[Federal Register Volume 64, Number 148 (Tuesday, August 3, 1999)]
[Rules and Regulations]
[Pages 42045-42049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19850]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 990723203-9203-01; I.D. 061599A]
RIN 0648-AM65
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Framework Adjustments 27 and 30 to the Northeast
Multispecies Fishery Management Plan (FMP)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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[[Page 42046]]
SUMMARY: NMFS issues this final rule to implement some of the measures
contained in Framework 30 of the Northeast Multispecies Fishery
Management Plan (FMP). This final rule implements a Georges Bank (GB)
cod landing limit (daily landing limit) of 2,000 lb (907 kg) per day-
at-sea (DAS) starting August 15, 1999, with a maximum possession limit
(possession limit) of 20,000 lb (9,072 kg) per trip. This rule also
authorizes the Administrator, Northeast Region, NMFS (Regional
Administrator), to adjust the daily landing limit and possession limit
depending on the risk of exceeding the target total allowable catch
(TAC), or not catching 75 percent of the TAC for GB cod. This action is
necessary to reduce the GB cod fishing mortality rate (F) to achieve
the rebuilding goals of the FMP. This rule also corrects the final rule
implementing Framework Adjustment 27 to the FMP, which was published on
May 5, 1999, and provides revised definitions for purposes of
clarification for pelagic longline gear and pelagic hook and line gear.
DATES: Effective July 29, 1999.
ADDRESSES: Copies of the Framework 30 document, its Regulatory Impact
Review, the Environmental Assessment, and other supporting documents
are available from Paul J. Howard, Executive Director, New England
Fishery Management Council, 5 Broadway (Route 1), Saugus, MA 01906-
1036.
FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy
Analyst, 978-281-9221.
SUPPLEMENTARY INFORMATION:
Background
Amendment 7, which became effective on July 1, 1996, established a
procedure for reviewing annually the FMP and making adjustments to
management measures to achieve the rebuilding objectives. The New
England Fishery Management Council (Council) conducted a review during
December 1998 and January 1999 for the May 1999 fishing year, and
submitted proposed measures contained in Framework 27 to address the
severely depleted Gulf of Maine (GOM) cod stock. The final rule
implementing Framework 27 was published on May 5, 1999 (64 FR 24066).
In Framework 27, the Council was unable to complete development of
measures to reduce F on GB cod by the necessary 22 percent to achieve
the F0.1 objective for that stock for the 1999 fishing year,
as indicated in the Multispecies Monitoring Committee's annual report.
Framework 30, therefore, is a continuation of the annual adjustment for
the multispecies fishery for May 1999 through April 2000, initiated
with Framework 27.
Approved Measures
This rule establishes a daily landing limit of 2,000 lb (907 kg)
per DAS, with a possession limit of 20,000 lb (9,072 kg) per trip, on
vessels enrolled in the GOM Cod Trip Limit Exemption Program. NMFS is
approving these measures to reduce the GB cod fishing mortality rate
(F) and increase the chances of achieving the rebuilding targets of the
FMP. This rule also authorizes the Regional Administrator to reduce the
allowable cod daily landing limit and possession limit for GB cod, when
75 percent of the target TAC for that stock is projected to be reached.
The lower cod daily landing limit and possession limit would be
calculated to keep landings below the target TAC. On the other hand, on
or after January 1, 2000, the Regional Administrator is authorized to
increase the daily landing limit and possession limit, if there is a
high probability that GB cod landings for the fishing year are
projected to be less than 75 percent of the TAC for that stock. The
higher daily landing limit and possession limit would be calculated to
a level that would allow landings to reach at least 75 percent of the
TAC for GB cod.
