[Federal Register Volume 68, Number 134 (Monday, July 14, 2003)]
[Proposed Rules]
[Pages 41549-41551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17727]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030409081-3081-01; I.D. 032103B]
RIN 0648-AQ72


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

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

ACTION:  Withdrawal of a portion of a proposed rule.

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SUMMARY:  NMFS withdraws a portion of a proposed emergency rule, 
published on April 24, 2003, which proposed continuation of NE 
multispecies management measures implemented on August 1, 2002, and DAS 
Leasing Program (Program). NMFS will not implement that portion of the 
proposed emergency rule that proposed the Program.

FOR FURTHER INFORMATION CONTACT:  Thomas Warren, Fishery Policy 
Analyst, (978) 281-9347, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 1, 2002, NMFS published an interim final rule (67 FR 
50292), which implemented the Settlement Agreement in Conservation Law 
Foundation, et al. v. Evans, et al. Civil No. 00-1134 (D.D.C.). The 
August 1, 2002, interim final rule was in response to a Remedial Order 
issued on May 23, 2002, by the U.S. District Court for the District of 
Columbia (Court). Pursuant to the Court's Remedial Order, the measures 
implemented in the August 1, 2002, interim final rule are expected to 
remain in place until implementation of Amendment 13 to the NE 
Multispecies Fishery Management Plan (FMP). Because the Court granted 
an extension of the Amendment 13 implementation date until May 1, 2004, 
and because the August 1, 2002, interim final rule was to expire on 
July 27, 2003, NMFS published a proposed emergency rule on April 24, 
2003, (68 FR 20096) that would continue the current measures until 
implementation of Amendment 13.
    In addition to continuing the management measures that were first 
implemented on August 1, 2002, (as

[[Page 41550]]

