[Federal Register Volume 64, Number 148 (Tuesday, August 3, 1999)]
[Rules and Regulations]
[Pages 42042-42045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19851]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990727204-9204-01; I.D. 072299A]
RIN 0648-AM87


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Gulf of Maine (GOM) Cod Landing Limit Adjustment

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

ACTION: Interim final rule; request for comments.

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

SUMMARY: This rule adjusts the GOM cod landing limit by increasing it 
from 30 lb (13.6 kg) to 100 lb (45.4 kg) per day-at-sea (DAS) with a 
maximum GOM cod possession limit of 500 lb (226.8 kg) per trip and by 
revising the ``running clock'' provision. The intent of this adjustment 
is to address overfishing of GOM cod by reducing overall fishing 
mortality and discards that have been reportedly occurring on trips 
targeting other species managed under the Northeast Multispecies 
Fishery Management Plan (FMP). The intent is to allow the fishing 
industry to attain some economic benefit from their GOM cod incidental 
catch, yet to be sufficiently restrictive to discourage a directed 
fishery for GOM cod, which remains severely overfished. These interim 
measures will provide intermediate relief from overfishing due to 
excessive discards while permanent measures to remedy the problem are 
developed by the New England Fishery Management Council (Council).

DATES: Effective August 3, 1999 through January 30, 2000; comments must 
be received on or before September 2, 1999.

ADDRESSES: Copies of the documents supporting this action may be 
obtained from the Northeast Regional Office, NMFS, One Blackburn Drive, 
Gloucester, MA 01930-2298. Comments on the interim final rule may be 
sent to the Regional Administrator, NMFS, One Blackburn Drive, 
Gloucester, MA 01930-2298. Mark the outside of the

[[Page 42043]]

envelope ``comments on GOM cod trip limit adjustment.''

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, 978-281-9279.

SUPPLEMENTARY INFORMATION:

Background

    GOM cod is overfished. The Advisory Report on Stock Status issued 
pursuant to the 27th Stock Assessment Workshop (SAW) in July 1998 
stated that GOM cod biomass has declined to an extremely low level. 
Recruitment of cod to the fishery in 1996 through 1998 was the lowest 
ever observed. In addition, survival of pre-recruits has been declining 
and is at an all-time low. Fishing mortality has also been very high--
about 1.5 times greater than the fishing mortality rate threshold of 
the overfishing definition and approximately twice the maximum fishing 
mortality rate necessary to rebuild the stock under the rebuilding 
schedule in the FMP. The low spawning stock biomass, high fishing 
mortality, record low recruitment, and record low survival of pre-
recruit fish indicate that the stock is collapsing. The 27th SAW 
Advisory Report stated that measures should be implemented to cease all 
directed fishing on GOM cod and to minimize bycatch of the species. In 
1998, the Stock Assessment Review Committee (SARC) recommended an 
immediate reduction in fishing mortality to near zero.
    In response to SAW 27 and to the recommendations of the SARC, the 
Council, in January 1999, approved Framework Adjustment 27 to the FMP. 
Framework 27 was necessary to address overfishing of several stocks, in 
particular GOM cod, and to achieve the rebuilding goals of the FMP for 
the 1999 multispecies fishing year. Framework 27 utilized a 
conservative fishing mortality rate (F) reference point, 
F0.1 = 0.16, to ensure that the fishing mortality rate 
objective of Amendment 7 to the FMP (Fmax = 0.29) would not 
be exceeded.
    In developing the measures for Framework 27, the Council attempted 
to balance the interests of several industry sectors. The measures that 
the Council approved relied to a significant extent upon the premise 
stated by the fishing industry that vessel owners could, and would, 
avoid GOM cod when conducting fisheries for such other species as 
flounder. Based largely upon this testimony, the Council approved 
measures in Framework 27 consisting of a GOM cod landing limit of 200 
lb (90.7 kg) per DAS and rolling closure areas, in an effort to balance 
the need to protect GOM cod while still allowing fishing for other 
species managed under the FMP. To ensure that the target total 
allowable catch (TAC) level would not be exceeded, the Council also 
approved a mechanism to reduce the landing limit to between 5 and 100 
lb (2.3 and 45.4 kg) per DAS, triggered when 402 metric tons (mt) of 
GOM cod was projected to be landed. Framework 27 also included several 
important gear restrictions and other measures.
    On May 1, 1999, areas off Massachusetts, including Stellwagen Bank, 
which had been closed during February, March, and April under Framework 
Adjustment 26, were reopened. Based upon projected landings data, the 
trigger of 402 mt of GOM cod was reached on May 28, 1999. Accordingly, 
the landing limit was reduced to 30 lb (13.6 kg) per DAS to ensure that 
the TAC associated with F0.1 was not exceeded (64 FR 28937, 
May 28, 1999). Almost immediately, high levels of GOM cod discards were 
reported by the industry. Two factors apparently contributed to this 
situation: (1) Despite previous testimony, the industry could not avoid 
cod while fishing for other species; and (2) concentrations of cod in 
the reopened closed areas were very large.
    These reports of discarding prompted the Council on May 28, 1999, 
by a 9-8 vote, to request the Secretary of Commerce to take emergency 
action to increase the GOM cod landing limit up to 700 lb (317.5 kg) 
per DAS, with the following two additional changes to the regulations:

