27710 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

DEPARTMENT OF COMMERCE this final rule should be sent to Andrew gillnet gear is in the water; and a winter A. Rosenberg, Director, Northeast flounder possession allowance when National Oceanic and Atmospheric Region, NMFS, One Blackburn Drive, fishing in the Mid-Atlantic regulated Administration Gloucester, MA 01930–2298 and to the mesh area. Office of Information and Regulatory Disapproved Measures 50 CFR Part 651 Affairs, OMB, Washington, D.C. 20503 [Docket No. 960216032±6138±03; I.D. (Attention: NOAA Desk Officer). Amendment 7 imposes new 021296E] FOR FURTHER INFORMATION CONTACT: restrictions on charter and party vessels. RIN 0648±AI94 Susan A. Murphy, Fishery Policy Such vessels may, under certain Analyst, 508–281–9252. circumstances and criteria, fish under Northeast Multispecies Fishery; SUPPLEMENTARY INFORMATION: This final either the recreational or commercial Amendment 7 rule implements approved measures requirements of these regulations. A contained in Amendment 7 to the call-in requirement for charter/party AGENCY: National Marine Fisheries multispecies FMP which was approved vessels was proposed by the Council to Service (NMFS), National Oceanic and by NMFS on behalf of the Secretary of provide a way for law enforcement Atmospheric Administration (NOAA), Commerce (Secretary) on May 16, 1996. officers to discern which of these Commerce. Three measures contained in requirements a vessel was subject to. ACTION: Final rule. Amendment 7, as originally submitted, This measure has been disapproved were disapproved by NMFS on behalf of because NMFS believes that sufficient SUMMARY: NMFS issues this final rule to the Secretary when they were submitted means exist to distinguish recreational implement approved measures and consequently were not a part of the and commercial activities. Further, the contained in Amendment 7 to the proposed rule published on March 5, U.S. Coast Guard (USCG) and NMFS Northeast Multispecies Fishery 1996 (61 FR 8540). Reasons for Office of Law Enforcement have Management Plan (FMP) including a disapproval of those measures were recommended against adoption of this resubmitted part of the amendment. given in the proposed rule and are not measure because it would not improve These regulations: Establish an annual repeated here. Two of these measures, a enforceability of the charter/party target Total Allowable Catch (TAC) for provision that would allow additional restrictions. This recommendation led regulated species; accelerate the current DAS for vessels enrolled in the Large the Council, in their comments on the days-at-sea (DAS) effort reduction Mesh Individual DAS category and a proposed rule, to also recommend program; eliminate most of the 300-lb (136.1-kg) possession limit when against adoption of this measure. exemptions to the effort control program fishing in an exempted fishery with 8- Because this requirement would place a and revise the requirements for taking inch (20.32-cm) mesh, were resubmitted significant administrative burden on the time out of the fishery; add new closed by the New England Fishery call-in system with no discernable areas; restrict fisheries in the Gulf of Management Council (Council). The benefit, it is neither consistent with Maine/Georges Bank (GOM/GB) and latter measure was again disapproved. National Standard 7 nor Executive Southern New England (SNE) regulated The provision that would allow Order 12866 and is disapproved. mesh areas having more than a minimal additional DAS for vessels enrolled in The second disapproved measure bycatch of regulated species; establish the Large Mesh Individual DAS category proposed counting gillnet DAS as time the current experimental Nantucket was contained in a proposed rule when gear is in the water, rather than Shoals dogfish fishery as an exempted published on April 18, 1996 (61 FR time when the vessel is away from the fishery; modify the permit categories; 16892). During the public comment dock. The Council proposed this establish restrictions on charter/party period, no comments were received. measure in an attempt to resolve and recreational vessels; and revise and This measure was approved by NMFS perceived inequities in the DAS expand the existing framework on behalf of the Secretary on May 17, accounting methods for fixed gear provisions. The intended effect of this 1996, and is also implemented by this versus mobile gear. However, the rule is to rebuild multispecies stocks. In rule. proposal did not adequately resolve addition, NMFS informs the public of Details concerning the justification for enforcement difficulties of monitoring the approval by the Office of and development of Amendment 7 were the amount of time gear was in the Management and Budget (OMB) of the provided in the notice of proposed water or the administrative problems in collection-of-information requirements rulemaling (61 FR 8540, March 5, 1996) determining baseline allocations for contained in this rule and publishes the and are not repeated here. gillnet Individual DAS category vessels. OMB control numbers for these In that notice, NMFS requested the Moreover, the Council itself has collections. public to comment on all proposed expressed concern with this measure EFFECTIVE DATE: July 1, 1996. measures, but to focus on several and has initiated the process to ADDRESSES: Copies of Amendment 7, its measures of concern in particular. After reconsider the method for counting regulatory impact review (RIR) and the NMFS reviewed the amendment and the gillnet DAS structure. Because the initial regulatory flexibility analysis public comments received relative to administrative burden of establishing a (IRFA) contained within the RIR, and the amendment and the proposed rule, method of accounting and allocating the Final Supplemental Environmental NMFS disapproved three additional DAS is extensive, the efficiency Impact Statement (FSEIS), and copies of measures based on its determination standards of E.O. 12866 and National the resubmitted part and its supporting that they are inconsistent with one or Standard 7 would be compromised by documents, are available from Douglas more of the national standards of the the almost immediate change to the Marshall, Executive Director, New Magnuson Fishery Conservation and system that the Council is England Fishery Management Council, Management Act (Magnuson Act) or contemplating. Disapproval of this Suntaug Office Park, 5 Broadway (US other applicable law. These measures measure means that DAS for gillnet Rte. 1), Saugus, MA 01906–1097. are: A call-in requirement for charter/ vessels will be counted in the same way Comments regarding the collection-of- party vessels; counting DAS for gillnet that DAS are counted for all other information requirements contained in vessels by the amount of time that vessels, as time away from port. Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27711

The measure that would have allowed Hook-Gear and Gillnet vessels) and categories are also established for a bycatch of winter flounder by vessels allocates either Individual DAS or Fleet vessels electing to fish with large mesh. fishing in the Mid-Atlantic regulated DAS to these vessels, except for vessels Vessels reassigned as a result of this rule mesh area (10 percent by weight of all 30 ft (9.1 m) or less in length. Limited will have 45 days from the date of other species on board or 200 lb (90.7 access vessels 30 ft (9.1 m) or less in publication of this rule to change their kg), whichever is less) has also been length may choose either to fish under 1996 permit category. disapproved. The most recent the DAS program or be restricted to a Three new open access permit assessment of winter flounder advises possession limit of CHY up to a categories established are Handgear, that fishing mortality should be reduced maximum combined weight of 300 lb Charter/Party and Scallop Multispecies immediately to the lowest possible (136.1 kg). Possession Limit, each with specific level. Therefore, there is no justification This rule eliminates the existing possession and gear restrictions. for treating this regulated species any requirement for vessels in the Fleet DAS This rule imposes several new differently than others in similar category to take blocks of time ‘‘out of restrictions for recreational and charter/ condition. Although the cap on the the multispecies fishery.’’ It also party vessels, including a 20 inch (50.8 allowed catch would discourage vessels eliminates the layover days currently cm) minimum fish size for cod and from targeting winter flounder, this required after completion of a haddock for the first year of the plan, measure would reduce the beneficial multispecies trip. However, all vessels increasing to 21 inches (53.3 cm) in the conservation effect of the DAS program subject to the DAS effort control second year, a prohibition on the sale of on the winter flounder resource and is, program are required to take one 20- multispecies finfish, and a 10 fish therefore, inconsistent with National consecutive-day block of time out of the possession limit on cod and haddock, Standard 1. multispecies fishery between March 1 combined, for individual recreational through May 31. Vessels 30 ft (9.1 m) or anglers. Approved Measures less in length issued a Small Vessel The FMP’s existing framework Amendment 7 establishes a procedure permit and vessels issued an open provisions are revised to remove the 10 for setting annual target TAC levels for access Handgear permit are not allowed percent cap on annual reductions in specific cod, haddock, and yellowtail to fish for, possess, or land regulated fishing mortality and to allow flounder (CHY) stocks (GB CHY, SNE multispecies between March 1 and implementation of measures to protect yellowtail flounder, and GOM cod), and March 20. right whales and other marine mammals an aggregate TAC for the other regulated The existing time/area closures to through the framework process. An species (pollock, redfish, white hake, sink gillnet vessels specified to reduce annual process to set target TACs, witch flounder, American plaice, winter harbor porpoise bycatch are now also review progress towards fishing flounder and windowpane flounder). closed to other gear types as part of the mortality goals and to make any The procedure would be used annually effort reduction program. These areas necessary changes in the management to set target TACs, with the exception of are known as the Northeast Closure program is also established. target TACs for the 1996 fishing year Area, the Mid-Coast Closure Area, and The Mid-Atlantic regulated mesh area (May 1, 1996, through April 30, 1997), the Massachusetts Bay Closure Area. is redefined to include all New York which are set as follows: Because Small Mesh Area 1 lies entirely and Connecticut state waters. within the Mid-coast Closure Area, the Vessels fishing in the SNE regulated TABLE 1.Ð1996 TAC SPECIFICATIONS season termination date for this mesh area are authorized to retain a exemption is changed from November bycatch of skate or skate parts up to 10 1996 15 to October 31, which coincides with percent of the total weight of other fish Target the closure of the Mid-coast area. Species/area TACs possessed on board. (metric This final rule prohibits vessels from A provision is added that allows the tons) fishing in the GOM/GB and SNE costs of observer coverage to be funded regulated mesh areas, unless they are by sources other than NMFS. Georges Bank cod ...... 1,851 fishing in an authorized multispecies The haddock possession limit is Georges Bank haddock ...... 2,801 fishery, under a scallop DAS, or in an increased from 500 (227 kg) to 1,000 lb Georges Bank yellowtail flounder ... 385 exempted fishery. An exempted fishery (453.6 kg) for vessels fishing under a Gulf of Maine cod ...... 2,761 Southern New England yellowtail is one in which it has been determined multispecies DAS. The tote and box flounder ...... 150 that there is a minimal bycatch of volumetric equivalency measure for Aggregate for remaining regulated regulated species. determining the weight of possession species ...... 25,500 The existing Nantucket Shoals limits is eliminated, instead, experimental dogfish fishery has been compliance with possession limits will DAS allocations are reduced in two found to meet the criteria for this be determined by shoreside weighing. equal increments at the start of the 1996 exemption. This rule permanently However, vessels will be required to and 1997 fishing years from current exempts that fishery from June 1 carry one tote on board for use by USCG levels to the full 50 percent reduction through October 15. boarding parties to estimate possible called for originally in the final year of Because the exemptions to the DAS excessive catches. Amendment 5 to the FMP. In addition, program are removed by the because the effective date of this rule is amendment, some limited access permit Comments and Responses 2 months after the start of the 1996 categories have been eliminated and Written comments were submitted by fishing year, which commenced on May vessels in those categories have been the Associated Fisheries of Maine, 1, 1996, 1996 DAS allocations are reassigned to an appropriate category. A Offshore Mariners Association, Inc., prorated based on the amount of time new category is established for vessels Gloucester Fishermen’s Wives remaining in the 1996 fishing year, or 83 in the current Hook-Gear open access Association, Massachusetts Fishermen’s percent (10 months/12 months). category and an opportunity to qualify Partnership, Gloucester Fishermen’s Amendment 7 eliminates the current for a new limited access Hook-Gear Committee, Maine Department of exemptions to the DAS program (vessels permit under specified criteria is Marine Resources (DMR), Wildlife 45 ft (13.7 m) and less, limited access granted. New limited access permit Habitat Preservation Association, Inc., 27712 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Senator Judd Gregg, Senator Bob Smith, eligibility and move into a DAS permit category meet certain criteria. He Senator Olympia J. Snowe, Senator category. The commenter further further asked whether any consideration William S. Cohen, Congressman Patrick explained that a few vessels opted for a was given for illness or investments. He J. Kennedy, Seafarers International Possession Limit permit though their added that the labor intensive, Union of North America, Conservation history would have qualified them for a environmentally sound hook-fishery Law Foundation, Mass Audubon limited access permit under the DAS had no negative impacts on the control Society, The Groundfish Group of program. The association further stated of future effort. Associated Fisheries of Maine, that it would have been impossible for The Maine DMR commented Associated Fisheries of Maine, Maine these vessel owners to know that this favorably on the open-access handgear- Fishermen’s Wives Association, permit category would be eliminated at only permit category provision of Federation of Inshore Seafood some future date. Amendment 7. It added that this permit Harvesters, Darling Marine Center of the Another commenter stated that category provides a lowcost, egalitarian University of Maine, New Bedford elimination of the Possession Limit point of entry for new participants in Seafood Coalition, Massachusetts State permit category denies him access to the the fishery within sensible conservation Senator Bruce Tarr, Gloucester United, whiting fishery. He stated that his two rules. Vessel Services Inc., the New England vessels surrendered their limited access The Maine DMR commented in Fishery Management Council (NEFMC), multispecies permits during 1996, opposition to the eligibility Center for Marine Conservation, because he lengthened his vessels requirements for vessels desiring to Environmental Defense Fund, Cape Cod beyond the upgrade restrictions of the qualify for the new limited access hook- Commercial Hook Fishermen’s multispecies FMP to maximize their gear permit-category, specifically, the Association, Resource Trading Co., King productive capacities before the requirement that applicants must have & Sons Fishing Co., Inc., Cape Ann effective date of Amendment 5 to the filed logs for their vessels by January 26, Gillnetters’ Association, Action, Inc., Atlantic Mackerel, Squid and Butterfish 1996 for the period June 1, 1994–June 1, Wellspring House, Inc., Massachusetts FMP (which allows no increase in size 1995. It stated that since NMFS has Lobstermen’s Association, Inc., after implementation). He stated that allowed logbook filers to file late this Connecticut Department of since the vessels only fished a few year as part of a well-publicized Environmental Protection (DEP), the months each year for whiting, he had education effort designed to achieve Marine Mammal Commission, and planned to continue to do so under the high compliance by next year, it is approximately 290 individuals. Possession Limit category. unreasonable and inequitable to Another commenter stated that under disallow the same extension to those in 1. Comments in Favor of Approval of Amendment 7 those fishers formerly the open access hook permit category, Amendment 7 fishing for whiting and other small which was less intensively regulated Comment 1: An association and mesh species in the experimental under Amendment 5. It explained that several environmental organizations whiting grate fishery, to use as bait participants in this category are less stated that Amendment 7 should be under the Possession Limit category will likely to have understood and complied approved, and 136 individuals stated not be able to continue this practice. He with log requirements. that Amendment 7 should be approved stated that this gives bluefin tuna fishers Response: The Council and NMFS are without change. Many commenters with a limited access multispecies aware that certain participants in the expressed concern for the health and permit an unfair advantage. groundfish fishery may be affected by viability of the resource and urged the Congressman Patrick J. Kennedy (RI) the elimination of the open access Secretary not to give in to pressure to forwarded an association’s petition possession limit permit category, but weaken, modify or otherwise deviate containing 98 signatures and 23 NMFS has determined that conservation from the plan. individual letters, all concerned with needs outweigh the negative impact on Response: Most of the measures the elimination under Amendment 7 of certain individual fishers. proposed in Amendment 7 have been the possession limit of regulated species The 500-lb (226.8-kg) regulated approved. bycatch allowed when fishing for non- species catch allowance is eliminated by regulated species out of the DAS effort this rule. The control date for entry into 2. Comments on Elimination of the reduction program. The association also the multispecies fishery was February Open Access Possession Limit and forwarded the petition and letters 21, 1991, at which time the public was Hook-Gear-Only Permit Categories directly to the Director, Northeast put on notice that future entry into the Comment 2: Several commenters Region, NMFS (Regional Director). They fishery could be limited and that those opposed elimination of the Possession- further stated that the marketable investing in the fishery after that date Limit permit category and/or the 500-lb bycatch of regulated species would be were doing so at risk. The condition of (226.8-kg) allowance of regulated wastefully discarded. Twenty-three of the stock complex has declined since species associated with this permit. the commenters stated that they would that time and more restrictive measures These comments are summarized as have to fish day and night to fully have been implemented in Amendments follows: utilize the full 24 hours of the 5 and 6 to the FMP. Amendment 7 A commenter stated that he invested groundfish day DAS. They all sought eliminates the 500-lb (226.8-kg) in his vessel while fishing under the reinstatement in Amendment 7 of the possession allowance in part because of 500-pound (226.8-kg) possession limit possession limit of regulated species its open-access nature. While in the open access category and that when fishing for non-regulated species Amendment 7 imposed significant under Amendment 7, he will lose his out of a DAS effort control program. restrictions on the directed multispecies right to do so, due to the elimination of Another commenter stated he does fleet through DAS reductions, allowing the open access possession limit permit. not qualify for the new limited access a potentially unlimited number of An association stated that vessels in hook permit, because he did not land vessels to land 500 lb (226.8 kg) of the Possession Limit permit category 500-lb (226.8-kg) of regulated species regulated species per trip would be that may have qualified for a limited during the qualifying year, which is one inconsistent with the goals of the FMP. access permit under Amendment 5 of the qualifying criteria. He said that it Regarding the commenter’s concerns should be allowed to prove their is arbitrary and unfair to make just that about being ‘‘shut out’’ of the whiting Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27713 fishery as a result of disapproval of the Similarly, the adjustments that may be of the FMP was approved because Limited-Access Possession Limit permit proposed as a result of the framework NMFS believes the Council will submit category, NMFS disapproved that process will undergo a public an appropriate recommendation even if category because of several flaws that participation period, during which those of the Monitoring Committee are were described in the proposed rule. sufficiency of notice prior to the fishing rejected. The default mechanism, in The Council has reconsidered the year can be factored in as the Council terms of overall resource protection, is disapproval of this category and will deliberates on the adjustments. The to keep present restrictions in place. To resubmit a revised proposal that, if alternatives to this timeframe are to disapprove this measure would leave no approved, would allow open access to reduce the time period for public input adjustment mechanism in place. the non-regulated multispecies fisheries, or, to begin the adjustment process i.e., whiting, red hake and ocean pout. earlier in the year. This latter alternative 4. Comments on the Need for One of the improvements made to the is not desirable because important data Amendment 7 and the Scientific Basis permit proposal by the Council is the and information about the fishery that for the FMP designation as an open access permit, should be considered will most likely be Comment 5: A commenter stated that which exempts vessels in this category unavailable earlier in the year. the proposed rule identifies only a GB from the upgrade requirements. In addition, while a final rule may be and SNE yellowtail flounder stock in As to eligibility requirements for the published 1 month prior to its effective Table 1 of its specification of 1996 new limited-access hook-gear permit date, this process begins 6 months in TACs. He points out that NMFS, in its category, Amendment 7’s deadline for advance of the next fishing year to allow ‘‘Status of Fishery Resources off the filing logs for the period June 1, 1994– the public several opportunities to Northeastern U.S. Technical June 1, 1995 was established as January participate in development of measures, Memorandum-NMFS-NE–108,’’ 26, 1996, for purposes of qualifying into to become aware of changes that would continues to identify and characterize a the fishery. This deadline is much more result from implementation, and to Cape Cod and mid-Atlantic stock as liberal than the Council’s requirement prepare for implementation in its final well. His concern is that this omission that all logs be filed in a timely manner, form. may lead to inappropriate catches based i.e., within 15 days of the fishing trip. Comment 4: An environmental solely on the status of the GB and SNE Additionally, those applicants denied a organization stated that the process for stocks. He recommends that NMFS new limited-access hook-gear permit annual review and adjustment of issue a separate TAC for at least the may appeal any denial under the management measures described in Cape Cod stock of yellowtail flounder multispecies regulations. § 651.40(a) of the proposed rule is too for 1996 and that the Northeast And finally, the commenter open-ended and likely to result in a Multispecies Monitoring Committee stalemate between the Council and the concerned