Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 19

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 961021289-6289-01; I.D. 100196C]

RIN 0648-AJ26

Fisheries of the Northeastern United States; Northeast

Multispecies Fishery; Framework Adjustment 19

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 19 to the Northeast Multispecies Fishery

Management Plan (FMP). This rule changes the time and area of the

current multispecies Mid-coast Closure Area within the Gulf of Maine

(GOM) and establishes an exemption to allow sink gillnet vessels to

fish in the reopened area when utilizing acoustic devices (pingers) on

their nets. The intent of this action is to reduce the overall economic

impact of the area closure while achieving the objectives of the FMP.

EFFECTIVE DATE: October 24, 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 (RFA) contained within the

RIR, its final supplemental environmental impact statement, and

Framework Adjustment 19 documents are available upon request from

Christopher B. Kellogg, Acting Executive Director, New England Fishery

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

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

Analyst, 508-281-9252.

SUPPLEMENTARY INFORMATION: Amendment 7 to the FMP (61 FR 27710, May 31,

1996), effective on July 1, 1996, established comprehensive measures to

rebuild the important multispecies stock complex primarily through

effort reduction controls and area closures. In addition to the year-

round closure areas on Georges Bank and Southern New England, several

alternative GOM area closures were considered by the Council during the

development of Amendment 7. However, due to the controversy and

complication of developing additional area closures and because of the

need to have measures in place as soon as possible, the Council adopted

the existing GOM harbor porpoise protection closures as the default

closures for multispecies until such time that these closures could be

modified through the framework adjustment procedure.

At the July 17-18, 1996, meeting, the Council initiated action to

replace the default GOM Mid-coast Area Closure with the intent to

minimize the time period and the size of the area. The purpose of this

action was to reduce the overall economic impact of the area closure

while achieving equivalent conservation value and to address concerns

about the distribution of economic impacts of the existing closure,

which may disproportionately affect small inshore vessels.

Based on the Northeast Fisheries Science Center analysis, several

alternatives to the current default closure were found to have

equivalent conservation value but resulted in significantly improved

revenues. At the final framework meeting on this action, held on

September 9, 1996, the Council proposed to close an area referred to as

Jeffreys Ledge (bounded by the following lines of coordinates:

43 deg.30' N. lat., 70 deg.00' W. long., 42 deg.30' N. lat., and

70 deg.30' W. long.) for the period May 1 through May 31, 1997, and,

for 1998 and beyond, to close the existing Mid-coast Closure Area but

with a change in time period to May 10 through May 30. Both of these

alternatives improve revenues by well over $2 million relative to the

existing time/area closure, without changing the impact on GOM cod. By

replacing the existing November through December Mid-coast Area Closure

with a spring closure, small vessels that are more constrained by

winter weather will be able to fish on their traditional grounds in

November

[[Page 55775]]

and December when alternatives are fewer than in May.

Although Council members were generally in agreement regarding the

Jeffreys Ledge closure in May, concern that vessels may be displaced to

a relatively small area shoreward of the Jeffreys Ledge area, possibly

resulting in increased gear conflicts, induced the Council to propose a

different closure for 1998 and beyond to address this potential

problem. To prevent the current default closure from taking effect on

November 1, 1996, the Council believed it necessary to move forward

with this alternative to alleviate unnecessary economic impacts until

such time as the Council is able to develop a proposal to satisfy all

concerns. In the unlikely event that the Council is unable to reach a

consensus in time for the 1998 fishing year, the revised closure would

serve as a fallback measure. Further explanation of this second-year

closure can be found in the comment and response section of this

preamble.

An issue of concern involves the fact that both the proposed change

to the current November/December Mid-coast Closure Area, and its

proposed default for 1998 and beyond, occur in the month of May. Since

May represents the beginning of the 1997 multispecies fishing year,

implementation of this proposal would result in the elimination of the

closure for the 1996 fishing year and the conservation benefits for

multispecies, particularly for GOM cod, would be foregone both for the

1996 calendar year and the fishing year. However, while delay of this

closure may negatively impact the target 1996 total allowable catches

(TACs) in the GOM, the conservation benefits that would accrue from

this area would be realized at the beginning of the 1997 fishing year,

a 6-month deferral as opposed to a full year. Also, since May

represents a period of time when catch rates are at their highest and

fish prices are at their lowest, a May replacement closure would be the

least economically burdensome to the fishing industry while still

achieving equivalent conservation benefits in relation to a November/

December closure.

