[Federal Register Volume 63, Number 31 (Tuesday, February 17, 1998)]
[Rules and Regulations]
[Pages 7727-7731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3791]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 970829217-8025-02; I.D. 081597E]
RIN 0648-AJ79


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 18

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 18 to the Northeast Multispecies Fishery 
Management Plan (FMP). Framework Adjustment 18 allows pelagic midwater 
trawling for herring and mackerel in Multispecies Closed Areas I and 
II, the Gulf of Maine (GOM) multispecies closure areas, and in the 
Nantucket Lightship Closed Area, under certain conditions. The intent 
of this rule is to provide greater economic opportunity for pelagic 
midwater trawl vessels to harvest herring and mackerel while 
maintaining the conservation benefits of the current multispecies 
management measures.

DATES: Effective February 17, 1998.

ADDRESSES: Copies of Amendment 7 to the FMP, its regulatory impact 
review (RIR), and the final regulatory flexibility analysis (FRFA) 
contained within the RIR, its final supplemental environmental impact 
statement, and Framework Adjustment 18 documents are available upon 
request from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 5 Broadway, Saugus, MA 01906-1097.

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, NMFS, Fishery 
Policy Analyst, 508-281-9279.

SUPPLEMENTARY INFORMATION:

Background

    In 1994, at the request of the New England Fishery Management 
Council (Council), NMFS, by emergency action, closed three large areas 
of the Northeast multispecies fishery for the duration of the emergency 
to all fishing gear capable of catching multispecies (59 FR 63926, 
December 12, 1994, and amended at 60 FR 3102, January 13, 1995). These 
areas, known as Closed Areas I and II and the Nantucket Lightship 
Closed Area, cover approximately 4,800 square miles

[[Page 7728]]

(12432 sq. km.). In order to avoid a hiatus between the emergency 
action and the implementation of Amendment 7, the Council proposed and 
NMFS issued Framework Adjustment 9 (60 FR 19364, April 18, 1995) to 
implement the emergency measures on a permanent basis while Amendment 7 
was being developed to address a long term objective of stock 
rebuilding. In 1996, Amendment 7 to the FMP continued the existing 
year-round closures and closed seasonally three additional large areas 
in the GOM (61 FR 27710, May 31, 1996). These areas currently remain 
closed to all gear capable of catching multispecies, including pelagic 
midwater trawls.
    Recently, the Council was requested by industry participants to 
allow pelagic midwater trawling for herring and mackerel in the 
multispecies closed areas because these fisheries capture negligible 
amounts of regulated multispecies due to the spatial separation of 
pelagic and demersal species in the water column. Because of the low 
value of herring and mackerel, it is important to the industry that 
vessels have unimpeded access to these species throughout their 
migrations to ensure that the harvesting and/or processing capacity of 
the vessels is maximized. Large closed areas impede access and make 
fishing for herring and mackerel economically less feasible. These 
pelagic species are very important for commercial fishing vessels in 
New England that participate in joint ventures or in the directed 
domestic fishery. Due to the prohibition on fishing in closed areas and 
an increased reliance on closed areas for multispecies mortality 
reduction, it has become increasingly difficult to conduct these 
pelagic fishing operations.
    Further details concerning justification for, and development of, 
Framework Adjustment 18 were provided in the preamble to the proposed 
rule (62 FR 49193, September 19, 1997).
    This framework allows pelagic midwater trawling for herring and 
mackerel in Closed Areas I and II, the Nantucket Lightship Closed Area, 
and in the GOM Closed Areas (Sec. 648.81(a), (b), and (c)) under the 
following conditions: (1) Vessels must obtain and comply with a 
midwater trawl letter of authorization (LOA)(as currently required 
under Sec. 648.80(d)(2) for the midwater trawl gear exemption) from the 
Administrator, Northeast Region, NMFS (Regional Administrator); (2) 
harvesting or processing vessels must carry observers, if required by 
NMFS (as currently required under the midwater trawl gear exemption), 
and (3) if the Regional Administrator determines, on the basis of sea 
sampling data or other credible information for this fishery, that the 
bycatch of regulated multispecies for the fishery or for any individual 
vessel exceeds, or is likely to exceed, 1 percent of herring and 
mackerel harvested, by weight, the Regional Administrator may place 
restrictions and/or conditions in the LOAs for any or all individual 
fishing operations, or, after consulting with the Council, the Regional 
Administrator may suspend or prohibit any or all midwater trawl 
activities in the closed areas.