about qualifying for the consider continuing this practice in Regional Director. Under § 651.40(a)(6), Hook-Gear-Only permit will have two subsequent TAC specifications. options: (1) A vessel owner may elect to if the Council fails to submit a Response: Tagging studies and fish with hand-held gear only and land recommendation to the Regional geographical patterns of landings and up to a total of 300 lb (136.1 kg) of CHY, Director that meets the FMP goals and survey data indicate discrete yellowtail or (2) a vessel owner may elect to apply objectives, and the Council also rejects stocks in GB, SNE, Cape Cod and the for the hook-only limited access permit all other options developed by the Mid-Atlantic. However, the Middle and, if denied, may appeal the denial on Multispecies Monitoring Committee, Atlantic and Cape Cod yellowtail stocks the basis that circumstances beyond the then the Regional Director must resort to have historically been very small applicant’s control prevented emergency regulations and/or a relative to the SNE and GB stocks, attainment of the qualifying criteria. Secretarial amendment. The commenter recommended that respectively. While NMFS recognizes 3. Comment on the Framework § 651.40(a) be disapproved (in whole or that this may no longer be the case, the Provision for Annual Adjustments to in part) until it includes default annual TACs specified are conservative. The TACs and Restrictions adjustments that reflect how the actual quality of available assessment data for Comment 3: The Maine DMR stated catch compares to the target TACs or the Mid-Atlantic and Cape Cod stocks is that a 2-year adjustment process, with target catch rates. It opines that the insufficient to permit a quantitative frameworks in the interim, would catch of at least cod and yellowtail estimate of stock abundance, provide a more constructive and flounder in the 1996 fishing year is exploitation rates or TACs. The status of science-based process than the annual likely to far exceed the target TACs, so all of these stocks is essentially the adjustment process. that DAS reductions initially assigned same, in that they are all overexploited. Another commenter stated that the for the 1997 fishing year would be Therefore, it is appropriate to include tight timeline established in the grossly inadequate to reduce fishing yellowtail flounder from Cape Cod with framework adjustment process that mortality to F0.1. The commenter the Georges Bank TAC for that species provides only 1 month prior to the included suggested language for a and yellowtail flounder from the Mid- beginning of a fishing year to adapt to default annual adjustment specification, Atlantic with the Southern New the adjusted measures is insufficient. which it feels is needed because the England TAC for that species for Response: The changing conditions of Council has a history of being unable to management purposes. The Council will fish stocks warrant that frameworking make decisions quickly for conservation have the option of including these occur at least annually, while purposes that are unpopular with stocks within existing TACs or to considering factors such as the most commercial fishermen. specify a separate TAC for the Cape Cod recent landings data as it compares with Response: If the resource continues to stock, if necessary. At present there the previous year’s target total allowable decline in the short-term, NMFS expects seems to be little incentive for directed catches. The timeline established for the the Council to be confronted with fishing on these stocks because of their framework adjustment process was difficult decisions regarding low abundance. decided on after consideration of adjustments to measures, just as it was Comment 6: An organization stated comments and public input during confronted by difficult options for this that Amendment 7 is unnecessary at public hearings on the Amendment. Amendment. The framework provision this time, and, in fact, Amendment 5 is 27714 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations working and needs more time to reach review through its Science and important management measure, such the goals of the Council and NMFS. Statistical Committee. that its contribution to the overall Response: Amendment 5 was Comment 8: An environmental mortality reduction program can be designed to correct the overfished organization stated that the measures determined, and that such additional condition on the Multispecies Fishery specified in the proposed rule cannot mortality reduction measures can be by a 50 percent reduction of fishing result in the 80-percent reduction in implemented with greater certainty mortality over a 5 to 7-year period. fishing mortality rate (F) that is needed when target TACs are exceeded. However, by the time this amendment to reach the Amendment’s target of F0.1, Examples include the seasonal closure took effect (in 1994), spawning stock because the DAS reduction specified in of certain areas, which will likely biomass levels for GB cod, haddock and § 651.22(b) for the 1997 fishing year is reduce seasonal mortality, but which yellowtail were at or near historic lows only 50 percent from the initial may or may not reduce annual fishing and reductions in fishing mortality of baseline. The F reduction that will mortality, and which may or may not more than 50 percent were needed result from a 50-percent reduction in enhance spawning success and immediately to arrest further declines of DAS is certain to be less than 50 percent recruitment to the overall population. GB cod and yellowtail (advisory because of compensatory increases in Response: Again, such questions presented at the August 1994 Stock other aspects of fishermen’s efforts. It would fall within the purview of the Assessment Review Committee (SARC) added that no analyses were presented SARC and the MMC. plenary). By 1993, landings for GB cod, to the Council during development of Comment 11: An environmental haddock and yellowtail had declined to Amendment 7 that suggested that other organization stated that GOM cod stocks 30 percent of MSY; 1994 landings were existing or proposed management remain overexploited and are projected to decline to 23 percent of measures for groundfish (including the inadequately addressed in the proposed MSY; and further declines were closed areas) would accomplish the rule. It added that the proposed rule projected for 1995. As reported at the remaining required reduction in F. establishes a biological reference point Plenary, GB haddock and yellowtail Response: NMFS understands that the for GOM cod with fishing mortality stocks have collapsed—and it remains DAS reduction target is 50 percent at the equal to F(max)—potentially too high clear that to avert stock collapse for GB end of a 2-year timeframe. Analyses of for this stock, especially in light of the cod, and to begin the rebuilding process, the effects of the closed areas uncertainty in the relationship between greater reductions in fishing mortality implemented by this rule were fishery management practices and over a shorter period of time are presented to the Council which actual fishing mortality—and a target necessary than provided for in projected that an additional 30 percent TAC that is very high. Amendment 5. reduction in F would be realized Response: Fishing at Fmax (0.27) for Comment 7: Senator Olympia J. through modifications which have been GOM cod would represent a 70-percent Snowe (ME) and Senator William S. made to time/area closures and reduction in fishing mortality from 1993 Cohen (ME) requested that the Secretary inclusion of additional vessel classes levels, and is in fact below the establish an independent panel to under DAS limits. Also, the Council overfishing definition level review the science that is the basis of will adjust the target TAC (upward or (F20%=0.35) for this stock. NMFS this plan. They further suggested that downward) as stock size changes are believes, based on the best scientific such a review should be conducted observed and will adjust the information, that specification of a TAC during the first year of the plan’s management measures as needed to corresponding to the Fmax level for this implementation, and its results used as keep catches below the target. stock is appropriate as a first step in the adjustments for the second year of the Comment 9: An environmental rebuilding process. Effects and plan are formulated. Additionally, they organization stated that improvements implications would be subject to review requested that the peer review include in spawning stock biomass (SSB) by the MMC. a reassessment of the science that expected under the assumptions built supports the FMP and specifically, they into the proposed rule should be clearly 5. Comments on the Area Closures and would require that scientific research predicted, and used as a secondary Time Periods must address the effectiveness of yardstick for the performance of the Comment 12: The Maine DMR stated different management tools including overall program. Any time actual that the GOM closures should be seasonal area closures and gear estimated SSBs fall significantly below replaced with targeted closures of modifications like mesh size. predicted SSBs, reanalysis of SSB and specified areas based on spawning, pre- Response: An intensive peer-review population projections should occur, spawning and juvenile fish habitats. process already exists, through the and emergency measures should be DMR added that the proposed GOM Stock Assessment Workshop (SAW). adopted to restore progress toward closures are unfocused and a relatively Assessments are prepared by threshold SSBs. For this purpose of ineffective conservation tool that will subcommittees including scientists from establishing a trigger for reanalysis and have serious impacts on its industry. state and Federal agencies and academic emergency measures, ‘‘fall significantly Senator Olympia J. Snowe (ME) and institutions, reviewed by the Stock below’’ should be defined precisely in Senator William S. Cohen (ME) urged Assessment Review Committee (SARC), advance as a percentage shortfall as low that any additional closures be carefully and presented to managers at SAW as possible approaching 10 percent, but targeted to protect specific areas with Plenary sessions. Industry or other above the statistical margin of error. value as spawning, pre-spawning, and interested parties are welcome to Response: Such questions would fall juvenile fish habitats. participate. The SARC, and the within the purview of the SARC and the A commenter stated that the Multispecies Monitoring Committee MMC. NMFS expects that the relative November and December (Mid-coast) (MMC), created under the terms of effectiveness of different measures will closure may have validity for gillnets as Amendment 7, will be available for be examined routinely as part of the pertains to harbor porpoises, but that periodic reviews of the science monitoring process for Amendment 7. draggers have zero interaction with including evaluations of the relative Comment 10: An environmental harbor porpoises. effectiveness of different management organization stated that tests should be A commenter stated that the tools. The Council can instigate such a designed to measure the efficacy of each November and December closure time Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27715 period would cause New Hampshire commenter further stated that the have the potential to direct on regulated day boats (trawlers) to tie to the dock inshore and small boat sector thus bears species. during this 2-month period. the most burden of the closures and Response: Amendment 7 does not Another commenter stated that the added that most of these vessels must specifically exempt mid-water trawl Mid-coast closure area is subject to an now enroll in the DAS program due to gear from the GOM area closures, but additional 30-day timeframe as elimination of the 45-ft (13.7-m) allows this gear to be exempted in the compared to the other two closure areas. exemption. The commenter summarized future. Even if mid-water trawlers were The Mid-coast small vessel fleet thus that this is unfair and inequitable allowed in the closed areas, they would bears an additional burden when amongst users and participants and not be allowed to possess any regulated compared to other areas with 30-day creates an unfair allocation species, therefore they would have no closures. circumstance. incentive to direct on regulated species. Response: The GOM closures were Response: Amendment 7 implements 6. Comments on Minimum Mesh and adopted as a default mechanism to meet a broad set of measures affecting all Fish Sizes Amendment 7 goals while other sectors of the industry necessitated by possible closed areas were investigated. severe overfishing on cod, haddock and Comment 15: A commenter stated that Because the purpose of the GOM closed yellowtail flounder. Larger vessels, minimum fish sizes are responsible for areas is to reduce fishing mortality by unlike small inshore vessels, contribute the collapse of the New England stocks the shortfall created when DAS to the effort reduction goals because of cod, haddock and other species of reductions alone were insufficient (and they are subject to additional closed groundfish. He added that prior to not solely to protect harbor porpoises), areas offshore where concentrations of minimum size regulations, quotas and the impacts on the industry are multispecies are traditionally found. trip limits worked quite well and all acknowledged and incorporated into the Unlike the inshore areas, which are that was needed to maintain the stocks analysis of impacts of Amendment 7. closed for limited periods, these was 51⁄2-inch (13.97-cm) square mesh The GOM closures, which were offshore areas are closed permanently. and no minimum sizes. previously in place to protect harbor Amendment 7 eliminates some of the Response: Many members of the porpoises, now serve a dual purpose exemptions from the DAS program that industry and the public favor minimum until alternative areas are identified. A were established by Amendment 5 to sizes because allowing fish to grow to a Council subcommittee has been ensure that all vessels contribute toward particular size prior to harvest can assigned to examine alternative areas the rebuilding goals. Amendment 5 tried increase yields and enhance spawning. having equivalent or greater value in to alleviate some of the burden on small The need for fishing mortality reducing fishing effort and will consider vessels, but it is no longer possible to do reductions is paramount, however, and changing the area closures through the this without sacrificing the more minimum size limits do not necessarily framework adjustment process. rigorous conservation objectives of translate into such reductions. Amendment 7 does not require Amendment 7. Possession limits and quotas were vessels to tie to the dock during the Comment 14: A commenter noted that considered during the development of closure periods, but many smaller Amendment 7 does not exempt mid- Amendment 7 and were put forth in the vessels are not able to fish safely water trawls from the closed areas, but public hearing document under offshore, beyond the GOM area closures. authorizes their exemption at some Alternative 4. Public response during Again, the purpose of the closed areas future time based on the analysis of the hearing phase was opposed to the is to reduce fishing effort by the observer data. The commentor added use of quotas and trip limits. shortfall created when DAS alone were that in a report given by the Regional Comment 16: The Maine DMR stated insufficient. Director to the Council, the Regional that Amendment 7 does not address An alternative to the closed areas was Director stated that preliminary data increased mesh and fish sizes, and to reduce DAS further, but that showed zero bycatch of groundfish in suggests that these options should be alternative was rejected by the Council mid-water trawls. If the final analysis integrated more fully into the plan, based, in part, on public and industry bears this out, the commenter requested including new conservation comment which indicated a preference that mid-water trawls be exempt from engineering. It said that NMFS’ concern for flexibility. the closed areas. The commentor added about the lack of selectivity studies for During the GOM closures, small that such an exemption would not only mesh larger than regulation size (6 vessel owners have the option of tying address the high cost of rerigging but inches or 15.24 cm) may be somewhat to the dock, seek alternative ports or would also address the possibility of allayed by Canadian studies showing an alternative fisheries. In regard to the 2- being precluded from large areas of approximately linear relationship month time period, although this potential herring catch grounds. The between mesh and fish sizes. It added closure is for a longer period of time, it commentor indicated a willingness to that it is reasonable to assume that this occurs at a time of the year when alleviate any enforcement concerns by relationship holds for the slightly larger weather is a factor and fishing activity placing Vessel Monitoring Systems meshes at issue here (7-inch (17.8-cm) is limited. Thus, to achieve equivalent (VMSs) on all of its catcher vessels. gillnets and 8-inch (20.3-cm) codends). conservation benefit, a longer period of The Maine DMR strongly urged NMFS Another commenter stated that if 7- time is necessary as compared to a not to exempt mid-water trawl gear from inch (17.8-cm) square mesh were used closure occurring in the spring, summer Amendment 7 without first determining exclusively for regulated species, there or early fall months. that this gear cannot be fished to take would be no need for diamond mesh Comment 13: A commenter stated that significant quantities of groundfish. It and possibly no need for a minimum the larger vessels, which account for the added that it had enough anecdotal fish size, resulting in no discards. most groundfish harvesting capacity and evidence to suggest that skilled skippers A third commenter stated his concern production, have the capability to with sophisticated net-monitoring that the provision pertaining to merely exit the area closures and fish technology can fish these nets very close adjustments of minimum fish size, outside the boundaries thus not to the bottom. It reiterated that its originally contained in Amendment 5, contributing to any effort reduction or concern is not that mid-water trawls can has never been adopted despite ‘‘reports fishing mortality reduction. The be fished very cleanly but that they may of high flatfish discard rates in 27716 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations management areas where use of square Senators Olympia J. Snowe (ME) and are too high for the rebuilding needs of mesh is mandatory.’’ William S. Cohen (ME) stated their the stock and should be reduced. It said Response: Increased mesh sizes and concern about equity for smaller vessels that at this fishing rate, the probability increased fish sizes were addressed and and added their concern that of GB haddock reaching the spawning discussed as an option in the draft Amendment 7 goes too far, too fast. stock threshold within 10 years is public hearing document but were not An association stated that the only calculated to be only 22 percent. It adopted by the Council. Amendment 7 way a target TAC could alleviate a added that the 1,000-lb (454-kg) trip continues the established minimum fish ‘‘derby-style’’ fishery and give the same limit for haddock, contained in sizes, except for some increased fish opportunity to all size class vessels § 651.27(a) of the proposed rule, is more sizes for recreational and charter/party throughout the year would be to allow restrictive because it is not expected to vessels not fishing under a DAS. fishing to continue after the target is result in landings as high as the Increased mesh and fish sizes can be reached. The association asked how this specified TAC for this stock. Thus, a accomplished under this plan through achieves conservation? discrepancy exists between the 1996 framework action. The use of mesh size A commenter stated that the proposal TAC for this stock and the management as the sole measure to control fishing of allowing extra days for using larger measures, as well as between the 1996 mortality is problematic for a variety of mesh while the majority uses regulated TAC and the rebuilding goal. It urged reasons. One reason is the wasteful and mesh makes no sense when a TAC is in NMFS to correct this discrepancy by unlawful practice of using small mesh place. He added that the vessels determining a fishing mortality rate for liners or other devices to circumvent selecting this large mesh alternative in GB haddock that is likely to achieve the conservation regulations. Another is the all likelihood will never get to use extra spawning stock threshold within ten likelihood that a net will become days assigned them. years, and then to respecify the 1996 clogged during long tows, rendering the Another commenter stated that large TAC for this stock. It further stated that mesh increase ineffective. Nevertheless, vessels would have access to three if this is not done, the 1996 TAC will 7-inch (17.8-cm) mesh would contribute different TACS under Amendment 7 be used to argue for less restrictive toward conservation and Amendment 7 while most of the New Hampshire management measures that will not includes incentives to use larger mesh. small-vessel fleet would have access to achieve the rebuilding goal of Use of square mesh is required in only the GOM TAC. Amendment 7 for this stock. It opined juvenile protection areas where Response: TAC levels were that future TACs will be set too high if concentrations of small cod and established based on the Council’s the F target for this stock is not reduced. haddock are usually found. Square Amendment 7 objective to reduce Another environmental organization mesh is designed to allow round-shaped fishing mortality to F0.1, which opposed the increase in trip limits for fish to escape but it is not as effective translated to the established TACs. haddock from 500 lb (226.8 kg) to 1,000 an escapement mechanism for flatfish. Additionally, Amendment 7 establishes lb (453.6 kg). It added that the GB Several research experiments on gear a target TAC system rather than one haddock fishing mortality target and conservation methods (some financed with absolute TACs. Should a target target TAC are set significantly too high by the Saltonstall-Kennedy Grant TAC be exceeded, the Council will and that a specific (and lower) fishing program administered by NMFS) are respond by adjusting the management mortality target and target TAC should underway to devise a net configuration measures in the following fishing year be set for GOM haddock. It reasoned that will enhance escapement of both to keep catches below the target. Fishers that a higher trip limit simply increases juvenile flat and roundfish. Meanwhile, should understand that should the the incentive to continue fishing when the Council has the option of increasing TACs be reached during the fishing and where haddock bycatch occurs and minimum fish and mesh sizes through year, the fishery will not necessarily at some level creates an incentive to fish framework actions, and may elect to do close, but rather, adjustments to the specifically to target haddock to catch so in the future. measures will be made for the following the trip limit. fishing year taking into account the The organizations made these specific 7. Comments on the TACs impact of the adjustments on different points: Comment 17: An association stated sectors of the industry. ‘‘Target’’ TACs (a) The F0.1 fishing mortality target that TACs should differentiate between rather than an absolute TAC were and the resulting 2,800 mt 1996 target hook fisheries and other commercial adopted in part to provide equity and TAC for GB haddock are unacceptably fisheries, and that one TAC should be fairness to the different types of high. Moreover, these targets result in established for the longline and jig participants in the fishery. It allows the only a 22 percent probability of fishery and another TAC should be Council to take into account impacts of rebuilding to the 20-percent SSB level established for the other commercial adjustment measures on different within 10 years (NEFMC, 1995, Draft groundfish fisheries. sectors of the industry. The Council will Proposals for Amendment 7 to the Response: The public hearing adjust the target TAC (upward or Northeast