[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Rules and Regulations]
[Pages 15704-15707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8049]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990324080-9080-01; I.D. 031599D]
RIN 0648-AM10


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 28

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 28 of the Northeast Multispecies Fishery Management Plan 
(FMP). This final rule allows the use, at specified times, of gillnets 
in areas otherwise closed to gillnet gear, provided they are equipped 
with pingers; removes the pinger specifications currently contained in 
the regulations and references the pinger specifications found in the 
Harbor Porpoise Take Reduction Plan (HPTRP); extends the Cape Cod South 
and Massachusetts Bay Closure Areas (March 1-March 30) to December 1-
May 31; modifies the Mid-Coast Closure

[[Page 15705]]

Area coordinates in the regulations to comport with those specified in 
the HPTRP; and replaces the framework adjustment procedure requiring 
the New England Fishery Management Council's (Council's) Harbor 
Porpoise Review Team to annually review harbor porpoise mortality goals 
with a procedure using the information and recommendations provided by 
the HPTRP's Harbor Porpoise Take Reduction Team. The intent of this 
action is to make the regulations to protect harbor porpoise in the 
Northeast multispecies fishery, issued under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) consistent, to the extent allowed by the Magnuson-Stevens 
Act, with the HPTRP and the regulations issued under the authority of 
the Marine Mammal Protection Act (MMPA) to implement the HPTRP.

DATES: Effective March 29, 1999.

ADDRESSES: Copies of Amendment 7 to the FMP, its regulatory impact 
review (RIR), and the final regulatory flexibility analysis contained 
within the RIR, its final supplemental environmental impact statement, 
and Framework Adjustment 28 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: David M. Gouveia, Fishery Management 
Specialist, 978-281-9280.

SUPPLEMENTARY INFORMATION: Framework Adjustment 28 was developed by the 
Council to make the regulations to protect harbor porpoise in the 
Northeast multispecies fishery, issued under the authority of the 
Magnuson-Stevens Act, consistent, to the extent allowed by the 
Magnuson-Stevens Act, with the HPTRP and the regulations issued under 
the authority of the MMPA to implement the HPTRP.
    The 1994 amendments to the MMPA require the preparation and 
implementation of take reduction plans for strategic marine mammal 
stocks that interact with Category I or II fisheries. A fishery is 
designated by NMFS as a Category I fishery if it has frequent 
incidental mortality and serious injury of marine mammals while a 
fishery is designated by NMFS as a Category II fishery if it has 
occasional serious injuries and mortalities of marine mammals. Based on 
harbor porpoise bycatch information contained in the marine mammal 
stock assessment reports, the Northeast multispecies sink gillnet 
fishery was classified as a Category I fishery and the Mid-Atlantic 
coastal gillnet fishery was classified as a Category II fishery.
    In response to MMPA mandates, on December 2, 1998 (63 FR 66464), 
NMFS issued regulations implementing the HPTRP. The HPTRP contains 
measures to reduce harbor porpoise takes in the Gulf of Maine Northeast 
multispecies gillnet fishery and the Mid-Atlantic coastal gillnet 
fishery. Regulations issued under the authority of the Magnuson-Stevens 
Act to implement the FMP also contain measures to achieve harbor 
porpoise mortality reduction goals. However, some of the FMP 
implementing regulations are inconsistent with the HPTRP and the 
regulations issued to implement the HPTRP. This action would eliminate 
the inconsistencies in the Magnuson-Stevens Act FMP implementing 
regulations, to the extent allowed by the Magnuson-Stevens Act, by 
allowing the use, at specified times, of gillnets in areas currently 
closed to gillnet gear, provided they are equipped with pingers; 
removing the pinger specifications currently contained in the 
regulations and referencing the pinger specifications found in the 
HPTRP; extending the Cape Cod South and Massachusetts Bay Closure Areas 
(March 1-March 30) to December 1-May 31; modifying the Mid-Coast 
Closure Area coordinates in the regulations to comport with those 
specified in the HPTRP; and replacing the framework adjustment 
procedure requiring the Council's Harbor Porpoise Review Team to 
annually review harbor porpoise mortality goals with a procedure using 
the information and recommendations provided by the HPTRP's Harbor 
Porpoise Take Review Team. Because of the limitations of NMFS authority 
in regulating fishing vessels without Federal permits that fish 
exclusively in state waters, the multispecies regulations cannot mirror 
state regulations on fishing activity as specified in the HPTRP and 
HPTRP implementing regulations.

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 regulations, 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 with 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 comment on the 
management measures contained in Framework 28 at the Council's January 
28, 1999, and February 24, 1999, meetings. 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 one week prior to the final February 24, 1999, meeting, as is 
required under the framework adjustment procedures. Written comments 
could be submitted up to and during that meeting. No comments were 
received.