    [The first change to the rule is that] there would be a limit on 
the allowance of overages equating to three days' landings. When 
landing overages, a vessel must remain in port until sufficient time 
has been deducted from its days-at-sea allocation. Currently, there 
is no limit on the amount of overage a vessel can land on any trip 
except for the vessel's total days-at-sea allocation. The second 
change to the rule is that when a vessel lands an overage, it must 
remain in port for two additional layover days after calling out of 
the days-at-sea program. The Council decided to recommend this 
course of action because it would minimize regulatory discards and, 
with the mandatory layover requirement and overage limit, would 
reduce the potential for vessels to direct effort and pulse fish on 
cod.

    However, NMFS determined that the current situation did not meet 
NMFS' policy guidelines for taking emergency action under sec. 305(c) 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). The policy guidelines (62 FR 44421, August 21, 
1997) define an emergency, in part, as a situation that results from 
recent, unforeseen events or recently discovered circumstances. 
Although the magnitude of discarding is large, the Council was aware of 
this possibility during its deliberations for Framework 27 and 
considered the possible consequences when approving the measures. The 
Council instead chose to rely upon industry testimony given during the 
development of Framework 27, which stated that vessels could, and 
would, avoid cod while targeting other species. Furthermore, a GOM cod 
landing limit of 700 lb (317.5 kg) per DAS, even in conjunction with 
the other measures proposed by the Council, would not be sufficient to 
discourage a directed fishery for GOM cod and, most likely, would 
result in the target TAC and overall fishing mortality objectives being 
greatly exceeded, thereby worsening overfishing.
    Interim measures are authorized under sec. 305(c) of the Magnuson-
Stevens Act when they are needed to reduce overfishing. Measures to 
reduce high levels of discarding and overall fishing mortality are 
necessary because, if left uncontrolled, the effectiveness of Framework 
27 will be undermined. These measures contribute towards the 
achievement of the GOM cod fishing mortality target in two ways: (1) 
Allowing the retention of cod (100 lb (45.4 kg) per DAS) that would 
otherwise be discarded enhances the profitability per day of a fishing 
trip, compared to the status quo (30 lb (13.6 kg) per DAS), and 
therefore, may provide more of an incentive for vessel owners to 
decrease the length of their trips. A decrease in the length of trips 
targeting other species will reduce the opportunity to encounter GOM 
cod, and thereby reduce the overall fishing mortality, as compared to 
the status quo. (2) Revising the ``running clock'' so that it may be 
used for no more than 24 hours may reduce the incentive for industry to 
target GOM cod, which may result in fewer overall discards and reduced 
fishing mortality.
    These interim measures allow vessels to land 100 lb (45.4 kg) of 
GOM cod for the first 24-hour period of a trip or portion thereof, 
after a vessel has called into the DAS program to start a trip on which 
cod are landed. For example, a vessel that starts a trip at 6 a.m. may 
call out of the DAS program at ll a.m. and land up to 100 lb (45.4 kg), 
but the vessel cannot land any more GOM cod on a subsequent trip until 
at least 6 a.m. on the following day. For trips longer than 24 hours, a 
vessel may land up to an additional 100 lb (45.4 kg) for each 
additional 24-hour block of DAS fished, or part of an additional 24-
hour block of DAS fished, up to a maximum possession limit of 500 lb 
(226.8 kg) per trip. For example, a vessel that has been