Multispecies Plan, p.12). The document did consider allocating DAS downward) as stock size changes are answer to the Council’s perceived by gear group. Note that DAS can be observed and will adjust the ‘‘problem’’ that the haddock trip limit considered an extension of quotas, by management measures as needed to may be too low to allow the fleet to gear. This alternative was rejected by keep catches below the target. This catch the entire GB haddock target TAC the Council; however, it may be should alleviate a ‘‘derby-style’’ fishery is to reduce the GB haddock fishing reconsidered at a later time. and give the same opportunity to all size mortality target and target TAC to much Comment 18: Senator Bob Smith (NH) class vessels throughout the year. Also, lower levels that would allow at least a stated that TAC levels have been set the small-vessel fleet is not restricted by 50 percent probability of rebuilding of unrealistically low. He and other Amendment 7 to fishing in any one area this stock to the 20 percent SSB levels commenters argued that such low levels but may move vessels to areas where within a minimum of ten years. provide larger vessels with the different TACs apply. (b) Given the extremely poor opportunity to consume the TAC prior Comment 19: An environmental condition of the GOM haddock stock, a to the small-vessel fleet having an organization stated that the F 0.1 target specific and very low fishing mortality opportunity to use their DAS. and resulting 1996 TAC for GB haddock target and initial target TAC should be Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27717 set for this stock that allows a similar or near record low levels of abundance benefits of hook fishing by allowing for rebuilding timetable and probability. and biomass, while redfish have a permit in the new, hook-only limited- The 21st SAW Advisory Report on continued to fail to rebuild. It said that access category. The commenter’s Stock Status concluded that GOM this indicates that recent fishing option was not specifically addressed by haddock biomass declined to nearly mortality rates have been too high on at the Council but could be considered by undetectable levels over the last two or least these four additional species. the Council as a framework adjustment three decades (p.28). Under this Therefore, continued fishing at recent measure. circumstance, it is inappropriate to rates will fail to prevent overfishing and Comment 23: In a joint manage GOM haddock with other to allow overfished stocks to rebuild. At correspondence two associations stated regulated groundfish under an aggregate a minimum, it argued, the aggregate that Amendment 7 incentives that offer fishing mortality target of F0.1 and a TAC for the remaining regulated species additional DAS for use of larger mesh single aggregate target TAC of 25,500 mt needs to be recalculated to consider the are not equal across gear type. They in 1996. conservation needs of these other added that fishing effort restriction must Response: These issues were species. not favor one gear type over another; addressed at the April, 1996 meeting of It further questioned the advisability otherwise anticipated conservation the New England Fishery Management of including overfished species in an benefits could be negated by gear Council by both the Council and the aggregate TAC. conversion. Regional Director. The 1996 TAC for Response: NMFS has been and Response: The Council recently this stock is a maximum, not a quota to remains concerned about the clarified that the proposed measure to be achieved, and NMFS feels that conservation of each stock for a given increase fishing time (DAS) for the Large coupled with other haddock species within this species complex but Mesh Individual DAS option would conservation measures, the haddock trip Amendment 7 addresses the species apply to all vessels using large mesh, limit and TAC are not inconsistent. rebuilding needs of CHY and deals with whether they are trawl vessels or gillnet Under the annual frameworking the remaining multispecies as a stock vessels. This resubmitted measure of provision, NMFS and the Council will complex, in the aggregate. The national Amendment 7, was described in a reconsider whether various measures standards require that overfishing notice of proposed rulemaking related to the haddock fishery are definitions have to be addressed for published in the Federal Register on sufficient to meet the objectives of each species of the multispecies April 18, 1996 (61 FR 16892), and is Amendment 7. complex, so that the Council should designed to promote conservation by NMFS is advocating very conservative reconsider the issue annually. It is providing an equitably applied management strategies for this stock to possible that additional measures will incentive to use nets constructed of promote prospects for stock rebuilding, be required on a species by species mesh that are larger than the minimum i.e., to restore SSB to certain levels. The basis, after further analyses later (e.g., size. NMFS approved the resubmitted haddock trip limit was established as a analysis of data from one or two fishing measure on behalf of the Secretary on disincentive to target this species on a years after implementation of May 17, 1996. trip or tow. NMFS believes that an Amendment 7 begins). The MMC will Comment 24: A commenter stated that increase from 500 lb (226.8 kg) to 1,000 be charged with the responsibility for Amendment 7 does away with the lb (453.6 kg) is not effectively an addressing this issue and for making ‘‘layover provision,’’ which would have increase, considering that the former appropriate management done some good for the resource. He measurement by totes has been recommendations to the Council. added that it was eliminated to placate eliminated. That volumetric measure, in Comment 21: An environmental the large boat sector. He stated that, practice, allowed vessels to land more organization stated that the final rule without this provision, large boats could than the 500-lb haddock trip limit should establish in advance the specific engage in back-to-back trips to the because volumetric equivalent measures improvements in management programs detriment of the resource. proved to be too generous. Any that would be implemented if target Response: Both the layover day additional increase beyond 1,000 lb TACs are exceeded by 10 percent or provision and the fleet blocks of time (453.6 kg) in the haddock trip limit more. out of the fishery have been eliminated would have to be accompanied by Response: Any specific improvements under the preferred alternative. Given compensatory measures. A trip limit in management programs to be made if the 50 percent reduction in DAS will remain in place unless and until target TACs are exceeded would be allocation, the possibility of back-to- alternative restrictions that achieve the tailored to the situation requiring such back trips undermining mortality same result are developed and actions. Because of the combination of reduction goals does not appear to be implemented. factors that would need to be significant. The layover day provision Comment 20: An environmental considered, it would be difficult to would not be effective and would be organization stated that the aggregate establish a fixed action in advance. Any difficult to enforce under the reduced TAC for the remaining regulated species future action should be subject to DAS allocations implemented by this (other than cod, haddock, and yellowtail comment from the public at the time it rule and were removed. In addition, flounder) as specified in the proposed is under consideration. removal of this provision is intended to rule is set too high to prevent encourage some vessels to move out of overfishing of at least some of the other 8. Comments on the DAS Program groundfishing for significant portions of regulated species. It said that the Comment 22: An association stated the year. aggregate TAC was set ‘‘at levels that additional DAS should be offered as Comment 25: A commenter stated that corresponding to recent fishing an inducement to vessels converting to vessels in the Fleet DAS permit category mortality rates to ensure that effort is hook fishing. are at a disadvantage when compared not redirected to these stocks.’’ It argued Response: Increases for DAS for with vessels in the individual DAS that the report of the 21st SAW individual gear types were considered category, because it gives them less indicates that pollock, GB winter in the public hearing document, but access to the resource and most of them flounder, and both stocks of rejected by the Council. The Council are smaller, more weather dependent windowpane flounder are currently at and NMFS recognized the possible boats. 27718 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Response: These categories were apply those days to the current DAS questioned on numerous occasions. established by Amendment 5 after a regulations? (3) Can this vessel now take They stated that the Regional Director lengthy public hearing process and are his allotted DAS and apply them to had also indicated publicly his concern not changed by this rule. The principle fishing offshore with 24-hour days? (4) about it being a solid appraisal of the behind the individual DAS program is Can a day boat that historically fished future. to provide those vessels that primarily 120 12-hour days now be entitled to 278 Response: The requirements of the direct their operations on multispecies a days in year 1 and 176 days in year 2, Magnuson Act require that fisheries baseline allocation of DAS that reflects if he makes all 12-hour trips? (5) Are regulations do not discriminate against actual fishing. All other vessels were these 12-hour day boats benefiting with residents of different states and that any allocated a general average of the fleet twice the days as boats that fish full allocation of fishing privileges to fishers (Fleet DAS). The Fleet DAS program days? (6) Should a gillnet fleet from be fair and equitable to all such fishers, was established, in part, as a default Cape Cod be penalized because the that the allocation be calculated to type allocation for vessels that could not practice of ‘‘soaking’’ nets is not promote conservation and that no prove their actual DAS, vessels that did acceptable to the majority of the fishing particular entity acquire an excessive not wish to purchase vessel monitoring fleet? share of such privileges. The Council devices and other vessels that may not Response: To question (1) Yes, for and NMFS considered these factors in have had sufficient DAS in the vessel trips where captains were developing Amendment 7 and groundfish fishery. Vessels that could interviewed by a port agent, the hours concluded that the measures adopted demonstrate that they fished more than away from the dock are recorded, were the best suited to provide fair and the fleet average could apply for an however, other records are usually equitable fishing opportunities to all Individual DAS permit. Individual DAS needed to augment NMFS’ data because sectors of the fishery. As to the accuracy vessels received a higher allocation of submission of vessel trip reports was of the socio-economic impact statement DAS because, historically, they fished not mandatory and not every trip could (SIA), there were some changes to for DAS more than the average of the be interviewed; (2) yes, if a vessel can specific details of various Amendment 7 fleet. In any event, smaller vessels that show 300 DAS, it can be allocated, as a regulations after the broad-scale traditionally engage in day trips will baseline, that many DAS; (3) yes, used analyses such as the cost-benefit essentially be allowed twice the number DAS are counted in hourly increments; analysis, the sector analysis, and the of allocated DAS because their trips will (4) the vessel would be subject to a 120 break-even analysis in the SIA were be allocated on an hourly basis. That is, DAS baseline with a 10-percent completed. However, the sector analysis a day trip that lasts only 12 hours will reduction for 1994 and 1995, an and the break-even analysis in the SIA only use up one-half of a DAS. additional 15 percent reduction for 1996 are not affected by these changes Comment 26: A commenter stated that and a final reduction of another 15 because the analyses are based on broad the Council acknowledged that the percent for 1997; (5) DAS used is effort reduction goals, (i.e., 50-percent method used to calculate the DAS for computed in hours, therefore, any vessel and 80-percent reductions in fishing the gillnet sector of the fleet was wrong. using less than 24 hours in a DAS is on effort). The cost-benefit analysis is also He stated that the Council assumed it record for that portion of the day used based on total levels of effort reduction would be corrected by a framework in hours away from the dock; (6) DAS (independent of how the reductions are adjustment. He stated that the for gillnetters is based on time away achieved) and on projected landings. framework adjustment process was not from the dock, which should reflect These broad-based analyses did not intended to be used to correct their actual fishing time. change in the final weeks, nor did the deficiencies recognized prior to Notwithstanding the possibility that general characterizations of the fleet implementation. He suggested that vessels that fish only partial days may change, such as are found in the Amendment 7 should be disapproved be able to fish more ‘‘days’’ than their ‘‘Human Environment’’ Chapter. on this basis alone. DAS allocation appears to allow, NMFS Response: One of the disapproved has determined that the overall effort If the comment alludes to specific measures of the amendment was the reduction measures are adequate in discussions of particular measures, such measure that counts gillnet DAS as time achieving mortality reduction goals. If it as some of the comments in the SIA, all when gear is in the water, as referenced appears that such measures are not changes up to and including those made by the commenter. NMFS’ Office of Law effective they can be adjusted through at the January 25–26, 1996 Council Enforcement also cited difficulties in framework measures. meeting, which included the vote to monitoring gear in the water. Moreover, send Amendment 7 to the Secretary, 9. Comments on the Socio-economic the Council submitted a comment on were analyzed. Analyses to minor Analysis the proposed rule stating that it is changes to measures were encompassed seeking alternatives to the gillnet DAS Comment 28: In a joint in the broad scale analyses. structure through framework action. correspondence two associations stated Any and all limitations to the data Until such time, the DAS counting that the socio-economic statement for and analyses are discussed in the FSEIS. method will be the same as that for Amendment 7 states that class 3 and 4 However, NMFS stands behind the other DAS categories, i.e., the time spent vessels will not be financially viable in stated quality of the data used and away from port. year 2. They further stated that other academic rigor of the analyses Comment 27: A commenter stated that fleet sectors will be viable, because the performed. It is true that the analyses management’s use of DAS as effort regulations have been skewed to make may be insufficient to pinpoint precise reduction raises questions of equity and it so. They added that the Magnuson impacts, especially for a given fairness. In support of his statement, he Act, specifically, National Standard 4, individual vessel. The test of the EIS asked the following questions: (1) Does clearly states that all user groups are to specifically states this. The analyses do, a vessel’s past history of DAS show be treated equally. They further added however, give an accurate general whether it was away from the dock for that the socio-economic statement was picture of the range of likely impacts. 10 or 24 hours? (2) Can a day boat that drawn up several weeks prior to the Comment 29: A commenter stated that fished 300 10- or 12-hour days in the adoption of major segments of the only way to rebuild the stocks is to years that are being credited with DAS Amendment 7 and that its accuracy was do away with big fleet boats 60 ft and Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27719 greater in length, which caused the areas, gear restrictions and trip limits. Program will be conducted once it has stock damage in the first place. They added that the Federal been approved. Sen. Judd Gregg (NH) added his Government has committed $25 million Losses from landings of associated concern that the amendment inequitably to the Fishing Capacity Reduction species as a result of conservation treats the interests of the small-vessel Program. This is either a pure cost, or actions directed at the regulated fleet relative to the large-vessel fleet or the cost-benefit must be analyzed. The groundfish species are acknowledged in corporate trawler fleet operating in the loss of revenue from monkfish landings, the plan. The benefits derived from GOM. He stated that without constrained by management measures to foregoing monkfish landings in order to appropriate modification, Amendment 7 reduce landings of regulated species, is conserve groundfish stocks are deemed threatens the economic viability of the not included. They further stated that positive. There is no way to distinguish New England small-vessel fleet and market loss due to foreign substitutes, whether trips in which monkfish is argued that it has a relatively small and the recent policy changes in the bid landed along with regulated groundfish interaction with the groundfish process for military fish supply, are not constitute a monkfish trip or a population. He further stated that the included and market rebuilding costs groundfish trip with monkfish bycatch. FMP failed to appropriately focus are not estimated. Fisheries where it is shown that bycatch management measures on the industry The associations stated their (in weight) of regulated species is less segment responsible for pressuring the understanding that these costs, and than 5 percent are permitted to operate resource. others yet to be anticipated, are difficult under Amendment 7. This is not the Response: The amendment is to predict and quantify but added that case for any monkfish fishery. A intended to be constructive in the long effort must be made to do so, as these Monkfish plan or amendment is under term, that is, to rebuild the resource by costs have the potential of negating any development, and it is generally equitably applying reductions in fishing estimated benefits. acknowledged that monkfish stocks are effort and to allow vessel owners to Response: The FSEIS submitted by overexploited. individually maximize their abilities the Council as part of Amendment 7 Losses in market as a result of within a fair set of constraints. contains a discussion of other costs reduced landings under Amendment 7 Individually, large vessels do tend to (Appendix X, E.7.2.3.8). The FEIS are recognized. NMFS undertook a have greater fishing power and document states that many other costs study of the impacts of landings consequently can exert more fishing of the nature referred to by the reductions under Amendment 5 on pressure on the stocks than do smaller commenter were not considered because intermediate markets (Georgianna, vessels. Smaller vessels in the 31 to 45 they are only marginally different from Dirlam and Townsend), results of which ft (9.5 m to 13.7 m) class (approximately the status quo in Amendment 5 or were commented on in the FSEIS. The 46 percent of all limited access permits) because the information is unavailable, costs of the steeper reduction in can cumulatively exert a significant as the commenter concedes. For landings as a result of the more rapid amount of fishing effort as well as instance, the marginal cost of adding effort reduction will be higher still. The individual vessels 60 ft and greater in vessels to the DAS call-in system is Council took the qualitative step to length. Because of the large reductions expected to be insignificant because the modify the reduction schedule from 1 to in effort needed to rebuild severely system is in place and can easily be 2 years with exactly these impacts in depleted groundfish stocks, all vessels upgraded to receive an increased mind. This will provide time for that are greater than 30 ft (9.1 m) in volume of phone calls, if necessary. diversification into other marine length, and all other vessels formerly Additional costs associated with products that would result from shifted exempted from the DAS effort reduction installation of VTS systems on effort. Similarly, the Council chose program (Hook-Gear and Gillnet individuals vessels were not considered among the alternatives it considered, the vessels), are brought under the DAS since Amendment 7 does not change effort reduction process (DAS reduction) program. Moreover, given the variability which vessel categories would be least disruptive to shore-side activities. and types of vessels and gear used in required to install a VTS. Thus, VTS Again, the reduction schedules this fishery, it would not be possible to costs to vessels are not affected by discussed are relevant to groundfish design management measures with Amendment 7 relative to the staus quo only. precisely equal impact on all (SQ). Changes in procurement contracting participants. In approving Amendment The USCG’s estimate of potential is nationwide and encourages 7, NMFS has concluded that the overall costs of Amendment 7 assumes that competition within the United States conservation benefit of the measures much of the enforcement effort would among fish producers. The intention is outweigh the hardship on individual be conducted at-sea. Because of the to achieve greater value for dollar of vessels. comparatively high-cost of at-sea procurement. Our analyses suggests that Comment 30: In a joint enforcement, NMFS believes that prices to groundfish landings will not be correspondence two associations stated enforcement efforts will necessarily be significantly impacted by the removal of that the socio-economic analysis of land-based. During implementation of a price floor in the early years of the Amendment 7 regulations does not Amendment 7, NMFS encourages plan. In later years, as occasions of include any additional monitoring and increases in sea-based support to congested landings occur, the removal enforcement costs, yet the document improve the overall effectiveness of of this support might lower that day’s suggests that these are likely to exceed programs implemented under prices somewhat from what they might the projected benefits. The analysis Amendment 5, e.g., DAS compliance, have been. However, this procedural must factor in the cost of adding all the gear restrictions, etc. However, although change would have been in effect under previously exempted vessels to the DAS such costs may occur during either Amendment 7 or its default, call-in system, the cost of the vessel Amendment 7, they actually represent Amendment 5 as modified. tracking system (VTS) to boats and to programmatic improvements that could Comment 31: In a joint the Government for the monitoring also be expected to be made in the out correspondence, two associations stated hardware and software, and the United years of the status quo amendment. that the DAS reduction objectives are States Coast Guard’s (USCG) costs for Appropriate analyses of the $25 based on the hypothesis that a 50- monitoring and enforcing DAS, closed million Fishing Capacity Reduction percent reduction in DAS will achieve 27720 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations a 50-percent reduction in fishing An attorney representing a group of to OIRA along with a copy of the mortality. They argued that a 50-percent offshore lobstermen mirrored the above proposed rule and its preamble. No reduction in DAS is more likely to concerns and added that the Council changes were made to the proposed rule achieve a much higher reduction in stated, in support of the emergency at the suggestion or recommendation of mortality as large number of vessels exit action for gear conflict in southern New OIRA. the fishery because of insufficient DAS England, that the gear conflicts were Comment 35: An association stated to remain economically viable. related to additional regulations on the that NMFS failed to consider a wide Response: That economic viability groundfish industry which forced range of costs associated with the PA. will be a problem for the average trawler vessels to fish in areas for