Northeast Multispecies Fishery; Amendment 7; Resubmission of Disapproved Measure

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 651

[Docket No. 960216032-6107-02; I.D. 032196D]

RIN 0648-AH70

Northeast Multispecies Fishery; Amendment 7; Resubmission of

Disapproved Measure

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes amending its proposed regulations published on

March 5, 1996, to implement Amendment 7 to the Northeast Multispecies

Fishery Management Plan (FMP) in order to implement a resubmitted part

of the amendment that was initially disapproved on February 14, 1996.

The New England Fishery Management Council (Council) has clarified that

the proposed measure to increase fishing time would apply to all

vessels using large mesh. The intended effect of this measure is to

promote conservation by providing an equitably applied incentive to use

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

DATES: Comments on this proposed rule must be received by May 15, 1996.

ADDRESSES: Comments should be sent to Dr. Andrew A. Rosenberg,

Director, Northeast Regional Office, NMFS, 1 Blackburn Drive,

Gloucester, MA 01930. Mark on the outside of the envelope ``Comments on

Large Mesh Individual DAS vessels.''

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

Analyst, 508-281-9252.

SUPPLEMENTARY INFORMATION: The Council submitted Amendment 7 to the FMP

on February 5, 1996. After a preliminary evaluation, the following

three measures in the amendment were disapproved on February 14, 1996:

An additional allowance of days at sea for trawl vessels enrolled in

the Individual Days-at-Sea (DAS) category that use 8-inch (20.32-cm)

mesh; a 300-lb (136.1-kg) possession limit of regulated species for

vessels that use 8-inch (20.32-cm) mesh in an exempted fishery; and the

establishment of a limited access category for vessels that fished in

the Possession Limit Open Access category under Amendment 5. The

remainder of

Amendment 7 was published as a proposed rule on March 5, 1996 (61 FR

8540). Pursuant to section 304(b)(3)(A) of the Magnuson Fishery

Conservation and Management Act (Magnuson Act), the Council has

resubmitted the measure that would allow additional DAS for vessels

enrolled in the Large Mesh Individual DAS category as described in this

proposed rule. The Council also resubmitted the proposal to allow a

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

with 8-inch (20.32-cm) mesh, but this measure has been disapproved

again and is not contained in this action. The third disapproved

measure has not been resubmitted.

The Large Mesh Individual DAS option that would grant additional

DAS for vessels fishing for groundfish exclusively with large mesh was

proposed by the Council based on its policy to provide incentives for

using mesh larger than the minimum size. The original submission of

this measure was disapproved, because it appeared to apply only to all

trawl vessels and not to all gillnet vessels, which would have created

an inequity and would, therefore, have been inconsistent with Magnuson

Act National Standard 4.

At its February 27-28, 1996, meeting, the Council clarified its

intent and voted to resubmit a measure that proposes that additional

DAS under the Large Mesh Individual DAS category apply to both trawl

and gillnet vessels, thereby eliminating what was previously identified

as an inequity. This rule proposes this measure and provides that an

increase in DAS under the Large Mesh Individual DAS category would be

equivalent to the Large Mesh Fleet increase in DAS, i.e., an additional

12 percent in year 1 and 36 percent in year 2.

As stated in the proposed rule to implement Amendment 7, this

measure raises issues of concern. The first issue of concern is over

how NMFS would calculate the number of DAS for any gillnet vessel that

may appeal the number of Individual DAS assigned to it by NMFS. Second,

as mesh selectivity studies for 7-inch (17.8-cm) and 8-inch (20.2-cm)

mesh do not currently exist, it is impossible to know whether and how

much the selectivity of this increased mesh would compensate for the

additional allocation of DAS. Public comment is sought on both of these

concerns.

The Council also resubmitted the disapproved 300-lb (136.1-kg)

regulated species possession limit for vessels fishing with 8-inch

(20.32-cm) mesh in an exempted fishery, claiming that there would be a

conservation benefit by creating an added incentive to use a mesh

larger than the minimum regulated mesh of 6 inches (15.24 cm). This

measure was initially disapproved, because it could not be reasonably

calculated to promote conservation, and, therefore, would be

inconsistent with National Standard 4.

In its resubmission justification, the Council notes that in the

event that a fishery is deemed exempt, because it has been determined

that the bycatch of regulated species does not exceed the maximum 5-

percent standard, a vessel may still catch some groundfish when fishing

with 6-inch (15.24-cm) mesh and consequently be forced to discard more

and smaller fish than if it were fishing with 8-inch (20.32-cm) mesh.

