[Federal Register Volume 62, Number 41 (Monday, March 3, 1997)]
[Rules and Regulations]
[Pages 9377-9379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4907]
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DEPARTMENT OF COMMERCE
50 CFR Part 648
[Docket No. 970214031-7031-01; I.D. 011697C]
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustment 16
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 16 to the Northeast Multispecies Fishery
Management Plan (FMP). This rule prohibits the use of all gillnets
capable of catching Northeast multispecies during the periods in which
the harbor porpoise time/area closures are in effect unless the gillnet
meets certain specifications. The intent of this action is to restrict
the use of small mesh pelagic gillnets, which are currently exempt from
the multispecies regulations, to avoid increasing the risk of harbor
porpoise entanglements but still allow a traditional bait fishery to
continue by specifying the size and method of deployment of the gear.
EFFECTIVE DATE: April 2, 1997.
ADDRESSES: Copies of Amendment 7 to the Northeast Multispecies Fishery
Management Plan (Amendment 7), its regulatory impact review (RIR) and
the final regulatory flexibility analysis (FRFA) contained with the
RIR, its final supplemental environmental impact statement (FSEIS), and
Framework Adjustment 16 documents are available upon request from Paul
Howard, Executive Director, New England Fishery Management Council
(Council), 5 Broadway, Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, NMFS, Fishery
Policy Analyst, 508-281-9279.
SUPPLEMENTARY INFORMATION:
Background
Regulations governing the Northeast Multispecies fishery prohibit
sink gillnet vessels from fishing in defined areas of the Gulf of Maine
(GOM) during certain time periods based on the historic bycatch of
harbor porpoise in that fishery.
Framework Adjustment 9 to the FMP (60 FR 19364, April 18, 1995)
prohibited any fishery using small mesh gear capable of catching
multispecies unless the fishery qualified for an exemption based on a
finding that it had less than 5 percent bycatch of regulated species.
This had the effect of prohibiting small
[[Page 9378]]
mesh pelagic gillnets in the harbor porpoise time/area closures even
though the regulation was unrelated to harbor porpoise protection.
Amendment 7 to the FMP (61 FR 27710, May 31, 1996) exempted pelagic
gillnets, including the small mesh pelagic gear used in the bait
fishery, from the multispecies management measures, because the gear
type has virtually no bycatch of multispecies. The Council's intent
was, and still is, to allow vessels to fish for bait with certain
pelagic nets, and to exempt pelagic drift gillnets used to catch
swordfish, tunas, and sharks with large mesh in offshore fisheries that
are not managed by the Council. The unintended consequence of the
measure in Amendment 7 pertaining to gillnets was that there were no
restrictions on the size, use, and deployment of small mesh pelagic
gillnets in the harbor porpoise time/area closures even though certain
types of small mesh gillnets are capable of entangling harbor porpoise.
In the GOM, small mesh pelagic gillnets are either anchored or
fished on the surface of the water and are used seasonally by tuna and
lobster fishermen to collect herring, menhaden, mackerel, and whiting
for bait. Periods of highest use overlap both in time and area with the
harbor porpoise closures. Although, at this time, harbor porpoise
bycatch in small mesh pelagic gillnets does not appear to be a
significant problem, NMFS and the Council are specifying the size and
characteristics of these nets and their method of deployment because
the gear is currently unrestricted and has accounted for harbor
porpoise entanglements. The intent of this action is to avoid any
increased risk of entanglement but still allow for the prosecution of
traditional bait fisheries.
Regulatory Provisions
This rule extends the time and area closures implemented to reduce
entanglements of harbor porpoise in the GOM to all gillnets capable of
catching multispecies with the following exception: vessels may fish
with a single pelagic gillnet, not longer than 300 ft (91.44 m) and not
greater than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches
(7.62 cm); the net must be attached to the boat, fished in the upper
two-thirds of the water column, and marked with the owner's name and
vessel identification number.
