[Federal Register Volume 68, Number 131 (Wednesday, July 9, 2003)]
[Rules and Regulations]
[Pages 40808-40811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17320]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030514123-3162-02; I.D. 041003B]
RIN 0648-AQ76


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 38 to the Northeast 
Multispecies Fishery Management Plan

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 Adjustment 38 (Framework 38) to the Northeast (NE) 
Multispecies Fishery Management Plan (FMP) to exempt a fishery from the 
Gulf of Maine (GOM) Regulated Mesh Area mesh size regulations. 
Framework 38 establishes an exempted small mesh silver hake (Merluccius 
bilinearis) (whiting) fishery in the inshore GOM. The exempted fishery 
is authorized from July 1 through November 30 each year; requires the 
use of specific exempted grate raised footrope trawl gear; establishes 
a maximum whiting possession limit of 7,500 lb (3,402 kg); and includes 
incidental catch restrictions.

DATES: This regulation is effective July 9, 2003.

ADDRESSES: Copies of the Framework 38 document, its Regulatory Impact 
Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), the 
Environmental Assessment and other supporting documents for the 
framework adjustment are available from Paul J. Howard, Executive 
Director, New England Fishery Management Council (Council), 50 Water 
Street, Mill 2, Newburyport, MA 01950. These documents are also 
available online at http://www.nefmc.org. The Final Regulatory 
Flexibility Analysis (FRFA) consists of the IRFA, public comments and 
responses contained in this final rule, and the summary of impacts and 
alternatives contained in this final rule.

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

SUPPLEMENTARY INFORMATION: This final rule implements measures 
contained in Framework 38 to the FMP. Details concerning the 
justification for and development of Framework 38 and the implementing 
regulations were provided in the preamble to the proposed rule (68 FR 
27774, May 21, 2003) and are not repeated here.

Exempted Grate Raised Footrope Trawl Fishery Area

    The Exempted Grate Raised Footrope Trawl Fishery Area is an inshore 
area in the GOM extending to the Loran 44500 line and northward along 
the coast of Maine. This area most closely represents the historical 
whiting fishery and the area utilized by the fishermen who participated 
in the experimental whiting grate fisheries between 1996 and 2002. 
During the development of this framework adjustment, the Council 
considered three options for the fishery area, including the area 
option implemented by this final rule. The first option was the largest 
area under consideration and included an offshore component to the area 
implemented. Another option was the smallest area under consideration 
and represented a subset of the area implemented, where past 
experimental fishing was concentrated. The area implemented was 
selected by the Council, following an endorsement by the Plan 
Development Team (PDT), even though sampling was not conducted 
throughout the entire area. The area was selected because there were 
sufficient similarities (species composition, hydrography, habitat, 
current flow, bottom topography) between it and the subset where the 
experiment occurred to suggest that bycatch in the area implemented may 
be similar to that observed in the experiments. Thus, the rate of 
capture of regulated species is not expected to differ over the area 
implemented.

Fishing Season

    The season for the GOM Grate Raised Footrope Trawl Fishery is July 
1- November 30. This period encompasses the traditional seasonal 
presence of whiting along the coast of Maine in the GOM and the period 
of documented catch and bycatch during research trials and experimental 
small mesh fisheries permitted by NMFS between 1996 and 2002. The PDT 
expressed support for a season from July 1 to November 30, based on 
documented catch rates and experimental data from 2001 and 2002, which 
were reviewed by the PDT in detail.
    During the development of this framework adjustment, the Council 
considered establishing a season for this fishery from June 1 to 
November 30, but ultimately decided to eliminate the month of June from 
consideration after evaluating the data. These data show that the 
coastal whiting fishery started in July and ended in November.
    The majority of experimental tows with the proposed sweepless trawl 
were conducted during October and November 2001 and 2002. Past 
experience demonstrates that the catches of whiting are generally lower 
and the bycatch of regulated species is relatively higher during these 
months than during the summer. Given that the 2001 and 2002 data for 
the proposed sweepless trawl show low absolute bycatch of regulated 
species during October and November, the gear is expected to fish with 
even lower bycatch during the summer.

Gear Specifications

    There are several gear specifications for this fishery, including 
net specifications for the raised footrope trawl, that are consistent 
with those in the Cape Cod Bay whiting fishery, a requirement to use a 
sweepless trawl, and a requirement to use a Nordmore-style grate with a 
maximum bar spacing of 50 mm (1.97 inches). There is also a minimum 
codend mesh requirement of 2.5 inches (6.35 cm) (square or diamond 
mesh). Vessels may use net strengtheners in this fishery, provided that 
they are consistent with the existing net strengthener provisions for 
2.5 inch (6.35 cm) mesh.