This rule also implements a technical change to clarify the
Council's intent of Framework 27 by removing language that would
require gear stowage for vessels transiting the GOM/GB Inshore
Restricted Roller Gear Area with roller gear in excess of 12 inches
(30.48 cm) in diameter. The Council voted to recommend this change from
the proposed rule for Framework 27 during the Council meeting on April
15, 1999, citing the need to relieve a burdensome restriction that
requires all vessels, before transiting the area, to stow gear in which
the diameter of any part of the trawl footrope (including discs,
rollers, or rockhoppers) exceeds the minimum size authorized in the
GOM/GB Inshore Restricted Roller Gear Area. However, since the comment
period for Framework 27 closed on April 13, 1999 (64 FR 14846, March
29, 1999), and the Council did not address the matter until after that
time, the measure could not be incorporated into the final rule for
Framework 27. The final rule for Framework 27 was published on May 5,
1999 (64 FR 24066). This rule deletes the Restricted Area transiting
provision in Sec. 648.80(a)(2)(iv) in response to the Council's
clarification of its intent in Framework 27.
In addition, ``exempted gear,'' as defined at Sec. 648.2, means
gear that is deemed to be not capable of catching Northeast
multispecies, and includes: Pelagic hook or longline gear, spears,
rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop
nets, pound nets, pelagic gillnets, pots and traps, purse seines,
shrimp trawls (with a properly configured grate), surf clam and ocean
quahog dredges, and midwater trawls. For clarification purposes, this
rule replaces the definition of ``pelagic hook or longline gear'' with
two definitions: one for ``Pelagic longline gear'' and another for
``pelagic hook and line gear.''
The preamble to the final rule implementing Framework 27 correctly
indicated that scallop dredge gear is considered exempted gear in the
newly closed areas in Framework 27 when vessels are fishing under a
scallop DAS, provided that the vessel does not retain any regulated
multispecies during any part of a trip (see 64 FR 24067, May 5, 1999,
column 3, under Area Closures and Exemptions). The Council specifically
clarified that ``newly closed areas'' refer only to the Rolling Closure
Areas specified in Framework 27, as well as the Cashes Ledge Closure
Area. It did not refer to Closed Areas I and II, the Nantucket
Lightship Closed Area, or the Western GOM Area Closure. However, the
regulatory text for Framework 27 at Sec. 648.81(i)(2) incorrectly
indicated that vessels fishing under scallop DAS are exempt from the
Western GOM closure. The inadvertent inclusion of scallop dredge gear
in the list of exemptions for the Western GOM is being corrected by
this action, in accordance with the intent of Framework Adjustment 27.
Because scallop dredge gear is not considered exempted gear in the
Western GOM Area Closure, it is removed from the list of exemptions at
Sec. 648.81(i)(2).
Disapproved Measure
The framework action, as proposed by the Council, included a large
30-day GB closure area off Cape Cod. The Council intended that this
closure area would be effective, if possible, in June 1999 but
recognized that the measure might be implemented in July 1999. Analysis
for both months was included in the documentation for the action and
showed that a closure in June 1999 was expected to reduce mortality of
GB cod by about 11 percent, and by 8 percent for a July 1999 closure.
This option was selected based on an optimistic assumption of no effort
displacement occurring as the result of a 30-day closure. An
alternative option, which simulated possible displacement, showed a 2.7
percent mortality
[[Page 42047]]
reduction from a June 1999 closure, and less than 2.7 percent for July
1999.
Because implementation of this action could not occur within the
months analyzed in the framework documents, the GB closure provision is
disapproved since the conservation basis for the closure diminishes
with time as concentrations of cod disperse after the spring spawning
period.
The effect of this disapproval is that the 22-percent reduction of
F for GB cod will need to be achieved solely by the daily landing limit
and possession limit, which may have to be reduced by the RA sooner in
the absence of an area closure. However, if displacement would have
been extensive during a June or July 1999 closure, then most of the
reduction of F would have still been accomplished by the daily landing
limit and possession limit. Because larger offshore vessels tend to be
affected more by a daily landing limit, and small inshore vessels by
inshore area closures, the differential impact on these sectors may be
changed, at least slightly.
Abbreviated Rulemaking
NMFS is making these revisions to the regulations under the
framework abbreviated rulemaking procedure codified at 50 CFR part 648,
subpart F. This procedure requires the Council, when making
specifically allowed adjustments to the FMP, to develop and analyze the
actions over the span of at least two Council meetings, at which public
comments are accepted. The Council must provide the public with advance
notice of both the framework proposals and the associated analyses, and
provide an opportunity to comment on them specifically, prior to and at
the second Council meeting. Upon review of the analyses and public
comments, the Council may recommend to the Regional Administrator that
the measures be published as a final rule, or as a proposed rule, if
additional public comment is necessary.
