Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 15

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 960830238-6238-01; I.D. 082096B]

RIN 0648-AJ07

Fisheries of the Northeastern United States; Northeast

Multispecies Fishery; Framework Adjustment 15

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement measures contained in

Framework Adjustment 15 to the Northeast Multispecies Fishery

Management Plan (FMP). This rule extends the timing of the Mid-coast

Closure Area for vessels fishing with sink gillnet gear from the

current November through December period to September 15 through

December 31. The intent of this action is to reduce further the

incidental mortality of harbor porpoise in the Gulf of Maine sink

gillnet fishery to meet porpoise bycatch reduction goals. This rule

also makes several corrections to the regulatory text.

EFFECTIVE DATE: September 6, 1996.

ADDRESSES: Copies of Amendment 7 to the Northeast Multispecies Fishery

Management Plan (Amendment 7), its regulatory impact review (RIR) and

the final regulatory flexibility analysis (FRFA) contained with the

RIR, its final supplemental environmental impact statement (FSEIS), and

Framework Adjustment 15 documents are available upon request from

Christopher Kellogg, Acting Executive Director, New England Fishery

Management Council (Council), 5 Broadway, Saugus, MA 01906-1097.

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

Analyst, 508-281-9272.

SUPPLEMENTARY INFORMATION:

Background

In 1993, at the request of NMFS, the Council agreed to develop a

strategy to reduce the bycatch of harbor porpoise in the Gulf of Maine

sink gillnet fishery by integrating a mitigation plan with fishery

management measures. Subsequently, one of Amendment 5's (59 FR 9872,

March 1, 1994) principal objectives was to reduce the bycatch of harbor

porpoise in the Gulf of Maine sink gillnet fishery by the end of year 4

of the plan's implementation to a level not to exceed 2 percent of the

population, based on the best available estimates of abundance and

bycatch. Amendment 7 to the FMP (61 FR 27710, May 31, 1996),

implemented in July 1996 included an objective for harbor porpoise that

was revised to be consistent with the 1994 amendments to the Marine

Mammal Protection Act (MMPA). The Council's new provision requires

reductions in the incidental mortality and serious injury of harbor

porpoise in the Gulf of Maine sink gillnet fishery to the potential

biological removal (PBR) level identified for this stock through the

process described in section 117 of the MMPA by April 1, 1997, the date

required for compliance with section 118(f)(5)(A) of the MMPA. Based on

current population and life history information, the PBR level is 403

animals for Gulf of Maine harbor porpoise.

In view of the Council's revised objective, which is to reduce the

harbor porpoise bycatch to the PBR level by April 1, 1997, coupled with

the most recent bycatch estimate (2,000 harbor porpoise in 1994) and

the fact that the Mid-coast Closure Area in the fall accounts for more

than 50 percent of the harbor porpoise bycatch in the Gulf of Maine,

management action is necessary in order to make further progress toward

the Council's bycatch reduction goals. The 1995 bycatch estimate is not

yet available but is expected to be somewhat lower than the most recent

figure (2,000 animals in 1994). In addition, analysis of recent survey

data have resulted in a larger population estimate that will revise the

PBR level to 490 animals (pending approval by the Atlantic Scientific

Review Group). However, there is no preliminary information that

indicates that the current bycatch approaches even the newly projected

PBR level of 490 animals.

There are currently four time/area closures in place to protect

harbor porpoise. This action extends the existing Mid-coast Closure

Area in time to sink gillnet gear based on information collected for

the fall period, 1990-95. During the September through December period

analyzed, bycatch was highest in October and November. September and

December were months with more variability but, in some years,

accounted for a significant percentage of the fall bycatch. Framework

Adjustment 15 will close the Mid-coast Closure Area to gillnet gear

from September 15 through October 31. This will precede the November 1

through December 31 closure to all gear capable of catching

multispecies and will result in a total closure period for gillnet gear

in this area of September 15 through December 31.

The Council, in consideration of recommendations by the Harbor

Porpoise Review Team (HPRT) and Marine Mammal Committee, proposed this

September 15 through October 31 additional Mid-coast Closure Area

period and also requested the Director, Northeast Region, NMFS

(Regional Director), to investigate the possibility of the use of

acoustic deterrents as a condition or requirement to fish with sink

gillnets in the area to mitigate harbor porpoise bycatch. The Regional

Director agreed to investigate the feasibility of further use of the

devices in a concurrent action.

The Council is making this adjustment to the regulations under the

abbreviated framework rulemaking procedure codified at 50 CFR part 648,

subpart F. This procedure requires the Council, when making

specifically allowed adjustments to the FMP, to develop and analyze the

actions over the span of at least two Council meetings. The Council

must provide the public with advance notice of both the proposals and

the analysis and opportunity to comment on them prior to and at a

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

the Council may recommend to the Regional Director that the measures be

published as a final rule if certain conditions are met. The Regional

Director may publish the measures as a final rule, or as a proposed

rule if additional public comment is needed.

