Northeast Multispecies Fishery

DEPARTMENT OF COMMERCE

50 CFR Part 651

[Docket No. 940421-4121; I.D. 042594B]

RIN 0648-AG64

Northeast Multispecies Fishery

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 1 to the Northeast Multispecies Fishery Management

Plan (FMP). NMFS implemented parts of Amendment 5 to the FMP on March

1, 1994, but delayed implementation of some provisions, including the

effort-reduction program, until May 1, to provide the industry and NMFS

sufficient time to prepare for this unprecedented and far-reaching

change to the regulations. The effect of this delay is that the first-

year's effort reduction requirements are compressed into eight months

with different impacts on different segments of the fleet. The

adjustment in the fishing year implemented by this rule will establish

May 1 through April 30 as the annual fishing year for the effort

reduction program contained in Amendment 5.

EFFECTIVE DATE: May 1, 1994.

ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR)

and the final regulatory flexibility analysis contained within the RIR,

its final supplemental environmental impact statement, and Framework

Adjustment #1 are available upon request from Douglas G. Marshall,

Executive Director, New England Fishery Management Council, 5 Broadway

(Route 1), Saugus, MA 01906-1097.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, NMFS, Fishery Policy

Analyst, 508-281-9272.

SUPPLEMENTARY INFORMATION:

Background

The New England Fishery Management Council (Council) submitted

Amendment 5 to the NMFS on September 27, 1993, after spending more than

2 years on its development. The primary purpose of Amendment 5 is to

eliminate the overfished condition of the primary stocks of the

multispecies complex through an effort-reduction program. The effort-

reduction program consists of annual reductions in the numbers of days

that vessels are allowed to spend at sea as a method to limit fishing

effort for groundfish. Vessels have a choice whether to fish under an

individual allocation of days-at-sea (DAS), based on each vessel's

history of fishing for groundfish, or to fish under the fleet DAS

option, wherein vessels must declare blocks of time out of the fishery

and lay over in port for a period proportional to the time fishing for

groundfish.

NMFS published the proposed rule for Amendment 5 on October 27,

1993 (58 FR 57774), and informed the Council on January 3, 1994, that

Amendment 5 had been approved. At that time, the Director, Northeast

Region, NMFS (Regional Director) indicated that the expected

implementation date for the amendment was to be March 1, 1994. The

Council immediately realized that the implementation of this

comprehensive amendment would require NMFS' starting a number of new

administrative programs. The Council acknowledged the procedural and

administrative difficulties and stated that it wanted NMFS to implement

the effort-reduction program only when the agency was ready. The

Council also communicated its intent that Amendment 5's effort-

reduction program be implemented on a full-year basis, rather than on a

part-year basis for the first year, and initiated Framework Adjustment

#1 on February 16 to adjust the final rule for Amendment 5.

The Council is making this adjustment to the final rule for

Amendment 5 (59 FR 9872, March 1, 1994) under the framework abbreviated

rulemaking procedure established by Amendment 5 and contained in 50 CFR

part 651, subpart C. This procedure requires the Council, when making

certain adjustments to the FMP, to develop and analyze the actions over

the span of at least two Council meetings. The Council provides the

public with advance notice of both the proposals and the analysis and

an opportunity to comment on them prior to and at the second Council

meeting. Upon review of the analysis and public comment, the Council

may recommend to the Regional Director that the measures of a given

framework adjustment be published as a final rule, if certain

conditions are met. The Regional Director may publish the measures as a

final rule, or as a proposed rule if additional public comment is

needed.

When the Council began developing Amendment 5, groundfish stocks

were overfished and the prospects were dim for improvement without the

effort-reduction program. Since then, the condition of the stocks has

deteriorated to the point where NMFS, with Council support, implemented

emergency regulations to protect haddock. Each new assessment of

groundfish stocks underlines the urgency of implementing rigorous and

effective management measures.

The Council designed the management program using annual

incremental reductions in fishing effort. The result of implementing

the effort-reduction program for less than 12 months in the first year

is that vessels fishing under the individual allocation option would

have their annual allocation compressed into eight months, while

vessels under the fleet DAS would be required to meet the annual time-

out requirement over eight months, instead of the full year. Since the

vessels in the individual DAS category generally choose to be in that

group because of their higher allocation of opportunity than under the

fleet group, the conservation benefits of the first year's reductions

in allocation would be negated if the same allocation were distributed

over only 8 months, instead of 12.