Whiting/Offshore Hake Possession Limit

    There is a maximum whiting/offshore hake possession limit of 7,500 
lb (3,402 kg) for this fishery. Vessels using mesh larger than the 
minimum 2.5 inches

[[Page 40809]]

(6.35 cm) may not possess more than 7,500 lb (3,402 kg) of whiting/
offshore hake.

Incidental Catch Restrictions

    Incidental catch restrictions ensure that the net is fished 
properly and remains off the ocean bottom. The incidental catch 
restrictions mirror those incorporated into the Cape Cod Bay raised 
footrope trawl fishery, with the addition of a prohibition on the 
possession of dogfish. Vessels participating in the GOM Grate Raised 
Footrope Trawl Fishery may retain red hake, squid, butterfish, 
mackerel, alewife, and herring up to the amounts allowed by the 
regulations for those species, provided they comply with all 
regulations for those species. The following additional restrictions 
apply: A prohibition on the possession of regulated species (Atlantic 
cod, witch flounder, American plaice, yellowtail flounder, winter 
flounder, windowpane flounder, haddock, pollock, redfish, and white 
hake), monkfish, lobsters, skates, crabs, longhorn sculpin, sea raven, 
summer flounder (fluke), ocean pout, and spiny dogfish.
    The prohibition on the possession of monkfish, lobsters, and skates 
help to ensure that fishermen rig the net correctly, so that the 
footrope is not in contact with the sea floor and thus, much less 
likely to catch these species. The prohibition on crabs, longhorn 
sculpin, sea raven and dogfish is designed to reduce the damage to 
whiting, a soft bodied fish, from abrasion and puncture, as well as to 
encourage keeping the footrope off the sea floor. Except for a few 
juveniles, very few dogfish are retained by the grate raised footrope 
trawl net, as they are too large to pass through the grate.

Annual Review

    The PDT will annually review sea sampling data from the fishery and 
develop recommendations, as necessary, to ensure that groundfish 
bycatch remains at a minimum. Because this is a seasonal fishery, the 
Council may modify the specifications for this fishery through a 
framework adjustment to the FMP prior to the next season, if the PDT 
recommends adjustments to address regulated species bycatch.
    The Council desires 10-percent observer coverage in this fishery. 
No later than 2006, NMFS, in consultation with the PDT, will determine 
if the level of observer coverage is sufficient to monitor catch and 
bycatch in this fishery with an acceptable level of precision. If 
practicable, the level of desired observer coverage will be adjusted 
(increased or decreased) consistent with that analysis. The PDT may 
recommend adjustments to the level of observer coverage prior to 2006, 
based on information examined during the annual review described above.

Comments and Responses

    During the comment period, which ended June 5, 2003, one written 
comment on the proposed rule was received from the Maine Department of 
Marine Resources (ME DMR).
    Comment: The ME DMR strongly supports the measures in the proposed 
rule to implement Framework 38, is committed to limited monitoring of 
this whiting fishery, and requested that NMFS also provide resources to 
assist in monitoring.
    Response: NMFS concurs with the ME DMR's support of the management 
measures in Framework 38, and acknowledges the ME DMR's commitment to 
monitoring and request for monitoring assistance.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the IRFA, the comments and responses to the proposed rule, 
and the analyses completed in support of this action. A copy of the 
IRFA is available from the Council (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action, is contained in 
the preamble to the proposed rule and is not repeated.

Summary of Significant Issues Raised in Public Comments

    One comment was received during the comment period on the proposed 
rule, although it did not pertain to the IRFA. No significant issues 
were raised and, therefore, no changes to the proposed rule were 
required to be made as a result of public comments.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    According to the Small Business Administration standards, any fish 
harvesting or hatchery business is a small business if it is 
independently owned and operated and not dominant in its field of 
operations and if it has annual receipts of not in excess of $3.5 
million. Approximately 50 vessels are expected to participate in this 
exempted fishery. All of these vessels meet the criteria for ``small 
entities'' and therefore, all alternatives and analyses contained in 
Framework 38 necessarily reflect impacts on small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    Framework 38 does not contain any new recordkeeping, reporting, or 
compliance requirements.