This final rule implements an additional closure period from

September 15 through October 31 and results in an expanded period for

the Mid-coast Closure Area for vessels using gillnet gear. This area

will thus be closed to gillnet gear from September 15 through December

31 of each fishing year.

This issue was discussed at a Marine Mammal Committee meeting held

on May 21, 1996, and at two Council meetings, the minimum required

under the Northeast Multispecies FMP framework adjustment process. Both

Council meetings were held in Danvers, MA, the first on June 5, 1996,

and the second on July 17, 1996. Documents summarizing the Council's

proposed action, the biological analyses upon which this decision was

based, and potential economic impacts were available for public review

5 days prior to the second meeting required under the framework

adjustment process. Written comments were accepted through July 16,

1996. Comments on the Council's proposal were received at

[[Page 47828]]

meetings from individuals and representatives of the International

Wildlife Coalition, Cape Ann Gillnetters Association and the Mass

Netters Association.

Finally, this rule contains corrections to Sec. 648.87.

Specifically, incorrect paragraph references are corrected in

Sec. 648.87, paragraphs (b)(1) and (b)(2), and, in paragraph (b)(2), an

inconsistent reference to the ``Cape Cod South Closure Area'' is

corrected, an incorrect closure date is corrected, and the word ``map''

is changed to ``chart''.

Comments and Responses

Comment: Several individuals addressed the need to continue to

reduce harbor porpoise bycatch in the fall months.

Response: The Council concurred based on biological analyses

provided by the Northeast Fisheries Science Center (NEFSC) and the

recommendation of the HPRT. Information collected during 1990-95

indicates a pattern of high takes of harbor porpoise in the sink

gillnet fishery throughout the fall months. The bycatch is highest,

however, in October and November. The Mid-coast Closure Area is already

closed to most gear to protect multispecies finfish during the months

of November and December under Amendment 7 to the FMP. The September 15

to December 31 closure period would remain in effect for the sink

gillnet fishery to protect harbor porpoise even if changes occur to the

closures implemented for multispecies conservation.

Comment: Several fishermen commented that the MMPA and Council

goal of reaching the PBR level by April 1997 is neither realistic nor

warranted.

Response: The PBR level goal and the process for determining the

PBR level have a strong biological basis and were developed to meet

requirements of other applicable law. This includes the MMPA, which was

reauthorized in 1994 to include the PBR level stipulations.

Adherence to Framework Procedure Requirements

The Council considered the public comments received prior to making

its recommendation to the Regional Director under the provisions for

abbreviated rulemaking in this FMP. The Council requested publication

of these management measures as a final rule after considering the

required factors stipulated under the framework measures in the FMP, 50

CFR 648.90, and has provided supporting analyses for each factor

considered. NMFS concurs.

Classification

The Assistant Administrator for Fisheries, NOAA (AA) finds there is

good cause to waive prior notice and opportunity for public comment

under 5 U.S.C. 553(b)(B). Public meetings held by the Council to

discuss the management measures implemented by this rule provided

adequate prior notice and an opportunity for public comment to be heard

and considered. The AA finds that under 5 U.S.C. 553(d), the need to

have this regulation in place by September 15, 1996, is good cause to

waive the 30-day delay in effectiveness of this regulation. Delay of

implementation of this regulation beyond September 15, 1996, would

likely impede the achievement of harbor porpoise mortality reduction

goals.

Because this regulation is not being published as a general notice

of proposed rulemaking under 5 U.S.C. 553 or any other law, this rule

is exempt from the requirement to prepare an initial or final

regulatory flexibility analysis under the Regulatory Flexibility Act.

As such, none has been prepared.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: September 5, 1996.

N. Foster,

Deputy Assistant Administrator for Fisheries, National marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 648 is amended

to read as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as

follows:

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

2. In Sec. 648.87, paragraph (b)(1) and the heading and first

sentence of paragraph (b)(2) are revised to read as follows:

Sec. 648.87 Sink gillnet requirements to reduce harbor porpoise takes.

* * * * *

(b) * * *

(1) Mid-coast Closure Area. From March 25 through April 25 and from

September 15 through October 31 of each fishing year, the restrictions

and requirements specified in paragraph (b) of this section apply to

the Mid-coast Closure Area, as defined under Sec. 648.81(g)(1).

(2) Cape Cod South Closure Area. From March 1 through March 30 of

each fishing year, the restrictions and requirements specified in

paragraph (b) of this section apply to the Cape Cod South Closure Area

(copies of a chart depicting this area are available from the Regional

Director upon request), which is the area bounded by straight lines

connecting the following points in the order stated. * * *

* * * * *

[FR Doc. 96-23190 Filed 9-6-96; 11:37 am]

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