Northeast Multispecies Fishery; Amendment 7

SUMMARY: NMFS issues this final rule to implement approved measures

contained in Amendment 7 to the Northeast Multispecies Fishery

Management Plan (FMP) including a resubmitted part of the amendment.

These regulations: Establish an annual target Total Allowable Catch

(TAC) for regulated species; accelerate the current days-at-sea (DAS)

effort reduction program; eliminate most of the exemptions to the

effort control program and revise the requirements for taking time out

of the fishery; add new closed areas; restrict fisheries in the Gulf of

Maine/Georges Bank (GOM/GB) and Southern New England (SNE) regulated

mesh areas having more than a minimal bycatch of regulated species;

establish the current experimental Nantucket Shoals dogfish fishery as

an exempted fishery; modify the permit categories; establish

restrictions on charter/party and recreational vessels; and revise and

expand the existing framework provisions. The intended effect of this

rule is to rebuild multispecies stocks. In addition, NMFS informs the

public of the approval by the Office of Management and Budget (OMB) of

the collection-of-information requirements contained in this rule and

publishes the OMB control numbers for these collections.

EFFECTIVE DATE: July 1, 1996.

ADDRESSES: Copies of Amendment 7, its regulatory impact review (RIR)

and the initial regulatory flexibility analysis (IRFA) contained within

the RIR, and the Final Supplemental Environmental Impact Statement

(FSEIS), and copies of the resubmitted part and its supporting

documents, are available from Douglas Marshall, Executive Director, New

England Fishery Management Council, Suntaug Office Park, 5 Broadway (US

Rte. 1), Saugus, MA 01906-1097. Comments regarding the collection-of-

information requirements contained in this final rule should be sent to

Andrew A. Rosenberg, Director, Northeast Region, NMFS, One Blackburn

Drive, Gloucester, MA 01930-2298 and to the Office of Information and

Regulatory Affairs, OMB, Washington, D.C. 20503 (Attention: NOAA Desk

Officer).

FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy

Analyst, 508-281-9252.

SUPPLEMENTARY INFORMATION: This final rule implements approved measures

contained in Amendment 7 to the multispecies FMP which was approved by

NMFS on behalf of the Secretary of Commerce (Secretary) on May 16,

1996. Three measures contained in Amendment 7, as originally submitted,

were disapproved by NMFS on behalf of the Secretary when they were

submitted and consequently were not a part of the proposed rule

published on March 5, 1996 (61 FR 8540). Reasons for disapproval of

those measures were given in the proposed rule and are not repeated

here. Two of these measures, a provision that would allow additional

DAS for vessels enrolled in the Large Mesh Individual DAS category and

a 300-lb (136.1-kg) possession limit when fishing in an exempted

fishery with 8-inch (20.32-cm) mesh, were resubmitted by the New

England Fishery Management Council (Council). The latter measure was

again disapproved.

The provision that would allow additional DAS for vessels enrolled

in the Large Mesh Individual DAS category was contained in a proposed

rule published on April 18, 1996 (61 FR 16892). During the public

comment period, no comments were received. This measure was approved by

NMFS on behalf of the Secretary on May 17, 1996, and is also

implemented by this rule.

Details concerning the justification for and development of

Amendment 7 were provided in the notice of proposed rulemaling (61 FR

8540, March 5, 1996) and are not repeated here.

In that notice, NMFS requested the public to comment on all

proposed measures, but to focus on several measures of concern in

particular. After NMFS reviewed the amendment and the public comments

received relative to the amendment and the proposed rule, NMFS

disapproved three additional measures based on its determination that

they are inconsistent with one or more of the national standards of the

Magnuson Fishery Conservation and Management Act (Magnuson Act) or

other applicable law. These measures are: A call-in requirement for

charter/party vessels; counting DAS for gillnet vessels by the amount

of time that gillnet gear is in the water; and a winter flounder

possession allowance when fishing in the Mid-Atlantic regulated mesh

area.

Disapproved Measures

Amendment 7 imposes new restrictions on charter and party vessels.

Such vessels may, under certain circumstances and criteria, fish under

either the recreational or commercial requirements of these

regulations. A call-in requirement for charter/party vessels was

proposed by the Council to provide a way for law enforcement officers

to discern which of these requirements a vessel was subject to. This

measure has been disapproved because NMFS believes that sufficient

means exist to distinguish recreational and commercial activities.

Further, the U.S. Coast Guard (USCG) and NMFS Office of Law Enforcement

have recommended against adoption of this measure because it would not

improve enforceability of the charter/party restrictions. This

recommendation led the Council, in their comments on the proposed rule,

to also recommend against adoption of this measure. Because this

requirement would place a significant administrative burden on the

call-in system with no discernable benefit, it is neither consistent

with National Standard 7 nor Executive Order 12866 and is disapproved.

The second disapproved measure proposed counting gillnet DAS as

time when gear is in the water, rather than time when the vessel is

away from the dock. The Council proposed this measure in an attempt to

resolve perceived inequities in the DAS accounting methods for fixed

gear versus mobile gear. However, the proposal did not adequately

resolve enforcement difficulties of monitoring the amount of time gear

was in the water or the administrative problems in determining baseline

allocations for gillnet Individual DAS category vessels. Moreover, the

Council itself has expressed concern with this measure and has

initiated the process to reconsider the method for counting gillnet DAS

structure. Because the administrative burden of establishing a method

of accounting and allocating DAS is extensive, the efficiency standards

of E.O. 12866 and National Standard 7 would be compromised by the

almost immediate change to the system that the Council is

contemplating. Disapproval of this measure means that DAS for gillnet

vessels will be counted in the same way that DAS are counted for all

other vessels, as time away from port.

[[Page 27711]]

The measure that would have allowed a bycatch of winter flounder by

vessels fishing in the Mid-Atlantic regulated mesh area (10 percent by

weight of all other species on board or 200 lb (90.7 kg), whichever is

less) has also been disapproved. The most recent assessment of winter

flounder advises that fishing mortality should be reduced immediately

to the lowest possible level. Therefore, there is no justification for

treating this regulated species any differently than others in similar

condition. Although the cap on the allowed catch would discourage

vessels from targeting winter flounder, this measure would reduce the

beneficial conservation effect of the DAS program on the winter

flounder resource and is, therefore, inconsistent with National

Standard 1.

Approved Measures

Amendment 7 establishes a procedure for setting annual target TAC

levels for specific cod, haddock, and yellowtail flounder (CHY) stocks

(GB CHY, SNE yellowtail flounder, and GOM cod), and an aggregate TAC

for the other regulated species (pollock, redfish, white hake, witch

flounder, American plaice, winter flounder and windowpane flounder).

The procedure would be used annually to set target TACs, with the

exception of target TACs for the 1996 fishing year (May 1, 1996,

through April 30, 1997), which are set as follows:

Table 1.--1996 TAC Specifications

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

1996

Target

Species/area TACs

(metric

tons)

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

Georges Bank cod.............................................. 1,851

Georges Bank haddock.......................................... 2,801

Georges Bank yellowtail flounder.............................. 385

Gulf of Maine cod............................................. 2,761

Southern New England yellowtail flounder...................... 150

Aggregate for remaining regulated species..................... 25,500

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

DAS allocations are reduced in two equal increments at the start of

the 1996 and 1997 fishing years from current levels to the full 50

percent reduction called for originally in the final year of Amendment

5 to the FMP. In addition, because the effective date of this rule is 2

months after the start of the 1996 fishing year, which commenced on May

1, 1996, 1996 DAS allocations are prorated based on the amount of time

remaining in the 1996 fishing year, or 83 percent (10 months/12

months).

Amendment 7 eliminates the current exemptions to the DAS program

(vessels 45 ft (13.7 m) and less, limited access Hook-Gear and Gillnet

vessels) and allocates either Individual DAS or Fleet DAS to these

vessels, except for vessels 30 ft (9.1 m) or less in length. Limited

access vessels 30 ft (9.1 m) or less in length may choose either to

fish under the DAS program or be restricted to a possession limit of

CHY up to a maximum combined weight of 300 lb (136.1 kg).

This rule eliminates the existing requirement for vessels in the

Fleet DAS category to take blocks of time ``out of the multispecies

fishery.'' It also eliminates the layover days currently required after

completion of a multispecies trip. However, all vessels subject to the

DAS effort control program are required to take one 20-consecutive-day

block of time out of the multispecies fishery between March 1 through

May 31. Vessels 30 ft (9.1 m) or less in length issued a Small Vessel

permit and vessels issued an open access Handgear permit are not

allowed to fish for, possess, or land regulated multispecies between

March 1 and March 20.

The existing time/area closures to sink gillnet vessels specified

to reduce harbor porpoise bycatch are now also closed to other gear

types as part of the effort reduction program. These areas are known as

the Northeast Closure Area, the Mid-Coast Closure Area, and the

Massachusetts Bay Closure Area. Because Small Mesh Area 1 lies entirely

within the Mid-coast Closure Area, the season termination date for this

exemption is changed from November 15 to October 31, which coincides

with the closure of the Mid-coast area.

This final rule prohibits vessels from fishing in the GOM/GB and

SNE regulated mesh areas, unless they are fishing in an authorized

multispecies fishery, under a scallop DAS, or in an exempted fishery.

An exempted fishery is one in which it has been determined that there

is a minimal bycatch of regulated species.

The existing Nantucket Shoals experimental dogfish fishery has been

found to meet the criteria for this exemption. This rule permanently

exempts that fishery from June 1 through October 15.

Because the exemptions to the DAS program are removed by the

amendment, some limited access permit categories have been eliminated

and vessels in those categories have been reassigned to an appropriate

category. A new category is established for vessels in the current

Hook-Gear open access category and an opportunity to qualify for a new

limited access Hook-Gear permit under specified criteria is granted.

New limited access permit categories are also established for vessels

electing to fish with large mesh. Vessels reassigned as a result of

this rule will have 45 days from the date of publication of this rule

to change their 1996 permit category.

Three new open access permit categories established are Handgear,

Charter/Party and Scallop Multispecies Possession Limit, each with

specific possession and gear restrictions.

This rule imposes several new restrictions for recreational and

charter/party vessels, including a 20 inch (50.8 cm) minimum fish size

for cod and haddock for the first year of the plan, increasing to 21

inches (53.3 cm) in the second year, a prohibition on the sale of

multispecies finfish, and a 10 fish possession limit on cod and

haddock, combined, for individual recreational anglers.

The FMP's existing framework provisions are revised to remove the

10 percent cap on annual reductions in fishing mortality and to allow

implementation of measures to protect right whales and other marine

mammals through the framework process. An annual process to set target

TACs, review progress towards fishing mortality goals and to make any

necessary changes in the management program is also established.

The Mid-Atlantic regulated mesh area is redefined to include all

New York and Connecticut state waters.

Vessels fishing in the SNE regulated mesh area are authorized to

retain a bycatch of skate or skate parts up to 10 percent of the total

weight of other fish possessed on board.

A provision is added that allows the costs of observer coverage to

be funded by sources other than NMFS.

The haddock possession limit is increased from 500 (227 kg) to

1,000 lb (453.6 kg) for vessels fishing under a multispecies DAS. The

tote and box volumetric equivalency measure for determining the weight

of possession limits is eliminated, instead, compliance with possession

limits will be determined by shoreside weighing. However, vessels will

be required to carry one tote on board for use by USCG boarding parties

to estimate possible excessive catches.

Comments and Responses

Written comments were submitted by the Associated Fisheries of

Maine, Offshore Mariners Association, Inc., Gloucester Fishermen's

Wives Association, Massachusetts Fishermen's Partnership, Gloucester

Fishermen's Committee, Maine Department of Marine Resources (DMR),

Wildlife Habitat Preservation Association, Inc.,

[[Page 27712]]

Senator Judd Gregg, Senator Bob Smith, Senator Olympia J. Snowe,

Senator William S. Cohen, Congressman Patrick J. Kennedy, Seafarers

International Union of North America, Conservation Law Foundation, Mass

Audubon Society, The Groundfish Group of Associated Fisheries of Maine,

Associated Fisheries of Maine, Maine Fishermen's Wives Association,

Federation of Inshore Seafood Harvesters, Darling Marine Center of the

University of Maine, New Bedford Seafood Coalition, Massachusetts State

Senator Bruce Tarr, Gloucester United, Vessel Services Inc., the New

England Fishery Management Council (NEFMC), Center for Marine

Conservation, Environmental Defense Fund, Cape Cod Commercial Hook

Fishermen's Association, Resource Trading Co., King & Sons Fishing Co.,

Inc., Cape Ann Gillnetters' Association, Action, Inc., Wellspring

House, Inc., Massachusetts Lobstermen's Association, Inc., Connecticut

Department of Environmental Protection (DEP), the Marine Mammal

Commission, and approximately 290 individuals.

1. Comments in Favor of Approval of Amendment 7

Comment 1: An association and several environmental organizations

stated that Amendment 7 should be approved, and 136 individuals stated

that Amendment 7 should be approved without change. Many commenters

expressed concern for the health and viability of the resource and

urged the Secretary not to give in to pressure to weaken, modify or

otherwise deviate from the plan.

Response: Most of the measures proposed in Amendment 7 have been

approved.

2. Comments on Elimination of the Open Access Possession Limit and

Hook-Gear-Only Permit Categories

Comment 2: Several commenters opposed elimination of the

Possession-Limit permit category and/or the 500-lb (226.8-kg) allowance

of regulated species associated with this permit. These comments are

summarized as follows:

A commenter stated that he invested in his vessel while fishing

under the 500-pound (226.8-kg) possession limit in the open access

category and that under Amendment 7, he will lose his right to do so,

due to the elimination of the open access possession limit permit.

An association stated that vessels in the Possession Limit permit

category that may have qualified for a limited access permit under

Amendment 5 should be allowed to prove their eligibility and move into

a DAS category. The commenter further explained that a few vessels

opted for a Possession Limit permit though their history would have

qualified them for a limited access permit under the DAS program. The

association further stated that it would have been impossible for these

vessel owners to know that this permit category would be eliminated at

some future date.

Another commenter stated that elimination of the Possession Limit

permit category denies him access to the whiting fishery. He stated

that his two vessels surrendered their limited access multispecies

permits during 1996, because he lengthened his vessels beyond the

upgrade restrictions of the multispecies FMP to maximize their

productive capacities before the effective date of Amendment 5 to the

Atlantic Mackerel, Squid and Butterfish FMP (which allows no increase

in size after implementation). He stated that since the vessels only

fished a few months each year for whiting, he had planned to continue

to do so under the Possession Limit category.

Another commenter stated that under Amendment 7 those fishers

formerly fishing for whiting and other small mesh species in the

experimental whiting grate fishery, to use as bait under the Possession

Limit category will not be able to continue this practice. He stated

that this gives bluefin tuna fishers with a limited access multispecies

permit an unfair advantage.

Congressman Patrick J. Kennedy (RI) forwarded an association's

petition containing 98 signatures and 23 individual letters, all

concerned with the elimination under Amendment 7 of the possession

limit of regulated species bycatch allowed when fishing for non-

regulated species out of the DAS effort reduction program. The

association also forwarded the petition and letters directly to the

Director, Northeast Region, NMFS (Regional Director). They further

stated that the marketable bycatch of regulated species would be

wastefully discarded. Twenty-three of the commenters stated that they

would have to fish day and night to fully utilize the full 24 hours of

the groundfish day DAS. They all sought reinstatement in Amendment 7 of

the possession limit of regulated species when fishing for non-

regulated species out of a DAS effort control program.

Another commenter stated he does not qualify for the new limited

access hook permit, because he did not land 500-lb (226.8-kg) of

regulated species during the qualifying year, which is one of the

qualifying criteria. He said that it is arbitrary and unfair to make

just that permit category meet certain criteria. He further asked

whether any consideration was given for illness or investments. He

added that the labor intensive, environmentally sound hook-fishery had

no negative impacts on the control of future effort.

