[Federal Register Volume 64, Number 10 (Friday, January 15, 1999)]
[Rules and Regulations]
[Pages 2601-2604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1000]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 981231335-8335-01; I.D. 122498B]
RIN 0648-AM14


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 26

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 26 of the Northeast Multispecies Fishery Management Plan 
(FMP). This final rule implements management measures that expand the 
April Gulf of Maine (GOM) closure area and adds an inshore GOM closure 
area and an offshore Georges Bank (GB) closure area for the month of 
February. The intent of this action is to provide additional protection 
for cod, particularly GOM cod, during the 1999 spring spawning season, 
while the New England Fishery Management Council (Council) develops the 
May 1, 1999, annual framework adjustment to address the fishing 
mortality reductions identified by the Multispecies Monitoring 
Committee (MSMC).

DATES: Effective January 19, 1999.

ADDRESSES: Copies of Amendment 7 to the FMP (Amendment 7), its 
regulatory impact review (RIR), and the final regulatory flexibility 
analysis contained with the RIR, its final supplemental environmental 
impact statement, and Framework Adjustment 26 documents are available 
on request from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 5 Broadway, Saugus, MA 01906-1097.

FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy 
Analyst, 978-281-9252.

SUPPLEMENTARY INFORMATION: Results from the Northeast Regional Stock 
Assessment Workshop 27 (SAW 27), presented to the Council at its August 
1998 meeting, concluded that the GOM cod stock is at a very low biomass 
level and remains overexploited. Although fishing mortality has 
declined from 1996 levels, the report estimates that there is a 90-
percent probability that the 1997 fishing mortality is at least twice 
the maximum allowable level for achieving stock rebuilding. Spawning 
stock biomass (SSB) has declined from more than 26,000 metric tons (mt) 
in 1989 to a record low of 6,600 mt in 1998, and is expected to further 
decline in 1999 to a record low of 5,700 mt or less. Furthermore, 
recruitment from the three most recent year classes produced in 1994, 
1995, and 1996 is extremely poor and far below any previously observed 
levels. The combined effects of low SSB, high fishing mortality, record 
low recruitment, and record low survival of pre-recruit fish indicate 
that the stock is collapsing. Management advice contained in the SAW 27 
Advisory Report recommends immediate action to cease all directed 
fishing and minimize by catch on this stock.
    Although SAW 27 information regarding GB cod is less dismal, the 
report concluded that this stock is also at a low biomass level and 
remains overexploited relative to the Amendment 7 rebuilding target of 
F0.1. Fishing mortality has declined significantly from the 
record high levels in 1994 and 1995 but still remains about 45 percent 
higher than the Amendment 7 objective of F0.1 = 0.18. 
Management advice recommends a reduction in fishing mortality to 
substantially less than the F0.1 objective. The MSMC, which 
delivered its report at the December 1998 Council meeting, confirmed 
the findings of SAW 27 for both stocks of cod.
    The GOM cod situation is very critical. Preliminary landing 
statistics for this stock indicate that more than 100 percent of the 
1998 total allowable catch (TAC) level of 1,783 mt was landed within 
the first 6 months of the 1998 fishing year. Based on this information, 
the Council and NMFS are very concerned that current management 
measures are not sufficient to prevent further stock decline. Given 
this concern, and the upcoming opportunity to delay fishing mortality 
on mature cod during the spring spawning period, a time when stocks 
aggregate and are particularly vulnerable to fishing pressure, the 
Council initiated development of Framework 26 to afford some additional 
protection prior to the May 1, 1999, annual framework adjustment. The 
Council and NMFS believe that preservation of SSB is necessary to 
prevent a stock collapse caused by poor recruitment, while enhancing 
the probability of long-term rebuilding.
    This action implements measures to modify the current April Inshore 
Closure Area within the GOM and would add an inshore closure area and 
offshore closure area to protect GOM and GB cod, respectively, for the 
month of February. The current March Inshore Closure Area and the year-
round near shore Western GOM Closure Area would remain in effect. These 
closures, in combination, represent areas that have the highest catch 
per unit effort of cod.