nontraditional Response: The economic analysis as the DAS are reduced was species. Another commentor finds it considered all relevant currently acknowledged in the plan and inconsistent that the Council can make available data. The availability of particularly in the break-even analysis, this statement in support of an information on the full range of which analysis dealt with groundfish emergency action request and then, in economic activities associated with days only. Lack of data on individual support of Amendment 7, state that the commercial fishing is quite limited. vessel costs and effort precluded impact cannot be quantified. Economic data on many shoreside prediction of the number that would Response: As stated in the analysis of activities such as offloading, processing, find conditions intolerable. To impacts on other fisheries, the degree to and sales of inputs to commercial compensate, a yearly adjustment which trawlers may redirect fishing fishing vessels is simply not available. mechanism was established to attempt effort onto the lobster resource cannot Given this lack of data many of the to reconcile the DAS reductions with be estimated at this time. NMFS referenced economic factors could not the desired fishing mortality trajectory. believes that such redirection would be be incorporated into the economic Where vessels exit the fishery and do mitigated by the exemption program in analysis. However, had these factors not exercise their DAS allocation, the the GB/GOM area, which requires all been included, it is not a foregone effect may result in an easing of the fisheries outside of the DAS program to conclusion that they would be economic reduction schedule for the remaining meet the 5-percent bycatch limitation costs. The benefit-cost analysis must vessels. This would not occur without a for regulated species. consider benefits to the Nation as a Comment 33: A commenter stated that lag of about 1 year. Much of this uneven whole. This has two ramifications. First, a NOAA study of critical socio-cultural distribution of impacts might be losses in one region may be offset by issues is presently underway for the alleviated by programs which permit gains in others, leaving National income New England fishing industry. The transfers of DAS, e.g., through unchanged. This might be the case if commenter added that the final report consolidation. These were not included vessels and/or crew were to leave the from this study of the Northeast fishery in Amendment 7 but may be considered is due by June 15, 1996, and that such Northeast and move to other regions. in the future. analysis of the fishery is required by the Second, in over-capitalized fisheries, Comment 32: A commenter, on behalf Magnuson Act and no plan amendment reductions in resources that are devoted of nine offshore lobster vessels, stated should be implemented prior to this to fishing may be viewed as a net gain that Amendment 7 should not be report. from a National perspective. Given the implemented until the impacts of Response: The report mentioned by lack of adequate economic data, it was redirection of trawler effort on the the commenter contains baseline not possible to determine the extent to depletion of the lobster resource and on information about the fishing industry which economic dislocations such as gear conflicts are adequately addressed. that could be used for future framework crew share losses, impacts on suppliers He stated that section E.7.1.1.2, Impact actions or FMP amendments. It was not and processors, or the impacts of on other fisheries, on p. 204 of the ready in time for the Council to consider bankruptcies might be considered FSEIS is totally inadequate and ignores for Amendment 7. Amendment 7 transfer payments, national economic substantial Council comment and included analyses based on the best gains, or net losses in National income. deliberation on the issue of impact on information available to date. Comment 36: An association stated other fisheries, and also ignores the Comment 34: An association stated that all the biological and economic experienced re-directed effort that is that under E.O. 12866 the Agency must estimates for analyses contained in evident from Amendment 5 and from submit to the Office of Information and Amendment 7 occurred outside the similar restrictions on fishing days in Regulatory Affairs (OIRA), with respect public’s view. It said that it is the sea scallop FMP. to any significant action, the text of impossible for experts to replicate any The commentor also stated that it is proposed regulatory action, an of the sets of projections set forth in the completely disingenuous for the EIS to assessment of the costs and benefits of supporting analysis. say that ‘‘there is no practical way to the action, an assessment of alternatives, Response: All of the recruitment predict where the effort from and an analysis as to the reasons for simulator results that included landings groundfishing will go and what the selecting the preferred alternative (PA). streams were described at several Plan impact of the proposed action on other It added that the Agency must provide Development Team meetings at the fisheries will be.’’ He argued that NMFS the public the information provided to Council offices and subsequently at has a great deal of data on the trends in OIRA, and the changes between the Council Groundfish Oversight fishing effort, the productivity of draft submitted to OIRA and the Committee meetings. Both types of various fisheries, and the impacts subsequent action. It stated that it is not meetings are attended by the public. In evident from the trends in shifting clear what documents were submitted to addition, the public hearing document fishing effort. He cites as sources NMFS OIRA and what analysis was reviewed. and an extensive draft EIS document information on the value of fishing gear Response: NMFS complied with the were made available to the public lost to conflicts with trawlers over the requirements of E.O. 12866. All public months ahead of the Council vote to past few years, the analysis of the shift hearing documents, as well as the adopt Amendment 7. An explicit in effort to the monkfish fishery, the scientific, economic, and social impact description of the economic information Fishing Industry Grant program and analyses, and comments to public used in the final EIS was contained in USCG data. comments on the DSEIS, were provided the latter. Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27721

Comment 37: An organization stated the summary of the comments received Response: The Council process by its that the IRFA of the impacts of and NMFS’ responses thereto, in this nature involves representatives of Amendment 7 should contain a preamble, constitutes the FRFA. groups that benefit and are burdened by description of any significant Alternative actions were not taken in the management process, either directly alternatives to the proposed rule that response to comments on the IRFA. as members of the Council, or indirectly accomplish the stated objective and that NMFS believes that the responses in as persons with access to the public minimizes any significant economic this preamble to the public comments process at the Council, oversight impacts of the proposed rule on small adequately explain why NMFS did not committee and plan team meeting level. business. The organization further adopt alternatives having less of a Negotiated Rulemaking is not required. stated that the final regulatory flexibility significant economic impact on small Comment 39: An association stated analysis (FRFA) should provide a entities compared to those measures in that the RIR understates the impact on summary of issues raised by the public Amendment 7 that NMFS approved. the trawl vessels and fails to highlight in response to the initial analysis, along NMFS disagrees that the final rule the speculative nature of the benefits of with a description of each significant violates the intent of the RFA. The the preferred alternative (PA) in years 9 alternative to the rule consistent with intent of the RFA is not to limit and 10. the objective of minimizing economic regulations having adverse economic Response: NMFS disagrees. The RIR impact, and a statement of why any impacts on small entities, rather the adequately covers economic impacts. alternative was rejected. intent is to have the agency focus Estimates of economic benefits in years An association stated that under the special attention on the impacts its 9 and 10 are seldom as precise in this Regulatory Flexibility Act (RFA), an proposed actions would have on small kind of analysis as are the estimated agency must assess the impact of new entities, to disclose to the public which benefits and costs in earlier years. Comment 40: An association stated regulations on small business. It said alternatives it considered to lessen that the PA (Amendment 7) will result that the NMFS has failed to comply adverse impacts, to require the agency in the insolvency of an entire sector of with its obligations. It argued that the to consider public comments on impacts the fishing industry in the Northeast. It Small Business Administration (SBA) and alternatives, and to require the commented that the Agency has had been largely omitted from the agency to state its reasons for not selected the alternative that causes that process. The intent of the statute is to adopting an alternative having less of an result even though the benefits of that limit regulatory actions having a adverse impact on small entities. plan over the status quo (SQ) significant impact on small business. It The Council and Center performed argued that this particular preferred (Amendment 5) are questionable and ‘‘break-even’’ analyses, apart from the even though the SQ would achieve the alternative (PA) is specifically designed benefit-cost analysis, specifically to in such a way that trawl vessels will not same results with respect to stock assess the financial viability of small be allocated sufficient DAS to break replenishment over a slightly longer business fishing vessels. Where a even during year 2. This extremely period of time while preserving all quantitative assessment was not harsh anticipated result flies in the face segments of the fleet. possible, qualitative comments noting of the statutory intent of the RFA. Response: The statement does not Response: Amendment 7 contains an sectoral impacts were offered. accurately portray the key difference in IRFA that incorporates supporting The differential impact of objectives for Amendment 5 and analyses and portions of the amendment Amendment 7 on trawlers was noted. Amendment 7. The stock rebuilding that provide the public with information The cost-benefit analysis is designed to objective for Amendment 5 is to reduce on the effects on small entities of the PA analyze net national benefits of the fishing mortality on CHY to halt the and any other alternatives considered by action affecting many gears and decline in spawning stock biomass. the Council, including those that component fisheries. A single sector Rebuilding of spawning potential under minimize the impacts on small entities. analysis is inappropriate. NMFS agrees Amendment 5 is limited to levels that The classification section of the that trawlers will be more heavily would reduce the risk of recruitment proposed rule for Amendment 7 also impacted than hook vessels and failure, but would still leave the fishery contains a statement regarding the possibly gillnetters (though this latter is in an overfished state. By contrast, the probable effects of the PA on small unclear since final gillnet framework objective of Amendment 7 is to rebuild entities and an initial determination measures have not been established). SSB to levels that would exceed under the RFA. Without better cost-earnings, labor minimum threshold levels for the three NMFS transmitted a copy of the response and alternative employment key species. The differences between Amendment 7 and its initial options data, NMFS is limited in the the stock replenishment scenarios of determination that the amendment precision of vessel and fleet level Amendments 5 and 7 are clearly would have a significant economic economic/financial impact assessments illustrated on pages 195–199 of impact on a substantial number of small it can make for such gear-based Amendment 7. In every instance, entities to the SBA shortly after NMFS’ allocations. Further, additional data on Amendment 7 results in substantially receipt of the amendment, following family structure and community social greater levels of SSB as compared to standard procedure for all new FMPs structure would be required for a Amendment 5. Thus, the contention and FMP amendments under Secretarial stronger, more comprehensive social that Amendments 5 and 7 result in the review. impact assessment of such measures. same level of stock replenishment The preamble to this final rule Comment 38: An association stated cannot be supported. contains a summary of the comments that the NMFS is required, under E.O. Comment 41: An association attached received by NMFS in response to the 12866, to seek the involvement of those a study entitled ‘‘Evaluation of the notices of proposed rulemaking, who are intended to benefit and those Economic Impacts of the Proposed including comments on the IRFA, who are intended to be burdened by any Action (Section E.7.2).’’ The study, by NMFS’ responses to those comments, regulation. It added that the Agency Dr. Andrew Plantinga and Dr. James and any changes made to the rule as a must also use consensual mechanisms Wilson from the University of Maine, result of those comments. The IFRA as for developing regulations, including acknowledged that NMFS’ submitted by the Council, together with negotiated rulemaking. methodological approach to its socio-economic 27722 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations analysis is well-accepted within the meshes for several small fisheries in the resources and catches in attempting to field of economics and is applied in an overall groundfishery reflects the effort recognize all sectors of the industry appropriate manner. It stated that some to incorporate unique factors of each of through numerous exemptions and of the specific assumptions employed in these fisheries. Mesh regulations reflect special provisions. NMFS’ analysis, however, are area, gear and species concerns. Small The white hake fishery is of unconventional and highly mesh fisheries are allowed to operate increasing importance to many vessels questionable. The purpose of the study once bycatch effects have been in the GOM. A white hake provision in is to reconsider the economic impacts of considered. A single mesh applied to all the amendment allows the Regional the proposed action under a more fisheries would constrain more Director, upon consideration of the plausible set of assumptions. opportunities. Benefits to other fisheries exempted bycatch criteria, to allow a Response: (1) Issue—Treatment of are foregone in the closed areas directed fishery on white hake outside Imports. Holding imports constant is included in the plan. of the DAS program. standard practice in economic analysis Comment 43: An association stated Comment 44: An association stated of fisheries management, and reflects that National Standard 4 prohibits that National Standard 5 requires NMFS uncertainty over how trading partners discrimination among the residents of to promote efficiency and National will manage their resources within the states. It added that the regulated Standard 7 requires NMFS to minimize ten-year time horizon. Holding price species constitute a much lower costs and avoid unnecessary constant ignores dramatic increases in percentage of overall groundfish duplication. It asserted that NMFS has groundfish prices over the next two landings in Maine than in any other of failed to consider less drastic steps, that decades. Finally, the constant price the states impacted by the PA. could be taken to achieve the same analysis offered by the commentors still Moreover, the GOM cod stocks have result. It argued that regulations should demonstrates a superior result for been determined to be healthier than GB include procedures to relax restrictions Amendment 7 compared to Amendment stocks. NMFS’ failure to account for quickly. It said that the amendment’s 5, in fact, even more so than for an differences in local factors results in an analysis also fails to consider assumption of constant imports. exaggerated detriment to the heightened enforcement costs. (2) Issue—Treatment of crew costs. commercial fishermen in a region where Response: Amendment 7 is consistent Since labor employed in a fishery is a the problem is less pronounced. The with both of these national standards. resource that would otherwise be association added that this failure also The Council and NMFS considered employed in another activity, it has a violates National Standard 6, which alternatives and included special resource cost. Given the lack of data on requires NMFS to consider variations in provisions designed to minimize to the opportunity cost of this labor, the fisheries, resources and catches. some degree the impact of management entire value of crew share is used in In a joint correspondence, two other measures. NMFS notes it is consistent some analyses as an economic benefit. associations stated that regulations with both standards to take actions only However, this approach is inappropriate designed to rebuild stocks of CHY will ‘‘where practicable.’’ Both harvesting in overcapitalized fisheries, which is the exact a higher economic burden for and enforcement costs were less for the case for this fishery. Maine than for other New England DAS reduction program alternative than (3) Issue—Time horizon. A 10-year states. They stated that Maine’s industry for several other alternatives under horizon is standard practice in bio- supports 22,000 fishing and fishing- discussion. For the most part the economic analyses of northeast dependent jobs. They added that Maine systems necessary were adopted under fisheries, reflecting the time period is a rural state with few alternative Amendment 5. Other alternatives necessary for stock recovery. employment opportunities. The included strict quotas with the likely Uncertainty is addressed through the associations said that the percentage of result of fishing derbies, an extensive simulation model, which is a more CHY in the overall groundfish landings closed area grid requiring enforcement rigorous approach than arbitrarily of Maine vessels is much less than that features far beyond the capability of the dropping two years from the analysis. of other New England states. However, region’s USCG, and complete closure of A more detailed discussion in terms Amendment 7 fishing restrictions will all fisheries taking groundfish. of a response to this comment is greatly constrain landings of other The rebuilding trajectory was available upon request from the regulated species, which comprise the modified from a single year reduction in Regional Director. largest percentage of Maine’s overall fishing effort, to 50 percent of recent groundfish landings. They stated that levels, to a two-year reduction schedule. 10. Comments Related to National GOM stocks were determined to be In addition, an annual review process Standards healthier than GB stocks, yet all fishing will examine the deviation of the actual Comment 42: An association vessels, regardless of fishing region, from desired rebuilding trajectories. commented that Amendment 7 is must take the same direct effort Adjustments (increases or decrease in inconsistent with National Standard 1 reductions as measured by DAS. fishing effort) in DAS or other which requires the NMFS to prevent Response: NMFS recognizes that ports management measures will occur as overfishing while achieving an optimum in some states may be affected they become necessary, upon annual yield from each fishery. It added that differently than ports in other states. review of the target TACs and actual the varying mesh requirements from However, National Standard 4 states fisheries data for a given year. fishery to fishery fly in the face of that management measures shall not Comment 45: An association stated National Standard 1. Moreover, NMFS’ discriminate between residents of that Amendment 7 violates National failure to consider the unique factors of different states. None of the measures Standards 2, 4, 5, and 6 because: It uses different segments of the fleet and discriminates between residents since poor, untimely and incomplete different fisheries conflicts with the all are treated similarly, and thus the information; it is not fair and equitable goals of National Standard 1. amendment is consistent with National to all fisheries; it is not reasonably Response: NMFS has determined that Standard 4. The amendment is also calculated to promote conservation, but the provisions of Amendment 7 not consistent with National Standard 6, rather downsizes fishing fleets as they disapproved are consistent with because the Council and NMFS have once were; it unfairly puts concerns of National Standard 1. Allowing different considered variations in fisheries one fishery over another; it discards in Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27723 favor of expediency and it does not personally met repeatedly with fishing effectiveness will provide NMFS an account or allow for variations of the industry groups, including those opportunity to inform the public about fisheries. associations whose comment this the new requirements. It will also Response: NMFS disagrees. As responds to, both during Council provide the industry with the time discussed above, the provisions of meetings and in their home ports. required to make the necessary Amendment 7 that were not Furthermore, most of the proposals adjustments to fishing activities and disapproved comply with the national made in the associations’ position paper gear. standards and other applicable laws of September 19, 1995, were discussed in response to other incorporated in some form in 12. Comments on Enforcement of the comments. As discussed above, NMFS Amendment 7. These include the Amendment has determined that the measures are removal of layover day provisions, the Comment 50: The Council submitted based on the best available scientific elimination of exemptions for vessels comments addressing enforceability information (National Standard 2), do under 45 ft (13.7 m), and the closure of issues associated with the proposed not discriminate between residents of areas to maximize recruitment, as well regulations. Their comments are as different states (National Standard 4), as the continued use of DAS as a follows: and are fair and equitable and primary management tool. They noted that there was an error in reasonably calculated to promote Comment 47: In a joint § 651.22(g) with respect to the conservation. NMFS notes that National correspondence, two associations stated requirement to take 20 days out of the Standard 5 requires fishery management that the fisheries management process multispecies fishery during the plans to promote efficiency in failed its Magnuson Act obligation to spawning season. Their suggested utilization of resources ‘‘where involve the Groundfish Industry revision is incorporated. practicable,’’ as discussed elsewhere in Advisory Committee in the They identified a mesh size response to comments; in a fishery as development of Amendment 7. measuring procedure to be used for severely overfished as Northeast Response: Members of the Groundfish gillnets and suggested that multispecies the ‘‘where practicable’’ Industry Advisory Committee were implementation of this procedure be caveat is a constraining factor. NMFS notified of each scheduled Groundfish delayed until October 1996. These has approved measures that include Committee meeting and were well recommendations were adopted. several exemption programs and represented and actively participated at They requested a revision of the management measures tailored to most of them. Furthermore, from definition for ‘‘Port’’ to clarify when a account for contingencies (geographic, representative membership on the vessel must call under the call-in seasonal) as specified in National Council, through the scoping process requirements. This change is Standard 6. and both formal and informal incorporated. opportunities to be heard, industry NMFS notes that it has made some 11. Comments on the Procedural representatives were involved in the changes in the final rule in response to Aspects of Amendment 7 development of