The Maine DMR commented favorably on the open-access handgear-only

permit category provision of Amendment 7. It added that this permit

category provides a lowcost, egalitarian point of entry for new

participants in the fishery within sensible conservation rules.

The Maine DMR commented in opposition to the eligibility

requirements for vessels desiring to qualify for the new limited access

hook-gear permit-category, specifically, the requirement that

applicants must have filed logs for their vessels by January 26, 1996

for the period June 1, 1994-June 1, 1995. It stated that since NMFS has

allowed logbook filers to file late this year as part of a well-

publicized education effort designed to achieve high compliance by next

year, it is unreasonable and inequitable to disallow the same extension

to those in the open access hook permit category, which was less

intensively regulated under Amendment 5. It explained that participants

in this category are less likely to have understood and complied with

log requirements.

Response: The Council and NMFS are aware that certain participants

in the groundfish fishery may be affected by the elimination of the

open access possession limit permit category, but NMFS has determined

that conservation needs outweigh the negative impact on certain

individual fishers.

The 500-lb (226.8-kg) regulated species catch allowance is

eliminated by this rule. The control date for entry into the

multispecies fishery was February 21, 1991, at which time the public

was put on notice that future entry into the fishery could be limited

and that those investing in the fishery after that date were doing so

at risk. The condition of the stock complex has declined since that

time and more restrictive measures have been implemented in Amendments

5 and 6 to the FMP. Amendment 7 eliminates the 500-lb (226.8-kg)

possession allowance in part because of its open-access nature. While

Amendment 7 imposed significant restrictions on the directed

multispecies fleet through DAS reductions, allowing a potentially

unlimited number of vessels to land 500 lb (226.8 kg) of regulated

species per trip would be inconsistent with the goals of the FMP.

Regarding the commenter's concerns about being ``shut out'' of the

whiting

[[Page 27713]]

fishery as a result of disapproval of the Limited-Access Possession

Limit permit category, NMFS disapproved that category because of

several flaws that were described in the proposed rule. The Council has

reconsidered the disapproval of this category and will resubmit a

revised proposal that, if approved, would allow open access to the non-

regulated multispecies fisheries, i.e., whiting, red hake and ocean

pout. One of the improvements made to the permit proposal by the

Council is the designation as an open access permit, which exempts

vessels in this category from the upgrade requirements.

As to eligibility requirements for the new limited-access hook-gear

permit category, Amendment 7's deadline for filing logs for the period

June 1, 1994-June 1, 1995 was established as January 26, 1996, for

purposes of qualifying into the fishery. This deadline is much more

liberal than the Council's requirement that all logs be filed in a

timely manner, i.e., within 15 days of the fishing trip. Additionally,

those applicants denied a new limited-access hook-gear permit may

appeal any denial under the multispecies regulations.

And finally, the commenter concerned about qualifying for the Hook-

Gear-Only permit will have two options: (1) A vessel owner may elect to

fish with hand-held gear only and land up to a total of 300 lb (136.1

kg) of CHY, or (2) a vessel owner may elect to apply for the hook-only

limited access permit and, if denied, may appeal the denial on the

basis that circumstances beyond the applicant's control prevented

attainment of the qualifying criteria.

3. Comment on the Framework Provision for Annual Adjustments to TACs

and Restrictions

Comment 3: The Maine DMR stated that a 2-year adjustment process,

with frameworks in the interim, would provide a more constructive and

science-based process than the annual adjustment process.

Another commenter stated that the tight timeline established in the

framework adjustment process that provides only 1 month prior to the

beginning of a fishing year to adapt to the adjusted measures is

insufficient.

Response: The changing conditions of fish stocks warrant that

frameworking occur at least annually, while considering factors such as

the most recent landings data as it compares with the previous year's

target total allowable catches. The timeline established for the

framework adjustment process was decided on after consideration of

comments and public input during public hearings on the Amendment.

Similarly, the adjustments that may be proposed as a result of the

framework process will undergo a public participation period, during

which sufficiency of notice prior to the fishing year can be factored

in as the Council deliberates on the adjustments. The alternatives to

this timeframe are to reduce the time period for public input or, to

begin the adjustment process earlier in the year. This latter

alternative is not desirable because important data and information

about the fishery that should be considered will most likely be

unavailable earlier in the year.

In addition, while a final rule may be published 1 month prior to

its effective date, this process begins 6 months in advance of the next

fishing year to allow the public several opportunities to participate

in development of measures, to become aware of changes that would

result from implementation, and to prepare for implementation in its

final form.

Comment 4: An environmental organization stated that the process

for annual review and adjustment of management measures described in

Sec. 651.40(a) of the proposed rule is too open-ended and likely to

result in a stalemate between the Council and the Regional Director.

Under Sec. 651.40(a)(6), if the Council fails to submit a

recommendation to the Regional Director that meets the FMP goals and

objectives, and the Council also rejects all other options developed by

the Multispecies Monitoring Committee, then the Regional Director must

resort to emergency regulations and/or a Secretarial amendment.

The commenter recommended that Sec. 651.40(a) be disapproved (in

whole or in part) until it includes default annual adjustments that

reflect how the actual catch compares to the target TACs or target

catch rates. It opines that the catch of at least cod and yellowtail

flounder in the 1996 fishing year is likely to far exceed the target

TACs, so that DAS reductions initially assigned for the 1997 fishing

year would be grossly inadequate to reduce fishing mortality to

F0.1. The commenter included suggested language for a default

annual adjustment specification, which it feels is needed because the

Council has a history of being unable to make decisions quickly for

conservation purposes that are unpopular with commercial fishermen.

Response: If the resource continues to decline in the short-term,

NMFS expects the Council to be confronted with difficult decisions

regarding adjustments to measures, just as it was confronted by

difficult options for this Amendment. The framework provision of the

FMP was approved because NMFS believes the Council will submit an

appropriate recommendation even if those of the Monitoring Committee

are rejected. The default mechanism, in terms of overall resource

protection, is to keep present restrictions in place. To disapprove

this measure would leave no adjustment mechanism in place.

4. Comments on the Need for Amendment 7 and the Scientific Basis for

the FMP

Comment 5: A commenter stated that the proposed rule identifies

only a GB and SNE yellowtail flounder stock in Table 1 of its

specification of 1996 TACs. He points out that NMFS, in its ``Status of

Fishery Resources off the Northeastern U.S. Technical Memorandum-NMFS-

NE-108,'' continues to identify and characterize a Cape Cod and mid-

Atlantic stock as well. His concern is that this omission may lead to

inappropriate catches based solely on the status of the GB and SNE

stocks. He recommends that NMFS issue a separate TAC for at least the

Cape Cod stock of yellowtail flounder for 1996 and that the Northeast

Multispecies Monitoring Committee consider continuing this practice in

subsequent TAC specifications.

Response: Tagging studies and geographical patterns of landings and

survey data indicate discrete yellowtail stocks in GB, SNE, Cape Cod

and the Mid-Atlantic. However, the Middle Atlantic and Cape Cod

yellowtail stocks have historically been very small relative to the SNE

and GB stocks, respectively. While NMFS recognizes that this may no

longer be the case, the TACs specified are conservative. The quality of

available assessment data for the Mid-Atlantic and Cape Cod stocks is

insufficient to permit a quantitative estimate of stock abundance,

exploitation rates or TACs. The status of all of these stocks is

essentially the same, in that they are all overexploited. Therefore, it

is appropriate to include yellowtail flounder from Cape Cod with the

Georges Bank TAC for that species and yellowtail flounder from the Mid-

Atlantic with the Southern New England TAC for that species for

management purposes. The Council will have the option of including

these stocks within existing TACs or to specify a separate TAC for the

Cape Cod stock, if necessary. At present there seems to be little

incentive for directed fishing on these stocks because of their low

abundance.

Comment 6: An organization stated that Amendment 7 is unnecessary

at this time, and, in fact, Amendment 5 is

[[Page 27714]]

working and needs more time to reach the goals of the Council and NMFS.

Response: Amendment 5 was designed to correct the overfished

condition on the Multispecies Fishery by a 50 percent reduction of

fishing mortality over a 5 to 7-year period. However, by the time this

amendment took effect (in 1994), spawning stock biomass levels for GB

cod, haddock and yellowtail were at or near historic lows and

reductions in fishing mortality of more than 50 percent were needed

immediately to arrest further declines of GB cod and yellowtail

(advisory presented at the August 1994 Stock Assessment Review

Committee (SARC) plenary). By 1993, landings for GB cod, haddock and

yellowtail had declined to 30 percent of MSY; 1994 landings were

projected to decline to 23 percent of MSY; and further declines were

projected for 1995. As reported at the Plenary, GB haddock and

yellowtail stocks have collapsed--and it remains clear that to avert

stock collapse for GB cod, and to begin the rebuilding process, greater

reductions in fishing mortality over a shorter period of time are

necessary than provided for in Amendment 5.

Comment 7: Senator Olympia J. Snowe (ME) and Senator William S.

Cohen (ME) requested that the Secretary establish an independent panel

to review the science that is the basis of this plan. They further

suggested that such a review should be conducted during the first year

of the plan's implementation, and its results used as adjustments for

the second year of the plan are formulated. Additionally, they

requested that the peer review include a reassessment of the science

that supports the FMP and specifically, they would require that

scientific research must address the effectiveness of different

management tools including seasonal area closures and gear

modifications like mesh size.

Response: An intensive peer-review process already exists, through

the Stock Assessment Workshop (SAW). Assessments are prepared by

subcommittees including scientists from state and Federal agencies and

academic institutions, reviewed by the Stock Assessment Review

Committee (SARC), and presented to managers at SAW Plenary sessions.

Industry or other interested parties are welcome to participate. The

SARC, and the Multispecies Monitoring Committee (MMC), created under

the terms of Amendment 7, will be available for periodic reviews of the

science including evaluations of the relative effectiveness of

different management tools. The Council can instigate such a review

through its Science and Statistical Committee.

Comment 8: An environmental organization stated that the measures

specified in the proposed rule cannot result in the 80-percent

reduction in fishing mortality rate (F) that is needed to reach the

Amendment's target of F0.1, because the DAS reduction specified in

Sec. 651.22(b) for the 1997 fishing year is only 50 percent from the

initial baseline. The F reduction that will result from a 50-percent

reduction in DAS is certain to be less than 50 percent because of

compensatory increases in other aspects of fishermen's efforts. It

added that no analyses were presented to the Council during development

of Amendment 7 that suggested that other existing or proposed

management measures for groundfish (including the closed areas) would

accomplish the remaining required reduction in F.

Response: NMFS understands that the DAS reduction target is 50

percent at the end of a 2-year timeframe. Analyses of the effects of

the closed areas implemented by this rule were presented to the Council

which projected that an additional 30 percent reduction in F would be

realized through modifications which have been made to time/area

closures and inclusion of additional vessel classes under DAS limits.

Also, the Council will adjust the target TAC (upward or downward) as

stock size changes are observed and will adjust the management measures

as needed to keep catches below the target.

Comment 9: An environmental organization stated that improvements

in spawning stock biomass (SSB) expected under the assumptions built

into the proposed rule should be clearly predicted, and used as a

secondary yardstick for the performance of the overall program. Any

time actual estimated SSBs fall significantly below predicted SSBs,

reanalysis of SSB and population projections should occur, and

emergency measures should be adopted to restore progress toward

threshold SSBs. For this purpose of establishing a trigger for

reanalysis and emergency measures, ``fall significantly below'' should

be defined precisely in advance as a percentage shortfall as low as

possible approaching 10 percent, but above the statistical margin of

error.

Response: Such questions would fall within the purview of the SARC

and the MMC. NMFS expects that the relative effectiveness of different

measures will be examined routinely as part of the monitoring process

for Amendment 7.

Comment 10: An environmental organization stated that tests should

be designed to measure the efficacy of each important management

measure, such that its contribution to the overall mortality reduction

program can be determined, and that such additional mortality reduction

measures can be implemented with greater certainty when target TACs are

exceeded. Examples include the seasonal closure of certain areas, which

will likely reduce seasonal mortality, but which may or may not reduce

annual fishing mortality, and which may or may not enhance spawning

success and recruitment to the overall population.

Response: Again, such questions would fall within the purview of

the SARC and the MMC.

Comment 11: An environmental organization stated that GOM cod

stocks remain overexploited and are inadequately addressed in the

proposed rule. It added that the proposed rule establishes a biological

reference point for GOM cod with fishing mortality equal to F(max)--

potentially too high for this stock, especially in light of the

uncertainty in the relationship between fishery management practices

and actual fishing mortality--and a target TAC that is very high.

Response: Fishing at Fmax (0.27) for GOM cod would represent a 70-

percent reduction in fishing mortality from 1993 levels, and is in fact

below the overfishing definition level (F20%=0.35) for this stock. NMFS

believes, based on the best scientific information, that specification

of a TAC corresponding to the Fmax level for this stock is appropriate

as a first step in the rebuilding process. Effects and implications

would be subject to review by the MMC.

5. Comments on the Area Closures and Time Periods

Comment 12: The Maine DMR stated that the GOM closures should be

replaced with targeted closures of specified areas based on spawning,

pre-spawning and juvenile fish habitats. DMR added that the proposed

GOM closures are unfocused and a relatively ineffective conservation

tool that will have serious impacts on its industry.

Senator Olympia J. Snowe (ME) and Senator William S. Cohen (ME)

urged that any additional closures be carefully targeted to protect

specific areas with value as spawning, pre-spawning, and juvenile fish

habitats.

A commenter stated that the November and December (Mid-coast)

closure may have validity for gillnets as pertains to harbor porpoises,

but that draggers have zero interaction with harbor porpoises.

A commenter stated that the November and December closure time

[[Page 27715]]

period would cause New Hampshire day boats (trawlers) to tie to the

dock during this 2-month period.

Another commenter stated that the Mid-coast closure area is subject

to an additional 30-day timeframe as compared to the other two closure

areas. The Mid-coast small vessel fleet thus bears an additional burden

when compared to other areas with 30-day closures.

Response: The GOM closures were adopted as a default mechanism to

meet Amendment 7 goals while other possible closed areas were

investigated. Because the purpose of the GOM closed areas is to reduce

fishing mortality by the shortfall created when DAS reductions alone

were insufficient (and not solely to protect harbor porpoises), the

impacts on the industry are acknowledged and incorporated into the

analysis of impacts of Amendment 7. The GOM closures, which were

previously in place to protect harbor porpoises, now serve a dual

purpose until alternative areas are identified. A Council subcommittee

has been assigned to examine alternative areas having equivalent or

greater value in reducing fishing effort and will consider changing the

area closures through the framework adjustment process.

Amendment 7 does not require vessels to tie to the dock during the

closure periods, but many smaller vessels are not able to fish safely

offshore, beyond the GOM area closures. Again, the purpose of the

closed areas is to reduce fishing effort by the shortfall created when

DAS alone were insufficient.

An alternative to the closed areas was to reduce DAS further, but

that alternative was rejected by the Council based, in part, on public

and industry comment which indicated a preference for flexibility.

During the GOM closures, small vessel owners have the option of

tying to the dock, seek alternative ports or alternative fisheries. In

regard to the 2-month time period, although this closure is for a

longer period of time, it occurs at a time of the year when weather is

a factor and fishing activity is limited. Thus, to achieve equivalent

conservation benefit, a longer period of time is necessary as compared

to a closure occurring in the spring, summer or early fall months.

Comment 13: A commenter stated that the larger vessels, which

account for the most groundfish harvesting capacity and production,

have the capability to merely exit the area closures and fish outside

the boundaries thus not contributing to any effort reduction or fishing

mortality reduction. The commenter further stated that the inshore and

small boat sector thus bears the most burden of the closures and added

that most of these vessels must now enroll in the DAS program due to

elimination of the 45-ft (13.7-m) exemption. The commenter summarized

that this is unfair and inequitable amongst users and participants and

creates an unfair allocation circumstance.