[[Page 42044]]

called into the DAS program for 48 hours or less, but more than 24 
hours, may land up to, but no more than, 200 lb (90.7 kg) of GOM cod. 
However, for trips beyond 24 hours, if a vessel lands GOM cod and has 
only been called into part of an additional 24-hour block of a DAS 
(e.g., more than 24 hours but less than 48 hours), the vessel may only 
land an additional 100 lb (45.4 kg) of cod provided the vessel operator 
does not call out of the DAS program or depart from port, until the 
remainder of the additional 24- hour block of the DAS has elapsed. For 
example, a vessel that has been called into the DAS program for 49 
hours, at the time of landing, may land only up to 300 lb (136.08 kg) 
of cod, provided that the vessel operator does not call out of the DAS 
program, or leave port, until 72 hours have elapsed from the beginning 
of the trip. In effect, use of the ``running clock'' may not exceed 24 
hours.
    Vessels possessing multispecies permit categories C (small vessel), 
H (handgear) and J (scallop limited access possession limit) are 
subject to this same landing limit (100 lb (45.4 kg) per day), but with 
a maximum possession limit of 300 lb (136.08 kg) of GOM cod per trip.
    The adjusted GOM cod landing limit is set to provide a balance that 
is more reflective of the actual level of cod encountered in directed 
fishing for other species, yet that discourages directed fishing for 
GOM cod. These interim measures are within the range of alternatives 
analyzed for Framework 27, and will provide some relief from 
overfishing due to excessive discards of GOM cod while other measures 
are developed by the Council.
    Increasing the daily GOM cod landing limit to 100 lb (45.4 kg) per 
DAS allows vessels to retain cod that otherwise would have been 
discarded under the current limit of 30 lb (13.6 kg) per DAS of cod. 
Regulatory discards will be converted to economic benefits for vessels, 
which could enhance the profitability of time spent fishing, compared 
to the status quo, and may provide an incentive for vessel operators to 
reduce the length of their trips. Shorter trips may reduce overall GOM 
cod fishing mortality because there is less opportunity to encounter 
cod. Although a higher trip limit may result in higher reported 
landings of GOM cod than the current trip limit, it is projected that 
the interim measures will bring the overall GOM cod fishing mortality 
rate closer to the Fmax target than is likely to occur under 
the status quo.
    Conservation benefits will also be achieved by limiting the 
``running clock'' to no more than 24 hours, and by instituting a 
maximum possession limit for GOM cod of 500 lb (226.8 kg) per trip. 
Under current regulations, there is only an indirect limit on the 
``running clock,'' which requires vessels to call out of the DAS 
program after 14 days. Limiting the ``running clock'' to no more than 
24 hours and implementing a maximum possession limit prevents the 
possibility that a vessel will target cod, retain several hundred 
pounds, and then return to shore and let the DAS clock continue to run 
to equate to the vessel's GOM cod landings. This is possible under 
current regulations because many vessels do not utilize their entire 
allocation of DAS and can afford to let the DAS clock run to account 
for overages. Although the ``running clock'' was originally implemented 
for the purpose of reducing regulatory discards, it has unintentionally 
allowed industry to circumvent the daily GOM cod landing limit and 
continue a directed fishery for GOM cod. Revising the ``running clock'' 
provision will reduce the incentive to target cod, which otherwise 
would have occurred by increasing the trip limit. With fewer individual 
vessels targeting cod, overall discards will be minimized.
    Several options were considered in the development of these interim 
measures, including a higher landing limit, additional closed areas in 
conjunction with a higher limit, and a no-action alternative. A higher 
landing limit would not be effective in curtailing a directed fishery 
for GOM cod, as evidenced by the high volume of landings that occurred 
under a 200 lb (90.7 kg) per DAS landing limit in May 1999 and 
triggered the reduction of the landing limit to 30 lb (13.6 kg) per DAS 
on May 28, 1999. Additional closed areas in conjunction with a higher 
landing limit would have required additional analysis and could not 
have been implemented in a timely manner. These interim measures, which 
were analyzed in Framework 27, will help to reduce discards while 
contributing to the achievement of the fishing mortality target.
    The Council has initiated a framework action to modify the GOM cod 
fishery management program, which would remain in effect through the 
next fishing year if it is approved and implemented. NMFS will work 
with the Council and the public, while these interim measures are in 
place, to develop measures that reduce mortality on GOM cod, without 
excessive discarding.
    These measures will remain in effect for 180 days and may be 
extended for an additional 180 days, provided the public has had 
opportunity to comment on the measures. Accordingly, NMFS is seeking 
public comment on these interim measures.