Nevertheless, a likely consequence resulting from the delay of

these management measures is the possibility that the target TACs will

be exceeded. Due to this possibility, the Multispecies Monitoring

Committee will need to take these postponed reductions into account

when recommending target TACs for the 1997 fishing year.

In addition to changing the time/area closure for the Mid-coast

area, this action enables sink gillnet vessels to fish in the harbor

porpoise Mid-coast Closure Area provided pingers are employed on the

gear. The Council agreed to this based on information resulting from a

1994 experiment conducted by the New England Aquarium, Woods Hole

Oceanographic Institution, and the New Hampshire Commercial Fishermen's

Association and a 1995 experimental fishery that evaluated the

effectiveness of pinger use in the GOM sink gillnet fishery. Both of

these efforts indicated that, with the use of pingers, in the months of

November and December the harbor porpoise bycatch in the Mid-coast area

was reduced to insignificant levels. Based on the results of these

experiments, NMFS agrees that an exemption program is warranted in this

area during the November through December time period, provided the

nets are equipped with pingers as prescribed in the 1995 and 1996 NMFS-

authorized experimental fisheries.

This final rule changes the season termination date for Small Mesh

Area 1 from October 31 to November 15 for the 1997 fishing year. With

the implementation of Amendment 7 to the FMP, the harbor porpoise Mid-

coast Closure Area was expanded to all gear types capable of catching

multispecies. Due to this action, the termination date for Small Mesh

Area 1 was changed from November 15 to October 31 as this exemption

area lay completely within the November/December Mid-coast Closure

Area. This rule reestablishes the original season for this exempted

small mesh area. Additionally, since part of Small Mesh Area 2 lies

within and takes place during the 1998 default Mid-coast Closure Area,

this rule reduces the area of Small Mesh Area 2 during the time period

May 10 through May 30.

NMFS is making this adjustment to the regulations under the

framework abbreviated rulemaking procedure codified at 50 CFR part 648,

subpart F. This procedure requires the Council, when making

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

actions over the span of at least two Council meetings. 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 Administrator that the

measures be published as a final rule if certain conditions are met.

The Regional Administrator may publish the measures as a final rule, or

as a proposed rule if additional public comment is needed.

The public was provided the opportunity to express opinions at

numerous meetings beginning in February 1996. The following list

indicates the 1996 meetings at which this action was on the agenda,

discussed, and public comment was heard:

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Date Meeting Location

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February 27-28..................... Council....................................... Danvers, MA.

Apr. 11............................ Multispecies O/S.............................. Peabody, MA.

Apr. 17-18......................... Council....................................... Danvers, MA.

June 5-6........................... Council....................................... Danvers, MA.

June 11............................ Multispecies O/S.............................. Portland, ME.

July 9............................. Multispecies O/S.............................. Peabody, MA.

July 17-18......................... Council....................................... Peabody, MA.

Aug. 5............................. Subcommittee.................................. Saugus, MA.

Aug. 13............................ Multispecies O/S.............................. Peabody, MA.

Aug. 21-22......................... Council....................................... Danvers, MA.

Aug. 27............................ Multispecies O/S.............................. Woods Hole, MA.

Sept. 9............................ Council....................................... Peabody, MA.

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Documents summarizing the Council's proposed action, and the

analysis of biological and economic impacts of this and alternative

actions, were available for public review 5 days prior to the Council's

final September 9, 1996, meeting, which is required under the framework

adjustment process. Also, written comments were accepted

[[Page 55776]]

up to and at the September 9, 1996, Council meeting.

