[Federal Register Volume 67, Number 223 (Tuesday, November 19, 2002)]
[Rules and Regulations]
[Pages 69694-69696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29351]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 021101265-2265-01; I.D. 101602A]
RIN 0648-AQ50


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Exemption Supplement to Framework Adjustment 35

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 modify the regulations 
implementing Framework Adjustment 35 (Framework 35) to the Northeast 
Multispecies Fishery Management Plan (FMP). Framework 35 established an 
exempted small mesh whiting fishery in the Gulf of Maine (GOM), near 
Provincetown, MA. The fishery occurs from September 1 through November 
20 each year and requires the use of raised footrope trawl gear. This 
final rule modifies the boundaries of the current exemption area 
through inclusion of an area east of Cape Cod and allows the fishery to 
continue in the newly added eastern portion of the exemption area 
through December 31 of each year.

DATES: Effective November 14, 2002.

ADDRESSES: Copies of Amendment 12 to the FMP, its regulatory impact 
review (RIR), the initial regulatory flexibility analysis contained 
within the RIR, and its final Supplemental Environmental Impact 
Statement, along with Framework 35, its RIR and Environmental 
Assessment (EA), and other supporting documents for both Amendment 12 
and Framework 35, and the EA and RIR prepared for this final rule are 
available from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. 
These documents are also available online at http://www.nefmc.org.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy 
Analyst, NMFS, 978-281-9272.

SUPPLEMENTARY INFORMATION: The final rule implementing Framework 35 (65 
FR 49942, August 16, 2000) established an exempted whiting raised 
footrope trawl fishery in an area in upper Cape

[[Page 69695]]

