[Federal Register Volume 84, Number 242 (Tuesday, December 17, 2019)]
[Rules and Regulations]
[Pages 68798-68799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27143]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 191212-0110]
RIN 0648-BJ45
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Essential Fish
Habitat
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This implements the prohibition of gillnet fishing in the
Nantucket Lightship and Closed Area I Closure Areas as ordered by a
Federal Court. Until further notice, gillnet fishing will be prohibited
in the Nantucket Lightship and Closed Area I Groundfish Closure Areas.
DATES: Effective on December 17, 2019.
FOR FURTHER INFORMATION CONTACT: Moira Kelly, Senior Fishery Program
Specialist, Greater Atlantic Regional Fisheries Office,
[email protected], (978) 281-9218.
SUPPLEMENTARY INFORMATION: On January 3, 2018, NOAA's National Marine
Fisheries Service (NMFS) partially approved the New England Fishery
Management Council's Omnibus Essential Fish Habitat Amendment 2. The
Omnibus Amendment updated essential fish habitat designations for all
Council-managed species and implemented changes to the spatial
management of Council-managed fisheries throughout the Gulf of Maine,
Georges Bank, and Southern New England. On April 9, 2018, a final rule
implemented the approved measures (83 FR 15240). The final rule opened,
modified, and maintained various closed areas, as well as established
new closures to implement approved measures of the Amendment. The
Nantucket Lightship and Closed Area I Groundfish Closure Areas were
opened to fishing by gears capable of catching groundfish, including
gillnets and bottom-trawls, throughout the areas in this final rule.
(Note, scallop fishing was still prohibited in these areas for a brief
time after the Amendment was in effect, pending a subsequent scallop
action that incorporated the newly opened areas into the Scallop
Fishery Management Plan's rotational management program.) Directed
groundfish fishing had been prohibited in these general areas
consistently since the 1980s and early 1990s.
The Conservation Law Foundation filed suit against NMFS arguing
that the opening of the Nantucket Lightship and Closed Area I
Groundfish Closure Areas to gears capable of catching groundfish,
including gillnet gear, was not done in compliance with the Endangered
Species Act consultation requirements as it pertains to North Atlantic
right whales.
On October 28, 2019, Federal District Court Judge James E. Boasberg
(see Conservation Law Found. v. Ross, No. CV 18-1087 (JEB), 2019 WL
5549814 (D.D.C. Oct. 28, 2019)) enjoined NMFS from allowing gillnet
fishing in those previously closed areas until it fully complies with
the requirements of the Endangered Species Act and the Magnuson-Stevens
Fishery Conservation and Management Act.
To comply with this Order, this rule suspends the Amendment's
opening of the Nantucket Lightship and Closed Area I Groundfish
Closures to gillnet fishing and restores prior regulations that
prohibit gillnet gear from fishing in these areas until further notice,
which will be provided consistent with the Administrative Procedure
Act.
Classification
The NMFS Assistant Administrator has determined that under section
305(d) of the Magnuson-Stevens Fishery Conservation and Management Act,
these regulations are necessary to discharge the Secretary's
responsibility to ensure the Omnibus Habitat Amendment complies with
the provisions of the Act and other applicable law, consistent with the
Court's Order.
NMFS has good cause under the Administrative Procedure Act (5
U.S.C. 553(b)(B)) to waive prior notice and comment for this final
rule. The Court Order requires NMFS to prohibit gillnet fishing in the
areas. Delaying this rule to allow time for notice and comment would be
contrary to the Court's Order.
[[Page 68799]]
Because NMFS has no discretion to revise and implement the gillnet
restrictions under the Court Order, no meaningful purpose will be
served by public comment, and so providing prior notice and comment of
this rule would be impracticable and contrary to public interest. The
NMFS Assistant Administrator also finds that there is good cause under
5 U.S.C. 553(d)(3) to waive the 30-day delayed effective date
requirement. In addition to the reasons above, on November 1, 2019,
NMFS notified all vessels that had fished with gillnets in the area
since the opening (11 vessels), as well as any vessel issued permits
for which gillnet is a common gear (groundfish, monkfish, skate, and
spiny dogfish), that all gillnet gear needed to be removed from the
areas as soon as it was safe to do so in order to facilitate compliance
with the Court's Order. This advance notice provided time for gillnet
vessels to remove their gear in a safe manner. Therefore, additional
time is not necessary for vessel operators to comply with the
forthcoming regulations.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: December 12, 2019.
Samuel D. Rauch III,
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
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. 648.81, add paragraph (a)(6) to read as follows:
Sec. 648.81 NE multispecies year-round and seasonal closed areas.
(a) * * *
(6) Gillnet Closure Areas. No fishing vessel using gillnet gear or
person on a fishing vessel using gillnet gear may enter, fish, or be in
the Closed Area I and Nantucket Lightship Closure Areas. Charts of the
areas described in this section are available from the Regional
Administrator upon request.
(i) Closed Area I Closure Area. The Closed Area I Closure Area is
defined by straight lines, unless otherwise noted, connecting the
following points in the order stated:
Table 4 to Paragraph (a)(6)(i)--Closed Area I
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
CI1............................... 41[deg]30'....... 69[deg]23'
CI2............................... 40[deg]45'....... 68[deg]45'
CI3............................... 40[deg]45'....... 68[deg]30'
CI4............................... 41[deg]30'....... 68[deg]30'
CI1............................... 41[deg]30'....... 69[deg]23'
------------------------------------------------------------------------
(ii) Nantucket Lightship Closure Area. The Nantucket Lightship
Closure Area is defined by straight lines, unless otherwise noted,
connecting the following points in the order stated:
Table 5 to Paragraph (a)(6)(ii)--Nantucket Lightship Closed Area
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
G10............................... 40[deg]50'....... 69[deg]00'
CN1............................... 40[deg]20'....... 69[deg]00'
CN2............................... 40[deg]20'....... 70[deg]20'
CN3............................... 40[deg]50'....... 70[deg]20'
G10............................... 40[deg]50'....... 69[deg]00'
------------------------------------------------------------------------
* * * * *
[FR Doc. 2019-27143 Filed 12-16-19; 8:45 am]
BILLING CODE 3510-22-P