Amendment 7 from its concerns raised by the Council (see Comment 46: In a joint inception through implementation. changes from the proposed to final rule). correspondence, two associations stated Comment 48: A commenter stated that that it is the responsibility of the none of the alternatives to Amendment 13. Miscellaneous Comments regional fishery management councils to 7 presented by New Hampshire fishers Comment 51: The Maine DMR stated, see that the intent of the Magnuson Act at public hearings (such as mobile gear as regards NMFS concerns expressed in is carried out so all parties concerned night closures and gillnet restrictions) the preamble to the proposed rule about are treated fairly and equally, that was considered by the Council. the availability of open-access handgear- public input be allowed and comments Response: In fact, such issues were only permits to party/charter vessels be seriously considered in making major considered by the Council. The Council and the resulting administrative and decisions. The associations added that is continuing its consideration of monitoring burden about what set of such has not been the case in the additional gillnet restrictions for rules party/charter boats are operating development of Amendment 7 by the implementation by the Amendment 7 under, that this burden could be Council. framework adjustment process. The reduced by requiring that such vessels Response: The industry has been Council continues to receive testimony only call in upon embarking on a actively involved in the plan process, regarding night closures for mobile gear, commercial groundfish trip. At other and their viewpoints were solicited and but has not developed a proposal to times, party/charter vessels would be taken quite seriously. In addition to its implement this measure. presumed to be fishing under regularly scheduled meetings, the Comment 49: An environmental recreational rules. Council held a large number of association urged NMFS to waive the Response: The Council commented committee meetings during the Administrative Procedure Act’s (APA’s) that the call-in requirement for charter/ development of the alternatives 30-day delay in effective date and party vessels would not enhance proposed in the public hearings. Notice implement Amendment 7’s enforcement and should be of these meetings was sent to everyone conservation measures immediately disapproved. NMFS agrees and the who indicated an interest in receiving upon publication of the rule. measure has been disapproved. such notice. Furthermore, these Response: The APA allows the 30-day Comment 52: An environmental meetings, as well as public hearings, delay in effective date requirement to be organization stated that the phrase, were open to the public and provided waived if there is good cause to do so. ‘‘FMP goals and objectives,’’ is used in an opportunity for representatives from While the commenter seeks such a some places in § 651.40(a) while in all the different sectors of the fishery to waiver in order to provide immediate other places the phrase, ‘‘FMP be heard. As the Council developed conservation benefits, NMFS believes objective,’’ is used. It believes that the Amendment 7, the severity of measures that it would not be reasonable to former phrase should be used under consideration was widely require compliance with management throughout the section both because it publicized in trade and general measures of this complexity on an reflects the Council’s intention and publications. The Regional Director immediate basis. The 30-day delay in because it is important to assure that 27724 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations future management decisions will be be monitored to assure conformity with discriminates against the passive gear guided by the need to reach specified the present gear. fisherman. For example, an average spawning stock thresholds as well as by The commenter cautioned that any gillnet fisherman with 120 nets in the the fishing mortality rates that the deviation from the gear used could water will utilize 6 nautical miles (nm) Council hopes will achieve those negatively alter the fishery and increase of bottom and occupy 0.41 acre. A thresholds. the regulated species bycatch. He dragger towing at 5.5 nm per hour will Response: NMFS agrees and the suggested that a level of sea sampling be drag over 132 miles in 24 hours of commenter’s suggestion has been mandated so that the fishery does not towing and with a net sweep of 205 ft adopted. proceed unmonitored to assure that will drag over 3,864 acres. Therefore, if Comment 53: The Maine DMR stated those who developed this fishery do not DAS are used to manage the that DAS program results in see its conservation benefit multispecies fishery, then DAS should compensations by fishermen to compromised. be separate for passive and mobile gear, maintain their revenues in the face of Comment 55: An environmental and DAS for passive gear should be reduced fishing time for regulated organization added that it supports the greater than that assigned to the mobile species. In addition to subtle increases dogfish trawl fishery on Nantucket gear sector. in fishing power, this also results in Shoals as long as skate bycatch 2. The proposed bycatch of lobster (in displacement of effort onto other species restrictions are maintained and as long the mobile gear sector) should be and into other regions. as periodic review indicates that: (1) eliminated. The lobster fishery must It added that large mobile gear vessels Bycatch rates do not escalate, and (2) reduce lobster landings by 20 percent that had fished long trips on offshore appropriate contributions to overall over 5 years. A 200 count lobster grounds are shifting their effort to fishing mortality for multispecies targets bycatch allowance leaves the door open nearshore and inshore grounds to due to this fishery are recognized. for high grading and for non-reported maximize landings from fewer DAS. Response: NMFS will monitor the landings. The value of 200 lobsters will This not only concentrates effort in dogfish trawl fishery through sea result in a directed fishery by those areas known to be important spawning sampling, as possible. No skate bycatch vessels fishing outside of any DAS and juvenile habitat but is responsible is allowed. Should the situation restrictions for non-regulated species. for a sharp escalation in mobile/fixed warrant, the Regional Director has (The monetary value of the lobster is gear conflicts as draggers and gillnetters discretion to cancel the exemption for greater than the monetary value of their compete for the same grounds. the fishery. directed catch.) Finally, the lobster can Response: The habitat question raised Comment 56: The Maine DMR stated be returned unharmed to the sea, which is responded to in Section 13, that it favored inclusion of two state eliminates the wasteful discard ‘‘Comments on Protection of Habitat.’’ representatives and an industry member argument. The Council is aware of the gear conflict on the Multispecies Monitoring 3. Dealers should report their issue raised and is presently discussing Committee. purchases from all fishermen in a resolution of the problem. Any such An environmental association manner that allows a cross check on the resolution may be effected through the recommended that membership on the mandated vessel reporting systems. framework adjustment process. technically based MMC proposed by Response: (1) Fishing mortality is not Comment 54: Two environmental Amendment 7 (61 FR 8546, March 5, a function of the amount of area covered associations opposed the proposed 1996) include an environmental by the catch per unit of effort—a rough exemption that could allow a directed representative and meet for purposes in equivalent is a DAS. In theory, if each fishery for a regulated species (white addition to the annual review (61 FR vessel gives up a DAS, each vessel hake) outside of DAS restrictions. They 8559, March 5, 1996). It added that the experiences a 1/365th reduction in stated that NMFS classifies the white MMC should meet when appropriate, effort. As discussed in response to other hake stock as fully-exploited and at a including whenever data suggests that comments, NMFS has disapproved the medium biomass level. They target TACs for any population are or proposed measure for counting gillnet recommended that increased fishing may be likely to be overrun by more DAS in an effort to put that gear sector effort on white hake should be than 10 percent during any fishing year. on the same basis as other gear sectors. discouraged, not promoted. Response: The MMC is formed by the Also, the Council is continuing to The Maine DMR added that the white Council. NMFS will forward the explore other alternatives for the gillnet hake exemption should only be suggestions of these commenters to the sector. implemented if management is Council. (2) The lobster bycatch allowance is confident that this stock is under- Comment 58: A commenter stated that not established as a means to conserve exploited and sufficient sea-sampling the Council’s mandate, as defined by the lobsters, but rather to reflect a legitimate data is available to determine that this Magnuson Act, is to take immediate bycatch in a fishery that may target for fishery can meet the 5 percent rule action to conserve and manage the multispecies. If further lobster throughout the fishing year. fishery resources. He added that while conservation measures are needed, they Response: NMFS recognizes that this Amendment 7 purports to be a would more appropriately be addressed species is fully exploited. The measure conservation measure, it is rather a in management measures designed to would allow the Regional Director to measure that redirects fishing effort. He protect that species. exempt such a fishery in consultation explained that it addresses the (3) NMFS has implemented a vessel with the Council, which may be an groundfish problem in a manner that reporting system that can be cross- option if recruitment and biomass ignores the fishery as a whole. He said checked to the dealer reporting system. remain stable. Any such exemption that Amendment 7 will, in meeting its Comment 59: The Maine DMR cannot be granted if it jeopardizes FMP objective, create and prolong existing commented favorably on Amendment goals and objectives, including not problems in the remaining fisheries. 7’s exemption for fisheries certified by allowing overfishing on white hake. Specifically: the Regional Director as having less than Another commenter stated that any new 1. DAS that place passive (i.e., fixed) a 5 percent bycatch of regulated species. participants to the dogfish trawl fishery gear in the same category of effort with It noted with concern, however, that the implemented by Amendment 7 should mobile draggers and scallopers grossly procedures for identifying candidate Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27725 fisheries for exemption and the bycatch of regulated multispecies was to reconsider the MA RMA exemption at methodologies for establishing less than one-half of 1 percent. This a later time. certification are not yet specified or in program can be terminated if the Comment 63: In response to NMFS’ place. It urged the Regional Director to Regional Director determines that reservations expressed in the preamble develop and set forth the requirements bycatch of regulated species is to the proposed rule, the Connecticut for application and certification as a excessive. DEP commented that likely changes in matter of high priority. Comment 61: An association winter flounder management during Response: Application procedures are commented that Amendment 7 data 1996 will make more of a difference in place and this rule establishes confirms that commercial hook fishing than the availability of state waters exemption procedures for the newly is labor intensive. It stated that based on winter flounder exemption programs. It impacted large mesh fishery. Applicant Council data, small longline boats catch stated that the value of the program is must submit a written request to the only 300 lb (136.1 kg)/man/day as that it allows a state to choose not to Regional Director. The request must at compared to large draggers, which catch participate or withdraw. It said that least describe the area in which the 880 lb/man/day. Amendment 7, Vol. I, participating states have been in fishery would operate, the period in Table E.6.4.1.1.4 b & e. The commenter compliance with the ASMFC plan but which it would operate, the gear it added that commercial hook fishing expects that, by summer, most states would use, the approximate number of should thus be encouraged to reduce will (by review and revision of the plan) vessels likely to participate, and the employment losses. be out of compliance because the species it would target, retain and land. An association commented that current SAW advice indicates a more Any evidence of the likelihood of such restoring habitat already destroyed by pessimistic condition of the stock than a fishery succeeding should be included draggers would be another means of did the previous SAW. The DEP raised with the request. The request will be overcoming Amendment 7’s the issue of whether disapproval of this reviewed by the Regional Director and employment dislocation with an eye exemption program outweighs the a letter sent to the requestor explaining toward rebuilding stocks in the future. problems that may arise of a the process, which follows. The request The commenter suggested that jurisdictional nature. It suggested that will be analyzed to determine whether displaced draggermen could be the program is better off preserved and such a fishery would meet the 5 percent temporarily employed building artificial opportunity should be provided through regulated species bycatch standard reefs ashore and towing them out to GB ASMFC and the Council to develop a which, under Amendment 7, has been and the Great South Channel to enhance more aggressive winter flounder revised to reflect the Council’s intent stock recovery. It concluded that even conservation program, which also preserves the states’ right to manage that it is an absolute maximum (other buy-back vessels could be sunk offshore restrictions on fishing gear and/or fisheries within their jurisdiction in to provide groundfish gardens. seasons may also be considered to accordance with approved plans. Response: NMFS is not opposed to reduce bycatch). The completed The Connecticut DEP further any organization encouraging hook analysis will be forwarded, along with commented that both Connecticut and fishing. For NMFS’ position on habitat the request, to the Council, which will New York question the rationale of new protection, see Section 14, ‘‘Comments place the request for a large mesh § 651.20(j)(7), the 500-lb (226.8-kg) exemption on the agenda of the next on Protection of Habitat.’’ possession limit when fishing in the scheduled Council meeting. Comment 62: The Connecticut DEP State Waters Exemption Program (SWP) Comment 60: A commenter stated his commented that it shares NMFS’ and not fishing under the DAS program. concern that the majority of the small concern about the condition of the It explained that under Amendment 5, vessels fishing off of Cape Cod fish winter flounder resource (as stated in vessels enrolled in the SWP and not primarily in the same area that is the preamble to the proposed rule) but fishing under DAS could retain 500 lb designated for the small mesh dogfish does not agree that eliminating the (226.8 kg) of winter flounder, consistent fishery. He said that these small vessels winter flounder possession limit in the with the exclusive economic zone (EEZ) fish exclusively for codfish and 80 Mid-Atlantic (MA) Regulated Mesh Area fishermen not fishing under their DAS. percent of the fishing occurs from June (RMA) will measurably improve the Under Amendment 7, however, the through October. He stated that the stock. The commenter cited the 21st possession limit of regulated species for small mesh used combined with less SAW report, which states that only EEZ fishermen when not under DAS is than 100 percent observer coverage about 18 percent of the SNE and MA zero. The commenter stated that raises the potential for large cod area winter flounder landings are from Connecticut and New York believe that bycatches. The commenter recommends fisheries in the MA RMA. He added fishermen under the SWP should be that regulated mesh or larger be that, ‘‘(w)hatever increased management using their DAS when in possession of required. He added that permitting a effort the Atlantic States Marine winter flounder, that when in the SWP small mesh size in the dogfish fishery Fisheries Commission (ASMFC) and the and not on DAS, that possession of simply because the dogfish are difficult Council adopt in response to the SAW winter flounder should be prohibited. to remove from the net and does not advice will be more critical to The Connecticut DEP argued that there justify the potential harm to stocks of successful flounder rebuilding than is no indication that the Council CHY. He concluded that allowing whether or not the 10 percent/200 lb intended to allow 500 lb (226.8 kg) of vessels to use small mesh to target (90.7 kg) exemption exists during the winter flounder in the SWP when not dogfish in the area can only lead to high 1996 fishing season.’’ fishing under DAS, while prohibiting discarding of regulated species as well Response: NMFS’ concern about the EEZ fishermen from any possession of as juvenile dogfish. winter flounder resource is not winter flounder when not fishing under Response: The Nantucket Shoals unfounded. Winter flounder are DAS. experimental dogfish fishery was currently overexploited, at low biomass Response: NMFS has not disapproved monitored by the Massachusetts levels, and in need of fishing mortality the State Waters Winter Flounder Division of Marine Fisheries for two that is reduced to as low a level as exemption program. NMFS believes the seasons. During the first year of the possible. As the winter flounder stock Council intended to allow the 500-lb program, 17 trips were observed and begins to rebuild, the Council may want (226.6-kg) limit when it voted to keep 27726 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations current exemption programs in place. long, he may not qualify for a DAS lobsters by groundfish vessels be The 500-lb (226.8-kg) allowance was allowance, and would still be unable to included in the plan. established by Amendment 5. land a (legal size) codfish. Response: Such a restriction is within Comment 64: The Connecticut DEP The association added that the the purview of the American Lobster commented that the proposal to move proposed rule says that no groundfish FMP and is not, as such an Amendment the boundary of the MA area may create may be taken without a groundfish 7 issue. an enforcement problem in Block Island permit and while no more permits will Comment 68: A commenter stated that Sound. It stated that there is no longer be issued, those vessels with permits under Amendment 7 (and a territorial sea within 3 miles north and that are over 30 ft (9.1 m) (many of the acknowledged under Amendment 5 as west of Montauk, due to a supreme association’s lobster vessels are in the well), a vessel’s length, gross registered court decision in the 1980’s that had the 31- to 42-ft range (9.5 m to 12.8 m)) tonnage, and net tonnage may be effect of changing New York’s must prove groundfish landings of at increased only once, not exceeding 10 ‘‘baseline’’ and consequently, the least 500 lb (226.8 kg) to renew their percent of its previous size. He asserted location of the New York territorial sea. permits. The association expressed that, in light of encouragement to It suggested that the matter could be concern that these vessels would pursue underutilized species such as resolved by revising the location of the actually lose their permits. The herring which are usually high-volume line as follows: association stated that some allowance fisheries, some vessels were rigged for Section 651.20(d) Mid-Atlantic should be permitted if only for personal mid-water trawling. As a result, he regulated mesh area. use. Further, no restrictions are in place stated that his vessel is often loaded to (1) Area definition. The Mid-Atlantic to keep groundfish fishermen from the point of being unsafe. He stated that regulated mesh area is that area taking lobster. he has already experienced a swamping bounded on the east by a line running The association suggested that some and suggested that such vessels be from the Rhode Island shoreline at small incidental groundfish catch be allowed to increase hold capacity, i.e., Watch Hill, RI southwesterly through allowed for all lobstermen with a length and tonnage. He stated that the Fishers Island, NY, to Orient Point, NY, groundfish permit or that an incidental restriction on horsepower is an adequate and from Orient Point southeasterly to control on the vessel’s fishing power bag limit permit be established to the intersection of the 3-nautical mile and, therefore, limiting the vessel’s accommodate these circumstances. line east of Montauk Point, other dimensions is not necessary. southwesterly along the 3-nautical mile Response: This issue was raised and Response: This issue relates to the line to the intersection of 72°30′ W. considered by the Council. The Council provisions for vessel upgrades as Long. and south along that line to the decided to disallow a regulated species established by the regulations intersection of the outer boundary of the bycatch in the lobster fishery, because implementing Amendment 5 and which EEZ. the TACs are set so low and are unchanged by this rule. The purpose In support of the above, the Amendment 7 focuses on eliminating of the upgrade restrictions is to prevent commenter stated that the problem with regulated species bycatch in fisheries limited access multispecies permit the northern terminus of the line in the capable of taking a bycatch of regulated holders from increasing the fishing proposed rule is that it would bisect the species. power of their vessels, exacerbating shoreline along the Rhode Island south Comment 66: An association overcapitalization and overfishing shore, an area in which Connecticut, commented that it presumes that issues in this fishery. Horsepower alone Rhode Island, and New York vessels restrictions on possession of groundfish is not a sufficient limitation of vessel commonly trawl. It said that it is by lobstermen do not include fishing power, especially where the inadvisable to have a mesh separation possession of ‘‘groundfish racks’’ that current horsepower of the vessel may line fall in the middle of an area were purchased for use as bait. It allow the other dimensions to be commonly trawled, for enforcement suggests that some wording be inserted increased. Moreover, a vessel that reasons. The commenter stated that its into Amendment 7 to recognize wishes to fish for herring and other mid- suggested revision resolves the original ‘‘groundfish racks’’ as legal bait water trawl fisheries not regulated problem of splitting Long Island Sound possessed by lobster vessels. under the Northeast Multispecies FMP into two mesh management areas (the Response: The Northeast Multispecies may elect to give up their limited access original 72°30′ line) and avoids splitting regulations apply to fish and fish parts, permits thereby avoiding vessel upgrade Block Island Sound into two mesh and as such, ‘‘groundfish racks’’ must restrictions. management areas. The Connecticut meet the minimum size established by Comment 69: The Marine Mammal DEP added that its proposal has been the multispecies regulations. Commission stated that to make confirmed to be acceptable to Rhode Furthermore, a Northeast Multispecies meaningful progress towards meeting Island, New York, and the USCG. permit is required to possess ‘‘racks’’ of the Council’s revised harbor porpoise Response: NMFS has adopted the multispecies finfish. goal and requirements of the Marine Connecticut DEP’s suggested revision as Comment 67: An association Mammal Protection Act (MMPA), the requested by the States of Connecticut, commented that it strongly opposes the network of time-area closures for the Rhode Island and New York, and by the total absence of any restrictions that coming year should be expanded. The Council. would control the targeting of lobsters Marine Mammal Commission suggested Comment 65: An association by groundfish vessels. It further stated that the Council’s Harbor Porpoise commented that the elimination of a that the absence of any