Response: Amendment 7 implements a broad set of measures affecting

all sectors of the industry necessitated by severe overfishing on cod,

haddock and yellowtail flounder. Larger vessels, unlike small inshore

vessels, contribute to the effort reduction goals because they are

subject to additional closed areas offshore where concentrations of

multispecies are traditionally found. Unlike the inshore areas, which

are closed for limited periods, these offshore areas are closed

permanently. Amendment 7 eliminates some of the exemptions from the DAS

program that were established by Amendment 5 to ensure that all vessels

contribute toward the rebuilding goals. Amendment 5 tried to alleviate

some of the burden on small vessels, but it is no longer possible to do

this without sacrificing the more rigorous conservation objectives of

Amendment 7.

Comment 14: A commenter noted that Amendment 7 does not exempt mid-

water trawls from the closed areas, but authorizes their exemption at

some future time based on the analysis of observer data. The commentor

added that in a report given by the Regional Director to the Council,

the Regional Director stated that preliminary data showed zero bycatch

of groundfish in mid-water trawls. If the final analysis bears this

out, the commenter requested that mid-water trawls be exempt from the

closed areas. The commentor added that such an exemption would not only

address the high cost of rerigging but would also address the

possibility of being precluded from large areas of potential herring

catch grounds. The commentor indicated a willingness to alleviate any

enforcement concerns by placing Vessel Monitoring Systems (VMSs) on all

of its catcher vessels.

The Maine DMR strongly urged NMFS not to exempt mid-water trawl

gear from Amendment 7 without first determining that this gear cannot

be fished to take significant quantities of groundfish. It added that

it had enough anecdotal evidence to suggest that skilled skippers with

sophisticated net-monitoring technology can fish these nets very close

to the bottom. It reiterated that its concern is not that mid-water

trawls can be fished very cleanly but that they may have the potential

to direct on regulated species.

Response: Amendment 7 does not specifically exempt mid-water trawl

gear from the GOM area closures, but allows this gear to be exempted in

the future. Even if mid-water trawlers were allowed in the closed

areas, they would not be allowed to possess any regulated species,

therefore they would have no incentive to direct on regulated species.

6. Comments on Minimum Mesh and Fish Sizes

Comment 15: A commenter stated that minimum fish sizes are

responsible for the collapse of the New England stocks of cod, haddock

and other species of groundfish. He added that prior to minimum size

regulations, quotas and trip limits worked quite well and all that was

needed to maintain the stocks was 5\1/2\-inch (13.97-cm) square mesh

and no minimum sizes.

Response: Many members of the industry and the public favor minimum

sizes because allowing fish to grow to a particular size prior to

harvest can increase yields and enhance spawning. The need for fishing

mortality reductions is paramount, however, and minimum size limits do

not necessarily translate into such reductions. Possession limits and

quotas were considered during the development of Amendment 7 and were

put forth in the public hearing document under Alternative 4. Public

response during the hearing phase was opposed to the use of quotas and

trip limits.

Comment 16: The Maine DMR stated that Amendment 7 does not address

increased mesh and fish sizes, and suggests that these options should

be integrated more fully into the plan, including new conservation

engineering. It said that NMFS' concern about the lack of selectivity

studies for mesh larger than regulation size (6 inches or 15.24 cm) may

be somewhat allayed by Canadian studies showing an approximately linear

relationship between mesh and fish sizes. It added that it is

reasonable to assume that this relationship holds for the slightly

larger meshes at issue here (7-inch (17.8-cm) gillnets and 8-inch

(20.3-cm) codends).

Another commenter stated that if 7-inch (17.8-cm) square mesh were

used exclusively for regulated species, there would be no need for

diamond mesh and possibly no need for a minimum fish size, resulting in

no discards.

A third commenter stated his concern that the provision pertaining

to adjustments of minimum fish size, originally contained in Amendment

5, has never been adopted despite ``reports of high flatfish discard

rates in

[[Page 27716]]

management areas where use of square mesh is mandatory.''

Response: Increased mesh sizes and increased fish sizes were

addressed and discussed as an option in the draft public hearing

document but were not adopted by the Council. Amendment 7 continues the

established minimum fish sizes, except for some increased fish sizes

for recreational and charter/party vessels not fishing under a DAS.

Increased mesh and fish sizes can be accomplished under this plan

through framework action. The use of mesh size as the sole measure to

control fishing mortality is problematic for a variety of reasons. One

reason is the wasteful and unlawful practice of using small mesh liners

or other devices to circumvent conservation regulations. Another is the

likelihood that a net will become clogged during long tows, rendering

the mesh increase ineffective. Nevertheless, 7-inch (17.8-cm) mesh

would contribute toward conservation and Amendment 7 includes

incentives to use larger mesh.

Use of square mesh is required in juvenile protection areas where

concentrations of small cod and haddock are usually found. Square mesh

is designed to allow round-shaped fish to escape but it is not as

effective an escapement mechanism for flatfish. Several research

experiments on gear conservation methods (some financed by the

Saltonstall-Kennedy Grant program administered by NMFS) are underway to

devise a net configuration that will enhance escapement of both

juvenile flat and roundfish. Meanwhile, the Council has the option of

increasing minimum fish and mesh sizes through framework actions, and

may elect to do so in the future.

7. Comments on the TACs

Comment 17: An association stated that TACs should differentiate

between hook fisheries and other commercial fisheries, and that one TAC

should be established for the longline and jig fishery and another TAC

should be established for the other commercial groundfish fisheries.

Response: The public hearing document did consider allocating DAS

by gear group. Note that DAS can be considered an extension of quotas,

by gear. This alternative was rejected by the Council; however, it may

be reconsidered at a later time.

Comment 18: Senator Bob Smith (NH) stated that TAC levels have been

set unrealistically low. He and other commenters argued that such low

levels provide larger vessels with the opportunity to consume the TAC

prior to the small-vessel fleet having an opportunity to use their DAS.

Senators Olympia J. Snowe (ME) and William S. Cohen (ME) stated

their concern about equity for smaller vessels and added their concern

that Amendment 7 goes too far, too fast.

An association stated that the only way a target TAC could

alleviate a ``derby-style'' fishery and give the same opportunity to

all size class vessels throughout the year would be to allow fishing to

continue after the target is reached. The association asked how this

achieves conservation?

A commenter stated that the proposal of allowing extra days for

using larger mesh while the majority uses regulated mesh makes no sense

when a TAC is in place. He added that the vessels selecting this large

mesh alternative in all likelihood will never get to use extra days

assigned them.

Another commenter stated that large vessels would have access to

three different TACS under Amendment 7 while most of the New Hampshire

small-vessel fleet would have access to only the GOM TAC.

Response: TAC levels were established based on the Council's

Amendment 7 objective to reduce fishing mortality to F0.1, which

translated to the established TACs. Additionally, Amendment 7

establishes a target TAC system rather than one with absolute TACs.

Should a target TAC be exceeded, the Council will respond by adjusting

the management measures in the following fishing year to keep catches

below the target. Fishers should understand that should the TACs be

reached during the fishing year, the fishery will not necessarily

close, but rather, adjustments to the measures will be made for the

following fishing year taking into account the impact of the

adjustments on different sectors of the industry. ``Target'' TACs

rather than an absolute TAC were adopted in part to provide equity and

fairness to the different types of participants in the fishery. It

allows the Council to take into account impacts of adjustment measures

on different sectors of the industry. The Council will adjust the

target TAC (upward or downward) as stock size changes are observed and

will adjust the management measures as needed to keep catches below the

target. This should alleviate a ``derby-style'' fishery and give the

same opportunity to all size class vessels throughout the year. Also,

the small-vessel fleet is not restricted by Amendment 7 to fishing in

any one area but may move vessels to areas where different TACs apply.

Comment 19: An environmental organization stated that the F

0.1 target and resulting 1996 TAC for GB haddock are too high for

the rebuilding needs of the stock and should be reduced. It said that

at this fishing rate, the probability of GB haddock reaching the

spawning stock threshold within 10 years is calculated to be only 22

percent. It added that the 1,000-lb (454-kg) trip limit for haddock,

contained in Sec. 651.27(a) of the proposed rule, is more restrictive

because it is not expected to result in landings as high as the

specified TAC for this stock. Thus, a discrepancy exists between the

1996 TAC for this stock and the management measures, as well as between

the 1996 TAC and the rebuilding goal. It urged NMFS to correct this

discrepancy by determining a fishing mortality rate for GB haddock that

is likely to achieve the spawning stock threshold within ten years, and

then to respecify the 1996 TAC for this stock. It further stated that

if this is not done, the 1996 TAC will be used to argue for less

restrictive management measures that will not achieve the rebuilding

goal of Amendment 7 for this stock. It opined that future TACs will be

set too high if the F target for this stock is not reduced.

Another environmental organization opposed the increase in trip

limits for haddock from 500 lb (226.8 kg) to 1,000 lb (453.6 kg). It

added that the GB haddock fishing mortality target and target TAC are

set significantly too high and that a specific (and lower) fishing

mortality target and target TAC should be set for GOM haddock. It

reasoned that a higher trip limit simply increases the incentive to

continue fishing when and where haddock bycatch occurs and at some

level creates an incentive to fish specifically to target haddock to

catch the trip limit.

The organizations made these specific points:

(a) The F0.1 fishing mortality target and the resulting 2,800

mt 1996 target TAC for GB haddock are unacceptably high. Moreover,

these targets result in only a 22 percent probability of rebuilding to

the 20-percent SSB level within 10 years (NEFMC, 1995, Draft Proposals

for Amendment 7 to the Northeast Multispecies Plan, p.12). The answer

to the Council's perceived ``problem'' that the haddock trip limit may

be too low to allow the fleet to catch the entire GB haddock target TAC

is to reduce the GB haddock fishing mortality target and target TAC to

much lower levels that would allow at least a 50 percent probability of

rebuilding of this stock to the 20 percent SSB levels within a minimum

of ten years.

(b) Given the extremely poor condition of the GOM haddock stock, a

specific and very low fishing mortality target and initial target TAC

should be

[[Page 27717]]

set for this stock that allows a similar rebuilding timetable and

probability. The 21st SAW Advisory Report on Stock Status concluded

that GOM haddock biomass declined to nearly undetectable levels over

the last two or three decades (p.28). Under this circumstance, it is

inappropriate to manage GOM haddock with other regulated groundfish

under an aggregate fishing mortality target of F0.1 and a single

aggregate target TAC of 25,500 mt in 1996.

Response: These issues were addressed at the April, 1996 meeting of

the New England Fishery Management Council by both the Council and the

Regional Director. The 1996 TAC for this stock is a maximum, not a

quota to be achieved, and NMFS feels that coupled with other haddock

conservation measures, the haddock trip limit and TAC are not

inconsistent. Under the annual frameworking provision, NMFS and the

Council will reconsider whether various measures related to the haddock

fishery are sufficient to meet the objectives of Amendment 7.

NMFS is advocating very conservative management strategies for this

stock to promote prospects for stock rebuilding, i.e., to restore SSB

to certain levels. The haddock trip limit was established as a

disincentive to target this species on a trip or tow. NMFS believes

that an increase from 500 lb (226.8 kg) to 1,000 lb (453.6 kg) is not

effectively an increase, considering that the former measurement by

totes has been eliminated. That volumetric measure, in practice,

allowed vessels to land more than the 500-lb haddock trip limit because

volumetric equivalent measures proved to be too generous. Any

additional increase beyond 1,000 lb (453.6 kg) in the haddock trip

limit would have to be accompanied by compensatory measures. A trip

limit will remain in place unless and until alternative restrictions

that achieve the same result are developed and implemented.

Comment 20: An environmental organization stated that the aggregate

TAC for the remaining regulated species (other than cod, haddock, and

yellowtail flounder) as specified in the proposed rule is set too high

to prevent overfishing of at least some of the other regulated species.

It said that the aggregate TAC was set ``at levels corresponding to

recent fishing mortality rates to ensure that effort is not redirected

to these stocks.'' It argued that the report of the 21st SAW indicates

that pollock, GB winter flounder, and both stocks of windowpane

flounder are currently at or near record low levels of abundance and

biomass, while redfish have continued to fail to rebuild. It said that

this indicates that recent fishing mortality rates have been too high

on at least these four additional species. Therefore, continued fishing

at recent rates will fail to prevent overfishing and to allow

overfished stocks to rebuild. At a minimum, it argued, the aggregate

TAC for the remaining regulated species needs to be recalculated to

consider the conservation needs of these other species.

It further questioned the advisability of including overfished

species in an aggregate TAC.

Response: NMFS has been and remains concerned about the

conservation of each stock for a given species within this species

complex but Amendment 7 addresses the species rebuilding needs of CHY

and deals with the remaining multispecies as a stock complex, in the

aggregate. The national standards require that overfishing definitions

have to be addressed for each species of the multispecies complex, so

that the Council should reconsider the issue annually. It is possible

that additional measures will be required on a species by species

basis, after further analyses later (e.g., analysis of data from one or

two fishing years after implementation of Amendment 7 begins). The MMC

will be charged with the responsibility for addressing this issue and

for making appropriate management recommendations to the Council.

Comment 21: An environmental organization stated that the final

rule should establish in advance the specific improvements in

management programs that would be implemented if target TACs are

exceeded by 10 percent or more.

Response: Any specific improvements in management programs to be

made if target TACs are exceeded would be tailored to the situation

requiring such actions. Because of the combination of factors that

would need to be considered, it would be difficult to establish a fixed

action in advance. Any future action should be subject to comment from

the public at the time it is under consideration.

8. Comments on the DAS Program

Comment 22: An association stated that additional DAS should be

offered as an inducement to vessels converting to hook fishing.

Response: Increases for DAS for individual gear types were

considered in the public hearing document, but rejected by the Council.

The Council and NMFS recognized the possible benefits of hook fishing

by allowing for a permit in the new, hook-only limited-access category.

The commenter's option was not specifically addressed by the Council

but could be considered by the Council as a framework adjustment

measure.

Comment 23: In a joint correspondence two associations stated that

Amendment 7 incentives that offer additional DAS for use of larger mesh

are not equal across gear type. They added that fishing effort

restriction must not favor one gear type over another; otherwise

anticipated conservation benefits could be negated by gear conversion.

Response: The Council recently clarified that the proposed measure

to increase fishing time (DAS) for the Large Mesh Individual DAS option

would apply to all vessels using large mesh, whether they are trawl

vessels or gillnet vessels. This resubmitted measure of Amendment 7,

was described in a notice of proposed rulemaking published in the

Federal Register on April 18, 1996 (61 FR 16892), and is designed to

promote conservation by providing an equitably applied incentive to use

nets constructed of mesh that are larger than the minimum size. NMFS

approved the resubmitted measure on behalf of the Secretary on May 17,

1996.

Comment 24: A commenter stated that Amendment 7 does away with the

``layover provision,'' which would have done some good for the

resource. He added that it was eliminated to placate the large boat

sector. He stated that, without this provision, large boats could

engage in back-to-back trips to the detriment of the resource.

Response: Both the layover day provision and the fleet blocks of

time out of the fishery have been eliminated under the preferred

alternative. Given the 50 percent reduction in DAS allocation, the

possibility of back-to-back trips undermining mortality reduction goals

does not appear to be significant. The layover day provision would not

be effective and would be difficult to enforce under the reduced DAS

allocations implemented by this rule and were removed. In addition,

removal of this provision is intended to encourage some vessels to move

out of groundfishing for significant portions of the year.

Comment 25: A commenter stated that vessels in the Fleet DAS permit

category are at a disadvantage when compared with vessels in the

individual DAS category, because it gives them less access to the

resource and most of them are smaller, more weather dependent boats.

[[Page 27718]]

Response: These categories were established by Amendment 5 after a

lengthy public hearing process and are not changed by this rule. The

principle behind the individual DAS program is to provide those vessels

that primarily direct their operations on multispecies a baseline

allocation of DAS that reflects actual fishing. All other vessels were

allocated a general average of the fleet (Fleet DAS). The Fleet DAS

program was established, in part, as a default type allocation for

vessels that could not prove their actual DAS, vessels that did not

wish to purchase vessel monitoring devices and other vessels that may

not have had sufficient DAS in the groundfish fishery. Vessels that

could demonstrate that they fished more than the fleet average could

apply for an Individual DAS permit. Individual DAS vessels received a

higher allocation of DAS because, historically, they fished for DAS

more than the average of the fleet. In any event, smaller vessels that

traditionally engage in day trips will essentially be allowed twice the

number of allocated DAS because their trips will be allocated on an

hourly basis. That is, a day trip that lasts only 12 hours will only

use up one-half of a DAS.

