[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Rules and Regulations]
[Pages 55774-55778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27730]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 961021289-6289-01; I.D. 100196C]
RIN 0648-AJ26


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 19

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

ACTION: Final rule.

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

SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 19 to the Northeast Multispecies Fishery 
Management Plan (FMP). This rule changes the time and area of the 
current multispecies Mid-coast Closure Area within the Gulf of Maine 
(GOM) and establishes an exemption to allow sink gillnet vessels to 
fish in the reopened area when utilizing acoustic devices (pingers) on 
their nets. The intent of this action is to reduce the overall economic 
impact of the area closure while achieving the objectives of the FMP.

EFFECTIVE DATE: October 24, 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 (RFA) contained within the 
RIR, its final supplemental environmental impact statement, and 
Framework Adjustment 19 documents are available upon request from 
Christopher B. Kellogg, Acting Executive Director, New England Fishery 
Management Council (Council), 5 Broadway, Saugus, MA, 01906-1097.

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

SUPPLEMENTARY INFORMATION: Amendment 7 to the FMP (61 FR 27710, May 31, 
1996), effective on July 1, 1996, established comprehensive measures to 
rebuild the important multispecies stock complex primarily through 
effort reduction controls and area closures. In addition to the year-
round closure areas on Georges Bank and Southern New England, several 
alternative GOM area closures were considered by the Council during the 
development of Amendment 7. However, due to the controversy and 
complication of developing additional area closures and because of the 
need to have measures in place as soon as possible, the Council adopted 
the existing GOM harbor porpoise protection closures as the default 
closures for multispecies until such time that these closures could be 
modified through the framework adjustment procedure.
    At the July 17-18, 1996, meeting, the Council initiated action to 
replace the default GOM Mid-coast Area Closure with the intent to 
minimize the time period and the size of the area. The purpose of this 
action was to reduce the overall economic impact of the area closure 
while achieving equivalent conservation value and to address concerns 
about the distribution of economic impacts of the existing closure, 
which may disproportionately affect small inshore vessels.
    Based on the Northeast Fisheries Science Center analysis, several 
alternatives to the current default closure were found to have 
equivalent conservation value but resulted in significantly improved 
revenues. At the final framework meeting on this action, held on 
September 9, 1996, the Council proposed to close an area referred to as 
Jeffreys Ledge (bounded by the following lines of coordinates: 
43 deg.30' N. lat., 70 deg.00' W. long., 42 deg.30' N. lat., and 
70 deg.30' W. long.) for the period May 1 through May 31, 1997, and, 
for 1998 and beyond, to close the existing Mid-coast Closure Area but 
with a change in time period to May 10 through May 30. Both of these 
alternatives improve revenues by well over $2 million relative to the 
existing time/area closure, without changing the impact on GOM cod. By 
replacing the existing November through December Mid-coast Area Closure 
with a spring closure, small vessels that are more constrained by 
winter weather will be able to fish on their traditional grounds in 
November

[[Page 55775]]