wording Review Team (HPRT) meet in time to proposed 100-lb (45.4-kg) groundfish regarding the subject allows the implement any recommendations it allowance for lobster trap fishermen is unrestricted targeting of lobsters while might make for the summer-fall fishing unnecessary. It added that this would fishing both during DAS and outside of season off the coast of central and prohibit a lobster fisherman from DAS. The commenter said that this northern Maine. It also recommended, bringing home a legal size codfish for omission encourages a redirection of to better cover the potential periods of dinner. It further noted that if a lobster effort onto the lobster resource. high bycatch in the Mid-coast area as fisherman has a multispecies permit and The association suggested that some reflected by current observer data, that his vessel is more than 30 ft (9.1 m) significant controls on the targeting of the Council and/or NMFS consider Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27727 expanding the effective dates for the consult with the Commonwealth of closure. Any type of fishing would Mid-coast closure to include the months Massachusetts to develop measures for defeat the purpose of the closure. of September through December and gillnets and other fishing gear capable of 14. Comments on Protection of Habitat April through May. It added that it entangling right whales from February believed that it would be reasonable to through May in the Cape Cod Bay right Comment 73: Many comments were allow fishing with acoustic deterrents in whale critical habitat. submitted raising issues related to the the extended closure periods Response: The issues raised in this impact of certain fishing gears on recommended above provided evidence comment can be addressed under the marine habitat and, in some cases, continues to indicate their effectiveness. framework actions, provided for in the proposing restrictions on this gear and Response: The Council’s HPRT met in final rule. The NEFMC did not forward providing incentives for other gear May to discuss additional expansion of a recommendation to expand the Area 1 types. The major points of all habitat- time-area closures. The HPRT closure to include the entire right whale related comments are summarized recommendations were scheduled for critical habitat in time for below, with emphasis on comments presentation to the Marine Mammal implementation this spring. In order for from the Darling Marine Center at the Committee in late May so that measures NMFS to issue a regulation under the University of Maine and the Cape Cod could be considered by the full Council ESA, to be effective by April 1997, Commercial Hook Fishermen’s at its June meeting. This will allow any NMFS would need to publish a Association, because they are approved measures to be effective in the proposed rule within the next few representative of issues raised in the mid-coast area by September. Continued months. NMFS is considering regulatory majority of the other comments use of acoustical devices in these closed options to accomplish this. received. areas will be considered based on the NMFS will soon sign a Cooperative One said NMFS should be an active results of recently concluded Agreement with the Commonwealth of partner with the Council in identifying experimental fisheries held this spring Massachusetts to enter into a areas of critical concern and investigate and the recommendations of the Harbor coordinated state-Federal effort to the use of intensive gear, and if Porpoise Take Reduction Team, protect and recover the endangered and necessary, restrict or prohibit particular expected to be available later this threatened marine fauna of gear use. There was general summer. Massachusetts, including the right disagreement that additional studies Comment 70: The Marine Mammal whale. Once signed, both parties will would be a sufficient management Commission stated that as the number begin discussion of several endangered approach and further disagreement with of northern right whale calves counted species issues within the the decision not to include trawl gear in 1995 is exceeded by the 3 percent Commonwealth, including additional restrictions at this time. mortality reported for the past 12 protection for the right whale critical One group stated that trawling and months, action must be taken to exclude habitat area in Cape Cod Bay. dredging activities have the capability of gillnet gear in times and areas where Comment 71: An association stated altering structurally complex bottom right whales are known to occur in that under the MMPA, NMFS classifies communities, principally through the greatest numbers. It added that these the sink gillnet fishery as a Category I removal of biomass, and that these areas include the Great South Channel and bottom trawl, longline, and hook alterations will result in completely from April through June, and Cape Cod and line fisheries as Category III. different bottom communities Bay from February through May. It said However, Amendment 7 states ‘‘it occupying these locations. that action taken by the Council to should be noted that the bottom trawl In discussing the legal standards of reduce entanglement threats has been fishery has incidental takes of striped the Magnuson Act and the APA, this limited, i.e., it has prohibited gillnet dolphins, coastal bottlenose dolphins group stated that an international fishing in parts of one area (the Great and pilot whales.’’ The commenter consensus is emerging that management South Channel) that are important for suggested that based on this finding agencies should apply a precautionary groundfish spawning during part of the alone, the bottom trawl; fishery ought to approach to fisheries management. It peak period of right whale occurrence. be moved to Category II. was emphasized that it would be more The Marine Mammal Commission Response: This comment relates to prudent to protect some of these areas acknowledged that Amendment 7 MMPA requirements and is not relevant as soon as possible by establishing proposes expanding the scope of the to Amendment 7. In any event, most of marine reserves to protect specific Council’s framework adjustment the few takes observed in this fishery habitat features such as habitat procedure to include possible closures were determined to have been dead complexity. Increased complexity to protect right whales and other before being taken. In addition, because would result in increasing survivorship endangered whales, however, no further the observer coverage was low, the of postlarval and early juvenile size measures are proposed in Amendment 7 estimated serious injury and mortality classes, thus increasing recruitment to in this regard and it is unclear whether levels extrapolated from those few data harvested populations. Given the or when the Council might use this points is statistically weak. Therefore, it particular relevance of the authority. was determined that the ‘‘North Atlantic precautionary approach to the Therefore, the Marine Mammal Bottom Trawl’’ fishery would remain as numerous uncertainties involved in Commission recommended that NMFS a Category III fishery under the MMPA managing fisheries, it would seem to be either expand Amendment 7 or take in the final rule to establish the 1996 incumbent upon managers and research separate action under authority of the List of Fisheries (60 FR 67063, scientists alike to prevent long-term Endangered Species Act (ESA) and December 28, 1995). damage to ecosystems from occurring MMPA to prohibit the use of gillnets Comment 72: An association stated while their theories are being tested. from April through June in the Great that closed areas should be opened to An association contends that South Channel area, which is low-impact hook fishing during non- Amendment 7 fails the following designated as critical right whale spawning periods. national standards for the reasons habitat). Response: One reason for the mentioned: National Standard 1, by In addition, the Marine Mammal existence of closed areas is to halt ignoring gears’ differential habitat and Commission recommended that NMFS fishing mortality during the period of selectivity impacts; National Standard 2, 27728 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations because best science demonstrates those proposing research into the effects As discussed throughout this landings approximate catch only in the of bottom gear on groundfish habitat. document, NMFS has determined that hook fishery and also demonstrates that While NMFS and the Council are not Amendment 7 is consistent with the heavy dragger gear damages groundfish advocating specific management national standards, which conclusion is habitat, diminishing stocks; National measures to avoid or reduce the effect supported by the record of decision. Standard 3, by ignoring management of mobile fishing gear on bottom habitat, Comment 74: The Maine DMR stated units based on types of gear and similar it is worth noting that Amendment 7 that the science (both data and theory) fishing practices; National Standard 4, does include measures such as closed supporting management must change since allocation is necessary to areas and overall effort reductions that and that the importance of such discourage dragging on hard bottom and will reduce the amount of trawling and parameters as fish size and the encourage conversion to hook fishing; thus reduce the frequency of qualitative differences of habitat National Standard 5, as Amendment 7 disturbance to bottom habitat used by protection at different seasons should be does not promote long-run efficiency multispecies stocks. Although these more effectively integrated into the since fishing power is not reduced effort reductions will not include analysis. absent dragger gear restrictions; and permanent marine reserves that are off- Response: The Council acknowledges, National Standard 6, by ignoring fishing limits to trawling and dredging gear, in its discussion on research to support practices and by wrongly incorporating they might provide opportunities to fishery habitat protection (Volume I of the ‘‘fair and equitable’’ standard into investigate whether reduced pressure on Amendment 7), the need to conduct analysis of this national standard. habitat from bottom gear may over time research to determine which habitats are An association disputed the enhance the structural complexity of the most important to support groundfish amendment’s statement that, as bottom in some areas and increase stocks throughout their life history currently drafted, ‘‘(t)he Magnuson Act survivorship of early life stages of stages and to understand factors limits the Council’s role to commenting commercially important species. essential for sustained fisheries on proposals that would affect fishery Regarding the role of the Council in production. As stated earlier, habitat resources and their habitats.’’ In fact, the respect to habitat, the commenters raise protection and conservation is an commenter notes that beyond merely some valid points. Fishery management integral component of fishery commenting, the Council is empowered plans prepared by the Council or management; NMFS strongly supports to ‘‘make recommendations concerning Secretary include habitat sections that the advancement of marine research to any activity . . . that, in the view of the identify the habitat needs of the species. improve its understanding of the Council, may affect the habitat of a NMFS works with developers and relationship between species and fishery resource * * *.’’ 16 U.S.C. permitting agencies to avoid, minimize habitat during various life stages. Such section 1852(I)(1)(A). and mitigate the anticipated habitat information will be incorporated into Response: There is growing interest impacts from a proposed activity. fishery management plans as it becomes and research into trawling and dredging Fishery management plans are one tool better understood and defined. effects on bottom habitat and benthic NMFS and the Council can use to Comment 75: An association communities. Research to date indicates identify habitat essential to commercial commented that the national standards that mobile gear is having observable stocks. dictate a differentiation between hook effects on the bottom in some areas and The commenters disagree with the fishing and other commercial little discernable effect in other areas. Council’s approach taken in groundfishing, just as has occurred in The causes for differing effects have not Amendment 7 that concentrates on other regions of the country. It added yet been identified. In addition, the achieving reductions in fishing that the Council predictably relies on ecological impacts of mobile gear on mortality through controls on fishing the fair and equitable argument to commercially important stocks remain effort. The supporting analyses for defend its failure to distinguish the largely unknown. NMFS does not Amendment 7 referenced by the commercial hook fishery; however, a believe that the scientific information commenters demonstrates that the Magnuson Act guideline states: ‘‘An currently available is adequate to show Council and NMFS realize that the allocation need not preserve the status that placing restrictions on mobile gear recovery of severely depleted fish stocks quo in the fishery to qualify as fair and would result in benefits for can be enhanced by incorporating more equitable, if a restructuring of fishing commercially important stocks. NMFS comprehensive scientific information privileges would maximize overall does not intend to wait for ‘‘full into management decisions. In benefits.’’ scientific certainty’’ before making a particular, NMFS is committed to An association discusses Norwegian recommendation that might restrict the conducting additional research into the studies that documented how longlining use of mobile gear in certain areas, but habitat requirements and life histories of is a more size-selective fishing method rather is cautious in instituting such multispecies stocks so that future than trawling. The commenters pointed restrictions with uncertain and management actions can focus on those out that these studies further proved inadequate data. To seek resolution of measures that will be most effective in that yield and employment effects were this issue, the NMFS and the Council enhancing recruitment. For Amendment greater in the longline fishery as support additional research on this 7, NMFS and the Council used available compared to the trawl fishery. topic so that future management information to develop a suite of Another association commented that measures can account more for the management measures, including closed the Council rejected the Cape Cod effects of fishing gear, especially if areas and effort reductions, that will Commercial Hook Fishermen’s additional research indicates that reduce fishing pressure on the stocks as Association (CCCHFA) plan because it recruitment could be enhanced by well as their habitat. NMFS had no measurable objectives, only reducing the amount of disturbance to acknowledges that more work is needed covered a limited region, and had direct benthic habitat. Currently the in this area to tailor future management allocation effects on a particular sector Stellwagen Bank National Marine actions to the biological needs of target of the industry. The association said Sanctuary and NOAA’s National species, which include habitat that the reasons for rejection are without Undersea Research Program are among requirements. support and invalid as they are contrary Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27729 to the administrative record already judgment of those perpetrators that are system approved by NMFS. A VTS submitted to the Council. caught, the perpetrators still fish, requirement was established in Response: Gear selectivity was contract debt and shelter revenue. He Amendment 5, but is awaiting testing discussed in the development process of stated that at-sea enforcement must be and vendor certification procedures to Amendment 7 but rejected as an option fast and without warning to be effective be complete before it becomes fully in the final outcome. In making this and justice should be swift. He added implemented. decision, the Council and NMFS that a port reporting and enforcement determined that the management regime system that effectively detects Changes in the Final Rule From the should, to the extent practicable, misreporting or no reporting of catch is Proposed Rule preserve the multifaceted nature of the also needed. As discussed above, some changes Northeast Multispecies fishery. The Another commenter stated that some from the proposed rule were necessary Council could revisit this issue at a later kind of incentive to follow the rules is to respond to a review of the time through the expansive framework needed. He implied that some people amendment by NMFS Office of Law capability under Amendment 7. who will be left in the fishery will not Enforcement, the Council’s Law follow the rules. Enforcement Committee and the USCG. Comments on Enforceability Issues An association stated that TACs Other changes made are technical or The USCG and NMFS Enforcement encourage non-compliance in the form administrative in nature and clarify or requested that a vessel operator be of under-reporting and high-grading and otherwise enhance enforcement and required to retain on board all DAS are costly to enforce. administration of the fishery confirmation numbers for the current Response: NMFS Northeast Region management program. These changes fishing year. The Council decided that enforcement personnel and the USCG are listed below in the order that they this was an unnecessary burden on the First District Commander have appear in the regulations. industry and recommended instead that integrated their planning to ensure that In § 651.2, the definition for ‘‘DAS they be required to retain numbers for there is an effective USCG—NMFS (Days-at-Sea)’’ is revised to remove the the current and immediately prior trips. enforcement strategy in place to support disapproved provision to count DAS for The Council’s recommendation is Amendment 7. NMFS Law Enforcement gillnet vessels as time when gear is in adopted here. continues to work toward effective the water. They requested that the current implementation of the effort control and In § 651.2, the definition for provision requiring a vessel to have a monitoring measures in the ‘‘Multispecies Monitoring Committee’’ standard tote on board the vessel be Multispecies fishery and will explore is revised to clarify that the number of retained. This provision was ways to improve compliance with representatives from the affected coastal inadvertently deleted in the proposed existing regulations in partnership with states appointed by the ASMFC is rule and is reinserted here. the USCG and natural resources limited to two. They commented that the call-in divisions of each coastal state. NMFS In § 651.2, definitions ‘‘Prior to requirement for charter/party vessels Law Enforcement and NOAA General leaving port’’ and ‘‘Upon returning to would not enhance enforcement and Counsel work cooperatively to port’’ are added to clarify when a vessel should be disapproved. The measure investigate and bring to a conclusion, all must begin and end a multispecies DAS has been disapproved. cases involving violation of the trip under the call-in requirement. They requested a change to require a conservation regulations. NMFS Law In § 651.2, the definition for vessel operator when hailed by an Enforcement believes in the concept of ‘‘Standard box’’ is no longer necessary authorized officer via VHF–FM radio, to voluntary compliance and is actively and is removed. respond to such hail. This change has pursuing education as a means to In § 651.2, the definition for ‘‘Sink been incorporated. attainment of voluntary compliance. gillnet’’ is revised for clarification. The Council requested a revision to This effort, combined with penalties as In § 651.4, paragraph (b)(1)(ii)(A) is the definition for the ‘‘Multispecies appropriate, provide the incentives to revised to clarify the qualification Monitoring Committee’’ to clarify their adhere to conservation regulations. criteria for limited access Hook-Gear intent with respect to membership. This Comment 77: A commenter stated that permits for recreational vessels that change is incorporated in the final rule. the present vessel call-in system to recorded landings by number and not by The Council suggested an addition to monitor DAS is obsolete and weight. the qualification criteria for Hook-gear recommends instituting a basic VTS In § 651.4, paragraph (f)(3) is revised limited access permits to clarify how without messaging capability or a to clarify that a vessel has only one recreational landings should be magnetic card system with PIN number opportunity to change its permit handled. This change is incorporated. verification. category in 1996 during the 45-day time Additional comments of enforcement Response: Under Amendment 7 period after implementation of this rule concern follow. approximately 800 additional vessels and that this 45-day opportunity will be Comment 76: The USCG stated that operating in the Northeast Multispecies available each fishing year. Amendment 7 cannot be successful Fishery will be required to report their In § 651.9, paragraph (a)(3) duplicated without a fully integrated approach departures and arrivals from and to port (a)(4) in the proposed rule and is between its at-sea efforts and NMFS via telephone under applicable effort removed, paragraphs (a)(4) through Enforcement shoreside activities. It reduction reporting provisions. A (a)(13) are redesignated as (a)(3) through stated that it is prepared to assign a high magnetic card system is not logistically (a)(12), respectively. priority to enforcement concerns. feasible as it would require installation In § 651.9, paragraph (b)(4), the A commenter stated that Amendment of a magnetic card reader device in prohibition on possession limits is 7, without enforcement, will not affect every operating port on the Northeast revised to reflect changes in § 651.27 that segment of the fleet that seaboard. When a basic VTS system is due to the disapproval of the possession systematically uses small mesh liners adopted, the final performance limit for winter flounder. inside the regulated mesh size codend. standards for all VMS identify two-way In § 651.9, paragraph (b)(8), which The commenter added that during the messaging capability as a fundamental referenced a disapproved provision, is lag time between assessment and final performance requirement for any VMS removed, and paragraphs (b)(9) through 27730 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