Comment 26: A commenter stated that the Council acknowledged that

the method used to calculate the DAS for the gillnet sector of the

fleet was wrong. He stated that the Council assumed it would be

corrected by a framework adjustment. He stated that the framework

adjustment process was not intended to be used to correct deficiencies

recognized prior to implementation. He suggested that Amendment 7

should be disapproved on this basis alone.

Response: One of the disapproved measures of the amendment was the

measure that counts gillnet DAS as time when gear is in the water, as

referenced by the commenter. NMFS' Office of Law Enforcement also cited

difficulties in monitoring gear in the water. Moreover, the Council

submitted a comment on the proposed rule stating that it is seeking

alternatives to the gillnet DAS structure through framework action.

Until such time, the DAS counting method will be the same as that for

other DAS categories, i.e., the time spent away from port.

Comment 27: A commenter stated that management's use of DAS as

effort reduction raises questions of equity and fairness. In support of

his statement, he asked the following questions: (1) Does a vessel's

past history of DAS show whether it was away from the dock for 10 or 24

hours? (2) Can a day boat that fished 300 10- or 12-hour days in the

years that are being credited with DAS apply those days to the current

DAS regulations? (3) Can this vessel now take his allotted DAS and

apply them to fishing offshore with 24-hour days? (4) Can a day boat

that historically fished 120 12-hour days now be entitled to 278 days

in year 1 and 176 days in year 2, if he makes all 12-hour trips? (5)

Are these 12-hour day boats benefiting with twice the days as boats

that fish full days? (6) Should a gillnet fleet from Cape Cod be

penalized because the practice of ``soaking'' nets is not acceptable to

the majority of the fishing fleet?

Response: To question (1) Yes, for vessel trips where captains were

interviewed by a port agent, the hours away from the dock are recorded,

however, other records are usually needed to augment NMFS' data because

submission of vessel trip reports was not mandatory and not every trip

could be interviewed; (2) yes, if a vessel can show 300 DAS, it can be

allocated, as a baseline, that many DAS; (3) yes, used DAS are counted

in hourly increments; (4) the vessel would be subject to a 120 DAS

baseline with a 10-percent reduction for 1994 and 1995, an additional

15 percent reduction for 1996 and a final reduction of another 15

percent for 1997; (5) DAS used is computed in hours, therefore, any

vessel using less than 24 hours in a DAS is on record for that portion

of the day used in hours away from the dock; (6) DAS for gillnetters is

based on time away from the dock, which should reflect their actual

fishing time.

Notwithstanding the possibility that vessels that fish only partial

days may be able to fish more ``days'' than their DAS allocation

appears to allow, NMFS has determined that the overall effort reduction

measures are adequate in achieving mortality reduction goals. If it

appears that such measures are not effective they can be adjusted

through framework measures.

9. Comments on the Socio-economic Analysis

Comment 28: In a joint correspondence two associations stated that

the socio-economic statement for Amendment 7 states that class 3 and 4

vessels will not be financially viable in year 2. They further stated

that other fleet sectors will be viable, because the regulations have

been skewed to make it so. They added that the Magnuson Act,

specifically, National Standard 4, clearly states that all user groups

are to be treated equally. They further added that the socio-economic

statement was drawn up several weeks prior to the adoption of major

segments of Amendment 7 and that its accuracy was questioned on

numerous occasions. They stated that the Regional Director had also

indicated publicly his concern about it being a solid appraisal of the

future.

Response: The requirements of the Magnuson Act require that

fisheries regulations do not discriminate against residents of

different states and that any allocation of fishing privileges to

fishers be fair and equitable to all such fishers, that the allocation

be calculated to promote conservation and that no particular entity

acquire an excessive share of such privileges. The Council and NMFS

considered these factors in developing Amendment 7 and concluded that

the measures adopted were the best suited to provide fair and equitable

fishing opportunities to all sectors of the fishery. As to the accuracy

of the socio-economic impact statement (SIA), there were some changes

to specific details of various Amendment 7 regulations after the broad-

scale analyses such as the cost-benefit analysis, the sector analysis,

and the break-even analysis in the SIA were completed. However, the

sector analysis and the break-even analysis in the SIA are not affected

by these changes because the analyses are based on broad effort

reduction goals, (i.e., 50-percent and 80-percent reductions in fishing

effort). The cost-benefit analysis is also based on total levels of

effort reduction (independent of how the reductions are achieved) and

on projected landings. These broad-based analyses did not change in the

final weeks, nor did the general characterizations of the fleet change,

such as are found in the ``Human Environment'' Chapter.

If the comment alludes to specific discussions of particular

measures, such as some of the comments in the SIA, all changes up to

and including those made at the January 25-26, 1996 Council meeting,

which included the vote to send Amendment 7 to the Secretary, were

analyzed. Analyses to minor changes to measures were encompassed in the

broad scale analyses.

Any and all limitations to the data and analyses are discussed in

the FSEIS. However, NMFS stands behind the stated quality of the data

used and academic rigor of the analyses performed. It is true that the

analyses may be insufficient to pinpoint precise impacts, especially

for a given individual vessel. The test of the EIS specifically states

this. The analyses do, however, give an accurate general picture of the

range of likely impacts.

Comment 29: A commenter stated that the only way to rebuild the

stocks is to do away with big fleet boats 60 ft and

[[Page 27719]]

greater in length, which caused the stock damage in the first place.

Sen. Judd Gregg (NH) added his concern that the amendment

inequitably treats the interests of the small-vessel fleet relative to

the large-vessel fleet or corporate trawler fleet operating in the GOM.

He stated that without appropriate modification, Amendment 7 threatens

the economic viability of the New England small-vessel fleet and argued

that it has a relatively small interaction with the groundfish

population. He further stated that the FMP failed to appropriately

focus management measures on the industry segment responsible for

pressuring the resource.

Response: The amendment is intended to be constructive in the long

term, that is, to rebuild the resource by equitably applying reductions

in fishing effort and to allow vessel owners to individually maximize

their abilities within a fair set of constraints. Individually, large

vessels do tend to have greater fishing power and consequently can

exert more fishing pressure on the stocks than do smaller vessels.

Smaller vessels in the 31 to 45 ft (9.5 m to 13.7 m) class

(approximately 46 percent of all limited access permits) can

cumulatively exert a significant amount of fishing effort as well as

individual vessels 60 ft and greater in length. Because of the large

reductions in effort needed to rebuild severely depleted groundfish

stocks, all vessels that are greater than 30 ft (9.1 m) in length, and

all other vessels formerly exempted from the DAS effort reduction

program (Hook-Gear and Gillnet vessels), are brought under the DAS

program. Moreover, given the variability and types of vessels and gear

used in this fishery, it would not be possible to design management

measures with precisely equal impact on all participants. In approving

Amendment 7, NMFS has concluded that the overall conservation benefit

of the measures outweigh the hardship on individual vessels.

Comment 30: In a joint correspondence two associations stated that

the socio-economic analysis of Amendment 7 regulations does not include

any additional monitoring and enforcement costs, yet the document

suggests that these are likely to exceed the projected benefits. The

analysis must factor in the cost of adding all the previously exempted

vessels to the DAS call-in system, the cost of the vessel tracking

system (VTS) to boats and to the Government for the monitoring hardware

and software, and the United States Coast Guard's (USCG) costs for

monitoring and enforcing DAS, closed areas, gear restrictions and trip

limits. They added that the Federal Government has committed $25

million to the Fishing Capacity Reduction Program. This is either a

pure cost, or the cost-benefit must be analyzed. The loss of revenue

from monkfish landings, constrained by management measures to reduce

landings of regulated species, is not included. They further stated

that market loss due to foreign substitutes, and the recent policy

changes in the bid process for military fish supply, are not included

and market rebuilding costs are not estimated.

The associations stated their understanding that these costs, and

others yet to be anticipated, are difficult to predict and quantify but

added that effort must be made to do so, as these costs have the

potential of negating any estimated benefits.

Response: The FSEIS submitted by the Council as part of Amendment 7

contains a discussion of other costs (Appendix X, E.7.2.3.8). The FEIS

document states that many other costs of the nature referred to by the

commenter were not considered because they are only marginally

different from the status quo in Amendment 5 or because the information

is unavailable, as the commenter concedes. For instance, the marginal

cost of adding vessels to the DAS call-in system is expected to be

insignificant because the system is in place and can easily be upgraded

to receive an increased volume of phone calls, if necessary.

Additional costs associated with installation of VTS systems on

individuals vessels were not considered since Amendment 7 does not

change which vessel categories would be required to install a VTS.

Thus, VTS costs to vessels are not affected by Amendment 7 relative to

the staus quo (SQ).

The USCG's estimate of potential costs of Amendment 7 assumes that

much of the enforcement effort would be conducted at-sea. Because of

the comparatively high-cost of at-sea enforcement, NMFS believes that

enforcement efforts will necessarily be land-based. During

implementation of Amendment 7, NMFS encourages increases in sea-based

support to improve the overall effectiveness of programs implemented

under Amendment 5, e.g., DAS compliance, gear restrictions, etc.

However, although such costs may occur during Amendment 7, they

actually represent programmatic improvements that could also be

expected to be made in the out years of the status quo amendment.

Appropriate analyses of the $25 million Fishing Capacity Reduction

Program will be conducted once it has been approved.

Losses from landings of associated species as a result of

conservation actions directed at the regulated groundfish species are

acknowledged in the plan. The benefits derived from foregoing monkfish

landings in order to conserve groundfish stocks are deemed positive.

There is no way to distinguish whether trips in which monkfish is

landed along with regulated groundfish constitute a monkfish trip or a

groundfish trip with monkfish bycatch. Fisheries where it is shown that

bycatch (in weight) of regulated species is less than 5 percent are

permitted to operate under Amendment 7. This is not the case for any

monkfish fishery. A Monkfish plan or amendment is under development,

and it is generally acknowledged that monkfish stocks are

overexploited.

Losses in market as a result of reduced landings under Amendment 7

are recognized. NMFS undertook a study of the impacts of landings

reductions under Amendment 5 on intermediate markets (Georgianna,

Dirlam and Townsend), results of which were commented on in the FSEIS.

The costs of the steeper reduction in landings as a result of the more

rapid effort reduction will be higher still. The Council took the

qualitative step to modify the reduction schedule from 1 to 2 years

with exactly these impacts in mind. This will provide time for

diversification into other marine products that would result from

shifted effort. Similarly, the Council chose among the alternatives it

considered, the effort reduction process (DAS reduction) least

disruptive to shore-side activities. Again, the reduction schedules

discussed are relevant to groundfish only.

Changes in procurement contracting is nationwide and encourages

competition within the United States among fish producers. The

intention is to achieve greater value for dollar of procurement. Our

analyses suggests that prices to groundfish landings will not be

significantly impacted by the removal of a price floor in the early

years of the plan. In later years, as occasions of congested landings

occur, the removal of this support might lower that day's prices

somewhat from what they might have been. However, this procedural

change would have been in effect under either Amendment 7 or its

default, Amendment 5 as modified.

Comment 31: In a joint correspondence, two associations stated that

the DAS reduction objectives are based on the hypothesis that a 50-

percent reduction in DAS will achieve

[[Page 27720]]

a 50-percent reduction in fishing mortality. They argued that a 50-

percent reduction in DAS is more likely to achieve a much higher

reduction in mortality as large number of vessels exit the fishery

because of insufficient DAS to remain economically viable.

Response: That economic viability will be a problem for the average

trawler as the DAS are reduced was acknowledged in the plan and

particularly in the break-even analysis, which analysis dealt with

groundfish days only. Lack of data on individual vessel costs and

effort precluded prediction of the number that would find conditions

intolerable. To compensate, a yearly adjustment mechanism was

established to attempt to reconcile the DAS reductions with the desired

fishing mortality trajectory. Where vessels exit the fishery and do not

exercise their DAS allocation, the effect may result in an easing of

the reduction schedule for the remaining vessels. This would not occur

without a lag of about 1 year. Much of this uneven distribution of

impacts might be alleviated by programs which permit transfers of DAS,

e.g., through consolidation. These were not included in Amendment 7 but

may be considered in the future.

Comment 32: A commenter, on behalf of nine offshore lobster

vessels, stated that Amendment 7 should not be implemented until the

impacts of redirection of trawler effort on the depletion of the

lobster resource and on gear conflicts are adequately addressed. He

stated that section E.7.1.1.2, Impact on other fisheries, on p. 204 of

the FSEIS is totally inadequate and ignores substantial Council comment

and deliberation on the issue of impact on other fisheries, and also

ignores the experienced re-directed effort that is evident from

Amendment 5 and from similar restrictions on fishing days in the sea

scallop FMP.

The commentor also stated that it is completely disingenuous for

the EIS to say that ``there is no practical way to predict where the

effort from groundfishing will go and what the impact of the proposed

action on other fisheries will be.'' He argued that NMFS has a great

deal of data on the trends in fishing effort, the productivity of

various fisheries, and the impacts evident from the trends in shifting

fishing effort. He cites as sources NMFS information on the value of

fishing gear lost to conflicts with trawlers over the past few years,

the analysis of the shift in effort to the monkfish fishery, the

Fishing Industry Grant program and USCG data.

An attorney representing a group of offshore lobstermen mirrored

the above concerns and added that the Council stated, in support of the

emergency action for gear conflict in southern New England, that the

gear conflicts were related to additional regulations on the groundfish

industry which forced vessels to fish in areas for nontraditional

species. Another commentor finds it inconsistent that the Council can

make this statement in support of an emergency action request and then,

in support of Amendment 7, state that the impact cannot be quantified.

Response: As stated in the analysis of impacts on other fisheries,

the degree to which trawlers may redirect fishing effort onto the

lobster resource cannot be estimated at this time. NMFS believes that

such redirection would be mitigated by the exemption program in the GB/

GOM area, which requires all fisheries outside of the DAS program to

meet the 5-percent bycatch limitation for regulated species.

Comment 33: A commenter stated that a NOAA study of critical socio-

cultural issues is presently underway for the New England fishing

industry. The commenter added that the final report from this study of

the Northeast fishery is due by June 15, 1996, and that such analysis

of the fishery is required by the Magnuson Act and no plan amendment

should be implemented prior to this report.

Response: The report mentioned by the commenter contains baseline

information about the fishing industry that could be used for future

framework actions or FMP amendments. It was not ready in time for the

Council to consider for Amendment 7. Amendment 7 included analyses

based on the best information available to date.

Comment 34: An association stated that under E.O. 12866 the Agency

must submit to the Office of Information and Regulatory Affairs (OIRA),

with respect to any significant action, the text of proposed regulatory

action, an assessment of the costs and benefits of the action, an

assessment of alternatives, and an analysis as to the reasons for

selecting the preferred alternative (PA). It added that the Agency must

provide the public the information provided to OIRA, and the changes

between the draft submitted to OIRA and the subsequent action. It

stated that it is not clear what documents were submitted to OIRA and

what analysis was reviewed.

Response: NMFS complied with the requirements of E.O. 12866. All

public hearing documents, as well as the scientific, economic, and

social impact analyses, and comments to public comments on the DSEIS,

were provided to OIRA along with a copy of the proposed rule and its

preamble. No changes were made to the proposed rule at the suggestion

or recommendation of OIRA.

Comment 35: An association stated that NMFS failed to consider a

wide range of costs associated with the PA.