and December when alternatives are fewer than in May.
    Although Council members were generally in agreement regarding the 
Jeffreys Ledge closure in May, concern that vessels may be displaced to 
a relatively small area shoreward of the Jeffreys Ledge area, possibly 
resulting in increased gear conflicts, induced the Council to propose a 
different closure for 1998 and beyond to address this potential 
problem. To prevent the current default closure from taking effect on 
November 1, 1996, the Council believed it necessary to move forward 
with this alternative to alleviate unnecessary economic impacts until 
such time as the Council is able to develop a proposal to satisfy all 
concerns. In the unlikely event that the Council is unable to reach a 
consensus in time for the 1998 fishing year, the revised closure would 
serve as a fallback measure. Further explanation of this second-year 
closure can be found in the comment and response section of this 
preamble.
    An issue of concern involves the fact that both the proposed change 
to the current November/December Mid-coast Closure Area, and its 
proposed default for 1998 and beyond, occur in the month of May. Since 
May represents the beginning of the 1997 multispecies fishing year, 
implementation of this proposal would result in the elimination of the 
closure for the 1996 fishing year and the conservation benefits for 
multispecies, particularly for GOM cod, would be foregone both for the 
1996 calendar year and the fishing year. However, while delay of this 
closure may negatively impact the target 1996 total allowable catches 
(TACs) in the GOM, the conservation benefits that would accrue from 
this area would be realized at the beginning of the 1997 fishing year, 
a 6-month deferral as opposed to a full year. Also, since May 
represents a period of time when catch rates are at their highest and 
fish prices are at their lowest, a May replacement closure would be the 
least economically burdensome to the fishing industry while still 
achieving equivalent conservation benefits in relation to a November/
December closure.
    Nevertheless, a likely consequence resulting from the delay of 
these management measures is the possibility that the target TACs will 
be exceeded. Due to this possibility, the Multispecies Monitoring 
Committee will need to take these postponed reductions into account 
when recommending target TACs for the 1997 fishing year.
    In addition to changing the time/area closure for the Mid-coast 
area, this action enables sink gillnet vessels to fish in the harbor 
porpoise Mid-coast Closure Area provided pingers are employed on the 
gear. The Council agreed to this based on information resulting from a 
1994 experiment conducted by the New England Aquarium, Woods Hole 
Oceanographic Institution, and the New Hampshire Commercial Fishermen's 
Association and a 1995 experimental fishery that evaluated the 
effectiveness of pinger use in the GOM sink gillnet fishery. Both of 
these efforts indicated that, with the use of pingers, in the months of 
November and December the harbor porpoise bycatch in the Mid-coast area 
was reduced to insignificant levels. Based on the results of these 
experiments, NMFS agrees that an exemption program is warranted in this 
area during the November through December time period, provided the 
nets are equipped with pingers as prescribed in the 1995 and 1996 NMFS-
authorized experimental fisheries.
    This final rule changes the season termination date for Small Mesh 
Area 1 from October 31 to November 15 for the 1997 fishing year. With 
the implementation of Amendment 7 to the FMP, the harbor porpoise Mid-
coast Closure Area was expanded to all gear types capable of catching 
multispecies. Due to this action, the termination date for Small Mesh 
Area 1 was changed from November 15 to October 31 as this exemption 
area lay completely within the November/December Mid-coast Closure 
Area. This rule reestablishes the original season for this exempted 
small mesh area. Additionally, since part of Small Mesh Area 2 lies 
within and takes place during the 1998 default Mid-coast Closure Area, 
this rule reduces the area of Small Mesh Area 2 during the time period 
May 10 through May 30.
    NMFS is making this adjustment to the regulations under the 
framework abbreviated 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 Administrator that the 
measures be published as a final rule if certain conditions are met. 
The Regional Administrator may publish the measures as a final rule, or 
as a proposed rule if additional public comment is needed.
    The public was provided the opportunity to express opinions at 
numerous meetings beginning in February 1996. The following list 
indicates the 1996 meetings at which this action was on the agenda, 
discussed, and public comment was heard:

----------------------------------------------------------------------------------------------------------------
                Date                                     Meeting                               Location         
----------------------------------------------------------------------------------------------------------------
February 27-28.....................  Council.......................................  Danvers, MA.               
Apr. 11............................  Multispecies O/S..............................  Peabody, MA.               
Apr. 17-18.........................  Council.......................................  Danvers, MA.               
June 5-6...........................  Council.......................................  Danvers, MA.               
June 11............................  Multispecies O/S..............................  Portland, ME.              
July 9.............................  Multispecies O/S..............................  Peabody, MA.               
July 17-18.........................  Council.......................................  Peabody, MA.               
Aug. 5.............................  Subcommittee..................................  Saugus, MA.                
Aug. 13............................  Multispecies O/S..............................  Peabody, MA.               
Aug. 21-22.........................  Council.......................................  Danvers, MA.               
Aug. 27............................  Multispecies O/S..............................  Woods Hole, MA.            
Sept. 9............................  Council.......................................  Peabody, MA.               
----------------------------------------------------------------------------------------------------------------

    Documents summarizing the Council's proposed action, and the 
analysis of biological and economic impacts of this and alternative 
actions, were available for public review 5 days prior to the Council's 
final September 9, 1996, meeting, which is required under the framework 
adjustment process. Also, written comments were accepted

[[Page 55776]]

up to and at the September 9, 1996, Council meeting.