On the other hand, vessels in the fleet DAS category would be

disproportionately burdened if they were required to declare the same

amount of time out of groundfishing over 8 months, that they would have

to take over 12 months had Amendment 5 been implemented beginning on

January 1. Many of the vessels in this category ordinarily would meet

their time-out requirement during the first few months of the year when

the weather limits fishing opportunity, or when they are in other

winter fisheries such as northern shrimp.

A further need for Framework Adjustment #1 arises from the

Amendment 5 requirement that all vessels declare one 20-day block out

of groundfishing during the spawning months of March, April, and May.

Since NMFS decided to implement the effort-reduction program on May 1,

that requirement would be compressed into the month of May for the

first year. As a result, at least two-thirds of the fleet would be

required to be out of groundfishing at the same time, unless Framework

Adjustment #1 were implemented. Many fishermen are unable to plan how

to best use their time and resources during the required period out of

groundfishing given the relatively short notice, and the substantial

impact that the sudden loss of two-thirds of the domestic supply of

groundfish might have on the processing sector and the market.

This final rule will adjust the rule implementing the effort-

reduction program so that each allocation of DAS (fleet or individual)

is done on a 365-day program year beginning with the first full year of

implementation of Amendment 5.

Comments and Responses

During the period following the approval of Amendment 5 and

preceding the Council's formal initiation of the framework adjustment,

a number of individual fishermen, interested members of the public, and

industry association representatives commented on the problems with the

current effort-reduction program implementation schedule. Since the

comment period had not begun, these comments were not tabulated;

however, all comments were in support of the Council's expeditiously

making the adjustment that is contained in this rule.

During the comment period spanning the two required Council

meetings, the Council received written comments from one individual and

two associations--the Provincetown Draggermen's Association and the

Seafood Harvester's Association of New York. Oral comments were

submitted by three individuals. All of the public comments supported

the Council's action and urged expeditious implementation. No negative

comments were received on the proposed action during or outside the

comment period.

The Council requested publication of the management measures as a

final rule after considering the required factors stipulated under the

Framework Measures in Amendment 5 and providing supporting analysis for

each factor considered. The Assistant Administrator for Fisheries, NOAA

(AA) determined that the framework adjustments to the FMP that this

rule would implement are consistent with the national standards, other

provisions of the Magnuson Act, and other applicable law. The AA, in

making that determination, has taken into account the information,

views, and comments received during the two public hearings and comment

period under the FMP's framework adjustment mechanism as specified in

50 CFR 651.40. Considering the opportunity for public comment at

Council meetings on January 12 through 13, February 16 through 17,

March 17, and April 6 through 7, and Groundfish Committee meetings on

February 2 through 3 and February 24, and considering the need for

immediate resource protection for the groundfish stocks, the provisions

for continuing evaluation of the adjusted measures, and the timing of

the rule relative to the requirement that all vessels take twenty days

out of the fishery during May, 1994, the AA has waived for good cause

the proposed rules and additional comment period.

Classification

This final rule has been determined to be ``not significant'' for

purposes of E.O. 12866.

The AA finds there is good cause to waive prior notice under 5

U.S.C. 553(b) of the Administrative Procedure Act (APA). Prior notice

is impracticable and contrary to the public interest because it would

cause undue burdens on some members of the groundfish fishing industry

and would further delay full implementation of conservation measures

intended to replenish groundfish stocks. Further, the AA finds that the

public meetings held by the Council to discuss designation of beginning

and ending dates for the fishing year for this fishery provided

opportunity for public comment to be considered. The AA finds that

under section 553(d) of the APA the need to have this regulation in

place by May 1, 1994, is good cause to waive the 30-day delay in

effectiveness of this regulation.

List of Subjects in 50 CFR Part 651

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: April 27, 1994.

Rolland A. Schmitten,

Assistant Administrator National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 651 is revised

as follows:

PART 651--NORTHEAST MULTISPECIES FISHERY

1. The authority citation for part 651 continues to read as

follows:

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

2. Section 651.2 is amended by adding the definition of ``fishing

year'', in alphabetical order, to read as follows:

Sec. 651.2 Definitions.

* * * * *

Fishing year means the 12-month period beginning May 1 and

extending through April 30 of the following year.