Steps Taken to Minimize Economic Impacts on Small Entities

    The Council prepared an economic analysis that describes the 
economic impact that this rule will have on small entities. A summary 
of the analysis follows:
    The Council considered the no action alternative--not establishing 
an exempted grate raised footrope trawl fishery. Implementation of the 
no action alternative would preclude fishermen from engaging in the 
small mesh silver hake fishery in the inshore GOM. This would result in 
lost opportunities to harvest whiting, and therefore, fishermen would 
be unable to earn additional revenue from this fishery (i.e., upwards 
of $1 million per year).
    Slight variations to the action being implemented were considered 
by the Council as follows: Beginning the season in June; increasing the 
size of the exemption area; less restrictive gear restrictions or less 
restrictive incidental catch allowances. Several of these options 
(larger area, longer season) may have resulted in increased economic 
benefits to the participants compared with the action selected. 
However, there was sufficient uncertainty regarding bycatch rates of 
regulated multispecies associated with these options, and the Council 
considered the risk to associated bycatch species (particularly 
regulated multispecies) to be too great to warrant implementation of 
these options. Furthermore, the dissimilarities between the inshore 
area (Options 2A and 2B), specifically, differences in depth, 
temperature, bottom type, and community composition, caused the Council 
to conclude that they could not reasonably extrapolate the results of 
the experiment to the offshore component (Option 1). The uncertainty 
resulted from the lack of experimental data in the largest area and 
during the month of June. Because the experiment had not been conducted 
in the largest area, there were no data to support a decision to allow 
an exempted fishery in the area outside of the proposed area. 
Similarly, there were no experimental data during the month of June, 
but data from May

[[Page 40810]]

indicated significantly higher bycatch rates than during the proposed 
season. Due to a lack of data on bycatch rates during the month of June 
and from the largest area, the exemption could not be justified. 
Therefore, the Council made a precautionary decision to constrain the 
exempted fishery to the season and area in which experimental data 
demonstrated low bycatch rates.
    The economic effects resulting from the exempted grate raised 
footrope trawl fishery are not expected to be significant to the 
economy as a whole or to the fishing industry in general. The 
retrospective analysis included in the Framework 38 document indicates 
that there would be approximately 50 vessels expected to participate in 
this exemption fishery and they are expected to share in a possible $1 
million increase in revenue (an additional $20,000 in annual revenue 
per participating vessel). Analyses included in the Framework 38 
document indicate that the initial fishery using the grate raised 
footrope trawl would not be expected to expand quickly, but will allow 
bait fishing activities to occur and will likely result in activity 
levels similar to those that occurred in 1996. Given that the 
conditions under which the grate raised footrope trawl exemption 
fishery may be conducted (gear, area, season, etc.) are almost 
identical to the conditions under which the experimental fishery was 
operated, it is expected that a similar number of vessels, with similar 
characteristics (size, tonnage, homeport) as those that participated in 
the experimental fisheries and described in detail in the Framework 38 
document, will participate in and benefit from this exemption fishery. 
The economic benefits, although not significant overall (approximately 
$1 million to the fishery as a whole), will be important to 
participating vessels (approximately $20,000 in increased annual 
revenue), especially those along the coast of Maine and in smaller 
ports adjacent to the Gulf of Maine.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules, for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued for the NE multispecies fishery. In 
addition, copies of this final rule and guide (i.e., permit holder 
letter) are available from the Regional Administrator (see ADDRESSES) 
and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html.
    Pursuant to 5 U.S.C. Section 553 (d)(1), the Assistant 
Administrator for Fisheries, NOAA, (AA) waives the 30-day delayed 
effectiveness period of the implementing regulations. Currently, the 
minimum mesh size and possession limit restrictions implemented under 
the Northeast Multispecies FMP prevent this fishery from occurring. 
Although these measures impose new regulations on participants in the 
GOM whiting grate raised footrope trawl fishery, the overall program to 
implement the exemption fishery relieves existing restrictions that 
prevent the fishery from occurring without these measures. 
Specifically, this fishery has been operating for the past several 
years on an experimental basis. This action will benefit the silver 
hake resource by allowing fishermen to target an abundant stock 
(whiting), thereby reducing the need to target less abundant and less 
stable stocks (Gulf of Maine cod). This rule relieves the restrictions 
that would otherwise prevent the exempted fishery from occurring. Any 
additional restrictions implemented through this rule are necessary 
constraints placed on the exemption fishery to protect the resource 
from overharvest and to ensure that compliance with the regulations 
governing the exemption fishery can be adequately monitored and 
enforced. Overall, this rule has a beneficial impact on the fishing 
industry by providing an opportunity to fish for whiting off the coast 
of Maine. Because there is no longer an experimental fishery, there is 
a need to implement these regulations in order to allow fishers to 
participate in the small mesh silver hake exempted fishery, currently 
off-limits because of existing restrictions.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: July 2, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  648.80, paragraph (a)(16) is redesignated as paragraph 
(a)(17) and a new paragraph (a)(16) is added to read as follows:


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

* * * * *
    (a) * * *
    (16) GOM Grate 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, and 
possess in the GOM Grate Raised Footrope Trawl Whiting Fishery area 
from July 1 through November 30 of each year, nets with a mesh size 
smaller than the minimum size specified, if the vessel complies with 
the requirements specified in paragraphs (a)(16)(i) and (ii) of this 
section. The GOM Grate 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:

     GOM GRATE RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA
                      (July 1 through November 30)
------------------------------------------------------------------------
                      Point                         N. Lat.     W. Long.
------------------------------------------------------------------------
GRF1                                              43[deg]15'  70[deg]35.
                                                                     4'
GRF2                                              43[deg]15'  70[deg]00'
GRF3                                              43[deg]25.  70[deg]00'
                                                         2'
GRF4                                              43[deg]41.  69[deg]20'
                                                         8'
GRF5                                              44[deg]58.  69[deg]20'
                                                         5'
------------------------------------------------------------------------

    (i) Mesh requirements and possession restrictions. (A) All nets 
must comply with a minimum mesh size of 2.5 inch (6.35 cm) square or 
diamond mesh, subject to the restrictions specified in paragraph 
(a)(16)(i)(B) of this section. An owner or operator of a vessel 
participating in the GOM Grate Raised Footrope Trawl Exempted Whiting 
Fishery may not fish for, possess on board, or land any species of 
fish, other than whiting and offshore hake, subject to the applicable 
possession limits as specified in paragraph (a)(16)(i)(C) of this 
section, except for the following allowable incidental species: Red 
hake; butterfish; herring; mackerel; squid; and alewife.

[[Page 40811]]

    (B) All nets must comply with the minimum mesh size specified in 
paragraph (a)(16)(i)(A) of this section. Counting from the terminus of 
the net, the minimum mesh size is applied to the first 100 meshes (200 
bars in the case of square mesh) from the terminus of the net for 
vessels greater than 60 ft (18.3 m) in length and is applied to the 
first 50 meshes (100 bars in the case of square mesh) from the terminus 
of the net for vessels less than or equal to 60 ft (18.3 m) in length.
    (C) An owner or operator of a vessel participating in the GOM Grate 
Raised Footrope Trawl Exempted Whiting Fishery may fish for, possess, 
and land combined silver hake and offshore hake only up to 7,500 lb 
(3,402 kg). An owner or operator fishing with mesh larger than the 
minimum mesh size specified in paragraph (a)(16)(i)(A) of this section 
may not fish for, possess, or land silver hake or offshore hake in 
quantities larger than 7,500 lb (3,402 kg).
    (ii) Gear specifications. In addition to the requirements specified 
in paragraph (a)(16)(i) of this section, an owner or operator of a 
vessel fishing in the GOM Grate Raised Footrope Trawl Exempted Whiting 
Fishery must configure the vessel's trawl gear as specified in 
paragraphs (a)(16)(ii)(A) through (C) of this section.
    (A) An owner or operator of a vessel fishing in the GOM Grate 
Raised Footrope Trawl Exempted Whiting Fishery must configure the 
vessel's trawl gear with a raised footrope trawl as specified in 
paragraphs (a)(9)(ii)(A) through (C) of this section. In addition, the 
restrictions specified in paragraphs (a)(16)(ii)(B) and (C) of this 
section apply to vessels fishing in the GOM Grate Raised Footrope Trawl 
Exempted Whiting Fishery.
    (B) The raised footrope trawl must be used without a sweep of any 
kind (chain, roller frame, or rockhopper). The drop chains must be a 
maximum of 3/8-inch (0.95 cm) diameter bare chain and must be hung from 
the center of the footrope and each corner (the quarter, or the 
junction of the bottom wing to the belly at the footrope). Drop chains 
must be at least 42 inches (106.7 cm) in length and must be hung at 
intervals of 8 ft (2.4 m) along the footrope from the corners to the 
wing ends.
    (C) The raised footrope trawl net must have a rigid or semi-rigid 
grate consisting of parallel bars of not more than 50 mm (1.97 inches) 
spacing that excludes all fish and other objects, except those that are 
small enough to pass between its bars into the codend of the trawl. The 
grate must be secured in the trawl, forward of the codend, in such a 
manner that it precludes the passage of fish or other objects into the 
codend without the fish or objects having to first pass between the 
bars of the grate. The net must have an outlet or hole to allow fish or 
other objects that are too large to pass between the bars of the grate 
to exit the net. The aftermost edge of this outlet or hole must be at 
least as wide as the grate at the point of attachment. The outlet or 
hole must extend forward from the grate toward the mouth of the net. A 
funnel of net material is allowed in the lengthening piece of the net 
forward of the grate to direct catch towards the grate.
    (iii) Annual review. On an annual basis, the Groundfish PDT will 
review data from this fishery, including sea sampling data, to 
determine whether adjustments are necessary to ensure that regulated 
species bycatch remains at a minimum. If the Groundfish PDT recommends 
adjustments to ensure that regulated species bycatch remains at a 
minimum, the Council may take action prior to the next season through 
the framework adjustment process specified in Sec.  648.90(b), and in 
accordance with the Administrative Procedures Act.
* * * * *
[FR Doc. 03-17320 Filed 7-3-03; 11:00 am]
BILLING CODE 3510-22-S