Comments and Responses

    Comment 1: A Council member presented comments from small-boat 
fishers in New Hampshire and Newburyport, MA, that the proposed 
Jeffreys Ledge Closure Area for the month of May could force a large 
number of small boats inshore to the area known as Ipswich Bay, because 
they are physically limited from fishing elsewhere. The fishers are 
concerned that the increased density of fishing activity would be 
detrimental to the resource in Ipswich Bay and would increase the 
incidence of gear conflicts.
    Response: The Council adopted a second-year plan that would close 
the entire Mid-coast Closure Area from May 10 through May 30. While 
this may result in requiring some vessels to tie up during this period, 
the time of the closure is reduced by 11 days as compared to the 1997 
Jeffreys Ledge closure, and it applies over a broader area. This is a 
risk-averse approach that will implement a more conservative measure 
unless the Council determines that the measure for 1997 is effective 
and does not have the effort-displacement problems anticipated by some 
fishers. If the Council makes such a determination, it would have to 
make an adjustment through the framework process before May 1998.
    Comment 2: One commentor stated that this proposed action would 
change the Mid-coast Closure Area for all vessels capable of catching 
multispecies, it does not automatically open this area to gillnetting 
since the area is also closed to protect harbor porpoise. The NMFS-
authorized experiment to test the use of pingers in this area indicated 
that they are effective in reducing harbor porpoise bycatch.
    Response: The Council added a measure that would allow gillnets 
equipped with pingers to fish in the area during November and December 
as supported by experimental fishery results.
    Comment 3: Two inshore trawl fishers from Gloucester commented that 
they supported the Multispecies Committee's recommendation to close 
just Jeffreys Ledge, and that the closure of the larger 1998 default 
Mid-coast Closure Area would force them to fish offshore.
    Response: The Council noted that the proposed action retains the 
committee's recommendation for the first year but that it is including 
the broader closure for the second year as a conservative default 
strategy to address concerns of other industry members about increased 
density of fishing activity in a small inshore area. The Council will 
monitor the area for effort shifts during 1997 and may adjust the 
second-year measure if the problem anticipated by those fishers does 
not occur in the first year.
    Comment 4: A member of the industry commented that an area closure 
unfairly impacts only those vessels displaced by the closure and those 
that fish in nearby areas where the displaced boats will fish. He 
suggested that a fairer system would be to reduce days-at-sea equally 
for all vessels.
    Response: The Council recognizes that area closures may have 
differential impacts on vessels that fish in or near the affected area. 
However, the area closures are designed as a conservation measure to 
protect fish in that area, and closures exist throughout the region 
that affect only segments of the entire fleet. The Council also 
indicated that it had considered the days-at-sea reduction schedule in 
the development of Amendment 7 and that it was not going to adjust the 
schedule at this early point in the amendment's implementation.
    Comment 5: An industry representative from Maine and a 
representative of the fishing industry in Gloucester, MA, commented 
that fishing for pelagic species with a mid-water trawl is still 
prohibited in the proposed closure area(s) despite its insignificant 
bycatch of multispecies and that it should be allowed.
    Response: The Council has directed the Multispecies Committee to 
address this issue and make a recommendation that could be implemented 
before the May closure. Adherence to Framework Procedure Requirements
    The Council considered public comment prior to making its 
recommendation to the Regional Administrator under the provisions for 
abbreviated rulemaking in this 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 FMP, 50 
CFR 648.90, and has provided supporting analyses for each factor 
considered. 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; therefore, further notice and opportunity to comment is 
unnecessary. The AA finds that under 5 U.S.C. 553(d), the need to have 
this regulation in place by November 1, 1996, is good cause to waive 
the 30-day delay in effectiveness of this regulation. Implementation of 
this regulation by November 1, 1996, would relieve a restriction on 
vessels that have traditionally fished in the Mid-coast Closure Area 
during the months of November and December.
    Because a general notice of proposed rulemaking is not required to 
be published for this rule by 5 U.S.C. 553 or by any other law, this 
rule is exempt from the requirement to prepare an initial or final RFA 
under the Regulatory Flexibility Act. As such, none has been prepared. 
The primary intent for this action is to reduce economic impacts on 
small fishing vessels by changing the timing and location of the area 
closure, which will allow small vessels to be able to fish on their 
traditional grounds in November and December when fishing alternatives 
are fewer.
    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: October 23, 1996.
Rolland A. Schmitten,
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. 648.14, paragraph (a)(52) is revised and paragraph 
(a)(89) is added to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (52) Enter, be on a fishing vessel in, or fail to remove gear from 
the EEZ portion of the areas described in Sec. 648.81 (f)(1) through 
(i)(1) during the time period specified, except as provided in 
Sec. 648.81(d), (f)(2), (g)(2), (h)(2), and (i)(2).
* * * * *
    (89) Fish with, set, haul back, possess on board a vessel, unless 
stowed in accordance with Sec. 648.23(b), or fail to remove a sink 
gillnet from the EEZ portion of the areas, and for the times specified 
in Sec. 648.87 (a) and (b), except as provided in Sec. 648.87(b)(1)(i), 
or unless authorized in writing by the Regional Director.