(b)(12) are redesignated (b)(8) through to a possession limit to have on board In § 651.32, paragraph (a), the (b)(11), respectively. at least one standard tote, is added. reference to § 651.32(h) is corrected to In § 651.9, paragraphs (c)(4) and (d)(4) In § 651.22, paragraphs (b)(1)(i) and read § 651.21(h), and paragraph (a) is are added to enhance enforcement of the (b)(2)(i), (b)(5)(i), (b)(6)(i), and (b)(7)(i) redesignated as paragraphs (a)(1) and provisions in § 651.33(a) and (c). have been revised to reflect that the (a)(2) to include gillnet area closures In § 651.9, paragraph (e)(8), a DAS allocations for the 1996 fishing that were implemented on March 5, reference to § 650.20 is corrected to read year have been prorated based on the 1996 (61 FR 8494) under Framework 14 § 651.20. amount of time remaining in the 1996 to the FMP. In § 651.9, paragraphs (e)(12), (e)(13), fishing year, or 83 percent. In § 651.33, paragraph (b), the phrase (e)(14), and (e)(15), are revised by being In § 651.22, paragraphs (b)(1)(ii) and ‘‘and has declared into the charter/party made more explicit. (b)(2)(ii) are revised to reflect that fishery’’ is removed to reflect that the In § 651.9, paragraph (e)(17) is revised vessels holding both Gillnet and declaration into the charter/party by eliminating the reference to Individual DAS category permits are to fishery has been disapproved. § 651.20(d)(3), a reference to the be initially assigned into the Fleet DAS In § 651.40, paragraph (a)(3), the disapproved winter flounder exemption category, rather than the Individual DAS reference to (a)(5) is corrected to read in the Mid-Atlantic regulated mesh area. category. (a)(6). In § 651.9, paragraph (e)(22) is made In § 651.22, paragraph (b)(6) is revised Classification and paragraph (b)(7) is added to reflect more explicit. The Regional Director determined that In § 651.9, paragraph (e)(32) is made the approval of the measures included in the resubmitted part of Amendment Amendment 7 to the FMP is necessary more explicit. for the conservation and management of In § 651.9, paragraph (e)(38) is added 7, which allows vessels the ability to elect either the Large Mesh Fleet DAS the Northeast multispecies fishery and to reflect the requirement to have a that it is consistent with the Magnuson standard tote on board when fishing program or the Large Mesh Individual DAS program. Act and other applicable laws. under a possession limit restriction. The Council prepared a FSEIS for Section 651.10 is revised, as requested In § 651.22, paragraph (c) is redesignated as paragraphs (c)(1) and Amendment 7; a notice of availability by the Council, NMFS Enforcement and was published on February 16, 1996 (61 the USCG, to include a requirement that (c)(2) to clarify that a vessel possessing both a 1995 limited access Gillnet FR 6230). This action is expected to a vessel operator respond if hailed by an have a significant economic impact on authorized officer via VHF-FM radio. permit and Individual DAS permit is eligible to appeal its initial allocation of the human environment. The Assistant In § 651.20, paragraphs (a)(2)(ii), Administrator for Fisheries, NOAA (c)(2)(ii), and (d)(2)(ii) are revised to gillnet DAS. In § 651.22, paragraph (d)(2)(i), the (AA), determined upon review of the include cross references to the Large date by which a vessel may appeal its FSEIS and public comments on the Mesh Individual DAS Category in allocation of DAS is revised to reflect a Draft SEIS that the PA of the § 651.22(b)(7) approved under the later than anticipated implementation amendment is environmentally resubmitted portion of Amendment 7. date for this amendment. preferable to the SQ. The FSEIS In § 651.20, paragraph (d)(2) is revised In § 651.22, paragraph (g), is clarified demonstrates that the PA contains to remove the reference to paragraph by replacing the phrase ‘‘fishing year’’ management measures able to rebuild (d)(3), the disapproved winter flounder with ‘‘calender year’’ and by clarifying severely depleted stocks of haddock, possession limit. the requirement for the 1996 calender cod, and yellowtail flounder; protect In § 651.20, paragraph (d) the year. harbor porpoise; provides economic and definition of the ‘‘Mid-Atlantic In § 651.27, paragraph (b) is removed social benefits to the fishing industry in Regulated Mesh area,’’ is slightly to reflect that the possession limit for the long term; and should provide better revised as a result of comments from winter flounder has been disapproved, balance in the ecosystem in terms of and an agreement between the states paragraph (c) is redesignated as groundfish resources. bordering the area, the USCG and NMFS paragraph (b), and the title to § 651.27 This final rule has been determined to enforcement. was revised accordingly. be ‘‘economically significant’’ for In § 651.20, paragraph (d)(3) is In § 651.28, paragraph (c) is removed purposes of E.O. 12866, but probably removed to reflect the disapproval of the to reflect the disapproval of the charter/ will not have an annual impact on the winter flounder possession limit in the party call-in requirement. economy of $100 million or more, and Mid-Atlantic regulated mesh area. In § 651.29, paragraphs (b)(1), (b)(2), will not adversely affect the In § 651.20, paragraph (g) is revised to (b)(4), and (b)(5), all references to productivity, environment, public clarify that the net measurement charter/party vessels are removed to health or safety or state, local or tribal procedure described referred to all nets reflect that the call-in requirement for governments or communities in the long with the exception of gillnets. Paragraph charter/party vessels has been term. By increasing multispecies catch (g)(4) is added to include net disapproved. rates in the long term and reducing measurement procedures for gillnet In § 651.29, paragraph (b)(3) is revised operating costs, this action is expected gear. Implementation of this procedure to clarify that DAS confirmation to make the industry more productive is delayed to allow the gillnet fleet time numbers for the current trip and after recovery of multispecies stock to adjust to this new procedure. immediately prior multispecies fishing abundance and to increase the In § 651.20, paragraph (i) is revised to trip must be retained on board the competitiveness of the domestic clarify that scallop vessels possessing vessel. industry in comparison to foreign multispecies must have a valid In § 651.29, paragraph (d) is revised to suppliers. multispecies permit issued under this reflect the disapproval of the proposal to In compliance with the RFA, the part. count gillnet DAS as time when gillnet Council prepared an IRFA as part of the In § 651.20 (i) and (j)(7), § 651.27, and gear is in the water. RIR that concluded that this action § 651.33(a) and (c), a measure In § 651.29, paragraph (e) is added to would have significant economic inadvertently deleted in the proposed describe the call-in requirement for the impacts on a substantial number of rule, that requires vessels when subject 20 day spawning season restriction. small entities. The FRFA consists of the Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27731

IRFA and comments and responses in benefits to the nation by $18 million continued existence of any endangered this final rule associated with the over the 10-year rebuilding period. The or threatened species under the public’s concerns about possible effects recreational sector is not expected to be jurisdiction of NMFS or result in the of this rule on small entities. Responses negatively impacted by this action. destruction or adverse modification of to comment numbers 12, 13, 14, 18, 22, Also, regarding the RFA, steps are critical habitat. 23, 25, 26, 27, 28, 29, 35, 37, 39, 40, 43, being taken by NOAA to reduce the Adverse impacts on marine mammals 46, 48, 51, 58, 65, and 67 are especially socio-economic burden on small entities resulting from fishing activities relevant to concerns of the public about through a buyout program, being conducted under this rule are discussed possible effects of one or more measures implemented in two phases, aimed at in the FSEIS. reducing fishing capacity in the contained in this rule on small entities, List of Subjects in 50 CFR Part 651 often focusing on a particular group of groundfish fishery and offering an small entities. The measures contained economic alternative to vessel owners in Fisheries, Fishing, Reporting and in this rule are restrictive, and impacts the fishery. NOAA awarded grants to 11 recordkeeping requirements. on the industry are expected to be New England fishing vessels under a $2 Dated: May 28, 1996. significant. In the early years of the million pilot buyout program in Gary Matlock, program, some vessels may be unable to February, 1996, in return for scrapping Program Management Officer, National cover their costs in part because of these their vessels and surrendering their Marine Fisheries Service. fishing permits. A larger vessel buyout restrictions and also due to the poor For the reasons set out in the program for as much as $25 million is condition of the stocks. Such vessels are preamble, 50 CFR part 651 is amended being developed for implementation expected to leave the fishery. Relative to to read as follows: the SQ, however, this program is after Amendment 7 is made effective. expected to produce higher long-term Notwithstanding any other provision PART 651ÐNORTHEAST benefits to the industry and the Nation. of law, no person is required to respond MULTISPECIES FISHERY The majority of the vessels in the to nor shall a person be subject to a Northeast multispecies fishery are penalty for failure to comply with a 1. The authority citation for part 651 considered small entities. This action is collection of information subject to the continues to read as follows: expected to reduce the overall revenues requirements of the Paperwork Authority: 16 U.S.C. et seq. Reduction Act unless that collection of of the multispecies industry by 2. In § 651.2, the definition for information displays a currently valid approximately 10 to 25 percent in the ‘‘Charter and party boats’’, ‘‘Sink first 3 years of the program compared to OMB control number. This rule contains six new collection gillnet’’, and ‘‘Standard Box’’ are the SQ. The impact of the action will removed; the definitions for ‘‘Alewife’’, not be uniform for all vessels or all of information requirements subject to the Paperwork Reduction Act. The ‘‘American shad’’, ‘‘Atlantic croaker’’, sectors. Instead, the action will have ‘‘Black sea bass’’, ‘‘Blowfish’’, differential effects on gear groups, with collection of this information has been approved by the OMB, and the OMB ‘‘Bluefish’’, ‘‘Charter or party boat or trawlers potentially being relatively charter/party boat’’, ‘‘Conger eels’’, more disadvantaged than other vessels. control numbers and public reporting burden are listed as follows: ‘‘Cunner’’, ‘‘Dogfish’’, ‘‘Exempted gear’’, This is primarily because trawlers ‘‘Fourspot flounder’’, ‘‘Hagfish’’, produce the largest share of total 1. The Nantucket Shoals Dogfish # ‘‘Handgear’’, ‘‘Handline or handline multispecies landings and have higher exemption, OMB 0648–0202, will require vessel notification (2 minutes/ gear’’, ‘‘Hickory shad’’, ‘‘John Dory’’, costs. Alternately, smaller and ‘‘Longhorn sculpin’’, ‘‘Mullet’’, independent vessels are well suited to response). Revisions to the existing requirements ‘‘Multispecies Monitoring Committee’’, adapting to year to year changes in ‘‘Prior to leaving port’’, ‘‘Rod and reel’’, species as availability changes. are: 2. Proof of VTS installation, OMB# ‘‘Scup’’, ‘‘Sea raven’’, ‘‘Searobin’’, ‘‘Sink Generally, smaller vessels are more 0648–0202, (2 minutes/response); gillnet or bottom-trawling gillnet’’, flexible and have lower costs. This 3. Call-in or card system, OMB# 0648– ‘‘Skate’’, ‘‘Spot’’, ‘‘Summer flounder’’, action will allow vessels less than or 0202, (2 minutes/response); ‘‘Swordfish’’, ‘‘Target Total Allowable equal to 30 ft (9.1 m) to be exempt from 4. Limited access permit, OMB# Catch (TAC)’’, ‘‘Tautog’’, ‘‘Tilefish’’, the DAS program, provided they comply 0648–0202. Appeal of the DAS ‘‘Upon returning to port’’, and with the 300-lb (136.1–kg) CHY allocation will require written ‘‘Weakfish’’ are added, in alphabetical possession limit. The CHY comprise 15 submission (2 hours/response); order; and the definitions for ‘‘DAS percent of the revenue of these vessels. 5. Limited access permit appeals, (Day(s)-at-sea)’’, and ‘‘Out of the The negative effects of the non- OMB# 0648–0202, appeal of denied multispecies fishery or DAS program’’ selected alternatives would be greater permits will require written submission are revised to read as follows: than those of the selected measures. (0.5 hours/response); Expected impacts of the action on crew 6. Three new vessel permit categories § 651.2 Definitions. income are negative in the first 5 years (Handgear, Charter/Party and Scallop * * * * * of the program and positive thereafter. Multispecies Possession Limit), OMB # Alewife means Alosa Likewise, the level of employment is 0648–0202, are created with no increase pseudoharengus. expected to decline in the short-term to in burden above that currently * * * * * an undetermined extent but will associated with vessel permits. American shad means Alosa rebound over the long term. Projected A formal section 7 consultation under sapidissima. revenues from fishing will be positive the ESA was initiated for Amendment 7 Atlantic croaker means beginning in the year 2001, which will to the FMP. In a biological opinion Micropogonias undulatus. create demand for other goods and dated February 16, 1996, the AA * * * * * services in the area and lead to determined that fishing activities Black sea bass means Centropristis increased production and employment. conducted under Amendment 7 and its striata. The overall impacts will be positive. implementing regulations may affect, Blowfish (puffer) means any species The action is expected to increase net but are not likely to jeopardize the in the family Tetraodontidae. 27732 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Bluefish means Pomatomus saltatrix. Fishery Management Councils, the must have been issued and have on * * * * * NMFS Northeast Regional Office, the board a valid Federal multispecies Charter or party boat or charter/party NEFSC, the U.S. Coast Guard, an permit issued under this part to fish for, boat means any vessel carrying industry representative, and up to two possess or land multispecies finfish in passengers for hire to engage in representatives from each affected or from the EEZ. Recreational vessels recreational fishing and that is not coastal state appointed by the Atlantic and vessels fishing for multispecies fishing under a DAS. States Marine Fisheries Commission. exclusively in state waters are exempt * * * * * * * * * * from this requirement. (b) Limited access permits—(1) Conger eels means Conger oceanicus. Out of the multispecies fishery or DAS program means the period of time Eligibility—(i) Limited access * * * * * multispecies permit. To be eligible for a Cunner means Tautogolabrus during which a vessel is absent from port and is not fishing for regulated multispecies limited access permit, adspersus. specified in § 651.22, in 1996 and DAS (Day(s)-at-sea) means the 24- species under the multispecies DAS program. thereafter, a vessel must have been hour periods of time during which a issued a limited access multispecies * * * * * fishing vessel is absent from port in permit for the preceding year, must be Prior to leaving port, for purposes of which the vessel intends to fish for, replacing a vessel that was issued a the notification systems described in possess or land, or fishes for, possesses, limited access multispecies permit for § 651.29, means prior to departing from or lands regulated species. the preceding year, or must qualify for the last dock or mooring in port to * * * * * a 1996 limited access multispecies engage in fishing, including the Dogfish means spiny dogfish, Squalus permit under paragraph (b)(1)(ii) of this transport of fish to another port. acanthias, or smooth dogfish, Mustelus section. canis. * * * * * (ii) Limited access Hook-Gear permit. Rod and reel means a hand-held * * * * * A vessel issued a 1995 open access (including rod holder) fishing rod with Exempted gear means gear that is Hook-Gear permit may apply for and a manually operated reel attached. deemed to be not capable of catching obtain a 1996 limited access Hook-Gear multispecies finfish and includes: * * * * * permit provided it meets the criteria for Pelagic hook and line, pelagic longline, Scup means Stenotomus chrysops. eligibility described below. Vessels Sea raven means Hemitripterus spears, rakes, diving gear, cast nets, must apply for a limited access Hook- americanus. Gear permit before September 1, 1996, tongs, harpoons, weirs, dipnets, stop Searobin means any species in the nets, pound nets, pelagic gillnets, pots to receive an automatic mailing of an family Triglidae. application to renew their permit in and traps, purse seines, shrimp trawls Sink gillnet or bottom-tending gillnet (with a properly configured grate as 1997 and to be ensured that their permit means any gillnet, anchored or application will be processed within the defined under this part), and mid-water otherwise, that is designed to be, or is trawls. 30 days allowed under paragraph (e) of fished on or near the bottom in the this section. Vessels applying after * * * * * lower third of the water column. December 31, 1996, will be ineligible to Fourspot flounder means Paralichthys Skate means any species in the family apply for a 1997 limited access Hook- oblongus. Rajidae. Gear permit. A vessel qualifying for a * * * * * Spot means Leiostomus xanthurus. limited access Hook-Gear permit may Hagfish means Myxine glutinosa. * * * * * not change its limited access permit Handgear means handline or rod and Summer flounder means Paralichthys category. The criteria for eligibility are reel gear. dentatus. as follows: Handline or handline gear means Swordfish means Xiphias gladius. (A) The vessel held a 1995 open fishing gear that is released by hand and Target Total Allowable Catch (TAC) access Hook-Gear permit and submitted consists of one main line to which is means the annual domestic harvest to the Regional Director, no later than attached up to two leaders for a total of targets for regulated species. January 26, 1996, fishing log reports not more than three hooks. Handlines Tautog (blackfish) means Tautoga dated between June 1, 1994 and June 1, are retrieved only by hand, not by onitis. 1995, when fishing with hook gear mechanical means. * * * * * under the open access Hook-Gear * * * * * Tilefish means Lopholatilus permit, documenting landings of at least Hickory shad means Alosa mediocris. chamaeleonticeps. 500 lb (226.8 kg) of multispecies finfish; * * * * * * * * * * or its equivalent in numbers of fish; or John Dory means Zenopsis conchifera. Upon returning to port, for purposes (B) The vessel is replacing a vessel of the call-in notification system, means that meets the criteria set forth in * * * * * the first point when a vessel ties up at paragraph (b)(1)(ii)(A) of this section. Longhorn sculpin means a dock or mooring in a port at the end (2) Qualification restriction. Unless Myoxocephalus octodecimspinosus. of a fishing trip. the Regional Director determines to the * * * * * * * * * * contrary, no more than one vessel may Mullet means any species in the Weakfish means Cynoscion regalis. qualify, at any one time, for a limited family Mugilidae. * * * * * access multispecies permit based on * * * * * 3. In § 651.4, paragraphs (a), (b), (c), that or another vessel’s fishing and Multispecies Monitoring Committee (e), (f), (h)(1)(ii), (h)(1)(iii), and (q) are permit history. If more than one vessel means a team of scientific and technical revised to read as follows: owner claims eligibility for a limited staff appointed by the Council to access multispecies permit, based on review, analyze, and recommend § 651.4 Vessel permits. one vessel’s fishing and permit history, adjustments to the management * * * * * the Regional Director shall determine measures. The team will consist of staff (a) General. Any vessel of the United who is entitled to qualify for the limited from the New England and Mid-Atlantic States, including a charter or party boat, access multispecies permit and the DAS Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27733 allocation according to paragraph (b)(3) increased. This type of upgrade may be (8) Limited access permit restrictions. of this section. done separately from an engine (i) A vessel may be issued a limited (3) Change in ownership. The fishing horsepower upgrade. access multispecies permit in only one and permit history of a vessel is (6) Consolidation restriction. Limited category during a fishing year. Vessels presumed to transfer with the vessel access permits under this permit and are prohibited from changing limited whenever it is bought, sold, or DAS allocations may not be combined access multispecies permit categories otherwise transferred, unless there is a or consolidated. during the fishing year, except as written agreement, signed by the (7) Appeal of denial of limited access provided in paragraph (f)(3) of this transferor/seller and transferee/buyer, or multispecies permit. section. A vessel issued a limited access other credible written evidence, (i) Any applicant eligible to apply for Hook-Gear permit may not change its verifying that the transferor/seller is an initial limited access Hook-Gear limited access permit category at any retaining the vessel’s fishing and permit permit who is denied such permit may time. history for purposes of replacing the appeal the denial to the Regional (ii) With the exception of vessel. Director within 30 days of the notice of Combination Vessels, sea scallop dredge (4) Replacement vessels. To be denial. Any such appeal must be based vessels are prohibited from being issued eligible for a limited access permit on one or more of the following a limited access multispecies permits. under this section, the replacement grounds, must be in writing, and must (9) Confirmation of Permit History. vessel must meet the following criteria state the grounds for the appeal: Notwithstanding any other provisions of and any applicable criteria under (A) The information used by the this part, a person who does not paragraph (b)(5) of this section: Regional Director was based on currently own a fishing vessel, but who (i) The replacement vessel’s mistaken or incorrect data; has owned a qualifying vessel that has horsepower may not exceed by more sunk, been destroyed, or transferred to (B) The applicant was prevented by than 20 percent the horsepower of the another person, may apply for and circumstances beyond his/her control vessel that was initially issued a limited receive a Confirmation of Permit History from meeting relevant criteria; or access multispecies permit as of the date if the fishing and permit history of such (C) The applicant has new or the initial vessel applied for such vessel has been retained lawfully by the additional information. permit. applicant. To be eligible to obtain a (ii) The replacement vessel’s length, (ii) The Regional Director will appoint Confirmation of Permit History, the gross registered tonnage, and net a designee who will make the initial applicant must show that the qualifying tonnage may not exceed by more than decision on the appeal. vessel meets the eligibility 10 percent the length, gross registered (iii) The appellant may request a requirements, as applicable, in this part. tonnage, and net tonnage of the vessel review of the initial decision by the Issuance of a valid and current that was initially issued a limited access Regional Director by so requesting in Confirmation of Permit History multispecies permit as of the date the writing within 30 days of the notice of preserves the eligibility of the applicant initial vessel applied for such permit. the initial decision. If the appellant does to apply for or renew a limited access For purposes of this paragraph, a vessel not request a review of the initial multispecies permit for a replacement not required to be documented under decision within 30 days, the initial vessel based on the qualifying vessel’s title 46, U.S.C. will be considered to be decision shall become the final fishing and permit history at a 5 net tons. For undocumented vessels, administrative action of the Department subsequent time, subject to the gross registered tonnage does not apply. of Commerce. replacement provisions specified at (5) Upgraded vessel. To remain (iv) Upon receiving the findings and § 651.4. A Confirmation of Permit eligible to retain a valid limited access a recommendation, the Regional History must be applied for and permit under this part, or to apply for Director will issue a final decision on received on an annual basis in order for or renew a limited access permit under the appeal. The Regional Director’s the applicant to preserve the fishing this part, a vessel may be upgraded, decision is the final administrative rights and limited access eligibility of whether through refitting or action of the Department of Commerce. the qualifying vessel. If fishing replacement, only if the upgrade (v) Status of vessels pending appeal of privileges have been assigned or complies with the following limitations: a limited access permit denial. A vessel allocated previously under this part (i) The vessel’s horsepower may be denied a limited access Hook-Gear based on the qualifying vessel’s fishing increased, whether through refitting or permit may fish under the limited and permit history, the Confirmation of replacement, only once. Such an access Hook-Gear category, provided Permit History also preserves such increase may not exceed 20 percent of that the denial has been appealed, the fishing privileges. Any decision the horsepower of the vessel initially appeal is pending, and the vessel has on regarding the issuance of a Confirmation issued a limited access multispecies board a letter from the Regional Director of Permit History for a qualifying vessel permit as of the date the initial vessel authorizing the vessel to fish under the that has applied for or been issued applied for such permit. limited access Hook-Gear category. The previously a limited access permit (ii) The vessel’s length, gross Regional Director will issue such a letter under this part is a