The Council further states that if a fishery is determined to meet the

5 percent criteria with 6-inch (15.24-cm) mesh, providing an incentive

to use a larger mesh than that on which the exemption is based would

not increase the regulated species bycatch rate above 5 percent. The

Council notes that, when fishing with larger mesh, vessels would have a

lower regulated species bycatch rate and would be providing for the

escapement of a greater proportion of juvenile and undersized

groundfish. Therefore, the Council believes that the resubmitted

measure would promote conservation and would be consistent with the

objectives of the amendment. In resubmitting this measure the Council

states that it is their belief that when provided an incentive to

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

fishery, vessels would be encouraged to use 8-inch (20.32-cm) mesh,

thereby reducing overall groundfish mortality.

Although it is possible that in some exempted fisheries discards

may be reduced when fishing with 8-inch (20.32-cm) mesh as opposed to

the current regulated mesh size, NMFS has disapproved this resubmitted

measure for the same reason that it was initially disapproved, i.e.,

because it conflicts with the Council's proposed exempted fishery

measure. The clear intent of the exemption program is to prevent any

vessel, when not fishing under the DAS effort control program, from

fishing in a fishery that has a bycatch of regulated species comprising

5 percent or more of its total catch. The Council originally arrived at

the 5 percent standard as a realistic measure to use in order to allow

some fishing to continue when a vessel is not directing effort on

groundfish. Just as the 500-lb (226.8-kg) possession limit under

Amendment 5 provided an incentive for vessels to target groundfish when

fishing outside of a DAS, it is believed that the 300-lb (136.1- kg)

possession limit may do the same and would, therefore, counteract the

conservation effect of the bycatch protection measure. Further, because

the Council's proposal would allow a vessel to stow nets of mesh less

than 8 inches (20.32 cm) on board its vessel when fishing in an

exempted fishery, an enforcement concern is raised that some vessels

would use net liners to harvest a groundfish bycatch. In addition, it

would allow participants in certain exempted fisheries an advantage

that participants in other exempted fisheries do not have, without any

clear conservation benefit. For these reasons, this measure cannot be

reasonably calculated to promote conservation and is, therefore,

inconsistent with National Standard 4.

In discussing this issue at its February Council meeting, it

appears that the Council's recommendation for the 300-lb (136.1- kg)

measure may be to allow a reasonable bycatch of regulated species in

the monkfish fishery. This fishery is essentially unregulated, although

the Council is moving forward with a plan amendment to add monkfish as

a species regulated by the FMP. Depending upon which types of controls

are placed on this fishery, the regulated species bycatch provision may

be more appropriately considered in the development of monkfish

conservation measures.

NMFS notes that portions of the regulatory text proposed at 61 FR

8540 on March 5, 1996, would be amended by this proposed rule.

Classification

Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires

NMFS to publish implementing regulations proposed by a Council within

15 days of the receipt of an amendment and proposed regulations. At

this time, NMFS has not determined whether the amendment this rule

would implement is consistent with the national standards, other

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

making that determination, will take into account the information,

views and comments received during the comment period.

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

The proposed measure contained in this rule is not modified from

that included in the Council's initial Amendment 7 submission. As such,

the final supplemental environmental impact statement (FSEIS),

regulatory impact review (RIR), and the initial regulatory flexibility

analysis (IRFA) on Amendment 7 considered this measure.

A separate regulatory flexibility analysis was not prepared for this

action. Copies of the FSEIS/RIR/IRFA for Amendment 7 can be obtained by

contacting Douglas G. Marshall, Executive Director, New England Fishery

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

A formal section 7 consultation under the Endangered Species Act

was conducted for Amendment 7 to the FMP. A biological opinion was

prepared by a formal section 7 consultation for Amendment 7 and it was

determined that fishing activities conducted under the amendment and

its implementing regulations may affect but are not likely to

jeopardize the continued existence of endangered or threatened species

or result in the destruction or adverse modification of critical

habitat. This action does not change that conclusion.

List of Subjects in 50 CFR Part 651

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: April 12, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

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

proposed to be amended as follows:

PART 651--NORTHEAST MULTISPECIES FISHERY

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

follows:

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

2. In Sec. 651.20, the proposed rule published at 61 FR 8540 on

March 5, 1996, is proposed to be amended by revising paragraphs

(a)(2)(ii), (c)(2)(ii), and (d)(2)(ii) to read as follows:

Sec. 651.20 Regulated mesh areas and restrictions on gear and methods

of fishing.

