[Federal Register Volume 64, Number 148 (Tuesday, August 3, 1999)]
[Rules and Regulations]
[Pages 42045-42049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19850]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990723203-9203-01; I.D. 061599A]
RIN 0648-AM65


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustments 27 and 30 to the Northeast 
Multispecies Fishery Management Plan (FMP)

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

ACTION: Final rule.

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[[Page 42046]]

SUMMARY: NMFS issues this final rule to implement some of the measures 
contained in Framework 30 of the Northeast Multispecies Fishery 
Management Plan (FMP). This final rule implements a Georges Bank (GB) 
cod landing limit (daily landing limit) of 2,000 lb (907 kg) per day-
at-sea (DAS) starting August 15, 1999, with a maximum possession limit 
(possession limit) of 20,000 lb (9,072 kg) per trip. This rule also 
authorizes the Administrator, Northeast Region, NMFS (Regional 
Administrator), to adjust the daily landing limit and possession limit 
depending on the risk of exceeding the target total allowable catch 
(TAC), or not catching 75 percent of the TAC for GB cod. This action is 
necessary to reduce the GB cod fishing mortality rate (F) to achieve 
the rebuilding goals of the FMP. This rule also corrects the final rule 
implementing Framework Adjustment 27 to the FMP, which was published on 
May 5, 1999, and provides revised definitions for purposes of 
clarification for pelagic longline gear and pelagic hook and line gear.

DATES: Effective July 29, 1999.

ADDRESSES: Copies of the Framework 30 document, its Regulatory Impact 
Review, the Environmental Assessment, and other supporting documents 
are available from Paul J. Howard, Executive Director, New England 
Fishery Management Council, 5 Broadway (Route 1), Saugus, MA 01906-
1036.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy 
Analyst, 978-281-9221.

SUPPLEMENTARY INFORMATION:

Background

    Amendment 7, which became effective on July 1, 1996, established a 
procedure for reviewing annually the FMP and making adjustments to 
management measures to achieve the rebuilding objectives. The New 
England Fishery Management Council (Council) conducted a review during 
December 1998 and January 1999 for the May 1999 fishing year, and 
submitted proposed measures contained in Framework 27 to address the 
severely depleted Gulf of Maine (GOM) cod stock. The final rule 
implementing Framework 27 was published on May 5, 1999 (64 FR 24066). 
In Framework 27, the Council was unable to complete development of 
measures to reduce F on GB cod by the necessary 22 percent to achieve 
the F0.1 objective for that stock for the 1999 fishing year, 
as indicated in the Multispecies Monitoring Committee's annual report. 
Framework 30, therefore, is a continuation of the annual adjustment for 
the multispecies fishery for May 1999 through April 2000, initiated 
with Framework 27.