Comments and Responses

Comment 1: A Council member presented comments from small-boat

fishers in New Hampshire and Newburyport, MA, that the proposed

Jeffreys Ledge Closure Area for the month of May could force a large

number of small boats inshore to the area known as Ipswich Bay, because

they are physically limited from fishing elsewhere. The fishers are

concerned that the increased density of fishing activity would be

detrimental to the resource in Ipswich Bay and would increase the

incidence of gear conflicts.

Response: The Council adopted a second-year plan that would close

the entire Mid-coast Closure Area from May 10 through May 30. While

this may result in requiring some vessels to tie up during this period,

the time of the closure is reduced by 11 days as compared to the 1997

Jeffreys Ledge closure, and it applies over a broader area. This is a

risk-averse approach that will implement a more conservative measure

unless the Council determines that the measure for 1997 is effective

and does not have the effort-displacement problems anticipated by some

fishers. If the Council makes such a determination, it would have to

make an adjustment through the framework process before May 1998.

Comment 2: One commentor stated that this proposed action would

change the Mid-coast Closure Area for all vessels capable of catching

multispecies, it does not automatically open this area to gillnetting

since the area is also closed to protect harbor porpoise. The NMFS-

authorized experiment to test the use of pingers in this area indicated

that they are effective in reducing harbor porpoise bycatch.

Response: The Council added a measure that would allow gillnets

equipped with pingers to fish in the area during November and December

as supported by experimental fishery results.

Comment 3: Two inshore trawl fishers from Gloucester commented that

they supported the Multispecies Committee's recommendation to close

just Jeffreys Ledge, and that the closure of the larger 1998 default

Mid-coast Closure Area would force them to fish offshore.

Response: The Council noted that the proposed action retains the

committee's recommendation for the first year but that it is including

the broader closure for the second year as a conservative default

strategy to address concerns of other industry members about increased

density of fishing activity in a small inshore area. The Council will

monitor the area for effort shifts during 1997 and may adjust the

second-year measure if the problem anticipated by those fishers does

not occur in the first year.

Comment 4: A member of the industry commented that an area closure

unfairly impacts only those vessels displaced by the closure and those

that fish in nearby areas where the displaced boats will fish. He

suggested that a fairer system would be to reduce days-at-sea equally

for all vessels.

Response: The Council recognizes that area closures may have

differential impacts on vessels that fish in or near the affected area.

However, the area closures are designed as a conservation measure to

protect fish in that area, and closures exist throughout the region

that affect only segments of the entire fleet. The Council also

indicated that it had considered the days-at-sea reduction schedule in

the development of Amendment 7 and that it was not going to adjust the

schedule at this early point in the amendment's implementation.

Comment 5: An industry representative from Maine and a

representative of the fishing industry in Gloucester, MA, commented

that fishing for pelagic species with a mid-water trawl is still

prohibited in the proposed closure area(s) despite its insignificant

bycatch of multispecies and that it should be allowed.

Response: The Council has directed the Multispecies Committee to

address this issue and make a recommendation that could be implemented

before the May closure. Adherence to Framework Procedure Requirements

The Council considered public comment prior to making its

recommendation to the Regional Administrator under the provisions for

abbreviated rulemaking in this FMP. The Council requests 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. 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; therefore, further notice and opportunity to comment is

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

this regulation in place by November 1, 1996, is good cause to waive

the 30-day delay in effectiveness of this regulation. Implementation of

this regulation by November 1, 1996, would relieve a restriction on

vessels that have traditionally fished in the Mid-coast Closure Area

during the months of November and December.

Because a general notice of proposed rulemaking is not required to

be published for this rule by 5 U.S.C. 553 or by any other law, this

rule is exempt from the requirement to prepare an initial or final RFA

under the Regulatory Flexibility Act. As such, none has been prepared.

The primary intent for this action is to reduce economic impacts on

small fishing vessels by changing the timing and location of the area

closure, which will allow small vessels to be able to fish on their

traditional grounds in November and December when fishing alternatives

are fewer.

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: October 23, 1996.