Classification

    This rule makes the regulations protecting harbor porpoise in the 
Northeast multispecies fishery in the FMP implementing regulations 
consistent, to the extent allowed by the Magnuson-Stevens Act, with the 
HPTRP and the regulations implementing the HPTRP. Notice and 
opportunity for public comment were provided to discuss the management 
measures implemented by this final rule. In addition, this framework 
needs to be filed with the Office of the Federal Register as soon as 
possible in order to allow gillnet vessels to fish in the Mid-Coast 
Closure Area, as allowed under the HPTRP. Therefore, the Assistant 
Administrator for Fisheries, NOAA (AA), finds for good cause, under 5 
U.S.C. 553(b)(B), that additional prior notice and additional 
opportunity for public comment are unnecessary and contrary to the 
public interest.
    Because Framework Adjustment 28 relieves more stringent measures by 
providing industry the opportunity to fish with gillnet gear equipped 
with pingers in areas currently closed to gillnet gear, under 5 U.S.C. 
553(d)(1), it is not subject to a 30-day delay in effectiveness.
    Because prior notice and an opportunity for public comment are not 
required to be provided for this rule by 5 U.S.C. 553, or by any other 
law, the analytical requirements of the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., are inapplicable. A Final Regulatory Flexibility 
Analysis (FRFA) was prepared as part of the referenced Environmental 
Assessment for the HPTRP. Although the FRFA indicates that the HPTRP is 
significant because of the increased operating costs caused by

[[Page 15706]]

the HPTRP, this analysis is not applicable to this framework action. 
This action merely results in eliminating a more stringent measure in 
order to achieve consistency with the HPTRP.
    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: March 29, 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)(90) and (c)(10) are revised to 
read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (90) Use, set, haul back, fish with, fail to remove, or possess on 
board a vessel, unless stowed in accordance with Sec. 648.81(e)(4), 
sink gillnets and other gillnet gear capable of catching multispecies, 
with the exception of pelagic gillnets (conforming to all requirements 
for the use of such gillnets in Sec. 648.81(f)(2)(ii)) or gillnet gear 
equipped with pingers (as described in Sec. 229.33(b) of this title), 
in the areas and for the times specified in Sec. 648.87 (a) and (b), 
except as provided in Sec. 648.81(f)(2)(ii) and Sec. 648.87 (a) and 
(b), or unless otherwise authorized in writing by the Regional 
Administrator.
* * * * *
    (c) * * *
    (10) Enter, fail to remove sink gillnets and other gillnet gear 
capable of catching multispecies from, or be in the areas, and for the 
times, described in Sec. 648.87 (a) and (b), except as provided in 
Sec. 648.81(d), and (f)(2), and in Sec. 648.87(a)(1)(ii), (a)(2)(ii), 
and (a)(3)(ii).
* * * * *
    3. In Sec. 648.87, paragraphs (a) and (c) are revised to read as 
follows:


Sec. 648.87  Gillnet requirements to reduce or prevent marine mammal 
takes.

    (a) Areas closed to gillnet gear capable of catching multispecies 
to reduce harbor porpoise takes. Section 648.81(f) sets forth a closed 
area restriction to reduce the take of harbor porpoise consistent with 
the harbor porpoise mortality reduction goals. Further, all persons 
owning or operating vessels in the EEZ portion of the areas and times 
specified in paragraphs (a)(1), (a)(2), and (a)(3) of this section must 
remove all of their sink gillnets and other gillnet gear capable of 
catching multispecies, with the exception of pelagic gillnets 
(conforming to all requirements for the use of such gillnets in 
Sec. 648.81(f)(2)(ii)) or gillnet gear equipped with pingers (as 
described in Sec. 229.33(b) of this title), and may not use, set, haul 
back, fish with, or possess on board, unless stowed in accordance with 
the requirements of Sec. 648.81(e)(4), sink gillnets and other gillnet 
gear capable of catching multispecies, with the exception of pelagic 
gillnets (conforming to all requirements for the use of such gillnets 
in Sec. 648.81(f)(2)(ii)) or gillnet gear equipped with pingers (as 
described in Sec. 229.33(b) of this title) in the EEZ portion of the 
areas and for the times specified in paragraphs (a)(1), (a)(2), and 
(a)(3) of this section. Also, all persons owning or operating vessels 
issued a limited access multispecies permit must remove all of their 
sink gillnets and other gillnet gear capable of catching multispecies, 
with the exception of pelagic gillnets (conforming to all requirements 
for the use of such gillnets in Sec. 648.81(f)(2)(ii)) or gillnet gear 
equipped with pingers (as described in Sec. 229.33(b) of this title), 
from the areas and for the times specified in paragraphs (a)(1), 
(a)(2), and (a)(3) of this section, and, may not use, set, haul back, 
fish with, or possess on board, unless stowed in accordance with the 
requirements of Sec. 648.81(e)(4), sink gillnets and other gillnet gear 
capable of catching multispecies, with the exception of pelagic 
gillnets (conforming to all requirements for the use of such gillnets 
in Sec. 648.81(f)(2)(ii)) or gillnet gear equipped with pingers (as 
described in Sec. 229.33(b) of this title) in the areas and for the 
times specified in paragraphs (a)(1), (a)(2), and (a)(3) of this 
section.
    (1) Mid-coast Closure Area. (i) From September 15 through May 31 of 
each fishing year, the restrictions and requirements specified in 
paragraph (a) of this section apply to the Mid-coast Closure Area 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request), except as provided in paragraph (a)(1)(ii) 
of this section, which is the area bounded by straight lines connecting 
the following points in the order stated.