Approved Measures

    This rule establishes a daily landing limit of 2,000 lb (907 kg) 
per DAS, with a possession limit of 20,000 lb (9,072 kg) per trip, on 
vessels enrolled in the GOM Cod Trip Limit Exemption Program. NMFS is 
approving these measures to reduce the GB cod fishing mortality rate 
(F) and increase the chances of achieving the rebuilding targets of the 
FMP. This rule also authorizes the Regional Administrator to reduce the 
allowable cod daily landing limit and possession limit for GB cod, when 
75 percent of the target TAC for that stock is projected to be reached. 
The lower cod daily landing limit and possession limit would be 
calculated to keep landings below the target TAC. On the other hand, on 
or after January 1, 2000, the Regional Administrator is authorized to 
increase the daily landing limit and possession limit, if there is a 
high probability that GB cod landings for the fishing year are 
projected to be less than 75 percent of the TAC for that stock. The 
higher daily landing limit and possession limit would be calculated to 
a level that would allow landings to reach at least 75 percent of the 
TAC for GB cod.
    This rule also implements a technical change to clarify the 
Council's intent of Framework 27 by removing language that would 
require gear stowage for vessels transiting the GOM/GB Inshore 
Restricted Roller Gear Area with roller gear in excess of 12 inches 
(30.48 cm) in diameter. The Council voted to recommend this change from 
the proposed rule for Framework 27 during the Council meeting on April 
15, 1999, citing the need to relieve a burdensome restriction that 
requires all vessels, before transiting the area, to stow gear in which 
the diameter of any part of the trawl footrope (including discs, 
rollers, or rockhoppers) exceeds the minimum size authorized in the 
GOM/GB Inshore Restricted Roller Gear Area. However, since the comment 
period for Framework 27 closed on April 13, 1999 (64 FR 14846, March 
29, 1999), and the Council did not address the matter until after that 
time, the measure could not be incorporated into the final rule for 
Framework 27. The final rule for Framework 27 was published on May 5, 
1999 (64 FR 24066). This rule deletes the Restricted Area transiting 
provision in Sec. 648.80(a)(2)(iv) in response to the Council's 
clarification of its intent in Framework 27.
    In addition, ``exempted gear,'' as defined at Sec. 648.2, means 
gear that is deemed to be not capable of catching Northeast 
multispecies, and includes: Pelagic hook or longline gear, spears, 
rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop 
nets, pound nets, pelagic gillnets, pots and traps, purse seines, 
shrimp trawls (with a properly configured grate), surf clam and ocean 
quahog dredges, and midwater trawls. For clarification purposes, this 
rule replaces the definition of ``pelagic hook or longline gear'' with 
two definitions: one for ``Pelagic longline gear'' and another for 
``pelagic hook and line gear.''
    The preamble to the final rule implementing Framework 27 correctly 
indicated that scallop dredge gear is considered exempted gear in the 
newly closed areas in Framework 27 when vessels are fishing under a 
scallop DAS, provided that the vessel does not retain any regulated 
multispecies during any part of a trip (see 64 FR 24067, May 5, 1999, 
column 3, under Area Closures and Exemptions). The Council specifically 
clarified that ``newly closed areas'' refer only to the Rolling Closure 
Areas specified in Framework 27, as well as the Cashes Ledge Closure 
Area. It did not refer to Closed Areas I and II, the Nantucket 
Lightship Closed Area, or the Western GOM Area Closure. However, the 
regulatory text for Framework 27 at Sec. 648.81(i)(2) incorrectly 
indicated that vessels fishing under scallop DAS are exempt from the 
Western GOM closure. The inadvertent inclusion of scallop dredge gear 
in the list of exemptions for the Western GOM is being corrected by 
this action, in accordance with the intent of Framework Adjustment 27. 
Because scallop dredge gear is not considered exempted gear in the 
Western GOM Area Closure, it is removed from the list of exemptions at 
Sec. 648.81(i)(2).

Disapproved Measure

    The framework action, as proposed by the Council, included a large 
30-day GB closure area off Cape Cod. The Council intended that this 
closure area would be effective, if possible, in June 1999 but 
recognized that the measure might be implemented in July 1999. Analysis 
for both months was included in the documentation for the action and 
showed that a closure in June 1999 was expected to reduce mortality of 
GB cod by about 11 percent, and by 8 percent for a July 1999 closure. 
This option was selected based on an optimistic assumption of no effort 
displacement occurring as the result of a 30-day closure. An 
alternative option, which simulated possible displacement, showed a 2.7 
percent mortality

[[Page 42047]]

reduction from a June 1999 closure, and less than 2.7 percent for July 
1999.
    Because implementation of this action could not occur within the 
months analyzed in the framework documents, the GB closure provision is 
disapproved since the conservation basis for the closure diminishes 
with time as concentrations of cod disperse after the spring spawning 
period.
    The effect of this disapproval is that the 22-percent reduction of 
F for GB cod will need to be achieved solely by the daily landing limit 
and possession limit, which may have to be reduced by the RA sooner in 
the absence of an area closure. However, if displacement would have 
been extensive during a June or July 1999 closure, then most of the 
reduction of F would have still been accomplished by the daily landing 
limit and possession limit. Because larger offshore vessels tend to be 
affected more by a daily landing limit, and small inshore vessels by 
inshore area closures, the differential impact on these sectors may be 
changed, at least slightly.