The initial and final meetings for Framework 27 were on December
10, 1998, and January 27-28, 1999, respectively. During these meetings
the Council focused its efforts on developing measures to reduce
fishing effort on GOM cod, which the best scientific information
available indicated was collapsing. To avoid any delay in implementing
management measures to protect GOM cod, the Council initiated Framework
30 to address GB cod. The initial and final meetings for Framework 30
were February 24-25, 1999, and April 14-15, 1999, respectively. The
Council's Groundfish Committee and Industry Advisory Panel also held
meetings and took public comment on the proposals on March 22 and 23,
1999, respectively.
At the joint meeting of the committee and advisory panel, which
followed the initial framework meeting, the Council received a new
proposal for GB cod from a group of fishing industry representatives.
Because the industry proposal was in the preliminary stages of
development, the Council decided that it could not delay further the
implementation of GB cod protection measures and continued development
of Framework 30.
Comments and Responses
Documents summarizing the Council's proposed action and the
analysis of biological, economic, and social impacts of this and
alternative actions were available for public review 1 week prior to
the final meeting, as required under the framework adjustment process.
Written comments were accepted up to and during that meeting.
Comment 1: Many members of the fishing industry, representing all
of the major gear sectors, spoke out against the use of a daily landing
limit because it would cause discards, be difficult and costly to
enforce, and not necessarily produce the desired result.
Response: The Council considered a wide range of alternatives to
achieve the FMP objective of a 22-percent reduction in F. It adopted
the GB cod daily landing limit as a contingency measure, which is being
implemented under this rule, since the alternative proposal contained
in Framework 31 will not be voted on by the Council and submitted to
NMFS by August 15, 1999. The Council originally selected August 15,
1999, as the anticipated date for Council approval and NMFS
implementation of Framework 31 that would supersede the GB cod daily
landing limit. The Council chose this measure because, unlike area
closures and DAS reductions, the daily landing limit focuses the needed
conservation restrictions on the vessels targeting cod, with minimal
impact on vessels targeting other regulated species. The Council did
not include a running clock provision, partly because of enforceability
concern and the possibility that it would enable vessels to circumvent
the conservation benefits of Framework 30. By including both a daily
landing limit and a possession limit, the Council reduced the potential
for discards, especially when vessels that exceed the daily landing
limit can reduce the incidental catch of cod. The Council also provided
authority to the Regional Administrator to adjust the daily landing
limit and possession limit to reduce the risk of exceeding the target
TAC.
Comment 2: Several members of the fishing industry, as well as
representatives of an organization claiming at least 500 supporters,
asked the Council to seek a closure of the multispecies fishery on GB
in May, through emergency action by the Secretary of Commerce. The
commenters expressed concern that not implementing such a measure prior
to the June-July peak period of cod landings would result in a
succession of more severe restrictions in the future to achieve the
same reductions in F.
Response: The Council and NMFS determined that the present
circumstances did not meet the requirements for an emergency action,
and that the Council could not justify circumventing the normal
framework process that allows all the affected public to comment on the
alternatives and analysis of impacts. However, once it became apparent
that the effective date of this action would not occur prior to mid-
July, the conservation benefits accrued from the proposed GB closure no
longer justified the administrative and industry burden associated with
such a closure. Thus, this measure is disapproved. NMFS believes that
the daily landing limit and possession limit and the adjustment
mechanism implemented under this action will ensure that the 1999
fishing year target TAC is not exceeded.
Comment 3: Members of the affected fishing industry and their
representatives urged the Council to consider a plan developed through
a number of meetings and an outreach program that included all gear
sectors, as well as fish processors and dealers. This plan called for a
mandatory 30-day block of time out of the multispecies fishery during
each quarter, reductions in the amount or size of gear fished, and an
increase in the minimum size of cod.