Cod Bay effective September 1, 2000, based on the low bycatch of 
regulated multispecies encountered in the fishery while using raised 
footrope trawl gear. The overall reduction of regulated multispecies 
bycatch has been significant with the raised footrope trawl gear 
compared to landings and bycatch of regulated multispecies in regulated 
multispecies directed fisheries. Also, use of the raised footrope trawl 
has been demonstrated to significantly reduce total bycatch compared to 
traditional whiting trawl gear.
    The Northeast (NE) multispecies regulations, at 50 CFR 
648.80(a)(8)(i)(A), specify that, in order for any fishery to occur in 
the GOM/Georges Bank (GB) Regulated Mesh Area, it must be shown to have 
a bycatch of regulated multispecies that is less than 5 percent of the 
catch of all species. This regulation is intended to prevent the 
bycatch and discard of large amounts of regulated multispecies that 
could be caught in fisheries targeting other species. Small mesh bottom 
trawl fisheries are of particular concern because of the interactions 
of bottom fish, the limited selectivity of small mesh, and the high 
potential for regulated multispecies bycatch.
    In May 2002, the Massachusetts Division of Marine Fisheries (MADMF) 
submitted a request to the Administrator, Northeast Region, NMFS 
(Regional Administrator) for an exempted fishery in the so-called 
``Area 3'' east of Cape Cod and immediately adjacent to the present 
raised footrope trawl exempted fishery. Since 1997, the MADMF has 
tested the raised footrope trawl design in Area 3 east of Cape Cod from 
September 1 through December 31 each year. Section 648.80(a)(8)(i)(A) 
of the NE multispecies regulations provides for expansion of the 
existing exemption area boundaries, to include Area 3, if the Regional 
Administrator, after consultation with the New England Fishery 
Management Council (Council), determines that the percentage of 
regulated multispecies bycatch is, or can be reduced to, less than 5 
percent, by weight, of total catch and that such exemption will not 
jeopardize fishing mortality objectives of the FMP.
    The Regional Administrator consulted with the Council and, at its 
June 24-26, 2002, meeting, the Council voted to support the MADMF 
request to the Regional Administrator to grant exempted fishery status 
in Area 3 east of Cape Cod. The Council asked that NMFS base its 
decision on the results of MADMF-funded sea sampling, which 
demonstrated that regulated multispecies bycatch had been reduced to 
less than 5 percent, by weight, of the total catch.
    In the last 2 years, the landings of whiting in the experimental 
area have been substantial and have exceeded 800,000 lb (362,874 kg) 
annually. Effort in 2001 increased by approximately 50 percent over 
2000, with the number of participating vessels increasing from 10 to 
15, and reported trips increased from 108 to 164. MADMF expended 
significant effort in documenting fishing performance in 2000 and 2001. 
There were 269 observed and unobserved trips in the experimental raised 
footrope trawl fishery in Area 3 during 2000 and 2001. According to the 
data submitted by MADMF, the overall percentage of regulated 
multispecies bycatch in the experimental fishery was 4 percent on seven 
observed trips, and 0.9 percent on 80 unobserved trips in 2000; and 1.7 
percent on 18 observed trips, and 1.9 percent on 164 unobserved trips 
in 2001. The data indicate that the majority of the trips with 
regulated multispecies bycatch percentages higher than 5 percent 
resulted from either very low whiting catches, or apparently aborted 
trips (trips with total catch less than 500 lb (226.8 kg)), and not 
from significantly high levels of regulated multispecies bycatch. With 
a few exceptions, the amount of regulated multispecies bycatch on these 
trips was no greater than the trips that fell below 5 percent regulated 
multispecies bycatch.
    The Regional Administrator has a reasonable basis to determine that 
a modification of the boundaries of the Raised Footrope Trawl Whiting 
Fishery Exemption Area, to include the adjacent area east of Cape Cod 
(Area 3), will not exceed the 5-percent bycatch allowance of regulated 
multispecies. In addition, while the current exempted fishery area is 
closed to exempted fishing on November 20 of each year in order to 
minimize expected cod bycatch (while still maximizing whiting catch), 
this rationale does not apply to Area 3 east of Cape Cod. While the 
landings data for Framework 35 justify closing the existing exempted 
fishery on November 20, the landings data for the newly added eastern 
portion of the Raised Footrope Trawl Whiting Fishery Exemption Area 
support the eastern portion remaining open through December 31.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), finds there 
is good cause to waive prior notice and opportunity for comment under 5 
U.S.C. 553(b)(B). The proposed exempted fishery is seasonal, intended 
to begin on September 1 and continue only through the end of the 
calendar year. Fishermen depend upon access to this fishery (for the 
past five years, they have been able to participate in the experimental 
exempted fishery), and this dependence has been increased as a result 
of recent changes to the NE multispecies regulations as a result of the 
Conservation Law Foundation, et al. v. Evans, et al. Court order.
    Immediate publication of this action as a final rule will provide 
the fishing industry with full access to the seasonal whiting fishery 
in as quick a timeframe as possible. Should implementation of this 
action be delayed, the fishing industry would be denied access to this 
alternative fishery for a significant part of the fishing season for 
whiting. Because this is a seasonal fishery, there is an urgency to 
conclude the rulemaking process and implement the exemption as soon as 
possible. Delays in implementation are contrary to the public interest 
and would have potentially significant adverse impacts on industry, who 
would be denied access to this fishery. Therefore, since this action 
relieves a burden to the fishing industry without compromise of the 
conservation objective, it would be contrary to the public interest to 
delay the implementation of this rule through prior notice and comment.
    Moreover, it would be impracticable to provide prior public notice 
and comment. Consideration of this exempted fishery proceeded with the 
utmost diligence. The Regional Administrator (RA) could not act upon 
MADMF's application until consultation with the New England Fishery 
Management Council. Consultation occurred at the first opportunity at 
the end of June 2002. Following this meeting, the RA instructed her 
staff to begin analyzing the data submitted by Massachusetts in order 
to determine (1) whether the data supported the creation of an exempted 
fishery under 50 CFR Sec.  648.80(a)(8)(i)(A); and (2) the type of 
National Environmental Policy Act document required to analyze the 
potential impacts on the human environment. The NMFS, Northeast 
Regional Office determined that in order to ensure adequate 
consideration of the environmental impacts of the exempted whiting 
fishery, the preparation of an Environmental Assessment was necessary.
    Finally, the public has been given several opportunities to comment 
on the creation of this exempted fishery. Public meetings were held by 
the Council to discuss inclusion of Area 3 (which roughly encompasses 
the area defined in this rule) in the exempted fishery

[[Page 69696]]