Response: The economic analysis considered all relevant currently

available data. The availability of information on the full range of

economic activities associated with commercial fishing is quite

limited. Economic data on many shoreside activities such as offloading,

processing, and sales of inputs to commercial fishing vessels is simply

not available. Given this lack of data many of the referenced economic

factors could not be incorporated into the economic analysis. However,

had these factors been included, it is not a foregone conclusion that

they would be economic costs. The benefit-cost analysis must consider

benefits to the Nation as a whole. This has two ramifications. First,

losses in one region may be offset by gains in others, leaving National

income unchanged. This might be the case if vessels and/or crew were to

leave the Northeast and move to other regions. Second, in over-

capitalized fisheries, reductions in resources that are devoted to

fishing may be viewed as a net gain from a National perspective. Given

the lack of adequate economic data, it was not possible to determine

the extent to which economic dislocations such as crew share losses,

impacts on suppliers and processors, or the impacts of bankruptcies

might be considered transfer payments, national economic gains, or net

losses in National income.

Comment 36: An association stated that all the biological and

economic estimates for analyses contained in Amendment 7 occurred

outside the public's view. It said that it is impossible for experts to

replicate any of the sets of projections set forth in the supporting

analysis.

Response: All of the recruitment simulator results that included

landings streams were described at several Plan Development Team

meetings at the Council offices and subsequently at Council Groundfish

Oversight Committee meetings. Both types of meetings are attended by

the public. In addition, the public hearing document and an extensive

draft EIS document were made available to the public months ahead of

the Council vote to adopt Amendment 7. An explicit description of the

economic information used in the final EIS was contained in the latter.

[[Page 27721]]

Comment 37: An organization stated that the IRFA of the impacts of

Amendment 7 should contain a description of any significant

alternatives to the proposed rule that accomplish the stated objective

and that minimizes any significant economic impacts of the proposed

rule on small business. The organization further stated that the final

regulatory flexibility analysis (FRFA) should provide a summary of

issues raised by the public in response to the initial analysis, along

with a description of each significant alternative to the rule

consistent with the objective of minimizing economic impact, and a

statement of why any alternative was rejected.

An association stated that under the Regulatory Flexibility Act

(RFA), an agency must assess the impact of new regulations on small

business. It said that the NMFS has failed to comply with its

obligations. It argued that the Small Business Administration (SBA) had

been largely omitted from the process. The intent of the statute is to

limit regulatory actions having a significant impact on small business.

It argued that this particular preferred alternative (PA) is

specifically designed in such a way that trawl vessels will not be

allocated sufficient DAS to break even during year 2. This extremely

harsh anticipated result flies in the face of the statutory intent of

the RFA.

Response: Amendment 7 contains an IRFA that incorporates supporting

analyses and portions of the amendment that provide the public with

information on the effects on small entities of the PA and any other

alternatives considered by the Council, including those that minimize

the impacts on small entities. The classification section of the

proposed rule for Amendment 7 also contains a statement regarding the

probable effects of the PA on small entities and an initial

determination under the RFA.

NMFS transmitted a copy of the Amendment 7 and its initial

determination that the amendment would have a significant economic

impact on a substantial number of small entities to the SBA shortly

after NMFS' receipt of the amendment, following standard procedure for

all new FMPs and FMP amendments under Secretarial review.

The preamble to this final rule contains a summary of the comments

received by NMFS in response to the notices of proposed rulemaking,

including comments on the IRFA, NMFS' responses to those comments, and

any changes made to the rule as a result of those comments. The IFRA as

submitted by the Council, together with the summary of the comments

received and NMFS' responses thereto, in this preamble, constitutes the

FRFA. Alternative actions were not taken in response to comments on the

IRFA. NMFS believes that the responses in this preamble to the public

comments adequately explain why NMFS did not adopt alternatives having

less of a significant economic impact on small entities compared to

those measures in Amendment 7 that NMFS approved.

NMFS disagrees that the final rule violates the intent of the RFA.

The intent of the RFA is not to limit regulations having adverse

economic impacts on small entities, rather the intent is to have the

agency focus special attention on the impacts its proposed actions

would have on small entities, to disclose to the public which

alternatives it considered to lessen adverse impacts, to require the

agency to consider public comments on impacts and alternatives, and to

require the agency to state its reasons for not adopting an alternative

having less of an adverse impact on small entities.

The Council and Center performed ``break-even'' analyses, apart

from the benefit-cost analysis, specifically to assess the financial

viability of small business fishing vessels. Where a quantitative

assessment was not possible, qualitative comments noting sectoral

impacts were offered.

The differential impact of Amendment 7 on trawlers was noted. The

cost-benefit analysis is designed to analyze net national benefits of

the action affecting many gears and component fisheries. A single

sector analysis is inappropriate. NMFS agrees that trawlers will be

more heavily impacted than hook vessels and possibly gillnetters

(though this latter is unclear since final gillnet framework measures

have not been established).

Without better cost-earnings, labor response and alternative

employment options data, NMFS is limited in the precision of vessel and

fleet level economic/financial impact assessments it can make for such

gear-based allocations. Further, additional data on family structure

and community social structure would be required for a stronger, more

comprehensive social impact assessment of such measures.

Comment 38: An association stated that the NMFS is required, under

E.O. 12866, to seek the involvement of those who are intended to

benefit and those who are intended to be burdened by any regulation. It

added that the Agency must also use consensual mechanisms for

developing regulations, including negotiated rulemaking.

Response: The Council process by its nature involves

representatives of groups that benefit and are burdened by the

management process, either directly as members of the Council, or

indirectly as persons with access to the public process at the Council,

oversight committee and plan team meeting level. Negotiated Rulemaking

is not required.

Comment 39: An association stated that the RIR understates the

impact on the trawl vessels and fails to highlight the speculative

nature of the benefits of the preferred alternative (PA) in years 9 and

10.

Response: NMFS disagrees. The RIR adequately covers economic

impacts. Estimates of economic benefits in years 9 and 10 are seldom as

precise in this kind of analysis as are the estimated benefits and

costs in earlier years.

Comment 40: An association stated that the PA (Amendment 7) will

result in the insolvency of an entire sector of the fishing industry in

the Northeast. It commented that the Agency has selected the

alternative that causes that result even though the benefits of that

plan over the status quo (SQ) (Amendment 5) are questionable and even

though the SQ would achieve the same results with respect to stock

replenishment over a slightly longer period of time while preserving

all segments of the fleet.

Response: The statement does not accurately portray the key

difference in objectives for Amendment 5 and Amendment 7. The stock

rebuilding objective for Amendment 5 is to reduce fishing mortality on

CHY to halt the decline in spawning stock biomass. Rebuilding of

spawning potential under Amendment 5 is limited to levels that would

reduce the risk of recruitment failure, but would still leave the

fishery in an overfished state. By contrast, the objective of Amendment

7 is to rebuild SSB to levels that would exceed minimum threshold

levels for the three key species. The differences between the stock

replenishment scenarios of Amendments 5 and 7 are clearly illustrated

on pages 195-199 of Amendment 7. In every instance, Amendment 7 results

in substantially greater levels of SSB as compared to Amendment 5.

Thus, the contention that Amendments 5 and 7 result in the same level

of stock replenishment cannot be supported.

Comment 41: An association attached a study entitled ``Evaluation

of the Economic Impacts of the Proposed Action (Section E.7.2).'' The

study, by Dr. Andrew Plantinga and Dr. James Wilson from the University

of Maine, acknowledged that NMFS' methodological approach to its socio-

[[Page 27722]]

economic analysis is well-accepted within the field of economics and is

applied in an appropriate manner. It stated that some of the specific

assumptions employed in NMFS' analysis, however, are unconventional and

highly questionable. The purpose of the study is to reconsider the

economic impacts of the proposed action under a more plausible set of

assumptions.

Response: (1) Issue--Treatment of Imports. Holding imports constant

is standard practice in economic analysis of fisheries management, and

reflects uncertainty over how trading partners will manage their

resources within the ten-year time horizon. Holding price constant

ignores dramatic increases in groundfish prices over the next two

decades. Finally, the constant price analysis offered by the commentors

still demonstrates a superior result for Amendment 7 compared to

Amendment 5, in fact, even more so than for an assumption of constant

imports.

(2) Issue--Treatment of crew costs. Since labor employed in a

fishery is a resource that would otherwise be employed in another

activity, it has a resource cost. Given the lack of data on the

opportunity cost of this labor, the entire value of crew share is used

in some analyses as an economic benefit. However, this approach is

inappropriate in overcapitalized fisheries, which is the case for this

fishery.

(3) Issue--Time horizon. A 10-year horizon is standard practice in

bio-economic analyses of northeast fisheries, reflecting the time

period necessary for stock recovery. Uncertainty is addressed through

the simulation model, which is a more rigorous approach than

arbitrarily dropping two years from the analysis.

A more detailed discussion in terms of a response to this comment

is available upon request from the Regional Director.

10. Comments Related to National Standards

Comment 42: An association commented that Amendment 7 is

inconsistent with National Standard 1 which requires the NMFS to

prevent overfishing while achieving an optimum yield from each fishery.

It added that the varying mesh requirements from fishery to fishery fly

in the face of National Standard 1. Moreover, NMFS' failure to consider

the unique factors of different segments of the fleet and different

fisheries conflicts with the goals of National Standard 1.

Response: NMFS has determined that the provisions of Amendment 7

not disapproved are consistent with National Standard 1. Allowing

different meshes for several small fisheries in the overall

groundfishery reflects the effort to incorporate unique factors of each

of these fisheries. Mesh regulations reflect area, gear and species

concerns. Small mesh fisheries are allowed to operate once bycatch

effects have been considered. A single mesh applied to all fisheries

would constrain more opportunities. Benefits to other fisheries are

foregone in the closed areas included in the plan.

Comment 43: An association stated that National Standard 4

prohibits discrimination among the residents of states. It added that

the regulated species constitute a much lower percentage of overall

groundfish landings in Maine than in any other of the states impacted

by the PA. Moreover, the GOM cod stocks have been determined to be

healthier than GB stocks. NMFS' failure to account for differences in

local factors results in an exaggerated detriment to the commercial

fishermen in a region where the problem is less pronounced. The

association added that this failure also violates National Standard 6,

which requires NMFS to consider variations in fisheries, resources and

catches.

In a joint correspondence, two other associations stated that

regulations designed to rebuild stocks of CHY will exact a higher

economic burden for Maine than for other New England states. They

stated that Maine's industry supports 22,000 fishing and fishing-

dependent jobs. They added that Maine is a rural state with few

alternative employment opportunities. The associations said that the

percentage of CHY in the overall groundfish landings of Maine vessels

is much less than that of other New England states. However, Amendment

7 fishing restrictions will greatly constrain landings of other

regulated species, which comprise the largest percentage of Maine's

overall groundfish landings. They stated that GOM stocks were

determined to be healthier than GB stocks, yet all fishing vessels,

regardless of fishing region, must take the same direct effort

reductions as measured by DAS.

Response: NMFS recognizes that ports in some states may be affected

differently than ports in other states. However, National Standard 4

states that management measures shall not discriminate between

residents of different states. None of the measures discriminates

between residents since all are treated similarly, and thus the

amendment is consistent with National Standard 4. The amendment is also

consistent with National Standard 6, because the Council and NMFS have

considered variations in fisheries resources and catches in attempting

to recognize all sectors of the industry through numerous exemptions

and special provisions.

The white hake fishery is of increasing importance to many vessels

in the GOM. A white hake provision in the amendment allows the Regional

Director, upon consideration of the exempted bycatch criteria, to allow

a directed fishery on white hake outside of the DAS program.

Comment 44: An association stated that National Standard 5 requires

NMFS to promote efficiency and National Standard 7 requires NMFS to

minimize costs and avoid unnecessary duplication. It asserted that NMFS

has failed to consider less drastic steps, that could be taken to

achieve the same result. It argued that regulations should include

procedures to relax restrictions quickly. It said that the amendment's

analysis also fails to consider heightened enforcement costs.

Response: Amendment 7 is consistent with both of these national

standards. The Council and NMFS considered alternatives and included

special provisions designed to minimize to some degree the impact of

management measures. NMFS notes it is consistent with both standards to

take actions only ``where practicable.'' Both harvesting and

enforcement costs were less for the DAS reduction program alternative

than for several other alternatives under discussion. For the most part

the systems necessary were adopted under Amendment 5. Other

alternatives included strict quotas with the likely result of fishing

derbies, an extensive closed area grid requiring enforcement features

far beyond the capability of the region's USCG, and complete closure of

all fisheries taking groundfish.

The rebuilding trajectory was modified from a single year reduction

in fishing effort, to 50 percent of recent levels, to a two-year

reduction schedule. In addition, an annual review process will examine

the deviation of the actual from desired rebuilding trajectories.

Adjustments (increases or decrease in fishing effort) in DAS or other

management measures will occur as they become necessary, upon annual

review of the target TACs and actual fisheries data for a given year.

Comment 45: An association stated that Amendment 7 violates

National Standards 2, 4, 5, and 6 because: It uses poor, untimely and

incomplete information; it is not fair and equitable to all fisheries;

it is not reasonably calculated to promote conservation, but rather

downsizes fishing fleets as they once were; it unfairly puts concerns

of one fishery over another; it discards in

[[Page 27723]]

favor of expediency and it does not account or allow for variations of

the fisheries.

Response: NMFS disagrees. As discussed above, the provisions of

Amendment 7 that were not disapproved comply with the national

standards and other applicable laws discussed in response to other

comments. As discussed above, NMFS has determined that the measures are

based on the best available scientific information (National Standard

2), do not discriminate between residents of different states (National

Standard 4), and are fair and equitable and reasonably calculated to

promote conservation. NMFS notes that National Standard 5 requires

fishery management plans to promote efficiency in utilization of

resources ``where practicable,'' as discussed elsewhere in response to

comments; in a fishery as severely overfished as Northeast multispecies

the ``where practicable'' caveat is a constraining factor. NMFS has

approved measures that include several exemption programs and

management measures tailored to account for contingencies (geographic,

seasonal) as specified in National Standard 6.

11. Comments on the Procedural Aspects of Amendment 7

Comment 46: In a joint correspondence, two associations stated that

it is the responsibility of the regional fishery management councils to

see that the intent of the Magnuson Act is carried out so all parties

concerned are treated fairly and equally, that public input be allowed

and comments be seriously considered in making major decisions. The

associations added that such has not been the case in the development

of Amendment 7 by the Council.

Response: The industry has been actively involved in the plan

process, and their viewpoints were solicited and taken quite seriously.

In addition to its regularly scheduled meetings, the Council held a

large number of committee meetings during the development of the

alternatives proposed in the public hearings. Notice of these meetings

was sent to everyone who indicated an interest in receiving such

notice. Furthermore, these meetings, as well as public hearings, were

open to the public and provided an opportunity for representatives from

all the different sectors of the fishery to be heard. As the Council

developed Amendment 7, the severity of measures under consideration was

widely publicized in trade and general publications. The Regional

Director personally met repeatedly with fishing industry groups,

including those associations whose comment this responds to, both

during Council meetings and in their home ports. Furthermore, most of

the proposals made in the associations' position paper of September 19,

1995, were incorporated in some form in Amendment 7. These include the

removal of layover day provisions, the elimination of exemptions for

vessels under 45 ft (13.7 m), and the closure of areas to maximize

recruitment, as well as the continued use of DAS as a primary

management tool.

Comment 47: In a joint correspondence, two associations stated that

the fisheries management process failed its Magnuson Act obligation to

involve the Groundfish Industry Advisory Committee in the development

of Amendment 7.

Response: Members of the Groundfish Industry Advisory Committee

were notified of each scheduled Groundfish Committee meeting and were

well represented and actively participated at most of them.

Furthermore, from representative membership on the Council, through the

scoping process and both formal and informal opportunities to be heard,

industry representatives were involved in the development of Amendment

7 from its inception through implementation.

Comment 48: A commenter stated that none of the alternatives to

Amendment 7 presented by New Hampshire fishers at public hearings (such

as mobile gear night closures and gillnet restrictions) was considered

by the Council.

Response: In fact, such issues were considered by the Council. The

Council is continuing its consideration of additional gillnet

restrictions for implementation by the Amendment 7 framework adjustment

process. The Council continues to receive testimony regarding night

closures for mobile gear, but has not developed a proposal to implement

this measure.