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, at which public 
comments are accepted. The Council must provide the public with advance 
notice of both the framework proposals and the associated analyses, and 
provide an opportunity to comment on them specifically, prior to and at 
the second Council meeting. Upon review of the analyses and public 
comments, the Council may recommend to the Regional Administrator that 
the measures be published as a final rule, or as a proposed rule, if 
additional public comment is necessary.
    The initial and final meetings for Framework 27 were on December 
10, 1998, and January 27-28, 1999, respectively. During these meetings 
the Council focused its efforts on developing measures to reduce 
fishing effort on GOM cod, which the best scientific information 
available indicated was collapsing. To avoid any delay in implementing 
management measures to protect GOM cod, the Council initiated Framework 
30 to address GB cod. The initial and final meetings for Framework 30 
were February 24-25, 1999, and April 14-15, 1999, respectively. The 
Council's Groundfish Committee and Industry Advisory Panel also held 
meetings and took public comment on the proposals on March 22 and 23, 
1999, respectively.
    At the joint meeting of the committee and advisory panel, which 
followed the initial framework meeting, the Council received a new 
proposal for GB cod from a group of fishing industry representatives. 
Because the industry proposal was in the preliminary stages of 
development, the Council decided that it could not delay further the 
implementation of GB cod protection measures and continued development 
of Framework 30.

Comments and Responses

    Documents summarizing the Council's proposed action and the 
analysis of biological, economic, and social impacts of this and 
alternative actions were available for public review 1 week prior to 
the final meeting, as required under the framework adjustment process. 
Written comments were accepted up to and during that meeting.
    Comment 1: Many members of the fishing industry, representing all 
of the major gear sectors, spoke out against the use of a daily landing 
limit because it would cause discards, be difficult and costly to 
enforce, and not necessarily produce the desired result.
    Response: The Council considered a wide range of alternatives to 
achieve the FMP objective of a 22-percent reduction in F. It adopted 
the GB cod daily landing limit as a contingency measure, which is being 
implemented under this rule, since the alternative proposal contained 
in Framework 31 will not be voted on by the Council and submitted to 
NMFS by August 15, 1999. The Council originally selected August 15, 
1999, as the anticipated date for Council approval and NMFS 
implementation of Framework 31 that would supersede the GB cod daily 
landing limit. The Council chose this measure because, unlike area 
closures and DAS reductions, the daily landing limit focuses the needed 
conservation restrictions on the vessels targeting cod, with minimal 
impact on vessels targeting other regulated species. The Council did 
not include a running clock provision, partly because of enforceability 
concern and the possibility that it would enable vessels to circumvent 
the conservation benefits of Framework 30. By including both a daily 
landing limit and a possession limit, the Council reduced the potential 
for discards, especially when vessels that exceed the daily landing 
limit can reduce the incidental catch of cod. The Council also provided 
authority to the Regional Administrator to adjust the daily landing 
limit and possession limit to reduce the risk of exceeding the target 
TAC.
    Comment 2: Several members of the fishing industry, as well as 
representatives of an organization claiming at least 500 supporters, 
asked the Council to seek a closure of the multispecies fishery on GB 
in May, through emergency action by the Secretary of Commerce. The 
commenters expressed concern that not implementing such a measure prior 
to the June-July peak period of cod landings would result in a 
succession of more severe restrictions in the future to achieve the 
same reductions in F.
    Response: The Council and NMFS determined that the present 
circumstances did not meet the requirements for an emergency action, 
and that the Council could not justify circumventing the normal 
framework process that allows all the affected public to comment on the 
alternatives and analysis of impacts. However, once it became apparent 
that the effective date of this action would not occur prior to mid-
July, the conservation benefits accrued from the proposed GB closure no 
longer justified the administrative and industry burden associated with 
such a closure. Thus, this measure is disapproved. NMFS believes that 
the daily landing limit and possession limit and the adjustment 
mechanism implemented under this action will ensure that the 1999 
fishing year target TAC is not exceeded.
    Comment 3: Members of the affected fishing industry and their 
representatives urged the Council to consider a plan developed through 
a number of meetings and an outreach program that included all gear 
sectors, as well as fish processors and dealers. This plan called for a 
mandatory 30-day block of time out of the multispecies fishery during 
each quarter, reductions in the amount or size of gear fished, and an 
increase in the minimum size of cod.
    Response: The Council agreed to consider this proposal and develop 
it as a separate framework adjustment, Framework 31. If Framework 31 
had been adopted and implemented when the Council originally intended, 
it would have superseded the GB cod limits scheduled to take effect on 
August 15, 1999, under Framework 30. However, at the final meeting for 
Framework 31, on May 26-27, 1999, a review of the analysis indicated 
that the proposal may not achieve the intended goals. Thus, no further 
action was taken to approve Framework 31.
    Comment 4: Several members of the fishing communities on Cape Cod 
stated that the alternatives under consideration by the Council would 
impact