* * * * *

3. Section 651.22 is amended by revising paragraphs (b)(1)(i), the

first sentence of (b)(3)(i), paragraphs (b)(3)(ii), (b)(3)(iv), (b)(7),

(c)(1)(i) heading, (c)(1)(i)(A), (c)(1)(i)(E) and (c)(1)(i)(F) to read

as follows:

Sec. 651.22 Effort-control program for limited access vessels.

* * * * *

(b) * * *

(1) * * *

(i) Beginning on May 1, 1994, any vessel that is greater than 45 ft

(13.7 m) in length and eligible for a limited access permit, except a

combination vessel, may elect to fish under the Individual DAS program

by making such election at the time of application for or renewal of a

limited access permit. For fishing year 1996 and thereafter, the vessel

must remain in the DAS program assigned to it in fishing year 1995.

* * * * *

(3) * * *

(i) Each vessel participating in the Individual DAS program shall

be allocated, for each fishing year, the maximum number of days at sea

it may fish in the multispecies finfish fishery according to the

criteria and table specified in paragraph (b)(3)(ii) of this section. *

* *

(ii) Annual DAS allocations. Vessels fishing under the Individual

DAS program will receive and be subject to annual allocations of DAS

based on a fishing year as specified in the following table. These

allocations are determined by reducing the vessel's Individual DAS as

calculated under paragraph (b)(2) of this section by 10 percent each

fishing year, including the first year, for the first 5 fishing years

of the effort reduction program. Each fishing year shall begin on May 1

and extend 12 months through April 30 of the following year.

Individual-DAS Allocation=X Days

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Fishing year Annual allocation

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1994.............................................. x-10% days.

1995.............................................. x-20% days.

1996.............................................. x-30% days.

1997.............................................. x-40% days.

1998.............................................. x-50% days.

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* * * * *

(iv) All vessels fishing under the Individual DAS program must

declare out of the multispecies finfish fishery for at least one 20-day

period between May 1 and May 31, or between March 1 and April 30, of

each fishing year using the notification requirements specified under

Sec. 651.29(a). If a vessel owner has not declared, or taken, the

period of time required between May 1 and May 31 or between March 1 and

April 10, of each fishing year on or before April 11 of each such year,

the vessel is subject to the possession limit specified under

Sec. 651.27(a) during the period April 11 through April 30, inclusive.

* * * * *

(7) Status of vessels pending appeal of DAS allocations. All

vessels, while appealing their Individual-DAS allocation, may fish

under the Fleet-DAS program and are subject to all requirements

applicable to the Fleet-DAS program unless otherwise exempted, until

the Regional Director has made a final determination on the appeal. Any

DAS spent fishing for multispecies finfish shall be counted against the

Individual-DAS allocation that the vessel may ultimately receive. If

before this appeal is decided, a vessel exceeds the number of days it

is finally allocated after appeal, the excess days will be subtracted

from the vessel's allocation of days in fishing year 1995.

* * * * *

(c) * * *

(1) * * *

(i) Days in which a vessel may not possess more than 500 lbs (226.8

kg) of regulated species.

(A) During each fishing year, beginning with 1994, vessel owners of

all such vessels must declare periods of time out of the multispecies

fishery totaling at least the minimum number of days listed for each

such fishing year in the following schedule. Each period of time

declared must be at least 20 consecutive days. At least one 20-

consecutive-day period must be declared or taken between May 1 and May

31, or between March 1 and April 10, of each fishing year. Each fishing

year shall begin on May 1 and extend 12 months through April 30 of the

following year.

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Days out of

Fishing year multispecies

fishing

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1994................................................. 80

1995................................................. 80

1996................................................. 128

1997................................................. 165

1998................................................. 200

1999................................................. 233

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* * * * *

(E) If a vessel owner has not declared, or taken, the period of

time required between May 1 and May 31, or between March 1 and April

10, of each fishing year on or before April 11 of each such year, the

vessel is subject to the possession limit specified under

Sec. 651.27(a) during the period April 11 through April 30, inclusive.

(F) If a vessel owner has not declared, or taken, any or all of the

remaining periods of time required under paragraph (c)(1)(i) of this

section, by the last possible date to meet the requirement, the vessel

is subject to the possession limit specified under Sec. 651.27(a) from

that date through the end of the fishing year.

[FR Doc. 94-10521 Filed 4-28-94; 4:06 pm]

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