Response: The Council agreed to consider this proposal and develop
it as a separate framework adjustment, Framework 31. If Framework 31
had been adopted and implemented when the Council originally intended,
it would have superseded the GB cod limits scheduled to take effect on
August 15, 1999, under Framework 30. However, at the final meeting for
Framework 31, on May 26-27, 1999, a review of the analysis indicated
that the proposal may not achieve the intended goals. Thus, no further
action was taken to approve Framework 31.
Comment 4: Several members of the fishing communities on Cape Cod
stated that the alternatives under consideration by the Council would
impact
[[Page 42048]]
disproportionately small, inshore vessels and their homeport
communities.
Response: A large GB closure would have had a disproportionate
impact on small, inshore vessels that fish out of Cape Cod ports due to
the inability of some of these vessels to travel beyond the closure to
fish elsewhere during the closure period. As noted above, this portion
of the framework has been disapproved.
Classification
In accordance with the framework procedures, the public already
received prior notice and an opportunity to comment on the measures in
this rule. Comments received from the public are summarized and
responded to in the preamble of this rule. Pursuant to 5 U.S.C.
553(b)(B), the AA finds for good cause that providing additional prior
notice and opportunity for public comment is impracticable and contrary
to the public interest in the conservation and sustainable use of the
GB cod resource. Additional prior notice and opportunity for comment
would reduce the chances of achieving the 22 percent reduction in F
needed to meet rebuilding targets of this overfished stock in a timely
manner, to allow for the sustainable use of GB cod.
Pursuant to 5 U.S.C. 553(d)(3), the AA finds good cause to waive
the normally required 30-day delay in the effective date. Immediate
implementation of this final rule will decrease the need for more
severe reductions in F associated with a later effective date and will
reduce the risk of exceeding the target TAC. Fishermen will be notified
of the new daily landing limit and possession limit via NOAA weather
radio, Coast Guard announcements, and letters to permit holders. In
addition, industry has planned its GB cod fishing activities on the
expectation that the daily landing limit and possession limit will
start on August 15, 1999, as proposed by the Council. A later effective
date would therefore disrupt the fishery and fishery-dependent
communities.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., are inapplicable. Consequently, no regulatory flexibility
analysis has been prepared. Nevertheless, the socioeconomic impacts on
affected small entities, as well as alternatives to mitigate such
impacts, were considered in the regulatory impact review contained in
the supporting analyses for Framework 30.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 27, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, 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
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 ``Pelagic hook or longline
gear'' is removed, and the definitions for ``Pelagic hook and line
gear'' and ``Pelagic longline gear'' are added, in alphabetical order,
to read as follows:
Sec. 648.2 Definitions.
* * * * *
Pelagic hook and line gear means handline or rod and reel gear that
is designed to fish for, or that is being used to fish for, pelagic
species, no portion of which is designed to be or is operated in
contact with the bottom at any time.
Pelagic longline gear means fishing gear that is not fixed, nor
designed to be fixed, nor anchored to the bottom and that consists of
monofilament main line (as opposed to a cable main line) to which
gangions are attached.
* * * * *
3. In Sec. 648.14, paragraphs (c)(19), (c)(23), and (c)(24) are
revised, and a new paragraph (c)(26) is added, to read as follows:
Sec. 648.14 Prohibitions.
(c) * * *
(19) Fail to comply with the exemption specifications as described
in Sec. 648.86(b)(4).
* * * * *
(23) Fail to enter port and call-out of the DAS program no later
than 14 DAS after starting a multispecies DAS trip (i.e., the time a
vessel leaves port or when the vessel received a DAS authorization
number, whichever comes first), as specified in Sec. 648.10(f)(3),
unless otherwise specified in Sec. 648.86(b)(1)(ii), or unless the
vessel is fishing under the cod exemption specified in
Sec. 648.86(b)(4).
(24) Enter port, while on a multispecies DAS trip, in possession of
more than the allowable limit of cod specified in Sec. 648.86(b)(1)(i)
without reporting the cod hail weight, unless the vessel is fishing
under the cod exemption specified in Sec. 648.86(b)(4).