* * * * *

(a)* * *

(2)* * *

(ii) Large Mesh vessels. When fishing in the GOM/GB regulated mesh

area, the minimum mesh size for any sink gillnet on a vessel, or used

by a vessel, fishing under a DAS in the Large Mesh DAS programs

specified in Sec. 651.22(b)(6) and (7) shall be 7-inch (17.78-cm)

diamond mesh throughout the entire net. The minimum mesh size for any

trawl net on a vessel, or used by a vessel, fishing under a DAS in the

Large Mesh DAS programs shall be 8-inch (20.32-cm) diamond mesh

throughout the entire net. This restriction does not apply to nets or

pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft

(0.81 m2)), or to vessels that have not been issued a Federal

multispecies permit under Sec. 651.4 and that are fishing exclusively

in state waters.

* * * * *

(c)* * *

(2)* * *

(ii) Large Mesh vessels. When fishing in the SNE regulated mesh

area, the minimum mesh size for any sink gillnet on a vessel, or used

by a vessel, fishing under a DAS in the Large Mesh DAS programs

specified in Sec. 651.22(b)(6) and (7) shall be 7-inch (17.78-cm)

diamond mesh throughout the entire net. The minimum mesh size for any

trawl net on a vessel, or used by a vessel, fishing under a DAS in the

Large Mesh DAS programs shall be 8-inch (20.32-cm) diamond mesh

throughout the entire net. This restriction does not apply to nets or

pieces of nets smaller than 3 x 3 ft (0.9 x 0.9 m), (9 ft2 (0.81

m2)), or to vessels that have not been issued a Federal

multispecies permit under Sec. 651.4 and that are fishing exclusively

in state waters.

* * * * *

(d)* * *

(2)* * *

(ii) Large Mesh vessels. When fishing in the MA regulated mesh

area, the minimum mesh size for any sink gillnet on a vessel, or used

by a vessel, fishing under a DAS in the Large Mesh DAS programs

specified in Sec. 651.22(b)(6) and (7) shall be 7-inch (17.78-cm)

diamond mesh throughout the entire net. The minimum mesh size for any

trawl net on a vessel, or used by a vessel, fishing under a DAS in the

Large Mesh DAS programs shall be 8-inch (20.32-cm) diamond mesh

throughout the net. This restriction does not apply to nets or pieces

of nets smaller than 3 x 3 ft (0.9 x 0.9 m), (9 ft2 (0.81

m2)), or to vessels that have not been issued a Federal

multispecies permit under Sec. 651.4 and that are fishing exclusively

in state waters.

* * * * *

3. In Sec. 651.22, the proposed rule published at 61 FR 8540 on

March 5, 1996, is proposed to be amended by revising paragraph (b)(6)

and adding paragraph (b)(7) to read as follows:

Sec. 651.22 Effort control program for limited access vessels.

* * * * *

(b)* * *

(6) Large Mesh Individual DAS Category--(i) DAS allocation. Vessels

fishing under the Large Mesh Individual DAS category shall be allocated

a DAS increase that is equivalent to 12 percent in year 1 and 36

percent in year 2 beyond the DAS allocations specified in paragraph

(b)(1)(i) of this section. To be eligible to fish under the Large Mesh

Individual DAS permit category a vessel, while fishing under the DAS

program, must fish with gillnet gear with a minimum mesh net of 7-inch

(17.78-cm) diamond or trawl gear with a minimum mesh size of 8-inch

(20.32-cm) diamond, for the entire fishing year, as described under

Sec. 651.20(a)(2)(ii), (c)(2)(ii), and (d)(2)(ii).

(ii) Initial assignment. No vessel shall be initially assigned to

the Large Mesh Individual DAS category. Any vessel that is initially

assigned to the Individual DAS, Fleet DAS, or Small Vessel permit

category may request and be granted a change in category into this

category as specified in Sec. 651.4(f)(3).

(7) Large Mesh Fleet DAS Category--(i) DAS allocation. Vessels

fishing under the Large Mesh Fleet DAS category shall be allocated 155

DAS for the 1996 fishing year, and 120 DAS for the 1997 fishing year

and beyond. To be eligible to fish under the Large Mesh Fleet DAS

permit category a vessel, while fishing under the DAS program, must

fish with gillnet gear with a minimum mesh net of 7-inch (17.78-cm)

diamond or trawl gear with a minimum mesh size of 8-inch (20.32-cm)

diamond, for the entire fishing year, as described under

Sec. 651.20(a)(2)(ii), (c)(2)(ii), and (d)(2)(ii).

(ii) Initial assignment. No vessel shall be initially assigned to

the Large Mesh Fleet DAS category. Any vessel that is initially

assigned to the Individual DAS, Fleet DAS, or Small Vessel permit

category may request and be granted a change in category into this

category as specified in Sec. 651.4(f)(3).

* * * * *

[FR Doc. 96-9593 Filed 4-15-96; 4:42 pm]

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