Comments and Responses

    Five comments were received concerning Framework Adjustment 18. 
Three of the comments were strongly supportive of the proposed rule and 
substantiate the finding in the Initial Regulatory Flexibility Act 
(IRFA) that this action will have a positive economic impact on small 
business entities. Two other comments were concerned about the 
potential bycatch of regulated multispecies and marine mammals.
    Comment 1: A representative from a pelagic fishing company wrote in 
support of Framework Adjustment 18. The commenter stated that pelagic 
midwater trawl vessels have no bycatch of groundfish or marine mammals 
and disputed assertions to the contrary. To satisfy any perceived 
problems, the commenter stated that the pelagic trawl industry is 
willing to take observers, if requested to do so.
    Response: Available herring and mackerel sea sampling data shows a 
minimal bycatch of regulated multispecies. NMFS will continue to 
collect sea sampling data and other information on these fisheries. 
This information will be essential for any future decision making 
purposes. A condition in the LOA necessary to participate in the 
pelagic midwater trawl fishery states that vessels must carry 
observers, if required by NMFS. On the basis of sea sampling data or 
other credible information for this fishery, if bycatch of regulated 
multispecies exceeds, or is likely to exceed, 1 percent of the catch of 
herring and mackerel, by weight, the Regional Administrator may place 
restrictions or conditions on the required midwater trawl LOA or, in 
consultation with the Council, suspend all midwater trawl activities in 
any or all of the closed areas. These precautions should alleviate any 
real or perceived problems with bycatch in the closed areas.
    Comment 2: A representative from a commercial pelagic fishing 
association submitted written comments supporting Framework Adjustment 
18. The commenter stated that allowing midwater trawl vessels into the 
multispecies closed areas would facilitate the orderly development of 
the offshore herring fishery. The commenter wrote that, as the herring 
fishery management plan is developed, it will be essential to gather 
accurate scientific data and information to respond to any concerns 
regarding marine mammal interactions with pelagic trawl gear.
    Response: NMFS concurs. This final rule could facilitate the 
orderly development of the industry and provide important additional 
information on fishery bycatch and pelagic species biology.
    Comment 3: A representative from a commercial fishing association 
submitted written comments supporting Framework Adjustment 18, 
indicating that it will provide greater economic opportunity for 
pelagic midwater trawl vessels to harvest herring and mackerel and 
maintain the conservation benefits of current multispecies management 
measures.
    Response: NMFS concurs. The intent of this framework is to allow 
pelagic midwater trawling in the multispecies closed areas only if it 
does not adversely impact current efforts to rebuild depleted 
groundfish stocks. The RIR/IRFA concluded that this action will have a 
positive economic impact on small businesses.
    Comment 4: A representative of the commercial fishing industry 
submitted a written comment expressing concern about bycatch of 
regulated multispecies (specifically cod, haddock, and pollock) in the 
midwater trawl fishery, if these areas are reopened to pelagic midwater 
trawl gear. The commenter wrote that groundfish occasionally leave the 
sea bottom and may, therefore, be vulnerable to capture with midwater 
trawl gear. The commenter emphasized that this is why 100-percent 
observer coverage should be required in the midwater trawl fishery. The 
commenter also questioned the validity of the data provided on the cost 
of 100-percent observer coverage in relation to the economic value of 
the pelagic fishery. The commenter stated that the cost of observers 
would be minimal compared with the value of the herring and mackerel 
caught in the areas and with the value of assured protection to 
groundfish.
    Response: The Council and NMFS have been aware of the concern with 
multispecies bycatch throughout the development of Framework Adjustment 
18. An important factor in the decision to allow midwater trawling is 
the fact