Classification

    The Assistant Administrator for Fisheries (AA) finds that a delay 
in action to reduce overfishing to provide prior notice and opportunity 
for public comment would increase the likelihood of exceeding the GOM 
cod target TAC and would increase the probable need for more severe 
restrictions in the future. Thus, the AA, pursuant to authority set 
forth at 5 U.S.C. 553(b)(B), for good cause finds that it would be 
contrary to the public interest to provide prior notice and opportunity 
for public comment for this rule. The increase in the GOM cod landing 
limit relieves a restriction and, thus, under 5 U.S.C. 553(d)(1) is not 
subject to a 30-day delay in effective date. With respect to the other 
provisions of the rule, because of the need to implement these measures 
in a timely manner to address overfishing of GOM cod, the AA finds good 
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness.
    This rule has been determined to be not significant for purposes of 
E.O. 12866.
    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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and Recordkeeping requirements.

    Dated: July 28, 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. 648.10, paragraphs (f)(3)(i) and (ii) are suspended and 
paragraph (f)(3)(iii) is added to read as follows:


Sec. 648.10  DAS notification requirements.

* * * * *
    (f) * * *
    (3) * * *
    (iii) A vessel subject to the cod landing limit restriction, 
specified in Sec. 648.86(b)(1)(iv), must enter port and call-out of the 
DAS program no later than 14 DAS after starting a multispecies DAS 
trip.

[[Page 42045]]

    3. In Sec. 648.14, paragraphs (c)(23), (c)(24), and (c)(25) are 
suspended and paragraphs (c)(27), (c)(28), (c)(29), and (c)(30) are 
added to read as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (c) * * *
    (27) Fail to enter port and call-out of the DAS program no later 
than 14 DAS after starting (i.e., the time of the issuance of the DAS 
authorization number) a multispecies DAS trip, as specified in 
Sec. 648.10(f)(3)(iii), unless otherwise specified in 
Sec. 648.86(b)(1)(iv), or unless the vessel is fishing under the cod 
exemption specified in Sec. 648.86(b)(2).
    (28) 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)(iv) 
without reporting the cod hail weight, unless the vessel is fishing 
under the cod exemption specified in Sec. 648.86(b)(2). Under no 
circumstances may such a trip exceed 14 days in length.
    (29) Fail to remain in port for the appropriate time specified in 
Sec. 648.86(b)(1)(ii), except for transiting purposes, provided the 
vessel complies with Sec. 648.86(b)(5).
    (30) Land more than the allowable limit of cod specified in 
Sec. 648.86(b)(1)(iv), unless the vessel is fishing under the cod 
exemption specified in Sec. 648.86(b)(2).
* * * * *
    4. In Sec. 648.82, paragraph (b)(3)(i) is suspended and paragraph 
(b)(3)(iii) is added to read as follows:


Sec. 648.82  Effort-control program for limited access vessels.

* * * * *
    (b) * * *
    (3) * * *
    (iii) DAS allocation. A vessel qualified and electing to fish under 
the small vessel category may retain up to 300 lb (136.1 kg) of cod, 
haddock, and yellowtail flounder, combined, per trip without being 
subject to DAS restrictions, provided that the amount of cod on board 
does not exceed the daily cod limit specified in Sec. 648.86(b), up to 
a maximum of 300 lb (136.1 kg) of cod for the entire trip. Such a 
vessel is not subject to a possession limit for other NE multispecies.
* * * * *
    5. In Sec. 648.86 paragraphs (b)(1)(i), (b)(1)(ii)(A), and (b)(3) 
are suspended and paragraphs (b)(1)(iv) and (b)(5) are added to read as 
follows:


Sec. 648.86  Possession restrictions.

