[Federal Register Volume 67, Number 87 (Monday, May 6, 2002)]
[Rules and Regulations]
[Pages 30331-30333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11272]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 020409080-2100-02; I.D. 032602A]
RIN 0648-AP78


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery

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

ACTION: Interim final rule; change in effective date; correction; 
request for comments.

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SUMMARY: NMFS issues this interim final rule to amend measures that 
were implemented through an interim final rule published by NMFS on 
April 29, 2002, in order to protect species managed under the Northeast 
Multispecies Fishery Management Plan (FMP) from overfishing. This 
interim final rule imposes additional restrictions ordered by the U.S. 
District Court for the District of Columbia (Court) in a Remedial Order 
issued on April 26, 2002: Two new area closures in the eastern Gulf of 
Maine (GOM), an increase in the minimum size for commercially caught 
cod, and a new restriction on dehooking devices. This interim final 
rule also accelerates the date of implementation of the gear 
restrictions contained in the April 29, 2002, interim final rule. This 
action is necessary to bring the regulations governing the Northeast 
multispecies (groundfish) fishery into compliance with the Court's 
Remedial Order.

DATES: Effective from 0001 hours, local time, May 1, 2002 (i.e., 
immediately following implementation of the provisions contained in the 
interim final rule of April 29, 2002, at 67 FR 21140), through 2400 
hours, local time, on July 31, 2002. The effectiveness of the provision 
in Sec. 648.80(j)(3)(i) and (iii) is changed from May 15, 2002, through 
July 31, 2002, to May 1, 2002, through July 31, 2002. Comments on this 
interim final rule must be received no later than 5 p.m., local time, 
on June 5, 2002.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, National Marine Fisheries Service, One 
Blackburn Drive, Gloucester, MA 01930. Mark the outside of the 
envelope, ``Comments on the Amended Interim Final Rule for 
Groundfish.'' Comments also may be sent via facsimile (fax) to (978) 
281-9135. Comments will not be accepted if submitted via e-mail or 
Internet.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, 
phone: 978-281-9347, fax: 978-281-9135; email: [email protected]

SUPPLEMENTARY INFORMATION:

Background

    On December 28, 2001, a decision was rendered by the Court on a 
lawsuit brought by the Conservation Law Foundation (CLF), Center for 
Marine Conservation, National Audubon Society and Natural Resources 
Defense Council against NMFS (Conservation Law Foundation, et al., v. 
Evans, Case No. 00CVO1134, (D.D.C., December 28, 2001)). The lawsuit 
alleged that Framework Adjustment 33 to the FMP violated the 
overfishing, rebuilding and bycatch provisions of the Magnuson-Steven 
Act (18 U.S.C. 1801, et seq.), as amended by the Sustainable Fisheries 
Act (SFA), and the Court granted plaintiffs' Motion for Summary 
Judgment on all counts. The Court had not yet imposed a remedy, but it 
did ask the parties to the lawsuit to propose remedies consistent with 
the Court's findings. Additional background on the lawsuit is contained 
in the preamble to the April 29, 2002, interim rule and is not repeated 
here.
    On March 1, 2002, NMFS, at the request of the Court, proposed a 
measure to bring the FMP into full compliance with the SFA, the 
Magnuson-Stevens Act, and all other applicable law as quickly as 
possible. That proposed measure would have resulted in three actions 
over the next year and a half. Plaintiffs and the intervenors in the 
case also proposed remedies to the Court. From April 5-9, 2002, 
plaintiffs, defendants and intervenors engaged in Court-assisted 
mediation to try to agree upon mutually acceptable short-term and long-
term solutions to present to the Court as a possible settlement. 
Although these discussions ended with no settlement, several of the 
parties continued mediation and filed with the Court a Settlement 
Agreement Among Certain Parties (Settlement Agreement) on April 16, 
2002. In addition to NMFS, the parties signing the agreement include 
CLF, which is one of the plaintiff conservation groups, all four state 
intervenors, and two of three industry intervenors.
    In order to ensure the implementation of protective management 
measures by May 1, 2002, NMFS, notwithstanding that the Court had not 
yet issued its Remedial Order, proceeded to file an interim final rule 
with the Office of the Federal Register on April 25, 2002, for 
publication on April 29, 2002. The interim final rule, published on 
April 29, 2002, implemented measures identical to the short-term 
measures contained in the Settlement Agreement filed with the Court. 
The measures contained in the April 29, 2002, interim final rule were 
to become effective on May 1, 2002, with the exception of 
Secs. 648.80(j)(3)(i) and (iii), and 648.89(i)(1), which were to become 
effective May 15, 2002.
    On April 26, 2002, the Court issued a Remedial Order that ordered 
the promulgation of two specific sets of management measures (to be 
effective from May 1, 2002, to July 31, 2002, and from August 1, 2002, 
until promulgation of Amendment 13, respectively). The Court-ordered 
measures for the first set of measures were, in the majority, identical 
with those contained in the Settlement Agreement and the measures 
contained in NMFS' April 29, 2002, interim final rule. However, the 
Court-ordered measures included additional provisions and an 
accelerated schedule of effectiveness for all measures, which were not 
contained in either the Settlement Agreement or the April 29, 2002, 
interim final rule. Further, the Court ordered that NMFS publish in the 
Federal Register, as quickly as possible, an ``amended interim rule and 
an amended second interim rule'' that would ``include the departures 
from the Settlement Agreement incorporated in the Remedial Order.'' To 
comply with the Court Order in the meantime, NMFS publishes this 
interim final rule to modify the measures implemented through the April 
29, 2002, interim final rule and to accelerate the effectiveness of the 
gear restrictions in Sec. 648.80(j)(3)(i) and (iii) to May 1, 2002, 
consistent with the Remedial Order. The measures in Sec. 648.89(i)(1) 
are administrative, only, and will still become effective on May 15, 
2002.
    NMFS intends to publish another interim final rule as soon as 
possible to implement management measures for the period August 1, 
2002, through the implementation of Amendment 13 to the FMP, in 
accordance with the Remedial Order. Amendment 13 will implement 
rebuilding plans for several