[[Page 7729]]

that available herring and mackerel sea sampling data and mackerel 
weighout data do not show a bycatch of regulated multispecies. The data 
do indicate some bycatch of nonregulated multispecies (whiting) and 
scup. Monitoring of data will continue with the implementation of 
Framework Adjustment 18, and appropriate action will be taken if the 
bycatch of regulated multispecies exceeds 1 percent, by weight, of 
harvested herring and mackerel. Since many of the vessels operating in 
these fisheries will be reporting their landings under the mackerel and 
multispecies fishery management plans, data will be available. 
Safeguards have been included in the framework whereby the midwater 
trawl fishery in the closed area(s) can be restricted or closed if the 
bycatch of regulated multispecies for the fishery exceeds 1 percent, by 
weight, of harvested herring and mackerel by any or all vessels. This 
will ensure that bycatch of regulated multispecies is minimal. 
Furthermore, vessels participating in these fisheries are not allowed 
to retain regulated multispecies and, therefore, have no incentive to 
capture them.
    The Council considered requiring 100-percent observer coverage or 
having observers present whenever fish are transferred from a 
harvesting vessel to the processor, but it rejected these alternatives 
due to prohibitive costs and limited observer availability. Observer 
costs were found in the IRFA prepared by the Council to range from 8 
percent to as much as 148 percent of ex-vessel revenues. These costs 
would average 55 percent of gross revenues for ton-class 3 vessels, and 
14 percent of gross revenues for ton-class 4 vessels based on available 
herring catch rate data. Therefore, for vessels that land pelagics 
ashore and for some freezer trawlers, it would be economically 
unfeasible to require observers. That is why the alternative to require 
mandatory observers was rejected.
    Importantly, however, the framework does require vessels to obtain 
and comply with the midwater trawl LOA, as described in 
Sec. 648.80(d)(2), to fish in the closed areas. A condition in the LOA 
states that vessels must carry observers, if required by NMFS. Also, 
observers are currently required on processing vessels participating in 
joint venture operations.
    Comment 5: A representative of the commercial fishing industry 
submitted a written comment stating that this rule could result in 
increased interactions between pelagic midwater trawl gear and marine 
mammals, especially harbor porpoise. The frequency of interactions 
could increase because the GOM closures coincide with periods of high 
harbor porpoise abundance, and the target species for both harbor 
porpoise and the midwater trawl fleet is herring. The commenter 
indicated that minimal sea sampling data is available upon which to 
base a final rule and expressed concern regarding compliance with the 
Marine Mammal Protection Act and the Endangered Species Act. Finally, 
it was stated that Framework Adjustment 18 should not compromise 
efforts already underway to rebuild groundfish and marine mammal 
stocks.
    Response: NMFS appreciates the commenter's detailed discussion of 
the potential for bycatch of harbor porpoise and other marine mammals 
in the midwater herring and mackerel trawl fisheries and the need for 
observer coverage in these fisheries. The NMFS sea sampling program has 
collected information on marine mammal bycatch in foreign and domestic 
midwater trawl fisheries targeting mackerel in the Mid-Atlantic. Sample 
sizes for herring and mackerel midwater trawl trips in the GOM are 
small and provide limited information on marine mammal bycatch rates 
for these fisheries. Based upon the available data on midwater trawl 
fisheries, the 1996 marine mammal stock assessment report prepared by 
NMFS indicated that no takes of harbor porpoise have been documented in 
midwater trawl gear.
    NMFS has the authority to place observers in the herring midwater 
trawl fishery for purposes of monitoring fish harvests as well as for 
monitoring any marine mammal and other endangered species bycatch.
    An Endangered Species Act Section 7 consultation on this fishery 
resulted in a Biological Opinion issued on December 13, 1996. Since the 
conclusion of that consultation, Framework Adjustment 18 has been 
revised. Therefore, consultation on Framework Adjustment 18 was 
reinitiated. The new consultation concluded that impacts from fishing 
activities conducted under Framework Adjustment 18 will not change the 
basis for the December 13, 1996, determination that the overall 
operation of the multispecies fishery under the FMP, without 
modification, is likely to jeopardize the continued existence of the 
northern right whale may affect but is not likely to jeopardize the 
continued existence of other endangered or threatened species of whale, 
sea turtles, and fish under NMFS jurisdiction and will not result in 
adverse modification of critical habitat.  