These restrictions apply to all pelagic gillnets capable of
catching multispecies deployed in any of the harbor porpoise time/area
closures. Gillnets used to capture highly migratory species, that are
incapable of capturing multispecies finfish, are not restricted by this
action.
A 1990 gillnet survey indicates that approximately 200 vessels
occasionally use pelagic gillnets primarily to harvest bait. The cost
and availability of bait in the tuna and lobster fisheries may increase
as a result of this action, but these costs will probably be offset by
lower enforcement costs due to the enforceability of the measure as the
net must be attached to the vessel and tended at all times. According
to comments received at public meetings, vessels should still be able
to capture enough bait to meet their requirements.
The Council considered information, views and comments made at
Marine Mammal Committee meetings held on April 2, 1996, May 12, 1996,
and July 30, 1996, and at three Council meetings, on April 17, 1996,
June 5, 1996, and July 17, 1996. Documents summarizing the Council's
proposal, the biological analyses upon which this decision was based,
and potential economic impacts were available for public review 5 days
prior to the final meeting as required under the framework adjustment
process. Written comments were accepted up to and during the August 20,
1996, Council meeting in Danvers, MA.
Comments and Responses
Comments on the action were received at several meetings from
individuals representing the International Wildlife Coalition, Maine
Department of Marine Resources, East Coast Tuna Association, and the
Massachusetts Netters Association. Fishermen's concerns centered
chiefly on a possible alteration in fishing practices, while all groups
supported the specifications for net length, mesh size, deployment and
gear marking.
Comment : Several groups and a number of individuals were
concerned about the net tending requirement. Nets are often anchored to
the bottom and are left unattended if an opportunity such as a giant
bluefin tuna presents itself. Because of this, an individual
representing the tuna industry stated that it would be very
inconvenient to attach the net to the vessel, although it would still
be possible to prosecute both fisheries. Greater concern was expressed
by individuals representing the lobster industry, since lobstermen
fishing for bait with pelagic gillnets anchor their nets on the bottom
and leave them to check traps before returning to haul the net.
Response: Harbor porpoise are present in significant numbers
inshore in the northern GOM during the summer and early fall months.
Given that both tuna and lobster fisheries are fishing for the same
prey species as harbor porpoise and that their fishing season and the
presence of porpoise overlap, the possibility for entanglement is
likely, particularly without any restrictions on bait nets. Although
the porpoise bycatch in such nets appears to be low at this time, the
restrictions provided for in this action would enhance protection in
areas where they are most susceptible to entanglement. The requirement
that the net be attached to the vessel and its size essentially
guarantees that vessel operators would be aware of any marine mammal
interactions. Restricting the use of baitnets to small pelagic gillnets
in the harbor porpoise closure areas also addresses the dilemma of
enforcing the porpoise measures for one type of gillnet while exempting
another that may be fished in much the same manner.
Adherence to Framework Procedure Requirements
The Council considered public comment prior to making its
recommendation to the Administrator, Northeast Region, NMFS, under the
provisions for abbreviated rulemaking in this FMP. The Council
requested publication of these management measures as a final rule
after considering the required factors stipulated under the framework
measures in the FMP, 50 CFR 648.90, and has provided supporting
analyses for each factor considered. NMFS concurs.
Classification
Public meetings held by the Council to discuss the management
measures implemented by this rule provided prior notice and opportunity
for public comment to be heard and considered. The Council's Marine
Mammal Committee discussed the framework adjustment at public meetings
on April 2, 1996, May 21, 1996, and July 30, 1996, and at the
Multispecies (Groundfish) Committee meetings held on April 11, 1996,
and April 13, 1996. Therefore, the Assistant Administrator for
Fisheries, NOAA, finds there is good cause under 5 U.S.C. 553(b)(B) to
waive the requirement to provide prior notice or an opportunity for
public comment as such procedures are unnecessary.