Rolland A. Schmitten,

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. 648.14, paragraph (a)(52) is revised and paragraph

(a)(89) is added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(52) Enter, be on a fishing vessel in, or fail to remove gear from

the EEZ portion of the areas described in Sec. 648.81 (f)(1) through

(i)(1) during the time period specified, except as provided in

Sec. 648.81(d), (f)(2), (g)(2), (h)(2), and (i)(2).

* * * * *

(89) Fish with, set, haul back, possess on board a vessel, unless

stowed in accordance with Sec. 648.23(b), or fail to remove a sink

gillnet from the EEZ portion of the areas, and for the times specified

in Sec. 648.87 (a) and (b), except as provided in Sec. 648.87(b)(1)(i),

or unless authorized in writing by the Regional Director.

[[Page 55777]]

3. In Sec. 648.80, paragraph (a)(8) is revised to read as follows:

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

of fishing.

* * * * *

(a) * * *

(8) Small Mesh Area 1/Small Mesh Area 2. (i) Vessels subject to the

minimum mesh size restrictions specified in paragraph (a)(2) of this

section may fish with or possess nets with a mesh size smaller than the

minimum size specified from July 15 through November 15 when fishing in

Small Mesh Area 1, and from January 1 through June 30 when fishing in

Small Mesh Area 2 in 1997 and in 1998 and beyond, except as specified

in paragraph (a)(8)(ii) of this section. A vessel may not fish for,

possess on board, or land any species of fish other than: Butterfish,

dogfish, herring, mackerel, ocean pout, scup, squid, silver hake, and

red hake, except for the following species, with the restrictions

noted, as allowable bycatch species: Longhorn sculpin; monkfish and

monkfish parts--up to 10 percent, by weight, of all other species on

board; and American lobster--up to 10 percent, by weight, of all other

species on board or 200 lobsters, whichever is less. These areas are

defined by straight lines connecting the following points in the order

stated (copies of a map depicting these areas are available from the

Regional Director upon request):

Small Mesh Area 1

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

Point N. lat. W. long.

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

SM1................................ 43 deg.03' 70 deg.27'

SM2................................ 42 deg.57' 70 deg.22'

SM3................................ 42 deg.47' 70 deg.32'

SM4................................ 42 deg.45' 70 deg.29'

SM5................................ 42 deg.43' 70 deg.32'

SM6................................ 42 deg.44' 70 deg.39'

SM7................................ 42 deg.49' 70 deg.43'

SM8................................ 42 deg.50' 70 deg.41'

SM9................................ 42 deg.53' 70 deg.43'

SM10............................... 42 deg.55' 70 deg.40'

SM11............................... 42 deg.59' 70 deg.32'

SM1................................ 43 deg.03' 70 deg.27'

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

Small Mesh Area 2

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

Point N. lat. W. long.

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

SM13.............................. 43 deg.20.3' 69 deg.59.4'

SM14.............................. 43 deg.25.9' 69 deg.45.6'

SM15.............................. 42 deg.49.5' 69 deg.40'

SM16.............................. 42 deg.41.5' 69 deg.40'

SM17.............................. 42 deg.34.9' 70 deg.00'

SM13.............................. 43 deg.20.3' 69 deg.59.4'

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

(ii) In 1998 and thereafter, the portion of Small Mesh Area 2 that

is north of 43 deg.00.0' N. lat. shall be closed to all fishing during

the period May 10 through May 30 to coincide with the Mid-coast Closure

Area specified in Sec. 648.81(g)(1). Therefore, during the May 10

through May 30 time period in 1998 and beyond, Small Mesh Area 2 is

defined by straight lines connecting the following points in the order

stated:

Small Mesh Area 2

[May 10-May 30, 1998 and beyond]

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

Point N. lat. W. long.

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

SM18.............................. 43 deg.00.0' 69 deg.41.6'

SM15.............................. 42 deg.49.5' 69 deg.40'

SM16.............................. 42 deg.41.5' 69 deg.40'

SM17.............................. 42 deg.34.9' 70 deg.00'

SM19.............................. 43 deg.00.0' 69 deg.59.7'

SM18.............................. 43 deg.00.0' 69 deg.41.6'

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* * * * *

4. In Sec. 648.81, paragraphs (d) and (g)(1) are revised and

paragraph (i) is added to read as follows:

Sec. 648.81 Closed areas.