[[Page 42048]]

disproportionately small, inshore vessels and their homeport 
communities.
    Response: A large GB closure would have had a disproportionate 
impact on small, inshore vessels that fish out of Cape Cod ports due to 
the inability of some of these vessels to travel beyond the closure to 
fish elsewhere during the closure period. As noted above, this portion 
of the framework has been disapproved.

Classification

    In accordance with the framework procedures, the public already 
received prior notice and an opportunity to comment on the measures in 
this rule. Comments received from the public are summarized and 
responded to in the preamble of this rule. Pursuant to 5 U.S.C. 
553(b)(B), the AA finds for good cause that providing additional prior 
notice and opportunity for public comment is impracticable and contrary 
to the public interest in the conservation and sustainable use of the 
GB cod resource. Additional prior notice and opportunity for comment 
would reduce the chances of achieving the 22 percent reduction in F 
needed to meet rebuilding targets of this overfished stock in a timely 
manner, to allow for the sustainable use of GB cod.
    Pursuant to 5 U.S.C. 553(d)(3), the AA finds good cause to waive 
the normally required 30-day delay in the effective date. Immediate 
implementation of this final rule will decrease the need for more 
severe reductions in F associated with a later effective date and will 
reduce the risk of exceeding the target TAC. Fishermen will be notified 
of the new daily landing limit and possession limit via NOAA weather 
radio, Coast Guard announcements, and letters to permit holders. In 
addition, industry has planned its GB cod fishing activities on the 
expectation that the daily landing limit and possession limit will 
start on August 15, 1999, as proposed by the Council. A later effective 
date would therefore disrupt the fishery and fishery-dependent 
communities.
    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. Nevertheless, the socioeconomic impacts on 
affected small entities, as well as alternatives to mitigate such 
impacts, were considered in the regulatory impact review contained in 
the supporting analyses for Framework 30.
    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: July 27, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons stated 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. 648.2, the definition for ``Pelagic hook or longline 
gear'' is removed, and the definitions for ``Pelagic hook and line 
gear'' and ``Pelagic longline gear'' are added, in alphabetical order, 
to read as follows:


Sec. 648.2  Definitions.

* * * * *
    Pelagic hook and line gear means handline or rod and reel gear that 
is designed to fish for, or that is being used to fish for, pelagic 
species, no portion of which is designed to be or is operated in 
contact with the bottom at any time.
    Pelagic longline gear means fishing gear that is not fixed, nor 
designed to be fixed, nor anchored to the bottom and that consists of 
monofilament main line (as opposed to a cable main line) to which 
gangions are attached.
* * * * *
    3. In Sec. 648.14, paragraphs (c)(19), (c)(23), and (c)(24) are 
revised, and a new paragraph (c)(26) is added, to read as follows:


Sec. 648.14  Prohibitions.

    (c) * * *
    (19) Fail to comply with the exemption specifications as described 
in Sec. 648.86(b)(4).
* * * * *
    (23) Fail to enter port and call-out of the DAS program no later 
than 14 DAS after starting a multispecies DAS trip (i.e., the time a 
vessel leaves port or when the vessel received a DAS authorization 
number, whichever comes first), as specified in Sec. 648.10(f)(3), 
unless otherwise specified in Sec. 648.86(b)(1)(ii), or unless the 
vessel is fishing under the cod exemption specified in 
Sec. 648.86(b)(4).
    (24) Enter port, while on a multispecies DAS trip, in possession of 
more than the allowable limit of cod specified in Sec. 648.86(b)(1)(i) 
without reporting the cod hail weight, unless the vessel is fishing 
under the cod exemption specified in Sec. 648.86(b)(4).
* * * * *
    (26) Fish for, land or possess cod in excess of the cod trip 
landings and/or maximum possession limits specified in or pursuant to 
Sec. 648.86(b)(2).
* * * * *
    4. In Sec. 648.80, paragraph (a)(2)(iv) is revised to read as 
follows:


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

    (a) * * *
    (2) * * *
    (iv) Rockhopper and roller gear restrictions. For all trawl vessels 
fishing in the GOM/GB Inshore Restricted Roller Gear Area, the diameter 
of any part of the trawl footrope, including discs, rollers, or 
rockhoppers must not exceed 12 inches (30.48 cm). The GOM/GB Inshore 
Restricted Roller Gear Area is defined by straight lines connecting the 
following points in the order stated:
* * * * *
    5. In Sec. 648.81, paragraphs (a)(2)(ii) and (i)(2) are revised to 
read as follows:


Sec. 648.81  Closed areas.

    (a) * * *
    (2) * * *
    (ii) Fishing with or using pelagic longline gear or pelagic hook 
and line gear or harpoon gear, provided that there is no retention of 
regulated species, and provided that there is no other gear on board 
capable of catching NE multispecies; or
* * * * *
    (i) Western GOM Area Closure. * * *
    (2) Paragraph (i)(1) of this section does not apply to persons on 
fishing vessels or fishing vessels that meet the criteria in paragraph 
(g)(2)(ii) or (iii) of this section.
* * * * *
    6. In Sec. 648.86, paragraph (b)(1) heading and the first sentence 
of paragraph (b)(1)(i) are revised, paragraph (b)(2) is redesignated as 
paragraph (b)(4), and a new paragraph (b)(2) is added to read as 
follows:


Sec. 648.86  Landing and possession restrictions.

* * * * *
    (b) * * * (1) Gulf of Maine Cod Landing Limit. (i) Except as 
provided in paragraphs (b)(1)(ii) and (b)(4) of this section, and 
subject to the cod landing limit call-in provision specified at 
Sec. 648.10(f)(3)(i), a vessel fishing under a NE multispecies DAS may 
land up to

[[Page 42049]]

200 lb (90.7 kg) of cod per DAS, or any part of a DAS, unless otherwise 
specified in this paragraph. * * *
* * * * *
    (2) Georges Bank Cod Landing and Maximum Possession Limits. For the 
1999 fishing year, beginning August 15, 1999, and,
    (i) For each fishing year thereafter, beginning on May 1, a vessel 
that is exempt from the landing limit described in paragraph (b)(1) of 
this section fishing under a NE multispecies DAS may land only up to 
2,000 lb (907.2 kg) of cod per DAS, or any part of a DAS, up to a 
maximum possession limit of 20,000 lb (9,071.8 kg) per trip, unless 
otherwise specified pursuant to paragraph (b)(2)(ii) of this section. 
The vessel must have a standard tote on board. Cod on board a vessel 
subject to these landing and maximum possession limits must be 
separated from other species of fish and stored so as to be readily 
available for inspection.
    (ii) When the Regional Administrator projects that 75 percent of 
the target TAC will be harvested (8.9 million lb (4,012 mt) for the 
1999 fishing year), NMFS may publish a notification in the Federal 
Register that, as of a specific date, the landing and/or maximum 
possession limits specified in paragraph (b)(2) of this section are 
reduced to a level calculated to keep landings below the target TAC 
based on the risk of exceeding the target TAC. Cod on board a vessel 
subject to these landings and maximum possession limits must be 
separated from other species of fish and stored so as to be readily 
available for inspection.
    (iii) Paragraph (b)(2)(i) of this section notwithstanding, between 
January 1, and April 30 of each fishing year, if the Regional 
Administrator projects that less than 75 percent of the target TAC (8.9 
million lb (4,012 mt) for the 1999 fishing year) will be harvested by 
April 30, of the fishing year, NMFS may publish a notification in the 
Federal Register that, as of a specific date, the landings and/or 
maximum possession limits are increased to the amount that the Regional 
Administrator projects will be sufficient to allow harvesting of up to 
8.9 million lb (4,012 mt) for the 1999 fishing year by April 30, 2000.
* * * * *
[FR Doc. 99-19850 Filed 7-29-99; 4:00 pm]
BILLING CODE 3510-22-F