Comment 49: An environmental association urged NMFS to waive the

Administrative Procedure Act's (APA's) 30-day delay in effective date

and implement Amendment 7's conservation measures immediately upon

publication of the rule.

Response: The APA allows the 30-day delay in effective date

requirement to be waived if there is good cause to do so. While the

commenter seeks such a waiver in order to provide immediate

conservation benefits, NMFS believes that it would not be reasonable to

require compliance with management measures of this complexity on an

immediate basis. The 30-day delay in effectiveness will provide NMFS an

opportunity to inform the public about the new requirements. It will

also provide the industry with the time required to make the necessary

adjustments to fishing activities and gear.

12. Comments on Enforcement of the Amendment

Comment 50: The Council submitted comments addressing

enforceability issues associated with the proposed regulations. Their

comments are as follows:

They noted that there was an error in Sec. 651.22(g) with respect

to the requirement to take 20 days out of the multispecies fishery

during the spawning season. Their suggested revision is incorporated.

They identified a mesh size measuring procedure to be used for

gillnets and suggested that implementation of this procedure be delayed

until October 1996. These recommendations were adopted.

They requested a revision of the definition for ``Port'' to clarify

when a vessel must call under the call-in requirements. This change is

incorporated.

NMFS notes that it has made some changes in the final rule in

response to concerns raised by the Council (see changes from the

proposed to final rule).

13. Miscellaneous Comments

Comment 51: The Maine DMR stated, as regards NMFS concerns

expressed in the preamble to the proposed rule about the availability

of open-access handgear-only permits to party/charter vessels and the

resulting administrative and monitoring burden about what set of rules

party/charter boats are operating under, that this burden could be

reduced by requiring that such vessels only call in upon embarking on a

commercial groundfish trip. At other times, party/charter vessels would

be presumed to be fishing under recreational rules.

Response: The Council commented that the call-in requirement for

charter/party vessels would not enhance enforcement and should be

disapproved. NMFS agrees and the measure has been disapproved.

Comment 52: An environmental organization stated that the phrase,

``FMP goals and objectives,'' is used in some places in Sec. 651.40(a)

while in other places the phrase, ``FMP objective,'' is used. It

believes that the former phrase should be used throughout the section

both because it reflects the Council's intention and because it is

important to assure that

[[Page 27724]]

future management decisions will be guided by the need to reach

specified spawning stock thresholds as well as by the fishing mortality

rates that the Council hopes will achieve those thresholds.

Response: NMFS agrees and the commenter's suggestion has been

adopted.

Comment 53: The Maine DMR stated that DAS program results in

compensations by fishermen to maintain their revenues in the face of

reduced fishing time for regulated species. In addition to subtle

increases in fishing power, this also results in displacement of effort

onto other species and into other regions.

It added that large mobile gear vessels that had fished long trips

on offshore grounds are shifting their effort to nearshore and inshore

grounds to maximize landings from fewer DAS. This not only concentrates

effort in areas known to be important spawning and juvenile habitat but

is responsible for a sharp escalation in mobile/fixed gear conflicts as

draggers and gillnetters compete for the same grounds.

Response: The habitat question raised is responded to in Section

13, ``Comments on Protection of Habitat.'' The Council is aware of the

gear conflict issue raised and is presently discussing resolution of

the problem. Any such resolution may be effected through the framework

adjustment process.

Comment 54: Two environmental associations opposed the proposed

exemption that could allow a directed fishery for a regulated species

(white hake) outside of DAS restrictions. They stated that NMFS

classifies the white hake stock as fully-exploited and at a medium

biomass level. They recommended that increased fishing effort on white

hake should be discouraged, not promoted.

The Maine DMR added that the white hake exemption should only be

implemented if management is confident that this stock is under-

exploited and sufficient sea-sampling data is available to determine

that this fishery can meet the 5 percent rule throughout the fishing

year.

Response: NMFS recognizes that this species is fully exploited. The

measure would allow the Regional Director to exempt such a fishery in

consultation with the Council, which may be an option if recruitment

and biomass remain stable. Any such exemption cannot be granted if it

jeopardizes FMP goals and objectives, including not allowing

overfishing on white hake. Another commenter stated that any new

participants to the dogfish trawl fishery implemented by Amendment 7

should be monitored to assure conformity with the present gear.

The commenter cautioned that any deviation from the gear used could

negatively alter the fishery and increase the regulated species

bycatch. He suggested that a level of sea sampling be mandated so that

the fishery does not proceed unmonitored to assure that those who

developed this fishery do not see its conservation benefit compromised.

Comment 55: An environmental organization added that it supports

the dogfish trawl fishery on Nantucket Shoals as long as skate bycatch

restrictions are maintained and as long as periodic review indicates

that: (1) Bycatch rates do not escalate, and (2) appropriate

contributions to overall fishing mortality for multispecies targets due

to this fishery are recognized.

Response: NMFS will monitor the dogfish trawl fishery through sea

sampling, as possible. No skate bycatch is allowed. Should the

situation warrant, the Regional Director has discretion to cancel the

exemption for the fishery.

Comment 56: The Maine DMR stated that it favored inclusion of two

state representatives and an industry member on the Multispecies

Monitoring Committee.

An environmental association recommended that membership on the

technically based MMC proposed by Amendment 7 (61 FR 8546, March 5,

1996) include an environmental representative and meet for purposes in

addition to the annual review (61 FR 8559, March 5, 1996). It added

that the MMC should meet when appropriate, including whenever data

suggests that target TACs for any population are or may be likely to be

overrun by more than 10 percent during any fishing year.

Response: The MMC is formed by the Council. NMFS will forward the

suggestions of these commenters to the Council.

Comment 58: A commenter stated that the Council's mandate, as

defined by the Magnuson Act, is to take immediate action to conserve

and manage the fishery resources. He added that while Amendment 7

purports to be a conservation measure, it is rather a measure that

redirects fishing effort. He explained that it addresses the groundfish

problem in a manner that ignores the fishery as a whole. He said that

Amendment 7 will, in meeting its objective, create and prolong existing

problems in the remaining fisheries. Specifically:

1. DAS that place passive (i.e., fixed) gear in the same category

of effort with mobile draggers and scallopers grossly discriminates

against the passive gear fisherman. For example, an average gillnet

fisherman with 120 nets in the water will utilize 6 nautical miles (nm)

of bottom and occupy 0.41 acre. A dragger towing at 5.5 nm per hour

will drag over 132 miles in 24 hours of towing and with a net sweep of

205 ft will drag over 3,864 acres. Therefore, if DAS are used to manage

the multispecies fishery, then DAS should be separate for passive and

mobile gear, and DAS for passive gear should be greater than that

assigned to the mobile gear sector.

2. The proposed bycatch of lobster (in the mobile gear sector)

should be eliminated. The lobster fishery must reduce lobster landings

by 20 percent over 5 years. A 200 count lobster bycatch allowance

leaves the door open for high grading and for non-reported landings.

The value of 200 lobsters will result in a directed fishery by those

vessels fishing outside of any DAS restrictions for non-regulated

species. (The monetary value of the lobster is greater than the

monetary value of their directed catch.) Finally, the lobster can be

returned unharmed to the sea, which eliminates the wasteful discard

argument.

3. Dealers should report their purchases from all fishermen in a

manner that allows a cross check on the mandated vessel reporting

systems.

Response: (1) Fishing mortality is not a function of the amount of

area covered by the catch per unit of effort--a rough equivalent is a

DAS. In theory, if each vessel gives up a DAS, each vessel experiences

a 1/365th reduction in effort. As discussed in response to other

comments, NMFS has disapproved the proposed measure for counting

gillnet DAS in an effort to put that gear sector on the same basis as

other gear sectors. Also, the Council is continuing to explore other

alternatives for the gillnet sector.

(2) The lobster bycatch allowance is not established as a means to

conserve lobsters, but rather to reflect a legitimate bycatch in a

fishery that may target for multispecies. If further lobster

conservation measures are needed, they would more appropriately be

addressed in management measures designed to protect that species.

(3) NMFS has implemented a vessel reporting system that can be

cross-checked to the dealer reporting system.

Comment 59: The Maine DMR commented favorably on Amendment 7's

exemption for fisheries certified by the Regional Director as having

less than a 5 percent bycatch of regulated species. It noted with

concern, however, that the procedures for identifying candidate

[[Page 27725]]

fisheries for exemption and the methodologies for establishing

certification are not yet specified or in place. It urged the Regional

Director to develop and set forth the requirements for application and

certification as a matter of high priority.

Response: Application procedures are in place and this rule

establishes exemption procedures for the newly impacted large mesh

fishery. Applicant must submit a written request to the Regional

Director. The request must at least describe the area in which the

fishery would operate, the period in which it would operate, the gear

it would use, the approximate number of vessels likely to participate,

and the species it would target, retain and land. Any evidence of the

likelihood of such a fishery succeeding should be included with the

request. The request will be reviewed by the Regional Director and a

letter sent to the requestor explaining the process, which follows. The

request will be analyzed to determine whether such a fishery would meet

the 5 percent regulated species bycatch standard which, under Amendment

7, has been revised to reflect the Council's intent that it is an

absolute maximum (other restrictions on fishing gear and/or seasons may

also be considered to reduce bycatch). The completed analysis will be

forwarded, along with the request, to the Council, which will place the

request for a large mesh exemption on the agenda of the next scheduled

Council meeting.

Comment 60: A commenter stated his concern that the majority of the

small vessels fishing off of Cape Cod fish primarily in the same area

that is designated for the small mesh dogfish fishery. He said that

these small vessels fish exclusively for codfish and 80 percent of the

fishing occurs from June through October. He stated that the small mesh

used combined with less than 100 percent observer coverage raises the

potential for large cod bycatches. The commenter recommends that

regulated mesh or larger be required. He added that permitting a small

mesh size in the dogfish fishery simply because the dogfish are

difficult to remove from the net and does not justify the potential

harm to stocks of CHY. He concluded that allowing vessels to use small

mesh to target dogfish in the area can only lead to high discarding of

regulated species as well as juvenile dogfish.

Response: The Nantucket Shoals experimental dogfish fishery was

monitored by the Massachusetts Division of Marine Fisheries for two

seasons. During the first year of the program, 17 trips were observed

and bycatch of regulated multispecies was less than one-half of 1

percent. This program can be terminated if the Regional Director

determines that bycatch of regulated species is excessive.

Comment 61: An association commented that Amendment 7 data confirms

that commercial hook fishing is labor intensive. It stated that based

on Council data, small longline boats catch only 300 lb (136.1 kg)/man/

day as compared to large draggers, which catch 880 lb/man/day.

Amendment 7, Vol. I, Table E.6.4.1.1.4 b & e. The commenter added that

commercial hook fishing should thus be encouraged to reduce employment

losses.

An association commented that restoring habitat already destroyed

by draggers would be another means of overcoming Amendment 7's

employment dislocation with an eye toward rebuilding stocks in the

future. The commenter suggested that displaced draggermen could be

temporarily employed building artificial reefs ashore and towing them

out to GB and the Great South Channel to enhance stock recovery. It

concluded that even buy-back vessels could be sunk offshore to provide

groundfish gardens.

Response: NMFS is not opposed to any organization encouraging hook

fishing. For NMFS' position on habitat protection, see Section 14,

``Comments on Protection of Habitat.''

Comment 62: The Connecticut DEP commented that it shares NMFS'

concern about the condition of the winter flounder resource (as stated

in the preamble to the proposed rule) but does not agree that

eliminating the winter flounder possession limit in the Mid-Atlantic

(MA) Regulated Mesh Area (RMA) will measurably improve the stock. The

commenter cited the 21st SAW report, which states that only about 18

percent of the SNE and MA area winter flounder landings are from

fisheries in the MA RMA. He added that, ``(w)hatever increased

management effort the Atlantic States Marine Fisheries Commission

(ASMFC) and the Council adopt in response to the SAW advice will be

more critical to successful flounder rebuilding than whether or not the

10 percent/200 lb (90.7 kg) exemption exists during the 1996 fishing

season.''

Response: NMFS' concern about the winter flounder resource is not

unfounded. Winter flounder are currently overexploited, at low biomass

levels, and in need of fishing mortality that is reduced to as low a

level as possible. As the winter flounder stock begins to rebuild, the

Council may want to reconsider the MA RMA exemption at a later time.

Comment 63: In response to NMFS' reservations expressed in the

preamble to the proposed rule, the Connecticut DEP commented that

likely changes in winter flounder management during 1996 will make more

of a difference than the availability of state waters winter flounder

exemption programs. It stated that the value of the program is that it

allows a state to choose not to participate or withdraw. It said that

participating states have been in compliance with the ASMFC plan but

expects that, by summer, most states will (by review and revision of

the plan) be out of compliance because the current SAW advice indicates

a more pessimistic condition of the stock than did the previous SAW.

The DEP raised the issue of whether disapproval of this exemption

program outweighs the problems that may arise of a jurisdictional

nature. It suggested that the program is better off preserved and

opportunity should be provided through ASMFC and the Council to develop

a more aggressive winter flounder conservation program, which also

preserves the states' right to manage fisheries within their

jurisdiction in accordance with approved plans.

The Connecticut DEP further commented that both Connecticut and New

York question the rationale of new Sec. 651.20(j)(7), the 500-lb

(226.8-kg) possession limit when fishing in the State Waters Exemption

Program (SWP) and not fishing under the DAS program. It explained that

under Amendment 5, vessels enrolled in the SWP and not fishing under

DAS could retain 500 lb (226.8 kg) of winter flounder, consistent with

the exclusive economic zone (EEZ) fishermen not fishing under their

DAS. Under Amendment 7, however, the possession limit of regulated

species for EEZ fishermen when not under DAS is zero. The commenter

stated that Connecticut and New York believe that fishermen under the

SWP should be using their DAS when in possession of winter flounder,

that when in the SWP and not on DAS, that possession of winter flounder

should be prohibited. The Connecticut DEP argued that there is no

indication that the Council intended to allow 500 lb (226.8 kg) of

winter flounder in the SWP when not fishing under DAS, while

prohibiting EEZ fishermen from any possession of winter flounder when

not fishing under DAS.

Response: NMFS has not disapproved the State Waters Winter Flounder

exemption program. NMFS believes the Council intended to allow the 500-

lb (226.6-kg) limit when it voted to keep

[[Page 27726]]

current exemption programs in place. The 500-lb (226.8-kg) allowance

was established by Amendment 5.

Comment 64: The Connecticut DEP commented that the proposal to move

the boundary of the MA area may create an enforcement problem in Block

Island Sound. It stated that there is no longer a territorial sea

within 3 miles north and west of Montauk, due to a supreme court

decision in the 1980's that had the effect of changing New York's

``baseline'' and consequently, the location of the New York territorial

sea. It suggested that the matter could be resolved by revising the

location of the line as follows:

Section 651.20(d) Mid-Atlantic regulated mesh area.

(1) Area definition. The Mid-Atlantic regulated mesh area is that

area bounded on the east by a line running from the Rhode Island

shoreline at Watch Hill, RI southwesterly through Fishers Island, NY,

to Orient Point, NY, and from Orient Point southeasterly to the

intersection of the 3-nautical mile line east of Montauk Point,

southwesterly along the 3-nautical mile line to the intersection of

72 deg.30' W. Long. and south along that line to the intersection of

the outer boundary of the EEZ.

In support of the above, the commenter stated that the problem with

the northern terminus of the line in the proposed rule is that it would

bisect the shoreline along the Rhode Island south shore, an area in

which Connecticut, Rhode Island, and New York vessels commonly trawl.

It said that it is inadvisable to have a mesh separation line fall in

the middle of an area commonly trawled, for enforcement reasons. The

commenter stated that its suggested revision resolves the original

problem of splitting Long Island Sound into two mesh management areas

(the original 72 deg.30' line) and avoids splitting Block Island Sound

into two mesh management areas. The Connecticut DEP added that its

proposal has been confirmed to be acceptable to Rhode Island, New York,

and the USCG.