[[Page 30332]]

groundfish stocks and continue to address capacity issues in the 
fishery. Amendment 13 is under development by NMFS and the Council and 
will be implemented by August 22, 2003.

Management Measures

    The following management measures are implemented through this 
interim final rule: All measures that were in place prior to the April 
29, 2002, interim final rule that were not amended by that rule and all 
measures implemented by the April 29, 2002, interim final rule that are 
not specifically amended through this interim final rule and that 
remain in effect. The measures added or modified through this interim 
final rule are as follows:
    1. The minimum size for cod that may be lawfully sold is increased 
from 19 inches (48.3 cm) to 22 inches (55.9 cm)(total length).
    2. Two new year-round closed areas, Cashes Ledge East and Cashes 
Ledge West, which correspond to statistical area blocks 128 and 130, 
respectively, are added. The existing Cashes Ledge Area Closure remains 
in effect and overlaps Cashes Ledge West.
    3. A new restriction is placed on the hook-gear sector of the 
industry to discourage dehooking strategies that may reduce survival of 
discarded fish. Specifically, this interim final rule prohibits the use 
of de-hookers (crucifiers) with less than 6-inch (15.2-cm) spacing 
between the fairlead rollers.
    4. The gear restrictions contained in Sec. 648.80(j)(3)(i) and 
(iii), which were to become effective May 15, 2002, as a result of the 
April 29, 2002, interim final rule, are made effective May 1, 2002.

Classification

    This rulemaking is required to be made effective on May 1, 2002, by 
the April 26, 2002 Remedial Order issued by the Court in Conservation 
Law Foundation, et al., v. Evans, Case No. 00CV01134 (D.D.C., Dec. 28, 
2001). This Order leaves NMFS with no discretion as to whether or when 
to promulgate this interim final rule.
    This rule has been determined to be significant for purposes of 
Executive Order 12866. NMFS has not prepared an assessment of the 
potential costs and benefits of this rule as required by the Executive 
Order.
    Because the Court mandated on April 26, 2002, that this rule must 
be in effect no later than May 1, 2002, it is impracticable for NMFS to 
provide prior notice and an opportunity for public comment. Such 
procedures would prevent NMFS from timely implementation of the Court's 
order. Accordingly, the Assistant Administrator for Fisheries (AA) 
finds that there exists good cause to waive the notice and comment 
requirements of the Administrative Procedure Act pursuant to 5 U.S.C. 
553(b)(B). For the same reason, the AA finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delayed effectiveness period for the 
implementation of the measures required by this rule.
    Since notice and an opportunity for public comment are not required 
for this rule by 5 U.S.C. 553, or any other law, this rule is not 
subject to the analytical requirements of the Regulatory Flexibility 
Act. As such, no regulatory flexibility analysis is required for this 
rulemaking, and none has been prepared. 5 U.S.C. 603.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 2, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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. 648.14, paragraphs (a)(149) through (151) are added to 
read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (149) Use of de-hookers (``crucifiers'') with less than 6-inch 
(15.2-cm) spacing between the fairlead rollers.
    (150) Fish for, land, or possess NE multispecies harvested with the 
use of de-hookers (``crucifiers'') with less than 6-inch (15.2-cm) 
spacing between the fairlead rollers unless the vessel has not been 
issued a multispecies permit and fishes for NE multispecies exclusively 
in state waters.
    (151) Possess de-hookers (``crucifiers'') with less than 6-inch 
(15.2-cm) spacing between the fairlead rollers while in possession of 
NE multispecies, unless the vessel has not been issued a multispecies 
permit and fishes for NE multispecies exclusively in state waters.
* * * * *