* * * * *
    (b) * * *
    (1) * * *
    (iv) Landing limit. Notwithstanding any other provisions of this 
part, the following measures shall be in effect from August 3, 1999 
until January 30, 2000. Except as provided in paragraph (b)(2) of this 
section, and subject to the call-in provision specified in 
Sec. 648.10(f)(3)(iii), a vessel fishing under a NE multispecies DAS 
may land only up to 100 lb (45.4 kg) of cod during the first 24-hour 
period after the vessel has started a trip on which cod were landed 
(e.g., a vessel that starts a trip at 6 a.m. may call out of the DAS 
program at ll a.m. and land up to a 100 lb (45.4 kg), but the vessel 
cannot land any more cod on a subsequent trip until at least 6 a.m. on 
the following day). For each trip longer than 24 hours, a vessel may 
land up to an additional 100 lbs (45.4 kg) for each additional 24-hour 
block of DAS fished, or part of an additional 24-hour block of DAS 
fished, up to a maximum of 500 lb (226.8 kg) per trip (e.g., a vessel 
that has been called into the DAS program for 48 hours or less, but 
more than 24 hours, may land up to but no more than 200 lb (90.7 kg) of 
cod). A vessel that has only been called into part of an additional 24-
hour block of a DAS (e.g., a vessel that has been called into the DAS 
program for more than 24 hours but less than 48 hours) may land up to 
an additional 100 lb (45.4 kg) of cod for that trip provided that the 
vessel complies with the following:
    (A) The vessel operator does not call-out of the DAS program as 
described under Sec. 648.10(c)(3) and does not depart from a dock or 
mooring in port, unless transiting as allowed in paragraph (b)(5) of 
this section, until the rest of the additional 24-hour block of the DAS 
has elapsed regardless of whether all of the cod on board is offloaded 
(e.g., a vessel that has been called into the DAS program for 25 hours, 
at the time of landing, may land only up to 200 lb (90.7 kg) of cod, 
provided the vessel does not call out of the DAS program or leave port 
until 48 hours have elapsed from the beginning of the trip).
    (B) Comply with paragraph (b)(1)(ii)(B) of this section.
    (C) Vessels must have at least one standard tote on board. Cod on 
board a vessel subject to this landing limit must be separated from 
other species of fish and stored so as to be readily available for 
inspection.
* * * * *
    (5) Transiting. A vessel that has exceeded the cod landing limit as 
specified in paragraph (b)(1) of this section, and is therefore, 
subject to the requirement to remain in port for the period of time 
described in paragraph (b)(1)(iv) of this section may transit to 
another port during this time, provided that the vessel operator 
notifies the Regional Administrator (see Table 1 to Sec. 600.502 of 
this chapter) either at the time the vessel reports its hailed weight 
of cod or at a later time prior to transiting and provides the 
following information: vessel name and permit number, destination port, 
time of departure, and estimated time of arrival. A vessel transiting 
under this provision must stow its gear in accordance with one of the 
methods specified in Sec. 648.81(e) and may not have any fish on board 
the vessel.
* * * * *
    6. In Sec. 648.88, paragraph (a)(1) is suspended and paragraph 
(a)(3) is added to read as follows:


Sec. 648.88  Open access permit restrictions.

    (a) * * *
    (3) Notwithstanding any other provisions of this part, the 
following measures shall be in effect from August 3, 1999 until January 
30, 2000. The vessel may possess and land up to 300 lb (136.1 kg) of 
cod, haddock, and yellowtail flounder, combined, per trip, and 
unlimited amounts of the other NE multispecies, provided that the 
amount of cod on board does not exceed the daily cod limit specified in 
Sec. 648.86(b)(1)(iv), up to a maximum of 300 lb (136.1 kg) of cod for 
the entire trip, and that the vessel does not use or possess on board 
gear other than rod and reel or handlines while in possession of, 
fishing for, or landing NE multispecies, and provided it has at least 
one standard tote on board.
* * * * *
[FR Doc. 99-19851 Filed 7-29-99; 4:00 pm]
BILLING CODE 3510-22-F