Response: NMFS has adopted the Connecticut DEP's suggested revision

as requested by the States of Connecticut, Rhode Island and New York,

and by the Council.

Comment 65: An association commented that the elimination of a

proposed 100-lb (45.4-kg) groundfish allowance for lobster trap

fishermen is unnecessary. It added that this would prohibit a lobster

fisherman from bringing home a legal size codfish for dinner. It

further noted that if a lobster fisherman has a multispecies permit and

his vessel is more than 30 ft (9.1 m) long, he may not qualify for a

DAS allowance, and would still be unable to land a (legal size)

codfish.

The association added that the proposed rule says that no

groundfish may be taken without a groundfish permit and while no more

permits will be issued, those vessels with permits that are over 30 ft

(9.1 m) (many of the association's lobster vessels are in the 31- to

42-ft range (9.5 m to 12.8 m)) must prove groundfish landings of at

least 500 lb (226.8 kg) to renew their permits. The association

expressed concern that these vessels would actually lose their permits.

The association stated that some allowance should be permitted if only

for personal use. Further, no restrictions are in place to keep

groundfish fishermen from taking lobster.

The association suggested that some small incidental groundfish

catch be allowed for all lobstermen with a groundfish permit or that an

incidental bag limit permit be established to accommodate these

circumstances.

Response: This issue was raised and considered by the Council. The

Council decided to disallow a regulated species bycatch in the lobster

fishery, because the TACs are set so low and Amendment 7 focuses on

eliminating regulated species bycatch in fisheries capable of taking a

bycatch of regulated species.

Comment 66: An association commented that it presumes that

restrictions on possession of groundfish by lobstermen do not include

possession of ``groundfish racks'' that were purchased for use as bait.

It suggests that some wording be inserted into Amendment 7 to recognize

``groundfish racks'' as legal bait possessed by lobster vessels.

Response: The Northeast Multispecies regulations apply to fish and

fish parts, and as such, ``groundfish racks'' must meet the minimum

size established by the multispecies regulations. Furthermore, a

Northeast Multispecies permit is required to possess ``racks'' of

multispecies finfish.

Comment 67: An association commented that it strongly opposes the

total absence of any restrictions that would control the targeting of

lobsters by groundfish vessels. It further stated that the absence of

any wording regarding the subject allows the unrestricted targeting of

lobsters while fishing both during DAS and outside of DAS. The

commenter said that this omission encourages a redirection of effort

onto the lobster resource.

The association suggested that some significant controls on the

targeting of lobsters by groundfish vessels be included in the plan.

Response: Such a restriction is within the purview of the American

Lobster FMP and is not, as such an Amendment 7 issue.

Comment 68: A commenter stated that under Amendment 7 (and

acknowledged under Amendment 5 as well), a vessel's length, gross

registered tonnage, and net tonnage may be increased only once, not

exceeding 10 percent of its previous size. He asserted that, in light

of encouragement to pursue underutilized species such as herring which

are usually high-volume fisheries, some vessels were rigged for mid-

water trawling. As a result, he stated that his vessel is often loaded

to the point of being unsafe. He stated that he has already experienced

a swamping and suggested that such vessels be allowed to increase hold

capacity, i.e., length and tonnage. He stated that the restriction on

horsepower is an adequate control on the vessel's fishing power and,

therefore, limiting the vessel's other dimensions is not necessary.

Response: This issue relates to the provisions for vessel upgrades

as established by the regulations implementing Amendment 5 and which

are unchanged by this rule. The purpose of the upgrade restrictions is

to prevent limited access multispecies permit holders from increasing

the fishing power of their vessels, exacerbating overcapitalization and

overfishing issues in this fishery. Horsepower alone is not a

sufficient limitation of vessel fishing power, especially where the

current horsepower of the vessel may allow the other dimensions to be

increased. Moreover, a vessel that wishes to fish for herring and other

mid-water trawl fisheries not regulated under the Northeast

Multispecies FMP may elect to give up their limited access permits

thereby avoiding vessel upgrade restrictions.

Comment 69: The Marine Mammal Commission stated that to make

meaningful progress towards meeting the Council's revised harbor

porpoise goal and requirements of the Marine Mammal Protection Act

(MMPA), the network of time-area closures for the coming year should be

expanded. The Marine Mammal Commission suggested that the Council's

Harbor Porpoise Review Team (HPRT) meet in time to implement any

recommendations it might make for the summer-fall fishing season off

the coast of central and northern Maine. It also recommended, to better

cover the potential periods of high bycatch in the Mid-coast area as

reflected by current observer data, that the Council and/or NMFS

consider

[[Page 27727]]

expanding the effective dates for the Mid-coast closure to include the

months of September through December and April through May. It added

that it believed that it would be reasonable to allow fishing with

acoustic deterrents in the extended closure periods recommended above

provided evidence continues to indicate their effectiveness.

Response: The Council's HPRT met in May to discuss additional

expansion of time-area closures. The HPRT recommendations were

scheduled for presentation to the Marine Mammal Committee in late May

so that measures could be considered by the full Council at its June

meeting. This will allow any approved measures to be effective in the

mid-coast area by September. Continued use of acoustical devices in

these closed areas will be considered based on the results of recently

concluded experimental fisheries held this spring and the

recommendations of the Harbor Porpoise Take Reduction Team, expected to

be available later this summer.

Comment 70: The Marine Mammal Commission stated that as the number

of northern right whale calves counted in 1995 is exceeded by the 3

percent mortality reported for the past 12 months, action must be taken

to exclude gillnet gear in times and areas where right whales are known

to occur in greatest numbers. It added that these areas include the

Great South Channel from April through June, and Cape Cod Bay from

February through May. It said that action taken by the Council to

reduce entanglement threats has been limited, i.e., it has prohibited

gillnet fishing in parts of one area (the Great South Channel) that are

important for groundfish spawning during part of the peak period of

right whale occurrence.

The Marine Mammal Commission acknowledged that Amendment 7 proposes

expanding the scope of the Council's framework adjustment procedure to

include possible closures to protect right whales and other endangered

whales, however, no further measures are proposed in Amendment 7 in

this regard and it is unclear whether or when the Council might use

this authority.

Therefore, the Marine Mammal Commission recommended that NMFS

either expand Amendment 7 or take separate action under authority of

the Endangered Species Act (ESA) and MMPA to prohibit the use of

gillnets from April through June in the Great South Channel area, which

is designated as critical right whale habitat).

In addition, the Marine Mammal Commission recommended that NMFS

consult with the Commonwealth of Massachusetts to develop measures for

gillnets and other fishing gear capable of entangling right whales from

February through May in the Cape Cod Bay right whale critical habitat.

Response: The issues raised in this comment can be addressed under

the framework actions, provided for in the final rule. The NEFMC did

not forward a recommendation to expand the Area 1 closure to include

the entire right whale critical habitat in time for implementation this

spring. In order for NMFS to issue a regulation under the ESA, to be

effective by April 1997, NMFS would need to publish a proposed rule

within the next few months. NMFS is considering regulatory options to

accomplish this.

NMFS will soon sign a Cooperative Agreement with the Commonwealth

of Massachusetts to enter into a coordinated state-Federal effort to

protect and recover the endangered and threatened marine fauna of

Massachusetts, including the right whale. Once signed, both parties

will begin discussion of several endangered species issues within the

Commonwealth, including additional protection for the right whale

critical habitat area in Cape Cod Bay.

Comment 71: An association stated that under the MMPA, NMFS

classifies the sink gillnet fishery as a Category I and bottom trawl,

longline, and hook and line fisheries as Category III. However,

Amendment 7 states ``it should be noted that the bottom trawl fishery

has incidental takes of striped dolphins, coastal bottlenose dolphins

and pilot whales.'' The commenter suggested that based on this finding

alone, the bottom trawl; fishery ought to be moved to Category II.

Response: This comment relates to MMPA requirements and is not

relevant to Amendment 7. In any event, most of the few takes observed

in this fishery were determined to have been dead before being taken.

In addition, because the observer coverage was low, the estimated

serious injury and mortality levels extrapolated from those few data

points is statistically weak. Therefore, it was determined that the

``North Atlantic Bottom Trawl'' fishery would remain as a Category III

fishery under the MMPA in the final rule to establish the 1996 List of

Fisheries (60 FR 67063, December 28, 1995).

Comment 72: An association stated that closed areas should be

opened to low-impact hook fishing during non-spawning periods.

Response: One reason for the existence of closed areas is to halt

fishing mortality during the period of closure. Any type of fishing

would defeat the purpose of the closure.

14. Comments on Protection of Habitat

Comment 73: Many comments were submitted raising issues related to

the impact of certain fishing gears on marine habitat and, in some

cases, proposing restrictions on this gear and providing incentives for

other gear types. The major points of all habitat-related comments are

summarized below, with emphasis on comments from the Darling Marine

Center at the University of Maine and the Cape Cod Commercial Hook

Fishermen's Association, because they are representative of issues

raised in the majority of the other comments received.

One said NMFS should be an active partner with the Council in

identifying areas of critical concern and investigate the use of

intensive gear, and if necessary, restrict or prohibit particular gear

use. There was general disagreement that additional studies would be a

sufficient management approach and further disagreement with the

decision not to include trawl gear restrictions at this time.

One group stated that trawling and dredging activities have the

capability of altering structurally complex bottom communities,

principally through the removal of biomass, and that these alterations

will result in completely different bottom communities occupying these

locations.

In discussing the legal standards of the Magnuson Act and the APA,

this group stated that an international consensus is emerging that

management agencies should apply a precautionary approach to fisheries

management. It was emphasized that it would be more prudent to protect

some of these areas as soon as possible by establishing marine reserves

to protect specific habitat features such as habitat complexity.

Increased complexity would result in increasing survivorship of

postlarval and early juvenile size classes, thus increasing recruitment

to harvested populations. Given the particular relevance of the

precautionary approach to the numerous uncertainties involved in

managing fisheries, it would seem to be incumbent upon managers and

research scientists alike to prevent long-term damage to ecosystems

from occurring while their theories are being tested.

An association contends that Amendment 7 fails the following

national standards for the reasons mentioned: National Standard 1, by

ignoring gears' differential habitat and selectivity impacts; National

Standard 2,

[[Page 27728]]

because best science demonstrates landings approximate catch only in

the hook fishery and also demonstrates that heavy dragger gear damages

groundfish habitat, diminishing stocks; National Standard 3, by

ignoring management units based on types of gear and similar fishing

practices; National Standard 4, since allocation is necessary to

discourage dragging on hard bottom and encourage conversion to hook

fishing; National Standard 5, as Amendment 7 does not promote long-run

efficiency since fishing power is not reduced absent dragger gear

restrictions; and National Standard 6, by ignoring fishing practices

and by wrongly incorporating the ``fair and equitable'' standard into

analysis of this national standard.

An association disputed the amendment's statement that, as

currently drafted, ``(t)he Magnuson Act limits the Council's role to

commenting on proposals that would affect fishery resources and their

habitats.'' In fact, the commenter notes that beyond merely commenting,

the Council is empowered to ``make recommendations concerning any

activity . . . that, in the view of the Council, may affect the habitat

of a fishery resource * * *.'' 16 U.S.C. section 1852(I)(1)(A).

Response: There is growing interest and research into trawling and

dredging effects on bottom habitat and benthic communities. Research to

date indicates that mobile gear is having observable effects on the

bottom in some areas and little discernable effect in other areas. The

causes for differing effects have not yet been identified. In addition,

the ecological impacts of mobile gear on commercially important stocks

remain largely unknown. NMFS does not believe that the scientific

information currently available is adequate to show that placing

restrictions on mobile gear would result in benefits for commercially

important stocks. NMFS does not intend to wait for ``full scientific

certainty'' before making a recommendation that might restrict the use

of mobile gear in certain areas, but rather is cautious in instituting

such restrictions with uncertain and inadequate data. To seek

resolution of this issue, the NMFS and the Council support additional

research on this topic so that future management measures can account

more for the effects of fishing gear, especially if additional research

indicates that recruitment could be enhanced by reducing the amount of

disturbance to benthic habitat. Currently the Stellwagen Bank National

Marine Sanctuary and NOAA's National Undersea Research Program are

among those proposing research into the effects of bottom gear on

groundfish habitat.

While NMFS and the Council are not advocating specific management

measures to avoid or reduce the effect of mobile fishing gear on bottom

habitat, it is worth noting that Amendment 7 does include measures such

as closed areas and overall effort reductions that will reduce the

amount of trawling and thus reduce the frequency of disturbance to

bottom habitat used by multispecies stocks. Although these effort

reductions will not include permanent marine reserves that are off-

limits to trawling and dredging gear, they might provide opportunities

to investigate whether reduced pressure on habitat from bottom gear may

over time enhance the structural complexity of the bottom in some areas

and increase survivorship of early life stages of commercially

important species.

Regarding the role of the Council in respect to habitat, the

commenters raise some valid points. Fishery management plans prepared

by the Council or Secretary include habitat sections that identify the

habitat needs of the species. NMFS works with developers and permitting

agencies to avoid, minimize and mitigate the anticipated habitat

impacts from a proposed activity. Fishery management plans are one tool

NMFS and the Council can use to identify habitat essential to

commercial stocks.

The commenters disagree with the Council's approach taken in

Amendment 7 that concentrates on achieving reductions in fishing

mortality through controls on fishing effort. The supporting analyses

for Amendment 7 referenced by the commenters demonstrates that the

Council and NMFS realize that the recovery of severely depleted fish

stocks can be enhanced by incorporating more comprehensive scientific

information into management decisions. In particular, NMFS is committed

to conducting additional research into the habitat requirements and

life histories of multispecies stocks so that future management actions

can focus on those measures that will be most effective in enhancing

recruitment. For Amendment 7, NMFS and the Council used available

information to develop a suite of management measures, including closed

areas and effort reductions, that will reduce fishing pressure on the

stocks as well as their habitat. NMFS acknowledges that more work is

needed in this area to tailor future management actions to the

biological needs of target species, which include habitat requirements.

As discussed throughout this document, NMFS has determined that

Amendment 7 is consistent with the national standards, which conclusion

is supported by the record of decision.

Comment 74: The Maine DMR stated that the science (both data and

theory) supporting management must change and that the importance of

such parameters as fish size and the qualitative differences of habitat

protection at different seasons should be more effectively integrated

into the analysis.

Response: The Council acknowledges, in its discussion on research

to support fishery habitat protection (Volume I of Amendment 7), the

need to conduct research to determine which habitats are most important

to support groundfish stocks throughout their life history stages and

to understand factors essential for sustained fisheries production. As

stated earlier, habitat protection and conservation is an integral

component of fishery management; NMFS strongly supports the advancement

of marine research to improve its understanding of the relationship

between species and habitat during various life stages. Such

information will be incorporated into fishery management plans as it

becomes better understood and defined.

Comment 75: An association commented that the national standards

dictate a differentiation between hook fishing and other commercial

groundfishing, just as has occurred in other regions of the country. It

added that the Council predictably relies on the fair and equitable

argument to defend its failure to distinguish the commercial hook

fishery; however, a Magnuson Act guideline states: ``An allocation need

not preserve the status quo in the fishery to qualify as fair and

equitable, if a restructuring of fishing privileges would maximize

overall benefits.''

An association discusses Norwegian studies that documented how

longlining is a more size-selective fishing method than trawling. The

commenters pointed out that these studies further proved that yield and

employment effects were greater in the longline fishery as compared to

the trawl fishery.

Another association commented that the Council rejected the Cape

Cod Commercial Hook Fishermen's Association (CCCHFA) plan because it

had no measurable objectives, only covered a limited region, and had

direct allocation effects on a particular sector of the industry. The

association said that the reasons for rejection are without support and

invalid as they are contrary

[[Page 27729]]

to the administrative record already submitted to the Council.