    3. In Sec. 648.80, paragraph (n)(6) is added to read as follows:


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

* * * * *
    (n) * * *
    (6) The use of de-hookers (``crucifiers'') with less than 6-inch 
(15.2-cm) spacing between the fairlead rollers is prohibited.
* * * * *

Sec. 648.81 [Corrected]

    4. Section Sec. 648.81 is corrected by revising paragraph (u)(1) 
(effective May 1, 2002, through July 31, 2002) to read as follows:


Sec. 648.81  Closed areas.

* * * * *
    (u) Cashes Ledge Closure Areas. (1) No fishing vessel or person on 
a fishing vessel may enter, fish in, or be in, and no fishing gear 
capable of catching NE multispecies, unless otherwise allowed in this 
part, may be in, or on board a vessel in, the three areas known as the 
Cashes Ledge Closure Areas, as defined in this paragraph (u)(1), except 
as specified in paragraphs (s) and (u)(2) of this section. A chart 
depicting these areas is available from the Regional Administrator upon 
request (see Table 1 to Sec. 600.502 of this chapter). The Cashes Ledge 
Closure Areas are three areas, two of which are overlapping, defined by 
straight lines connecting the following points in the order stated:
    (i) Cashes Ledge West.

------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
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CL7                                              43 deg.00'   69 deg.30'
CL8                                              43 deg.00'   69 deg.00'
CL9                                              42 deg.30'   69 deg.00'
CL10                                             42 deg.30'   69 deg.30'
CL7                                              43 deg.00'   69 deg.30'
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    (ii) Cashes Ledge.

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                     Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
CL1                                              43 deg.07'   69 deg.02'
CL2                                             42 deg.49.5   68 deg.46'
                                                          '
CL3                                             42 deg.46.5  68 deg.50.5
                                                          '            '
CL4                                             42 deg.43.5  68 deg.58.5
                                                          '            '
CL5                                             42 deg.42.5  69 deg.17.5
                                                          '            '
CL6                                             42 deg.49.5   69 deg.26'
                                                          '
CL1                                              43 deg.07'   69 deg.02'
------------------------------------------------------------------------

    (iii) Cashes Ledge East.

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                     Point                        N. Lat.      W. Long.
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CL11                                             43 deg.00'   68 deg.30'
CL12                                             43 deg.00'   68 deg.00'
CL13                                             42 deg.30'   68 deg.00'
CL14                                             42 deg.30'   68 deg.30'
CL11                                             43 deg.00'   68 deg.30'
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[[Page 30333]]


    5. In Sec. 648.83, paragraph (a)(1) is suspended and paragraph 
(a)(3) is added to read as follows:


Sec. 648.83  Multispecies minimum fish sizes.

    (a) * * *
    (3) Minimum fish sizes for recreational vessels and charter/party 
vessels that are not fishing under a NE multispecies DAS are specified 
in Sec. 648.89. Except as provided in Sec. 648.17, all other vessels 
are subject to the following minimum fish sizes, determined by total 
length (TL):

             MINIMUM FISH SIZES (TL) FOR COMMERCIAL VESSELS
------------------------------------------------------------------------
                         Species                          Sizes (inches)
------------------------------------------------------------------------
Cod                                                         22 (55.9 cm)
Haddock                                                     19 (48.3 cm)
Pollock                                                     19 (48.3 cm)
Witch flounder (gray sole)                                  14 (35.6 cm)
Yellowtail flounder                                         13 (33.0 cm)
American plaice (dab)                                       14 (35.6 cm)
Atlantic halibut                                            36 (91.4 cm)
Winter flounder (blackback)                                 12 (30.5 cm)
Redfish                                                      9 (22.9 cm)
------------------------------------------------------------------------

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[FR Doc. 02-11272 Filed 5-2-02; 3:28 pm]
BILLING CODE 3510-22-S