* * * * *
(26) Fish for, land or possess cod in excess of the cod trip
landings and/or maximum possession limits specified in or pursuant to
Sec. 648.86(b)(2).
* * * * *
4. In Sec. 648.80, paragraph (a)(2)(iv) is revised to read as
follows:
Sec. 648.80 Regulated mesh areas and restrictions on gear and methods
of fishing.
(a) * * *
(2) * * *
(iv) Rockhopper and roller gear restrictions. For all trawl vessels
fishing in the GOM/GB Inshore Restricted Roller Gear Area, the diameter
of any part of the trawl footrope, including discs, rollers, or
rockhoppers must not exceed 12 inches (30.48 cm). The GOM/GB Inshore
Restricted Roller Gear Area is defined by straight lines connecting the
following points in the order stated:
* * * * *
5. In Sec. 648.81, paragraphs (a)(2)(ii) and (i)(2) are revised to
read as follows:
Sec. 648.81 Closed areas.
(a) * * *
(2) * * *
(ii) Fishing with or using pelagic longline gear or pelagic hook
and line 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
* * * * *
(i) Western GOM Area Closure. * * *
(2) Paragraph (i)(1) of this section does not apply to persons on
fishing vessels or fishing vessels that meet the criteria in paragraph
(g)(2)(ii) or (iii) of this section.
* * * * *
6. In Sec. 648.86, paragraph (b)(1) heading and the first sentence
of paragraph (b)(1)(i) are revised, paragraph (b)(2) is redesignated as
paragraph (b)(4), and a new paragraph (b)(2) is added to read as
follows:
Sec. 648.86 Landing and possession restrictions.
* * * * *
(b) * * * (1) Gulf of Maine Cod Landing Limit. (i) Except as
provided in paragraphs (b)(1)(ii) and (b)(4) of this section, and
subject to the cod landing limit call-in provision specified at
Sec. 648.10(f)(3)(i), a vessel fishing under a NE multispecies DAS may
land up to
[[Page 42049]]
200 lb (90.7 kg) of cod per DAS, or any part of a DAS, unless otherwise
specified in this paragraph. * * *
* * * * *
(2) Georges Bank Cod Landing and Maximum Possession Limits. For the
1999 fishing year, beginning August 15, 1999, and,
(i) For each fishing year thereafter, beginning on May 1, a vessel
that is exempt from the landing limit described in paragraph (b)(1) of
this section fishing under a NE multispecies DAS may land only up to
2,000 lb (907.2 kg) of cod per DAS, or any part of a DAS, up to a
maximum possession limit of 20,000 lb (9,071.8 kg) per trip, unless
otherwise specified pursuant to paragraph (b)(2)(ii) of this section.
The vessel must have a standard tote on board. Cod on board a vessel
subject to these landing and maximum possession limits must be
separated from other species of fish and stored so as to be readily
available for inspection.
(ii) When the Regional Administrator projects that 75 percent of
the target TAC will be harvested (8.9 million lb (4,012 mt) for the
1999 fishing year), NMFS may publish a notification in the Federal
Register that, as of a specific date, the landing and/or maximum
possession limits specified in paragraph (b)(2) of this section are
reduced to a level calculated to keep landings below the target TAC
based on the risk of exceeding the target TAC. Cod on board a vessel
subject to these landings and maximum possession limits must be
separated from other species of fish and stored so as to be readily
available for inspection.
(iii) Paragraph (b)(2)(i) of this section notwithstanding, between
January 1, and April 30 of each fishing year, if the Regional
Administrator projects that less than 75 percent of the target TAC (8.9
million lb (4,012 mt) for the 1999 fishing year) will be harvested by
April 30, of the fishing year, NMFS may publish a notification in the
Federal Register that, as of a specific date, the landings and/or
maximum possession limits are increased to the amount that the Regional
Administrator projects will be sufficient to allow harvesting of up to
8.9 million lb (4,012 mt) for the 1999 fishing year by April 30, 2000.
* * * * *
[FR Doc. 99-19850 Filed 7-29-99; 4:00 pm]
BILLING CODE 3510-22-F