Abbreviated Rulemaking

    NMFS is making these revisions 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

[[Page 2602]]

notice of both the proposals and the analysis, and an 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 
Administrator, Northeast Region, NMFS, that the measures be published 
as a final rule if certain conditions are met. NMFS may publish the 
measures as a final rule, or as a proposed rule if additional public 
comment is necessary.
    The public was provided the opportunity to express comments on the 
management of cod at numerous meetings beginning at the August 10-11, 
1998, Council meeting. At this meeting, the Northeast Fisheries Science 
Center presented results of SAW 27, which updated the status of GOM and 
GB cod, among other stocks. For both stocks, a reduction in fishing 
mortality was recommended; however, for GOM cod, SAW 27 scientists 
recommended the Council take immediate action to reduce fishing 
mortality to levels approaching zero. The following list includes all 
of the 1998 meetings at which this action was on the agenda, was 
discussed, and public comment was heard:

------------------------------------------------------------------------
                   Date                                Meeting
------------------------------------------------------------------------
Aug. 10-11................................  Council.
Aug. 27...................................  Special Council.
Sept. 17..................................  Multispecies Oversight
                                             Committee.
Sept. 23-24...............................  Council.
Oct. 28-29................................  Council.
Nov. 16...................................  Multispecies Oversight
                                             Committee.
Dec. 9-10.................................  Council.
------------------------------------------------------------------------

    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 1 week prior to the final 
meeting, as is required under the framework adjustment process. Written 
comments were accepted up to and during that meeting.

Comments and Responses

    Comment 1: Many members of the fishing industry commented that this 
rule treats inshore vessels unfairly and does not protect cod in 
offshore areas.
    Response: The Council and NMFS have fully considered the impacts on 
inshore vessels in light of the need to implement this rule. For the 
time period February through April, the Council evaluated the 
alternatives in terms of conservation benefits compared to costs 
imposed on the harvesting industry. Out of the four alternative area 
closures analyzed in Framework 26, including an industry proposal and a 
variation of the industry proposal, the selected alternative has the 
second to least negative impacts on revenue when considering all 
species combined, while affecting those areas that have the highest 
catch per unit effort of cod. Because this rule was developed to afford 
additional protection for cod during the spring spawning period (a time 
when the cod are concentrated inshore), offshore areas did not show the 
same level of cod landings as the inshore areas. The expanded 
protection of cod year-round will be addressed in Framework Adjustment 
27, currently under development.
    Comment 2: Measures in Framework 26 cause severe social impacts on 
inshore vessels because they have little or no alternatives available 
to them during the months of February through April.
    Response: The analysis notes that this action will have severe 
negative social impacts, especially on small vessels from fishing 
communities directly bordering the closure areas and, to a lesser 
degree, on vessels from other fishing communities that traditionally 
have fished within the closure areas. However, because of extremely 
poor recruitment of GOM cod and the possibility of a stock collapse, 
the Council and NMFS believe there is no other acceptable alternative 
available to protect the spawning biomass of this stock during the 
upcoming season.
    Comment 3: Several industry members have commented that closing 
additional areas during the course of the fishing year may disrupt 
fishing strategies and possibly cause some vessels to lose income from 
their remaining multispecies days-at-sea (DAS).
    Response: The Council and NMFS took this concern into account in 
developing this final rule. This action does not prevent vessel owners 
from using their DAS. Additionally, because this action was initiated 
by the Council in September, industry members have known for several 
months that the Council would be recommending inshore closures for the 
February through April time period.
    Comment 4: Some fishers stated that GOM cod could be better 
protected through adjustments to the trip limit because fishing vessels 
can target flounder without catching substantial amounts of cod.
    Response: A trip limit restriction through an adjustment to the 
``running clock'' mechanism was analyzed in Framework 26. (The current 
GOM cod trip limit system allows vessels to land cod exceeding the 
daily limit (currently 400 lb per day) as long as the vessel remains in 
port and does not call out to end the trip until sufficient time has 
elapsed to account for the overage.) The analysis for this action shows 
that for the February through April period, greater conservation can be 
achieved by this area closure action than through an adjustment to the 
trip limit restriction.