Changes in the Final Rule From the Proposed Rule

    Some changes from the proposed rule were necessary to make 
Framework Adjustment 18 more succinct and to eliminate duplicative 
regulations. Other changes were made to more accurately reflect Council 
intent and to serve administrative purposes.
    Section 648.80(d)(2) of the final rule requires vessels to have on 
board a midwater trawl LOA when fishing in the Gulf of Maine/Georges 
Bank (GOM/GB) and Stellwagen Bank/Jeffreys Ledge (SB/JL) Areas and the 
portion of the Nantucket Lightship Closed Area not within the GOM/GB 
and the SB/JL Areas. The proposed rule, while not substantively 
different, independently listed six other multispecies closed areas as 
being subject to the LOA requirement. Because these closed areas are 
subareas lying completely within the larger GOM/GB and SB/JL Areas, the 
final rule does not independently list them.
    Section 648.80(d)(3) of the final rule allows vessels in the 
midwater trawl exemption in areas north of 42 deg.20' N. lat. and in 
three specified multispecies closed areas to fish for, possess, or land 
only Atlantic herring, blueback herring, or mackerel. The proposed rule 
listed all seven of the multispecies closed areas. Because four of 
these multispecies closed areas are north of 42 deg.20' N. lat., the 
final rule does not independently list them.
    In Sec. 648.80(d), paragraph 5 is added which requires vessels 
fishing under the midwater trawl exemption to carry a NMFS- approved 
sea sampler/observer, if requested by the Regional Administrator. This 
provision is already in the midwater trawl LOA and is specifically 
mentioned in the Council framework document. Adding this provision 
makes the regulations consistent with the LOA and better reflects 
Council intent.
    In Sec. 648.81(a)(2)(iii), the final rule specifies that the 
Regional Administrator shall determine the percent bycatch of regulated 
multispecies on the basis of sea sampling data and other credible 
information for the fishery. This was implied in the proposed rule but 
required clarification. The change from the proposed rule was made to 
more clearly reflect Council intent and to facilitate the 
administration of the regulation. Information on which to make 
decisions will be available on a fishery-wide basis and not only on 
limited data basis from the closed areas. This is consistent with 
NMFS's objective to reopen the multispecies

[[Page 7730]]

closed areas to midwater trawl vessels in a cautious manner while 
ensuring that the bycatch of regulated multispecies is minimal.

Classification

    The Regional Administrator, Northeast Region, NMFS, determined that 
Framework Adjustment 18 is consistent with the Magnuson-Stevens Act and 
other applicable law.
    Because this rule relieves restrictions on a sector of the fishing 
industry by allowing fishing for mackerel and herring to occur in areas 
currently closed to such fishing, under 5 U.S.C. 553(d)(1) it is not 
subject to a 30-day delay in effective date.
    This action is authorized by 50 CFR part 648 and has been 
determined not to be significant for purposes of E.O. 12866.
    The Council prepared an IRFA that describes the impact this rule 
would have on small entities. This action would have a significant, but 
positive, impact on small business entities because it is expected to 
increase the annual gross revenues of a substantial number of small 
business entities by more than 5 percent. The IRFA concluded that this 
action could affect all of the approximately 35 pelagic midwater trawl 
vessels (which are small business entities) participating in the 
fisheries by allowing them to fish in areas currently closed to them, 
thereby increasing their annual gross revenues by more than 5 percent. 
Ten to twelve additional vessels could enter these fisheries in the 
next year. However, it is unlikely that more vessels will enter the 
fisheries because of the expense, which is estimated to range from 
$75,000 to $250,000 depending on the changes made, to convert 
conventional trawl vessels into competitive midwater trawls. Because of 
the conversion expenses, many vessels would be precluded from entering 
these fisheries.
    This action could improve the economic competitiveness of all U.S. 
Atlantic herring and mackerel harvesting operations and preserve the 
enforceability and effectiveness of the multispecies closed areas. The 
IRFA indicated that it is difficult to predict the exact increase in 
annual gross revenues as a result of allowing fishing in the currently 
closed areas due to the unpredictability of herring and mackerel 
migrations, but overall annual ex-vessel revenues for the fleet may 
potentially rise from between $255,684 to $767,051, as compared to 
taking no action.
    As mentioned earlier, the Council had considered requiring the 100-
percent observer coverage or having observers present when fish was 
transferred from the harvesting vessel to the processor, but rejected 
these alternatives because they were considered too costly for the 
fleet. No additional alternatives to minimize the economic impacts were 
considered by the Council because all the impacts are beneficial and 
need not be minimized. A copy of the IRFA analysis is available from 
the Council (see ADDRESSES). The FRFA incorporates the IRFA findings 
with the response to comments received, and addressed above, regarding 
the proposed rule. Framework Adjustment 18 is expected to increase the 
annual gross revenues of a substantial number of small business 
entities by more than 5 percent. Framework Adjustment 18 will have a 
significant, but positive, economic impact on a substantial number of 
small business entities.
    This rule refers to a collection of information which is subject to 
the Paperwork Reduction Act and which has been approved under OMB 
control number 0648-0202.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 10, 1998.
David L. Evans,
Deputy 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. Section 648.80 is amended by revising paragraphs (d)(2) and 
(d)(3), and by adding paragraph (d)(5) to read as follows:


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

* * * * *
    (d) * * *
    (2) When fishing under this exemption in the GOM/GB and SB/JL 
Areas, and in the area described in Sec. 648.81(c)(1), the vessel has 
on board a letter of authorization issued by the Regional 
Administrator, and complies with all restrictions and conditions 
thereof.
    (3) The vessel only fishes for, possesses, or lands Atlantic 
herring, blueback herring, or mackerel in areas north of 42 deg.20' N. 
lat. and in the areas described in Sec. 648.81(a)(1), (b)(1), and 
(c)(1); and Atlantic herring, blueback herring, mackerel, or squid in 
all other areas south of 42 deg.20' N. lat.; and
* * * * *
    (5) The vessel must carry a NMFS-approved sea sampler/ observer, if 
requested by the Regional Administrator.
* * * * *
    3. Section 648.81 is amended by adding paragraph (a)(2)(iii), and 
by revising paragraphs (a)(2)(ii), (b)(2) introductory text, (c)(2)(i), 
and (f)(2)(ii) to read as follows:


Sec. 648.81  Closed areas.

    (a) * * *
    (2) * * *
    (ii) Fishing with or using pelagic hook or longline gear or harpoon 
gear, provided that there is no retention of regulated species, and 
provided that there is no other gear on board capable of catching NE 
multispecies; or
    (iii) Fishing with pelagic midwater trawl gear, consistent with 
Sec. 648.80(d), provided that the Regional Administrator shall review 
information pertaining to the bycatch of regulated multispecies, and, 
if the Regional Administrator determines, on the basis of sea sampling 
data or other credible information for this fishery, that the bycatch 
of regulated multispecies exceeds, or is likely to exceed, 1 percent of 
herring and mackerel harvested, by weight, in the fishery or by any 
individual fishing operation, the Regional Administrator may place 
restrictions and conditions in the letter of authorization for any or 
all individual fishing operations or, after consulting with the 
Council, suspend or prohibit any or all midwater trawl activities in 
the closed areas.
    (b) * * *
    (2) Paragraph (b)(1) of this section does not apply to persons on 
fishing vessels or fishing vessels fishing with gears as described in 
paragraph (a)(2) of this section, or that are transiting the area 
provided--
* * * * *
    (c) * * *
    (2) * * *
    (i) Fishing with gears as described in paragraph (a)(2) of this 
section;
* * * * *
    (f) * * *
    (2) * * *
    (ii) That are fishing with or using exempted gear as defined under 
this part, subject to the restrictions on midwater trawl gear in 
Sec. 648.81(a)(2)(iii), and excluding pelagic gillnet gear capable of 
catching multispecies, except vessels may fish with a single pelagic 
gillnet, not longer than 300 ft (91.44 m.) and not greater

[[Page 7731]]

than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches (7.62 
cm), 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
* * * * *
[FR Doc. 98-3791 Filed 2-10-98; 4:46 pm]
BILLING CODE 3510-22-F