                         Mid-Coast Closure Area
------------------------------------------------------------------------
              Point                  N. latitude         W. longitude
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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.30'         69 deg.30'
MC8.............................  43 deg.30'         69 deg.00'
MC9.............................  (\2\)              69 deg.00'
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.

    (ii) Vessels subject to the restrictions and regulations specified 
in paragraph (a) of this section may fish in the Mid-coast Closure 
Area, as defined under paragraph (a)(1)(i) of this section, from 
September 15 through May 31 of each fishing year, provided that pingers 
are used in accordance with the requirements found at Sec. 229.33(b) of 
this title.
    (2) Cape Cod South Closure Area. (i) From December 1 through May 31 
of each fishing year, the restrictions and requirements specified in 
paragraph (a) of this section apply to the Cape Cod South Closure Area 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request), except as provided in paragraph (a)(2)(ii) 
of this section, which is the area bounded by straight lines connecting 
the following points in the order stated.

                       Cape Cod South Closure Area
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              Point                  N. latitude         W. longitude
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CCS1............................  (\1\)              71 deg.45'
CCS2............................  40 deg.40'         71 deg.45'
CCS3............................  40 deg.40'         70 deg.30'
CCS4............................  (\2\)              70 deg.30'
------------------------------------------------------------------------
\1\ RI Shoreline.
\2\ MA Shoreline.

    (ii) Vessels subject to the restrictions and regulations specified 
in paragraph (a) of this section may fish in the Cape Cod South Closure 
Area, as defined under paragraph (a)(2)(i) of this section, from 
December 1 through the last day of February and April 1 through May 31 
of each fishing year, provided that pingers are used in accordance with 
the requirements found at Sec. 229.33(b) of this title.
    (3) Massachusetts Bay Closure Area. (i) From December 1 through May 
31 of each fishing year, the restrictions and requirements specified in 
paragraph (a) of this section apply to the Massachusetts Bay Closure 
Area (copies of a chart depicting this area are available from the 
Regional Administrator upon request), except as

[[Page 15707]]

provided in paragraph (a)(3)(ii) of this section, which is the area 
bounded by straight lines connecting the following points in the order 
stated.

                     Massachusetts Bay Closure Area
------------------------------------------------------------------------
              Point                  N. latitude         W. longitude
------------------------------------------------------------------------
MB1.............................  42 deg.30'         (\1\)
MB2.............................  42 deg.30'         70 deg.30'
MB3.............................  42 deg.12'         70 deg.30'
MB4.............................  42 deg.12'         70 deg.00'
MB5.............................  (\2\)              70 deg.00'
MB6.............................  42 deg.00'         (\2\)
MB7.............................  42 deg.00'         (\1\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.

    (ii) Vessels subject to the restrictions and regulations specified 
in paragraph (a) of this section may fish in the Massachusetts Bay 
Closure Area, as defined under paragraph (a)(3)(i) of this section, 
from December 1 through the last day of February and April 1 through 
May 31 of each fishing year, provided that pingers are used in 
accordance with the requirements found at Sec. 229.33(b) of this title.
* * * * *
    (c) Framework adjustment. (1) The Harbor Porpoise Take Reduction 
Team will provide the NEFMC with the best available information on the 
status of Gulf of Maine harbor porpoise, including estimates of 
abundance and estimates of bycatch in the sink gillnet fishery.
    (2) After receiving and reviewing the Harbor Porpoise Take Review 
Team's findings and recommendations, the NEFMC shall determine whether 
adjustments or additional management measures are necessary to avoid 
inconsistencies with the Harbor Porpoise Take Reduction Plan. If the 
NEFMC determines that adjustments or additional management measures are 
necessary, it shall develop and analyze appropriate management actions 
over the span of at least two NEFMC meetings.
    (3) The NEFMC shall provide the public with advance notice of the 
availability of the proposals, appropriate rationale, economic and 
biological analyses, and opportunity to comment on them prior to and at 
the second NEFMC meeting. The NEFMC's recommendation on adjustments or 
additions to management measures must come from one or more of the 
categories specified under Sec. 648.90(b)(1).
    (4) If the NEFMC recommends that the management measures should be 
issued as a final rule, the NEFMC must consider at least the factors 
specified in Sec. 648.90(b)(2).
    (5) The Regional Administrator may accept, reject, or with NEFMC 
approval, modify the NEFMC's recommendation, including the NEFMC's 
recommendation to issue a final rule, as specified under 
Sec. 648.90(b)(3).

[FR Doc. 99-8049 Filed 3-29-99; 3:08 pm]
BILLING CODE 3510-22-P