Classification

    Notice and opportunity for public comment were provided to discuss 
the management measures implemented by this rule. Comments were 
received from members of the fishing industry and are responded to in 
the preamble of this rule. Therefore, the Assistant Administrator for 
Fisheries, NOAA (AA), under 5 U.S.C. 553(b)(B), finds for good cause 
that additional prior notice and additional opportunity for public 
comment is unnecessary. Because of the need to implement an inshore and 
offshore closure for the month of February in order to provide 
additional protection for cod, particularly GOM cod, the AA also finds 
under 5 U.S.C. 553(b)(B) that it would be contrary to the public 
interest to delay this rule in order to provide further notice and 
further opportunity for public comment.
    Because of the need to implement an inshore and an offshore closure 
for the month of February in order to provide additional protection for 
cod, particularly GOM cod, the AA finds that under 5 U.S.C. 553(d)(3), 
there is good cause to waive part of the 30-day delay in effectiveness 
of this regulation. Recent information contained in the SAW 27 Advisory 
Report indicates that GOM cod is in very poor condition and is 
approaching a collapsed state. Scientific advice for this stock is to 
immediately reduce fishing mortality to levels approaching zero. Upon 
hearing this at its August 1998 meeting, the Council considered 
emergency action but determined that this issue would best be addressed 
through the public framework process, i.e., the annual framework action 
(Framework 27), and through an additional framework action (Framework 
26), as a way to provide protection before the start of the new May 1, 
1999, fishing year. Given the record low recruitment exhibited by this 
stock, protection of the GOM cod spawning stock biomass at a time when 
they aggregate to spawn is necessary to help prevent a stock collapse.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable. Consequently, no regulatory flexibility 
analysis has been prepared.

[[Page 2603]]

    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 11, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
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, paragraphs (a)(52), (a)(101), and (a)(104) are 
revised 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), and Sec. 648.81(n)(1) and (o)(1) during the time period 
specified, except as provided in Sec. 648.81(d), (f)(2), (g)(2), 
(h)(2), (i)(2), (n)(2), and (o)(2).
* * * * *
    (101) Enter, fail to remove gear from, or be in the areas described 
in Sec. 648.81(f)(1) through (i)(1), and in Sec. 648.81(n)(1) and 
(o)(1) during the time period specified, except as provided in 
Sec. 648.81(d), (f)(2), (g)(2), (h)(2), (i)(2), (n)(2), and (o)(2).
* * * * *
    (104) Fish for, harvest, possess, or land regulated multispecies 
when fishing in the closed areas specified in Sec. 648.81(a), (b), (c), 
(f), (g), (h), (i), (n), and (o), unless otherwise specified in 
Sec. 648.81(c)(2)(iii), (f)(2)(i) and (f)(2)(iii).
* * * * *
    3. In Sec. 648.80, paragraphs (a)(8)(iii), and (a)(10)(i)(C) are 
revised to read as follows:


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

* * * * *
    (a) * * *
    (8) * * *
    (iii) The portion of Small Mesh Area 2 that is south of 
43 deg.00.0' N. lat. shall be closed to all fishing during the period 
April 1 through April 30 to coincide with the April 1999 Closure Area 
specified in Sec. 648.81(o)(1)(iii) and, for years beyond 1999, the 
Inshore Closure Area II specified in Sec. 648.81(g)(1)(ii). Therefore, 
during the April 1 through April 30 time period, Small Mesh Area 2 is 
defined by straight lines connecting the following points in the order 
stated:

                            Small Mesh Area 2
                           [April 1-April 30]
------------------------------------------------------------------------
              Point                      N. lat.            W. long.
------------------------------------------------------------------------
SM18.............................  43 deg.00.0'        69 deg.41.6'
SM14.............................  43 deg.10.1'        69 deg.43.3'
SM13.............................  43 deg.05.6'        69 deg.55'
SM19.............................  43 deg.00.0'        69 deg.55'
SM18.............................  43 deg.00.0'        69 deg.41.6'
------------------------------------------------------------------------