specified in the Settlement Agreement), the proposed emergency rule 
included measures to implement a DAS Leasing Program under its 
emergency action authority (section 305(c) of the Magnuson-Stevens 
Fishery Conservation and Management Act and 62 FR 44421, August 21, 
1997) in order to mitigate the potential harm resulting from the 
continuation of the August 1, 2002, interim final rule measures. The 
April 24, 2003, proposed emergency rule specified a Program that would 
have allowed limited access NE multispecies vessels to lease their NE 
multispecies DAS. The intent of the Program was to alleviate some of 
the negative economic and social impacts that may result from the 
reduced DAS allocations that will continue as a result of 
implementation of the final emergency rule. The Program was designed to 
maintain conservation neutrality, i.e., to maintain groundfish fishing 
effort close to the level that would be fished under the current 
management measures in the absence of the Program. The impetus for the 
Program was a request by the New England Fishery Management Council 
(Council) on May 20, 2002, that NMFS implement a DAS leasing program, 
on a permanent basis, through the most expedient mechanism. The 
Council, which is considering such a Program to be implemented on a 
permanent basis in Amendment 13, reiterated this request to NMFS on 
December 19, 2002. Additional information regarding the proposed 
Program measures appears in the preamble of the April 24, 2003, 
proposed emergency rule and is not repeated here.
    Due to the newness and potential controversiality of the DAS 
Leasing Program and its implications, NMFS published a notice in the 
Federal Register (68 FR 28188; May 23, 2003) that extended the comment 
period on the DAS leasing aspect of the proposed emergency rule only 
through June 10, 2003, (the comment period on the Settlement Agreement 
measured remained unchanged and, thus, ended on May 27, 2003). 
Extension of the comment period on the Program allowed additional time 
for the public to comment on this important component of the proposed 
emergency rule. On June 27, 2003, a final emergency rule that continued 
the Settlement Agreement measures, with modifications, was published in 
the Federal Register (68 FR 38234). That rule did not contain measures 
pertaining to the proposed Program because of the extension of the 
comment period for the DAS leasing aspect of the proposed emergency 
rule.
     One hundred and twenty-seven comments regarding the Program were 
received, the majority of which were from vessel owners and crew 
members. Other comments were submitted by other interested parties such 
as net manufacturers, seafood buyers, seafood processors, environmental 
organizations and state governments. Seventy-eight comments were in 
support of the Program, 48 were in opposition to the Program, and one 
took no position. The following organizations opposed the proposed 
Program: Cape Cod Hook Fisherman's Association, Island Institute, New 
Hampshire Marine Coalition, North Atlantic Marine Alliance, Northeast 
Seafood Coalition, Ocean Conservancy, Oceana, State of Maine Department 
of Marine Resources, State of Maine Department of Marine Resources 
Advisory Council, Stonington Fisheries Alliance, and West End 
Fisherman's Association. The following organizations supported the DAS 
Leasing Program: Associated Fisheries of Maine, Atlantic Offshore 
Lobstermans's Association, Portland Fish Exchange, and Sea Fresh USA 
(Portland buyer). The Small Business Administration's Office of 
Advocacy submitted a comment that encouraged NOAA Fisheries to give 
full consideration to the comments of all members of the small business 
community prior to making a final determination on whether to implement 
the Program.
    There were two major recurring concerns expressed by commenters. 
The first concern was that the program would not help those vessels 
with a low number of DAS to obtain additional DAS to fish because such 
vessels would not be able to afford to lease DAS from other vessels. 
The commenters presumed that vessels that are large, financially 
successful, or have cash on hand would out-compete the small, 
financially marginal, or cash-poor vessels in the DAS leasing market. 
Commenters feared that the proposed Program would signal a shift in the 
make-up of the fishery toward corporate owned vessels with high 
landings. The second concern expressed was that the Program would not 
be conservation neutral, but would instead cause an increase in fishing 
effort and landings, and result in the need for additional fishing 
effort restrictions in the future. One commenter stated that DAS 
leasing is not appropriate in light of the sustained overfishing that 
has occurred over time, and the current importance of controlling 
fishing effort in the interim period (prior to implementation of 
Amendment 13). Some commenters believe that an emergency rule is not a 
proper regulatory mechanism to implement a new management tool that 
they perceive may have far-reaching implications for important aspects 
of the fishery in the future (e.g., fleet composition, allocative 
decisions).
    Supporters of the program stated that the ability to lease DAS 
would enable them to remain economically viable and would be crucial to 
the survival of a full-time fishery. Commenters stated that the program 
would most help those that depend upon groundfish, would allow vessels 
to obtain a sufficient number of DAS to have a full-time job, and would 
be good for safety by enabling generation of additional revenue that 
could be used to maintain vessels. Many commenters stated that a DAS 
Leasing Program would maintain the continuity of groundfish landings 
and income, and enhance the future continuity of the infrastructure 
that supports the NE multispecies fishery. Some commenters were not 
concerned about the potential for the Program to influence the number 
or type of vessels that are active in the fishery, and stated that the 
NE multispecies fishery needs to expand and contract as conditions 
warrant.
    Due to the level of uncertainty about potential positive and 
negative impacts of the proposed Program, aspects of the Program that 
are not supported by the public, the highly controversial nature of the 
Program, and the fact that a permanent DAS leasing program is under 
consideration in Amendment 13, NMFS believes that a DAS leasing program 
should not be implemented at this time on an interim basis only. Such a 
program is more appropriately addressed through a full public process, 
such as the development of Amendment 13. Therefore, NMFS is withdrawing 
that portion of the April 24, 2003, proposed emergency rule that would 
have implemented the Program. The other measures in the proposed 
emergency rule were approved and published in the June 27, 2003, final 
emergency rule.
    This notification is not intended to solicit additional public 
comments to those already obtained in response to the proposed 
emergency rule, but rather to provide the public with notification 
regarding the decision of NMFS not to implement the proposed Program.

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


[[Page 41551]]


    Dated: July 9, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 03-17727 Filed 7-9-03; 2:09 pm]
BILLING CODE 3510-22-S