As prior notice and an opportunity for public comment are not
required to be provided for this rule by 5 U.S.C. 553, or any other
law, the analytical requirement of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., are applicable. Nevertheless, this action does not
significantly increase the impact beyond the scope of impact on
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small entities already analyzed, discussed, and described in Amendments
5 and 7 to the FMP.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 21, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, 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. 648.2, the definition for ``Gillnet gear capable of
catching multispecies'' is added in alphabetical order to read as
follows:
Sec. 648.2 Definitions.
* * * * *
Gillnet gear capable of catching multispecies means all gillnet
gear except pelagic gillnet gear specified at Sec. 648.81(f)(2)(ii) and
pelagic gillnet gear that is designed to fish for and is used to fish
for, or catch, tunas, swordfish and sharks.
* * * * *
3. In Sec. 648.14, paragraph (a)(89) is revised and paragraph
(c)(11) is added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(89) Fish with, set, haul back, possess on board a vessel, unless
stowed in accordance with Sec. 648.23(b), or fail to remove sink
gillnet gear or gillnet gear capable of catching multispecies from the
EEZ portion of the areas, and for the times, specified in
Sec. 648.87(a) and (b), except as provided in Sec. 648.81(f)(2)(ii) and
in Sec. 648.87(b)(1)(i), or unless authorized in writing by the
Regional Administrator.
* * * * *
(c) * * *
(11) Enter, fail to remove sink gillnet gear or gillnet gear
capable of catching multispecies from, or be in the areas, and for the
times, described in Sec. 648.87(a) and (b), except as provided in
Sec. 648.81(d), (f)(2), (g)(2), and (h)(2), and in
Sec. 648.87(b)(1)(i).
* * * * *
4. In Sec. 648.81, paragraph (f)(2)(ii) is revised to read as
follows:
Sec. 648.81 Closed areas.
* * * * *
(f) * * *
(2) * * *
(ii) That are fishing with or using exempted gear as defined under
this part, excluding mid-water trawl gear and pelagic gillnet gear
capable of catching multispecies, except vessels may fish with a single
pelagic gillnet, not longer than 300 ft and not greater than 6 ft deep,
with a maximum mesh size of 3 inches, provided the net is attached to
the boat, is fished in the upper two-thirds of the water column and is
marked with the owner's name and vessel identification number, and
provided there is no other gear on board capable of catching
multispecies finfish; or
* * * * *
5. In Sec. 648.87, the section heading and paragraph (a) and
paragraph (b) heading and introductory text are revised to read as
follows:
Sec. 648.87 Gillnet requirements to reduce harbor porpoise takes.
(a) Areas closed to sink gillnets and other gillnets capable of
catching multispecies. Sections 648.81(f) through (h) set forth closed
area restrictions to reduce the take of harbor porpoise consistent with
the harbor porpoise mortality goals.
(b) Additional areas closed to sink gillnets and other gillnets
capable of catching multispecies. All persons owning or operating
vessels in the EEZ portion of the areas and for the times specified in
paragraphs (b)(1) and (2) of this section, must remove all of their
sink gillnets and other gillnet gear capable of catching multispecies,
and may not use, set, haul back, fish with, or possess on board (unless
stowed in accordance with the requirements of Sec. 648.23(b)), a sink
gillnet or other gillnet gear capable of catching multispecies except
for a single pelagic gillnet as described in Sec. 648.81(f)(2)(ii); and
all persons owning or operating vessels issued a limited access
multispecies permit must remove all of their gillnet gear capable of
catching multispecies and may not use, set, haul back, fish with, or
possess on board (unless stowed in accordance with the requirements of
Sec. 648.23(b)), a gillnet capable of catching multispecies in the
areas and for the time specified in paragraphs (b)(1) and (2) of this
section, except for a single pelagic gillnet as described in
Sec. 648.81(f)(2)(ii).
* * * * *
[FR Doc. 97-4907 Filed 2-28-97; 8:45 am]
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