[[Page 55777]]

    3. In Sec. 648.80, paragraph (a)(8) is revised to read as follows:


Sec. 648.80  Regulated mesh areas and restrictions on gear and methods 
of fishing.

* * * * *
    (a) * * *
    (8) Small Mesh Area 1/Small Mesh Area 2. (i) Vessels subject to the 
minimum mesh size restrictions specified in paragraph (a)(2) of this 
section may fish with or possess nets with a mesh size smaller than the 
minimum size specified from July 15 through November 15 when fishing in 
Small Mesh Area 1, and from January 1 through June 30 when fishing in 
Small Mesh Area 2 in 1997 and in 1998 and beyond, except as specified 
in paragraph (a)(8)(ii) of this section. A vessel may not fish for, 
possess on board, or land any species of fish other than: Butterfish, 
dogfish, herring, mackerel, ocean pout, scup, squid, silver hake, and 
red hake, except for the following species, with the restrictions 
noted, as allowable bycatch species: Longhorn sculpin; monkfish and 
monkfish parts--up to 10 percent, by weight, of all other species on 
board; and American lobster--up to 10 percent, by weight, of all other 
species on board or 200 lobsters, whichever is less. These areas are 
defined by straight lines connecting the following points in the order 
stated (copies of a map depicting these areas are available from the 
Regional Director upon request):

                            Small Mesh Area 1                           
------------------------------------------------------------------------
               Point                      N. lat.           W. long.    
------------------------------------------------------------------------
SM1................................  43 deg.03'         70 deg.27'      
SM2................................  42 deg.57'         70 deg.22'      
SM3................................  42 deg.47'         70 deg.32'      
SM4................................  42 deg.45'         70 deg.29'      
SM5................................  42 deg.43'         70 deg.32'      
SM6................................  42 deg.44'         70 deg.39'      
SM7................................  42 deg.49'         70 deg.43'      
SM8................................  42 deg.50'         70 deg.41'      
SM9................................  42 deg.53'         70 deg.43'      
SM10...............................  42 deg.55'         70 deg.40'      
SM11...............................  42 deg.59'         70 deg.32'      
SM1................................  43 deg.03'         70 deg.27'      
------------------------------------------------------------------------


                            Small Mesh Area 2                           
------------------------------------------------------------------------
               Point                     N. lat.            W. long.    
------------------------------------------------------------------------
SM13..............................  43 deg.20.3'       69 deg.59.4'     
SM14..............................  43 deg.25.9'       69 deg.45.6'     
SM15..............................  42 deg.49.5'       69 deg.40'       
SM16..............................  42 deg.41.5'       69 deg.40'       
SM17..............................  42 deg.34.9'       70 deg.00'       
SM13..............................  43 deg.20.3'       69 deg.59.4'     
------------------------------------------------------------------------

    (ii) In 1998 and thereafter, the portion of Small Mesh Area 2 that 
is north of 43 deg.00.0' N. lat. shall be closed to all fishing during 
the period May 10 through May 30 to coincide with the Mid-coast Closure 
Area specified in Sec. 648.81(g)(1). Therefore, during the May 10 
through May 30 time period in 1998 and beyond, Small Mesh Area 2 is 
defined by straight lines connecting the following points in the order 
stated:

                            Small Mesh Area 2                           
                    [May 10-May 30, 1998 and beyond]                    
------------------------------------------------------------------------
               Point                     N. lat.            W. long.    
------------------------------------------------------------------------
SM18..............................  43 deg.00.0'       69 deg.41.6'     
SM15..............................  42 deg.49.5'       69 deg.40'       
SM16..............................  42 deg.41.5'       69 deg.40'       
SM17..............................  42 deg.34.9'       70 deg.00'       
SM19..............................  43 deg.00.0'       69 deg.59.7'     
SM18..............................  43 deg.00.0'       69 deg.41.6'     
------------------------------------------------------------------------

* * * * *
    4. In Sec. 648.81, paragraphs (d) and (g)(1) are revised and 
paragraph (i) is added to read as follows:


Sec. 648.81  Closed areas.