* * * * *

(d) Transiting. Vessels may transit Closed Area I, the Nantucket

Lightship Closed Area, the NE Closure Area, the Mid-coast Closure Area,

the Massachusetts Bay Closure Area, and the Jeffreys Ledge Closure

Area, as defined in paragraphs (a)(1), (c)(1), (f)(1), (g)(1), (h)(1),

and (i)(1), respectively, of this section, provided that their gear is

stowed in accordance with the provisions of paragraph (e) of this

section.

* * * * *

(g) * * * (1) For the calendar year 1997, vessels are subject to

the Jeffreys Ledge Closure Area restrictions specified under paragraph

(i) of this section. For all other years beyond 1997, during the period

May 10 through May 30, no fishing vessel or person on a fishing vessel

may enter, fish in, or be in, and no fishing gear capable of catching

multispecies, unless otherwise allowed in this part, may be in, the

area known as the Mid-coast Closure Area, as defined by straight lines

connecting the following points in the order stated, except as

specified in paragraphs (d) and (g)(2) of this section: (Copies of a

map depicting this area are available from the Regional Director upon

request):

Mid-Coast Closure Area

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

Point N. lat. W. long.

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

MC1................................ 42 deg.30' (1)

MC2................................ 42 deg.30' 70 deg.15'

MC3................................ 42 deg.40' 70 deg.15'

MC4................................ 42 deg.40' 70 deg.00'

MC5................................ 43 deg.00' 70 deg.00'

MC6................................ 43 deg.00' 69 deg.30'

MC7................................ 43 deg.15' 69 deg.30'

MC8................................ 43 deg.15' 69 deg.00'

MC9................................ (2) 69 deg.00'

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

\1\ Massachusetts shoreline.

\2\ Maine shoreline.

* * * * *

(i) Jeffreys Ledge Closure Area. (1) For the calendar year 1997,

during the period May 1 through May 31, no fishing vessel or person on

a fishing vessel may enter, fish in, or be in, and no fishing gear

capable of catching multispecies, unless otherwise allowed in this

part, may be in, the area known as the Jeffreys Ledge Closure Area, as

defined by straight lines connecting the following points in the order

stated, except as specified in paragraphs (d) and (i)(2) of this

section (copies of a map depicting this area are available from the

Regional Director upon request):

Jeffreys Ledge Closure Area

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

Point N. lat W. long.

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

JL8................................ 43 deg.30' (1)

JL9................................ 43 deg.30' 70 deg.00'

JL10............................... 42 deg.30' 70 deg.00'

JL11............................... 42 deg.30' 70 deg.30'

JL12............................... (1) 70 deg.30'

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

\1\ Maine shoreline.

(2) Paragraph (i)(1) of this section does not apply to persons on

fishing vessels or fishing vessels that meet the criteria in paragraph

(f)(2)(i), (f)(2)(ii), or (f)(2)(iii) of this section.

5. In Sec. 648.87, paragraph (b)(1) is revised to read as follows:

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

* * * * *

(b) * * *

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

from September 15 through December 31 of each fishing year, the

restrictions and requirements specified in this paragraph (b) apply to

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

as provided in paragraph (b)(1)(ii) of this section.

(ii) Sink gillnet vessels subject to the restrictions and

regulations specified in this paragraph (b) may fish in the Mid-coast

Closure Area, as defined under Sec. 648.81(g)(1), from November 1

through December 31 of each fishing year, provided that an acoustic

deterrent device (``pinger'') is attached at the end of each string of

nets and at the bridle of every net within a string of nets, and

[[Page 55778]]

is maintained as operational and functioning. Each pinger, when

immersed in water, must broadcast a 10kHz 2kHz sound at

132 dB 4dB re 1 micropascal at 1 m. This sound must last

300 milliseconds and repeat every 4 seconds.

* * * * *

[FR Doc. 96-27730 Filed 10-24-96; 4:44 pm]

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