. Delay of 
implementation of this regulation beyond September 15, 1996, would 
likely impede the achievement of harbor porpoise mortality reduction 
goals.
    Because this regulation is not being published as 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 5, 1996.
N. Foster,
Deputy Assistant Administrator for Fisheries, National marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
to read as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 648.87, paragraph (b)(1) and the heading and first 
sentence of paragraph (b)(2) are revised to read as follows:


Sec. 648.87  Sink gillnet requirements to reduce harbor porpoise takes.

* * * * *
    (b) * * *
    (1) Mid-coast Closure Area. From March 25 through April 25 and from 
September 15 through October 31 of each fishing year, the restrictions 
and requirements specified in paragraph (b) of this section apply to 
the Mid-coast Closure Area, as defined under Sec. 648.81(g)(1).
    (2) Cape Cod South Closure Area. From March 1 through March 30 of 
each fishing year, the restrictions and requirements specified in 
paragraph (b) of this section apply to the Cape Cod South Closure Area 
(copies of a chart depicting this area are available from the Regional 
Director upon request), which is the area bounded by straight lines 
connecting the following points in the order stated. * * *
* * * * *
[FR Doc. 96-23190 Filed 9-6-96; 11:37 am]
BILLING CODE 3510-22-F