* * * * *
    (10) * * *
    (i) * * *
    (C) The exemption does not apply to areas closed to meet the GOM 
closure fishery mortality reduction targets as specified in 
Sec. 648.81(f), (g), (h), (i), and (o).
* * * * *
    4. In Sec. 648.81, paragraphs (d) and (g)(1) are revised and 
paragraph (o) 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 GOM Inshore Closure 
Areas, the Cashes Ledge Closure Area, the Western GOM Closure Area, and 
the Spring 1999 Closure Areas, as defined in paragraphs (a)(1), (c)(1), 
(f)(1), (g)(1), (h)(1), (i)(1), and (o)(1), respectively, of this 
section, provided that their gear is stowed in accordance with the 
provisions of paragraph (e) of this section.
* * * * *
    (g) * * * (1) Unless otherwise specified under paragraph (o) of 
this section, from May 1, 1998, through April 30, 2001, 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, or on board a vessel in, the GOM 
Inshore Closure Areas I through IV, as described in paragraphs 
(g)(1)(i) through (iv) of this section, for the times specified in 
those paragraphs, except as specified in paragraphs (d) and (g)(2) of 
this section (a chart depicting these areas is available from the 
Regional Administrator upon request (see Table 1 to Sec. 600.502)).
* * * * *
    (o) Spring 1999 Closure Areas. (1) For the calendar year 1999, 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, or on board a vessel in, the 
Spring 1999 Closure Areas, as described in paragraphs (o)(1)(i), (ii), 
and (iii) of this section, for the times specified in those paragraphs, 
except as specified in paragraphs (d) and (o)(2) of this section. A 
chart depicting this area is available from the Regional Administrator 
upon request (see Table 1 to Sec. 600.502).
    (i) February-Inshore 1999 Closure Area. From February 1, 1999, 
through February 28, 1999, the restrictions specified in paragraph 
(o)(1) of this section apply to the February-Inshore 1999 Closure Area, 
which is the area bounded by straight lines connecting the following 
points in the order stated:

                   February-Inshore 1999 Closure Area
                     [February 1-February 28, 1999]
------------------------------------------------------------------------
              Point                      N. Lat.            W. Long.
------------------------------------------------------------------------
GM1..............................  42 deg.00'          ( \1\ )
GM2..............................  42 deg.00'          ( \2\ )
GM3..............................  42 deg.00'          ( \3\ )
GM4..............................  42 deg.00'          70 deg.00'
GM5..............................  42 deg.30'          70 deg.00'
GM6..............................  42 deg.30'          ( \1\ )
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline on Cape Cod Bay.
\3\ Cape Cod shoreline on the Atlantic Ocean.

    (ii) February-Offshore 1999 Closure Area. From February 1, 1999, 
through February 28, 1999, the restrictions specified in paragraph 
(o)(1) of this section apply to the February-Offshore 1999 Closure 
Area, which is the area bounded by straight lines connecting the 
following points in the order stated:

                   February 1999 Closure Area--Offshore
                     [February 1-February 28, 1999]
------------------------------------------------------------------------
              Point                      N. Lat.            W. Long.
------------------------------------------------------------------------
GM18.............................  42 deg.00'          67 deg.30'
GM19.............................  42 deg.00'          68 deg.00'
GM20.............................  42 deg.30'          68 deg.00'
GM21.............................  42 deg.30'          67 deg.30'
GM18.............................  42 deg.00'          67 deg.30'
------------------------------------------------------------------------

    (iii) April 1999 Closure Area. From April 1, 1999, through April 
30, 1999, the restrictions specified in paragraph (o)(1) of this 
section apply to the April 1999 Closure Area, which is the area bounded 
by straight lines connecting the following points in the order stated:

                         April 1999 Closure Area
                        [April 1-April 30, 1999]
------------------------------------------------------------------------
              Point                      N. Lat.            W. Long.
------------------------------------------------------------------------
GM1..............................  42 deg.00'          ( \1\ )
GM2..............................  42 deg.00'          ( \2\ )

[[Page 2604]]

 
GM3..............................  42 deg.00'          ( \3\ )
GM22.............................  42 deg.00'          69 deg.30'
GM7..............................  42 deg.30'          69 deg.30'
GM14.............................  42 deg.30'          69 deg.00'
GM17.............................  43 deg.00'          69 deg.00'
GM9..............................  43 deg.00'          ( \4\ )
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline on Cape Cod Bay.
\3\ Cape Cod shoreline on the Atlantic Ocean.
\4\ New Hampshire shoreline.

    (2) Paragraph (o)(1) of this section does not apply to persons on 
fishing vessels or to fishing vessels that meet the criteria in 
paragraph (f)(2)(i), (ii), or (iii) of this section.

[FR Doc. 99-1000 Filed 1-12-99; 3:29 pm]
BILLING CODE 3510-22-P