Response: Gear selectivity was discussed in the development process

of Amendment 7 but rejected as an option in the final outcome. In

making this decision, the Council and NMFS determined that the

management regime should, to the extent practicable, preserve the

multifaceted nature of the Northeast Multispecies fishery. The Council

could revisit this issue at a later time through the expansive

framework capability under Amendment 7.

Comments on Enforceability Issues

The USCG and NMFS Enforcement requested that a vessel operator be

required to retain on board all DAS confirmation numbers for the

current fishing year. The Council decided that this was an unnecessary

burden on the industry and recommended instead that they be required to

retain numbers for the current and immediately prior trips. The

Council's recommendation is adopted here.

They requested that the current provision requiring a vessel to

have a standard tote on board the vessel be retained. This provision

was inadvertently deleted in the proposed rule and is reinserted here.

They commented that the call-in requirement for charter/party

vessels would not enhance enforcement and should be disapproved. The

measure has been disapproved.

They requested a change to require a vessel operator when hailed by

an authorized officer via VHF-FM radio, to respond to such hail. This

change has been incorporated.

The Council requested a revision to the definition for the

``Multispecies Monitoring Committee'' to clarify their intent with

respect to membership. This change is incorporated in the final rule.

The Council suggested an addition to the qualification criteria for

Hook-gear limited access permits to clarify how recreational landings

should be handled. This change is incorporated. Additional comments of

enforcement concern follow.

Comment 76: The USCG stated that Amendment 7 cannot be successful

without a fully integrated approach between its at-sea efforts and NMFS

Enforcement shoreside activities. It stated that it is prepared to

assign a high priority to enforcement concerns.

A commenter stated that Amendment 7, without enforcement, will not

affect that segment of the fleet that systematically uses small mesh

liners inside the regulated mesh size codend. The commenter added that

during the lag time between assessment and final judgment of those

perpetrators that are caught, the perpetrators still fish, contract

debt and shelter revenue. He stated that at-sea enforcement must be

fast and without warning to be effective and justice should be swift.

He added that a port reporting and enforcement system that effectively

detects misreporting or no reporting of catch is also needed.

Another commenter stated that some kind of incentive to follow the

rules is needed. He implied that some people who will be left in the

fishery will not follow the rules.

An association stated that TACs encourage non-compliance in the

form of under-reporting and high-grading and are costly to enforce.

Response: NMFS Northeast Region enforcement personnel and the USCG

First District Commander have integrated their planning to ensure that

there is an effective USCG--NMFS enforcement strategy in place to

support Amendment 7. NMFS Law Enforcement continues to work toward

effective implementation of the effort control and monitoring measures

in the Multispecies fishery and will explore ways to improve compliance

with existing regulations in partnership with the USCG and natural

resources divisions of each coastal state. NMFS Law Enforcement and

NOAA General Counsel work cooperatively to investigate and bring to a

conclusion, all cases involving violation of the conservation

regulations. NMFS Law Enforcement believes in the concept of voluntary

compliance and is actively pursuing education as a means to attainment

of voluntary compliance. This effort, combined with penalties as

appropriate, provide the incentives to adhere to conservation

regulations.

Comment 77: A commenter stated that the present vessel call-in

system to monitor DAS is obsolete and recommends instituting a basic

VTS without messaging capability or a magnetic card system with PIN

number verification.

Response: Under Amendment 7 approximately 800 additional vessels

operating in the Northeast Multispecies Fishery will be required to

report their departures and arrivals from and to port via telephone

under applicable effort reduction reporting provisions. A magnetic card

system is not logistically feasible as it would require installation of

a magnetic card reader device in every operating port on the Northeast

seaboard. When a basic VTS system is adopted, the final performance

standards for all VMS identify two-way messaging capability as a

fundamental performance requirement for any VMS system approved by

NMFS. A VTS requirement was established in Amendment 5, but is awaiting

testing and vendor certification procedures to be complete before it

becomes fully implemented.

Changes in the Final Rule From the Proposed Rule

As discussed above, some changes from the proposed rule were

necessary to respond to a review of the amendment by NMFS Office of Law

Enforcement, the Council's Law Enforcement Committee and the USCG.

Other changes made are technical or administrative in nature and

clarify or otherwise enhance enforcement and administration of the

fishery management program. These changes are listed below in the order

that they appear in the regulations.

In Sec. 651.2, the definition for ``DAS (Days-at-Sea)'' is revised

to remove the disapproved provision to count DAS for gillnet vessels as

time when gear is in the water.

In Sec. 651.2, the definition for ``Multispecies Monitoring

Committee'' is revised to clarify that the number of representatives

from the affected coastal states appointed by the ASMFC is limited to

two.

In Sec. 651.2, definitions ``Prior to leaving port'' and ``Upon

returning to port'' are added to clarify when a vessel must begin and

end a multispecies DAS trip under the call-in requirement.

In Sec. 651.2, the definition for ``Standard box'' is no longer

necessary and is removed.

In Sec. 651.2, the definition for ``Sink gillnet'' is revised for

clarification.

In Sec. 651.4, paragraph (b)(1)(ii)(A) is revised to clarify the

qualification criteria for limited access Hook-Gear permits for

recreational vessels that recorded landings by number and not by

weight.

In Sec. 651.4, paragraph (f)(3) is revised to clarify that a vessel

has only one opportunity to change its permit category in 1996 during

the 45-day time period after implementation of this rule and that this

45-day opportunity will be available each fishing year.

In Sec. 651.9, paragraph (a)(3) duplicated (a)(4) in the proposed

rule and is removed, paragraphs (a)(4) through (a)(13) are redesignated

as (a)(3) through (a)(12), respectively.

In Sec. 651.9, paragraph (b)(4), the prohibition on possession

limits is revised to reflect changes in Sec. 651.27 due to the

disapproval of the possession limit for winter flounder.

In Sec. 651.9, paragraph (b)(8), which referenced a disapproved

provision, is removed, and paragraphs (b)(9) through

[[Page 27730]]

(b)(12) are redesignated (b)(8) through (b)(11), respectively.

In Sec. 651.9, paragraphs (c)(4) and (d)(4) are added to enhance

enforcement of the provisions in Sec. 651.33(a) and (c).

In Sec. 651.9, paragraph (e)(8), a reference to Sec. 650.20 is

corrected to read Sec. 651.20.

In Sec. 651.9, paragraphs (e)(12), (e)(13), (e)(14), and (e)(15),

are revised by being made more explicit.

In Sec. 651.9, paragraph (e)(17) is revised by eliminating the

reference to Sec. 651.20(d)(3), a reference to the disapproved winter

flounder exemption in the Mid-Atlantic regulated mesh area.

In Sec. 651.9, paragraph (e)(22) is made more explicit.

In Sec. 651.9, paragraph (e)(32) is made more explicit.

In Sec. 651.9, paragraph (e)(38) is added to reflect the

requirement to have a standard tote on board when fishing under a

possession limit restriction.

Section 651.10 is revised, as requested by the Council, NMFS

Enforcement and the USCG, to include a requirement that a vessel

operator respond if hailed by an authorized officer via VHF-FM radio.

In Sec. 651.20, paragraphs (a)(2)(ii), (c)(2)(ii), and (d)(2)(ii)

are revised to include cross references to the Large Mesh Individual

DAS Category in Sec. 651.22(b)(7) approved under the resubmitted

portion of Amendment 7.

In Sec. 651.20, paragraph (d)(2) is revised to remove the reference

to paragraph (d)(3), the disapproved winter flounder possession limit.

In Sec. 651.20, paragraph (d) the definition of the ``Mid-Atlantic

Regulated Mesh area,'' is slightly revised as a result of comments from

and an agreement between the states bordering the area, the USCG and

NMFS enforcement.

In Sec. 651.20, paragraph (d)(3) is removed to reflect the

disapproval of the winter flounder possession limit in the Mid-Atlantic

regulated mesh area.

In Sec. 651.20, paragraph (g) is revised to clarify that the net

measurement procedure described referred to all nets with the exception

of gillnets. Paragraph (g)(4) is added to include net measurement

procedures for gillnet gear. Implementation of this procedure is

delayed to allow the gillnet fleet time to adjust to this new

procedure.

In Sec. 651.20, paragraph (i) is revised to clarify that scallop

vessels possessing multispecies must have a valid multispecies permit

issued under this part.

In Sec. 651.20 (i) and (j)(7), Sec. 651.27, and Sec. 651.33(a) and

(c), a measure inadvertently deleted in the proposed rule, that

requires vessels when subject to a possession limit to have on board at

least one standard tote, is added.

In Sec. 651.22, paragraphs (b)(1)(i) and (b)(2)(i), (b)(5)(i),

(b)(6)(i), and (b)(7)(i) have been revised to reflect that the DAS

allocations for the 1996 fishing year have been prorated based on the

amount of time remaining in the 1996 fishing year, or 83 percent.

In Sec. 651.22, paragraphs (b)(1)(ii) and (b)(2)(ii) are revised to

reflect that vessels holding both Gillnet and Individual DAS category

permits are to be initially assigned into the Fleet DAS category,

rather than the Individual DAS category.

In Sec. 651.22, paragraph (b)(6) is revised and paragraph (b)(7) is

added to reflect the approval of the measures included in the

resubmitted part of Amendment 7, which allows vessels the ability to

elect either the Large Mesh Fleet DAS program or the Large Mesh

Individual DAS program.

In Sec. 651.22, paragraph (c) is redesignated as paragraphs (c)(1)

and (c)(2) to clarify that a vessel possessing both a 1995 limited

access Gillnet permit and Individual DAS permit is eligible to appeal

its initial allocation of gillnet DAS.

In Sec. 651.22, paragraph (d)(2)(i), the date by which a vessel may

appeal its allocation of DAS is revised to reflect a later than

anticipated implementation date for this amendment.

In Sec. 651.22, paragraph (g), is clarified by replacing the phrase

``fishing year'' with ``calender year'' and by clarifying the

requirement for the 1996 calender year.

In Sec. 651.27, paragraph (b) is removed to reflect that the

possession limit for winter flounder has been disapproved, paragraph

(c) is redesignated as paragraph (b), and the title to Sec. 651.27 was

revised accordingly.

In Sec. 651.28, paragraph (c) is removed to reflect the disapproval

of the charter/party call-in requirement.

In Sec. 651.29, paragraphs (b)(1), (b)(2), (b)(4), and (b)(5), all

references to charter/party vessels are removed to reflect that the

call-in requirement for charter/party vessels has been disapproved.

In Sec. 651.29, paragraph (b)(3) is revised to clarify that DAS

confirmation numbers for the current trip and immediately prior

multispecies fishing trip must be retained on board the vessel.

In Sec. 651.29, paragraph (d) is revised to reflect the disapproval

of the proposal to count gillnet DAS as time when gillnet gear is in

the water.

In Sec. 651.29, paragraph (e) is added to describe the call-in

requirement for the 20 day spawning season restriction.

In Sec. 651.32, paragraph (a), the reference to Sec. 651.32(h) is

corrected to read Sec. 651.21(h), and paragraph (a) is redesignated as

paragraphs (a)(1) and (a)(2) to include gillnet area closures that were

implemented on March 5, 1996 (61 FR 8494) under Framework 14 to the

FMP.

In Sec. 651.33, paragraph (b), the phrase ``and has declared into

the charter/party fishery'' is removed to reflect that the declaration

into the charter/party fishery has been disapproved.

In Sec. 651.40, paragraph (a)(3), the reference to (a)(5) is

corrected to read (a)(6).

Classification

The Regional Director determined that Amendment 7 to the FMP is

necessary for the conservation and management of the Northeast

multispecies fishery and that it is consistent with the Magnuson Act

and other applicable laws.

The Council prepared a FSEIS for Amendment 7; a notice of

availability was published on February 16, 1996 (61 FR 6230). This

action is expected to have a significant economic impact on the human

environment. The Assistant Administrator for Fisheries, NOAA (AA),

determined upon review of the FSEIS and public comments on the Draft

SEIS that the PA of the amendment is environmentally preferable to the

SQ. The FSEIS demonstrates that the PA contains management measures

able to rebuild severely depleted stocks of haddock, cod, and

yellowtail flounder; protect harbor porpoise; provides economic and

social benefits to the fishing industry in the long term; and should

provide better balance in the ecosystem in terms of groundfish

resources.

This final rule has been determined to be ``economically

significant'' for purposes of E.O. 12866, but probably will not have an

annual impact on the economy of $100 million or more, and will not

adversely affect the productivity, environment, public health or safety

or state, local or tribal governments or communities in the long term.

By increasing multispecies catch rates in the long term and reducing

operating costs, this action is expected to make the industry more

productive after recovery of multispecies stock abundance and to

increase the competitiveness of the domestic industry in comparison to

foreign suppliers.

In compliance with the RFA, the Council prepared an IRFA as part of

the RIR that concluded that this action would have significant economic

impacts on a substantial number of small entities. The FRFA consists of

the

[[Page 27731]]

IRFA and comments and responses in this final rule associated with the

public's concerns about possible effects of this rule on small

entities. Responses to comment numbers 12, 13, 14, 18, 22, 23, 25, 26,

27, 28, 29, 35, 37, 39, 40, 43, 46, 48, 51, 58, 65, and 67 are

especially relevant to concerns of the public about possible effects of

one or more measures contained in this rule on small entities, often

focusing on a particular group of small entities. The measures

contained in this rule are restrictive, and impacts on the industry are

expected to be significant. In the early years of the program, some

vessels may be unable to cover their costs in part because of these

restrictions and also due to the poor condition of the stocks. Such

vessels are expected to leave the fishery. Relative to the SQ, however,

this program is expected to produce higher long-term benefits to the

industry and the Nation. The majority of the vessels in the Northeast

multispecies fishery are considered small entities. This action is

expected to reduce the overall revenues of the multispecies industry by

approximately 10 to 25 percent in the first 3 years of the program

compared to the SQ. The impact of the action will not be uniform for

all vessels or all sectors. Instead, the action will have differential

effects on gear groups, with trawlers potentially being relatively more

disadvantaged than other vessels. This is primarily because trawlers

produce the largest share of total multispecies landings and have

higher costs. Alternately, smaller and independent vessels are well

suited to adapting to year to year changes in species as availability

changes. Generally, smaller vessels are more flexible and have lower

costs. This action will allow vessels less than or equal to 30 ft (9.1

m) to be exempt from the DAS program, provided they comply with the

300-lb (136.1-kg) CHY possession limit. The CHY comprise 15 percent of

the revenue of these vessels.

The negative effects of the non-selected alternatives would be

greater than those of the selected measures. Expected impacts of the

action on crew income are negative in the first 5 years of the program

and positive thereafter. Likewise, the level of employment is expected

to decline in the short-term to an undetermined extent but will rebound

over the long term. Projected revenues from fishing will be positive

beginning in the year 2001, which will create demand for other goods

and services in the area and lead to increased production and

employment. The overall impacts will be positive. The action is

expected to increase net benefits to the nation by $18 million over the

10-year rebuilding period. The recreational sector is not expected to

be negatively impacted by this action.

Also, regarding the RFA, steps are being taken by NOAA to reduce

the socio-economic burden on small entities through a buyout program,

being implemented in two phases, aimed at reducing fishing capacity in

the groundfish fishery and offering an economic alternative to vessel

owners in the fishery. NOAA awarded grants to 11 New England fishing

vessels under a $2 million pilot buyout program in February, 1996, in

return for scrapping their vessels and surrendering their fishing

permits. A larger vessel buyout program for as much as $25 million is

being developed for implementation after Amendment 7 is made effective.

Notwithstanding any other provision of law, no person is required

to respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the Paperwork Reduction Act unless that collection of information

displays a currently valid OMB control number.

This rule contains six new collection of information requirements

subject to the Paperwork Reduction Act. The collection of this

information has been approved by the OMB, and the OMB control numbers

and public reporting burden are listed as follows:

1. The Nantucket Shoals Dogfish exemption, OMB# 0648-0202, will

require vessel notification (2 minutes/response).

Revisions to the existing requirements are:

2. Proof of VTS installation, OMB# 0648-0202, (2 minutes/response);

3. Ca

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