during the development of management measures for Framework Adjustment 
35 and Amendment 12 to the FMP. The development of Amendment 12 to the 
FMP included the preparation of a full EIS, including notification in 
the Federal Register and a series of public hearings on the proposed 
management system, as well as proposed and final rulemaking.
    In addition, prior to requesting that the existing exemption area 
be expanded, MADMF had requested, and been granted, experimental 
exempted fishery permits (EFP) for this expanded area in each of the 
previous 5 years. Each request for an EFP, which covered the same area 
and approximately the same number of fishing vessels as would be likely 
to participate in the exempted fishery, involved a prior notice to the 
public and solicitation for comments in the Federal Register. Lastly, 
the RA is required by regulation to consult with the Council prior to 
making a decision on the exemption request. This consultation occurred 
at the end of June 2002, at a Council meeting, with full prior public 
notification (the agenda item was specific to the request for input on 
the request and was noted in all public announcements of the agenda, 
including a Federal Register notice). These processes provided an 
opportunity for public comment to be considered. Additional opportunity 
would unnecessarily delay the promulgation of a rule benefitting 
fishers without any likely benefit coming from the delay.
    The AA, under 5 U.S.C. 553(d)(3), finds good cause to waive the 30-
day delay in the effectiveness of these measures, as this rule relieves 
a restriction. Because this fishery is set to close on November 20, 
2002, additional fishing opportunities would be prohibited. In order to 
avoid an interruption in fishing activity in the expanded area, it is 
necessary to waive the 30-day delayed effectiveness period. This would 
allow the continued harvest of the whiting stock for the remainder of 
the calendar year without compromising the conservation objective.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Because prior notice and opportunity for public comment are not 
required for this final 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: November 13, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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.  648.80, paragraph (a)(15) introductory text (including 
the table) and paragraph (a)(15)(i)(F) are revised to read as follows:


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

* * * * *
    (a) * * *
    (15) Raised Footrope Trawl Exempted Whiting Fishery. Vessels 
subject to the minimum mesh size restrictions specified in paragraphs 
(a)(3) or (4) of this section may fish with, use, or possess nets in 
the Raised Footrope Trawl Whiting Fishery area with a mesh size smaller 
than the minimum size specified, if the vessel complies with the 
requirements specified in paragraph (a)(15)(i) of this section. The 
exemption does not apply to the Cashes Ledge Closure Areas or the 
Western GOM Area Closure specified in Sec.  648.81(h) and (i). The 
Raised Footrope Trawl Whiting Fishery Area (copies of a chart depicting 
the area are available from the Regional Administrator upon request) is 
defined by straight lines connecting the following points in the order 
stated:

          RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA
                    (September 1 through November 20)
------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
                     RF 1                       42[deg]14.0  70[deg]08.8
                                                         5'            '
                     RF 2                       42[deg]09.2  69[deg]47.8
                                                          '            '
                     RF 3                       41[deg]54.8  69[deg]35.2
                                                         5'            '
                     RF 4                       41[deg]41.5  69[deg]32.8
                                                          '           5'
                     RF 5                        41[deg]39'  69[deg]44.3
                                                                       '
                     RF 6                       41[deg]45.6  69[deg]51.8
                                                          '            '
                     RF 7                       41[deg]52.3  69[deg]52.5
                                                          '           5'
                     RF 8                       41[deg]55.5  69[deg]53.4
                                                          '           5'
                     RF 9                       42[deg]08.3  70[deg]04.0
                                                         5'           5'
                     RF 10                      42[deg]04.7  70[deg]16.9
                                                         5'           5'
                     RF 11                      42[deg]01.9  70[deg]14.7
                                                          '           5'
                     RF 12                      41[deg]59.4  70[deg]23.6
                                                         5'           5'
                     RF 13                      42[deg]07.8  70[deg]30.1
                                                         5'            '
                     RF 1                       42[deg]14.0  70[deg]08.8
                                                         5'            '
------------------------------------------------------------------------


          RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA
                    (November 21 through December 31)
------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
                     RF 1                       42[deg]14.0  70[deg]08.8
                                                         5'            '
                     RF 2                       42[deg]09.2  69[deg]47.8
                                                          '            '
                     RF 3                       41[deg]54.8  69[deg]35.2
                                                         5'            '
                     RF 4                       41[deg]41.5  69[deg]32.8
                                                          '           5'
                     RF 5                        41[deg]39'  69[deg]44.3
                                                                       '
                     RF 6                       41[deg]45.6  69[deg]51.8
                                                          '            '
                     RF 7                       41[deg]52.3  69[deg]52.5
                                                          '           5'
                     RF 8                       41[deg]55.5  69[deg]53.4
                                                          '           5'
                     RF 9                       42[deg]08.3  70[deg]04.0
                                                         5'           5'
                     RF 1                       42[deg]14.0  70[deg]08.8
                                                         5'            '
------------------------------------------------------------------------

    (i) * * *
* * * * *
    (F) Fishing may only occur from September 1 through November 20 of 
each fishing year, except that it may occur in the eastern portion only 
of the Raised Footrope Trawl Whiting Fishery Exemption Area from 
November 21 through December 31 of each fishing year.
* * * * *
[FR Doc. 02-29351 Filed 11-14-02; 3:34 pm]
BILLING CODE 3510-22-S