* * * * *
    (d) Transiting. Vessels may transit Closed Area I, the Nantucket 
Lightship Closed Area, the NE Closure Area, the Mid-coast Closure Area, 
the Massachusetts Bay Closure Area, and the Jeffreys Ledge Closure 
Area, as defined in paragraphs (a)(1), (c)(1), (f)(1), (g)(1), (h)(1), 
and (i)(1), respectively, of this section, provided that their gear is 
stowed in accordance with the provisions of paragraph (e) of this 
section.
* * * * *
    (g) * * * (1) For the calendar year 1997, vessels are subject to 
the Jeffreys Ledge Closure Area restrictions specified under paragraph 
(i) of this section. For all other years beyond 1997, during the period 
May 10 through May 30, no fishing vessel or person on a fishing vessel 
may enter, fish in, or be in, and no fishing gear capable of catching 
multispecies, unless otherwise allowed in this part, may be in, the 
area known as the Mid-coast Closure Area, as defined by straight lines 
connecting the following points in the order stated, except as 
specified in paragraphs (d) and (g)(2) of this section: (Copies of a 
map depicting this area are available from the Regional Director upon 
request):

                         Mid-Coast Closure Area                         
------------------------------------------------------------------------
               Point                      N. lat.           W. long.    
------------------------------------------------------------------------
MC1................................  42 deg.30'         (1)             
MC2................................  42 deg.30'         70 deg.15'      
MC3................................  42 deg.40'         70 deg.15'      
MC4................................  42 deg.40'         70 deg.00'      
MC5................................  43 deg.00'         70 deg.00'      
MC6................................  43 deg.00'         69 deg.30'      
MC7................................  43 deg.15'         69 deg.30'      
MC8................................  43 deg.15'         69 deg.00'      
MC9................................  (2)                69 deg.00'      
------------------------------------------------------------------------
\1\ Massachusetts shoreline.                                            
\2\ Maine shoreline.                                                    

* * * * *
    (i) Jeffreys Ledge Closure Area. (1) For the calendar year 1997, 
during the period May 1 through May 31, no fishing vessel or person on 
a fishing vessel may enter, fish in, or be in, and no fishing gear 
capable of catching multispecies, unless otherwise allowed in this 
part, may be in, the area known as the Jeffreys Ledge Closure Area, as 
defined by straight lines connecting the following points in the order 
stated, except as specified in paragraphs (d) and (i)(2) of this 
section (copies of a map depicting this area are available from the 
Regional Director upon request):

                       Jeffreys Ledge Closure Area                      
------------------------------------------------------------------------
               Point                       N. lat           W. long.    
------------------------------------------------------------------------
JL8................................  43 deg.30'         (1)             
JL9................................  43 deg.30'         70 deg.00'      
JL10...............................  42 deg.30'         70 deg.00'      
JL11...............................  42 deg.30'         70 deg.30'      
JL12...............................  (1)                70 deg.30'      
------------------------------------------------------------------------
\1\ Maine shoreline.                                                    

    (2) Paragraph (i)(1) of this section does not apply to persons on 
fishing vessels or fishing vessels that meet the criteria in paragraph 
(f)(2)(i), (f)(2)(ii), or (f)(2)(iii) of this section.
    5. In Sec. 648.87, paragraph (b)(1) is revised to read as follows:


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

* * * * *
    (b) * * *
    (1) Mid-coast Closure Area. (i) From March 25 through April 25 and 
from September 15 through December 31 of each fishing year, the 
restrictions and requirements specified in this paragraph (b) apply to 
the Mid-coast Closure Area, as defined under Sec. 648.81(g)(1), except 
as provided in paragraph (b)(1)(ii) of this section.
    (ii) Sink gillnet vessels subject to the restrictions and 
regulations specified in this paragraph (b) may fish in the Mid-coast 
Closure Area, as defined under Sec. 648.81(g)(1), from November 1 
through December 31 of each fishing year, provided that an acoustic 
deterrent device (``pinger'') is attached at the end of each string of 
nets and at the bridle of every net within a string of nets, and

[[Page 55778]]

is maintained as operational and functioning. Each pinger, when 
immersed in water, must broadcast a 10kHz  2kHz sound at 
132 dB  4dB re 1 micropascal at 1 m. This sound must last 
300 milliseconds and repeat every 4 seconds.
* * * * *
[FR Doc. 96-27730 Filed 10-24-96; 4:44 pm]
BILLING CODE 3510-22-W