final agency action registered tonnage, and net tonnage may for the pendency of any appeal. Any subject to judicial review under 5 U.S.C. be upgraded, whether through refitting such decision is the final administrative 704. Applications for a Confirmation of or replacement, only once. Such an action of the Department of Commerce Permit History must be received by the increase shall not exceed 10 percent on allowable fishing activity pending a Regional Director by the beginning of each of the length, gross registered final decision on the appeal. The the fishing year for which the tonnage, and net tonnage of the vessel authorizing letter must be carried on Confirmation of Permit History is initially issued a limited access board the vessel. If the appeal is finally required. Information requirements for multispecies permit as of the date the denied, the Regional Director shall send the Confirmation of Permit History initial vessel applied for such permit. a notice of final denial to the vessel application shall be the same as those This limitation allows only one owner; the authorizing letter becomes for a limited access permit with any upgrade, at which time any or all three invalid 5 days after receipt of the notice request for information about the vessel specifications of vessel size may be of denial. being applicable to the qualifying vessel 27734 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations that has been sunk, destroyed or or other corporate papers showing an application to the Regional Director transferred. Vessel permit applicants incorporation and the names of the within 45 days of receipt of their permit. who have been issued a Confirmation of current officers in the Corporation, and After this date, the vessel must fish only Permit History and who wish to obtain the names and addresses of all in the DAS program assigned for the a vessel permit for a replacement vessel shareholders owning 25 percent or more remainder of the fishing year and must based upon the previous vessel history of the corporation’s shares; if the owner comply with the restrictions applicable may do so pursuant to paragraph (b)(4) is a partnership, a copy of the current to such category. Any DAS that a vessel of this section. Partnership Agreement and the names uses prior to a change in permit category (c) Open access permits. Subject to and addresses of all partners; if there is will be counted against its allocation the restrictions in § 651.33, a U. S. more than one owner, names of all received under any subsequent permit vessel that has not been issued a limited owners owning a 25 percent interest or category. A vessel issued an open access access multispecies permit may obtain more; and, name and signature of the permit may request a different open an open access Handgear or Charter/ owner or the owner’s authorized access permit category by submitting an party permit. Vessels that are issued a representative. application to the Regional Director at valid scallop limited access permit (2) Applications for an initial limited any time. under § 650.4 of this chapter and that access Hook-Gear permit must also (4) A vessel issued a limited access have not been issued a limited access contain the following information: combination permit or an Individual multispecies permit may obtain an open (i) If the engine horsepower was DAS permit or a vessel applicant who access Scallop Multispecies Possession changed or a contract to change the elects to use a VTS unit, is required to Limit permit. engine horsepower had been entered submit a copy of the vendor installation into prior to May 1, 1996, such that it receipt from a NMFS-certified VTS * * * * * is different from that stated in the vendor as described in § 651.28(a). (e) Vessel permit application. vessel’s most recent application for a * * * * * Applicants for a permit under this Federal Fisheries Permit before May 1, section must submit a completed (h) * * * 1996, sufficient documentation to (1) * * * application on an appropriate form ascertain the different engine (ii) The application was not received obtained from the Regional Director. horsepower. However, the engine by the Regional Director by the The application must be signed by the replacement must be completed within deadlines set forth in paragraphs owner of the vessel, or the owner’s 1 year of the date of when the contract (b)(1)(ii), and (q) of this section; or authorized representative, and be for the replacement engine was signed. (iii) The applicant and applicant’s submitted to the Regional Director at (ii) If the length, gross tonnage, or net vessel failed to meet all eligibility least 30 days before the date on which tonnage was changed or a contract to requirements described in paragraph the applicant desires to have the permit change the length, gross tonnage or net (b)(1) of this section; or made effective. The Regional Director tonnage had been entered into prior to * * * * * will notify the applicant of any May 1, 1996, such that it is different (q) Limited access multispecies permit deficiency in the application pursuant from that stated in the vessel’s most renewal. To renew or apply for a limited to this section. Applicants for limited recent application for a Federal access multispecies permit a completed access multispecies permits shall Fisheries Permit, sufficient application must be received by the provide information with the documentation to ascertain the different Regional Director by the first day of the application sufficient for the Regional length, gross tonnage or net tonnage. fishing year for which the permit is Director to determine whether the vessel However, the upgrade must be required. Failure to renew a limited meets the eligibility requirements completed within 1 year from the date access multispecies permit in any year specified. when the contract for the upgrade was bars the renewal of the permit in (f) Information requirements. (1) In signed. subsequent years. addition to applicable information (3) A vessel issued a limited access * * * * * required to be provided by paragraph (e) multispecies permit may request a 4. Section 651.9 is revised to read as of this section, an application for a change in permit category, unless follows: permit must contain at least the otherwise restricted by paragraph (b)(8) following information, and any other of this section. In 1996, the vessel § 651.9 Prohibitions. information required by the Regional owner, or the owner’s authorized (a) In addition to the general Director: Vessel name; owner name, representative, has one opportunity to prohibitions specified in § 620.7 of this mailing address, and telephone number; request a change in permit category by chapter, it is unlawful for any person U.S. Coast Guard documentation submitting an application to the owning or operating a vessel issued a number and a copy of the vessel’s Regional Director by July 15, 1996. After valid Federal multispecies vessel permit current U.S. Coast Guard documentation this date, the vessel must fish only in under this part, a permit under § 651.5 or, if undocumented, state registration the DAS program assigned for the or a letter under § 651.4(b)(7)(v), to do number and a copy of the current state remainder of the 1996 fishing year and any of the following: registration; party/charter boat license; must comply with the restrictions (1) Fail to report to the Regional home port and principal port of landing; applicable to such category. Any DAS Director within 15 days any change in length overall; gross tonnage; net that a vessel uses prior to a change in the information contained in the permit tonnage; engine horsepower; year the permit category will be counted against application as required under § 651.4(m) vessel was built; type of construction; its allocation received under any or § 651.5(k). type of propulsion; approximate fish- subsequent permit category. For 1997 (2) Fish for, possess, or land hold capacity; type of fishing gear used and beyond, limited access multispecies multispecies finfish unless the operator by the vessel; number of crew; number vessels eligible to request a change in of the vessel has been issued an of party or charter passengers licensed permit category must elect a category operator’s permit under § 651.5, and a to carry (if applicable); permit category; prior to the start of each fishing year and valid permit is on board the vessel. if the owner is a corporation, a copy of will have one opportunity to request a (3) Sell, barter, trade, or transfer, or the current Certificate of Incorporation, change in permit category by submitting attempt to sell, barter, trade, or Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27735 otherwise transfer, for a commercial (4) Fish for, possess at any time section, it is unlawful for any person purpose, other than transport, any during a trip, or land per trip more than owning or operating a vessel issued a multispecies, unless the dealer or the possession limit of regulated species Scallop Multispecies Possession Limit transferee has a dealer permit issued specified in § 651.27(b) after using up permit under § 651.4(c) to do any of the under § 651.6. the vessel’s annual DAS allocation or following: (4) Fail to comply in an accurate and when not participating under the DAS (1) Possess or land more than the timely fashion with the log report, program pursuant to § 651.22, unless possession limit of regulated species reporting, record retention, inspection, otherwise exempted under specified in § 651.33(c). and other requirements of § 651.7(b). § 651.22(b)(3) or § 651.34. (2) Possess or land regulated species (5) Fail to affix and maintain (5) Possess or land per trip more than when not fishing under a scallop DAS. permanent markings as required by the possession limit specified under (3) Violate any of the provisions of § 651.8. § 651.22(b)(3)(i) if the vessel has been § 651.33(c). (6) Enter, fail to remove gear from, or issued a limited access Small Vessel (e) In addition to the general be in the areas described in permit. prohibitions specified in § 620.7 of this § 651.21(f)(1) through § 651.21(h)(1) (6) Fail to comply with the chapter and the prohibitions specified during the time period specified, except restrictions on fishing and gear specified in paragraphs (a) through (d) of this as provided in § 651.21(d), (f)(2), (g)(2), in § 651.22(b)(4) if the vessel has been section, it is unlawful for any person to and (h)(2). issued a limited access Hook-Gear do any of the following: (7) Possess or land multispecies permit. (1) Fish for, possess, or land finfish smaller than the minimum sizes (7) Fail to declare and be out of the multispecies finfish unless: specified in § 651.23 or § 651.34, as multispecies fishery as required by (i) The multispecies finfish were appropriate. § 651.22(g), using the procedure being fished for or harvested by a vessel (8) Land, or possess on board a vessel, described under § 651.22(h), as issued a valid Federal multispecies more than the possession limits applicable. permit under this part, or a letter under specified in § 651.27(a), or violate any of (8) If required to have a VTS unit § 651.4(b)(7)(v), and the operator aboard the other provisions of § 651.27. specified in § 651.28(a) or § 651.29(a): such vessel was issued an operator’s (9) Land, offload, remove, or (i) Fail to have a certified, operational, permit under § 651.5 and a valid permit otherwise transfer, or attempt to land, and functioning VTS unit that meets the is on board the vessel; offload, remove, or otherwise transfer specifications of § 651.28(a) on board (ii) The multispecies finfish were fish from one vessel to another vessel or the vessel at all times. harvested by a vessel not issued a (ii) Fail to comply with the other floating conveyance unless Federal multispecies permit that fishes notification, replacement, or any other authorized in writing by the Regional for and possesses multispecies finfish requirements regarding VTS usage Director pursuant to § 651.30(a). exclusively in state waters; or specified in § 651.29(a). (10) Refuse or fail to carry an observer (9) Fail to comply with any (iii) The multispecies finfish were if requested to do so by the Regional requirement regarding the DAS harvested by a recreational fishing Director. notification specified in § 651.29(a) or vessel. (11) Interfere with or bar by (b). (2) Sell, barter, trade, or otherwise command, impediment, threat, (10) Fail to comply with other transfer, or attempt to sell, barter, trade, coercion, or refusal of reasonable notification requirements, including a or otherwise transfer, for a commercial assistance, an observer conducting his call-in system specified in § 651.29(c), if purpose, any multispecies finfish from a or her duties aboard a vessel. required by the Regional Director. trip unless the vessel is issued a valid (12) Fail to provide an observer with (11) Fail to provide notification of the Federal multispecies permit under this the required food, accommodations, beginning or ending of a trip, as part, or a letter under § 651.4(b)(7)(v), access, and assistance, specified in required under § 651.29(b) and (d). and is not fishing under the charter/ § 651.31. (c) In addition to the prohibitions party restrictions specified in (b) In addition to the prohibitions specified in paragraph (a) of this § 651.34(d), or unless the multispecies specified in paragraph (a) of this section, it is unlawful for any person finfish were harvested by a vessel that section, it is unlawful for any person owning or operating a vessel issued a qualifies for the exception specified in owning or operating a vessel issued a Handgear permit under § 651.4(c) to do paragraph (e)(1)(ii) of this section. valid limited access multispecies permit any of the following: (3) To be or act as an operator of a under § 651.4(b) or a letter under (1) Possess at any time during a trip, vessel fishing for or possessing § 651.4(b)(7)(v), to do any of the or land per trip, more than the multispecies finfish in or from the EEZ, following: possession limit of regulated species or issued a Federal multispecies permit (1) Fish for, possess, or land specified in § 651.33(a), unless the under this part, without having been multispecies finfish with or from a regulated species were harvested by a issued and possessing a valid operator’s vessel that has had the horsepower of charter or party vessel. permit issued under § 651.5. such vessel or its replacement upgraded (2) Use, or possess on board, gear (4) Purchase, possess, or receive for a or increased in excess of the limitations capable of harvesting multispecies commercial purpose, or attempt to specified in § 651.4(b)(4) or (b)(5). finfish other than rod and reel or purchase, possess, or receive for a (2) Fish for, possess, or land handline while in possession of, or commercial purpose in the capacity of multispecies finfish with or from a fishing for, multispecies finfish. a dealer, multispecies finfish taken from vessel that has had the length, gross (3) Possess or land multispecies a fishing vessel, unless in possession of registered tonnage, or net tonnage of finfish during the time period specified a valid dealer permit issued under such vessel or its replacement increased in § 651.33(a)(2). § 651.6; except that this prohibition or upgraded in excess of limitations (4) Violate any of the provisions of does not apply to multispecies finfish specified in § 651.4(b)(4) or (b)(5). § 651.33(a). taken from a vessel that qualifies for the (3) Combine, transfer, or consolidate (d) In addition to the prohibitions exception specified in paragraph DAS allocations. specified in paragraph (a) of this (e)(1)(ii) of this section. 27736 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

(5) Purchase, possess, or receive for a (14) Fail to comply with the gear period specified, except as provided in commercial purpose or attempt to restrictions and time periods specified § 651.21(d), (f)(2), (g)(2), and (h)(2). purchase, possess, or receive for Small Mesh Area 1 and Small Mesh (27) Import, export, transfer, land, multispecies finfish caught by a vessel Area 2 in § 651.20(a)(8). buy, sell or possess regulated species other than one issued a valid Federal (15) Fail to comply with the smaller than the minimum sizes multispecies permit under this part, or requirements of the Nantucket Shoals specified in § 651.23, or attempt to do a letter under § 651.4(b)(7)(v), unless the dogfish exemption specified in any of the same, unless the regulated multispecies finfish were harvested by a § 651.20(a)(9). species were harvested from a vessel vessel that qualifies for the exception (16) Fish with, use, or have available that qualifies for the exception specified specified in paragraph (e)(1)(ii) of this for immediate use within the area in paragraph (e)(1)(ii) of this section. section. described in § 651.20(c)(1) nets of mesh (28) Violate any terms of a letter (6) Land, offload, cause to be size smaller than the minimum size authorizing experimental fishing offloaded, sell, or transfer; or attempt to specified in § 651.20(c)(2), except as pursuant to § 651.24 or fail to keep such land, offload, cause to be offloaded, sell, provided in § 651.20(c)(3), (e), (f), and letter on board the vessel during the or transfer multispecies finfish from a (j), or unless the vessel qualifies for the period of the experiment. fishing vessel, whether on land or at sea, exception specified in paragraph (29) Fail to comply with the gear- as an owner or operator without (e)(1)(ii) of this section. marking requirements of § 651.25. accurately preparing and submitting, in (17) Fish with, use, or have available (30) Purchase, possess, or receive as a a timely fashion, the documents for immediate use within the area dealer, or in the capacity of a dealer, required by § 651.7, unless the described in § 651.20(d)(1) nets of mesh fish in excess of the possession limits multispecies finfish were harvested by a size smaller than the minimum size specified for vessels issued a Federal vessel that qualifies for the exception specified in § 651.20(d)(2), except as multispecies permit. specified in paragraph (e)(1)(ii) of this provided in § 651.20 (e), (f), and (j), or (31) Tamper with, damage, destroy, section. unless the vessel qualifies for the alter, or in any way distort, render (7) Purchase or receive multispecies exception specified in paragraph useless, inoperative, ineffective, or finfish, or attempt to purchase or receive (e)(1)(ii) of this section. inaccurate the VTS, VTS unit, or VTS multispecies finfish, whether on land or (18) Fish for the species specified in signal required to be installed on or at sea, as a dealer without accurately § 651.20 (e) or (f) with a net of mesh size transmitted by vessel owners or preparing, submitting in a timely smaller than the applicable mesh size operators required to use a VTS by this fashion, and retaining the documents specified in § 651.20(a)(2), (c)(2) or part. required by § 651.7. (d)(2), or possess or land such species, (32) Violate any provision of the DAS notification program as specified by (8) Possess or land fish caught with unless the vessel is in compliance with § 651.29. nets of mesh smaller than the minimum the requirements specified in § 651.20(e) (33) Land, offload, remove, or size specified in § 651.20 of this chapter, or (f), or unless the vessel qualifies for otherwise transfer, or attempt to land, or with scallop dredge gear, unless said the exception specified in paragraph offload, remove or otherwise transfer fish are caught, possessed or landed in (e)(1)(ii) of this section. multispecies finfish from one vessel to accordance with § 651.20, or unless the (19) Obstruct or constrict a net as another vessel, unless both vessels vessel qualifies for the exception described in § 651.20 (h)(1) and (h)(2). (20) Fish for, land, or possess qualify under the exception specified in specified in paragraph (e)(1)(ii) of this multispecies finfish harvested by means paragraph (e)(1)(ii) of this section, or section. of pair trawling or with pair trawl gear, unless authorized in writing by the (9) Fish with, use, or have on board, except under the provisions of Regional Director pursuant to within the area described in § 651.20(e), or unless the vessels that § 651.30(a). § 651.20(a)(1) nets of mesh size smaller engaged in pair trawling qualify for the (34) Assault, resist, oppose, impede, than the minimum mesh size specified exception specified in paragraph harass, intimidate, or interfere with a in § 651.20(a)(2), except as provided in (e)(1)(ii) of this section. NMFS-approved observer aboard a § 651.20 (a)(3) through (a)(6), (a)(8), (21) Violate any of the restrictions on vessel. (a)(9), (e), (f), and (j), or unless the vessel fishing with scallop dredge gear (35) Make any false statement, oral or qualifies for the exception specified in specified in § 651.20(i), or any of the written, to an authorized officer or paragraph (e)(1)(ii) of this section. other provisions of § 651.20(i). employee of NMFS, concerning the (10) Fish for, harvest, possess, or land (22) Violate any of the provisions of taking, catching, harvesting, landing, in or from the EEZ northern shrimp, the state waters winder flounder purchase, sale, or transfer of any unless such shrimp were fished for or exemption program specified in multispecies finfish. harvested by a vessel meeting the § 651.20(j). (36) Make any false statement in requirements specified in § 651.20(a)(3). (23) Enter or be in the area described connection with an application under (11) Fish within the areas described in in § 651.21(a)(1) on a fishing vessel, § 651.4 or § 651.5 or on any report § 651.20(a)(4) with nets of mesh smaller except as provided in § 651.21(a)(2) and required to be submitted or maintained than the minimum size specified in (d). under § 651.7. § 651.20(a)(2), unless the vessel is (24) Enter or be in the area described (37) Interfere with, obstruct, delay, or issued and possesses on board the in § 651.21(b)(1) on a fishing vessel, prevent by any means a lawful vessel an authorizing letter issued under except as provided in § 651.21(b)(2). investigation or search relating to the § 651.20(a)(4)(i). (25) Enter or be in the area described enforcement of this part. (12) Violate any provisions of the in § 651.21(c)(1), on a fishing vessel, (38) Fail to have on board the vessel Cultivator Shoals Whiting Fishery except as provided in § 651.21(c)(2) and at least one standard tote as specified specified in § 651.20(a)(4). (d). under § 651.20(i) and (j), § 651.27, and (13) Fail to comply with the gear (26) Enter or be on a fishing vessel, or § 651.33(a) and (c). restrictions for the Stellwagen Bank/ fail to remove gear from the EEZ portion (f) In addition to the general Jeffrey’s Ledge juvenile protection areas of the areas described in § 651.21(f)(1) prohibitions specified in § 620.7 of this specified in § 651.20(a)(5). through § 651.21(h)(1), during the time chapter and the prohibitions specified Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27737 in paragraphs (a) through (e) of this size for any trawl net, sink gillnet, (4) * * * section, it is unlawful for the owner or Scottish seine, mid-water trawl, or purse (i) * * * operator of a charter or party boat issued seine, on a vessel, or used by a vessel (E) The following may be retained, a permit under § 651.4, or of a fishing under a DAS in the multispecies with the restrictions noted, as allowable recreational vessel, as applicable, to: DAS program in the GOM/GB regulated bycatch species in the Cultivator Shoal (1) Fish with gear in violation of the mesh area, shall be 6 inches (15.24 cm) whiting fishery exemption area as restrictions specified in § 651.34(a). square or diamond mesh throughout the described in this section: Longhorn (2) Possess regulated species smaller entire net. This restriction does not sculpin; monkfish and monkfish parts than the minimum sizes specified in apply to nets or pieces of nets smaller up to 10 percent by weight of all other § 651.34(b). than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. species on board; and American lobster (3) Possess cod and haddock in excess ft (0.81 m 2)), or to vessels that have not up to 10 percent by weight of all other of the possession limits specified in been issued a Federal multispecies species on board or 200 lobsters, § 651.34(c). permit under § 651.4 and that are whichever is less. (4) Sell, trade, barter, or otherwise fishing exclusively in state waters. * * * * * transfer, or attempt to sell, trade, barter (ii) Large Mesh vessels. When fishing (5) Stellwagen Bank/Jeffreys Ledge or otherwise transfer, multispecies in the GOM/GB regulated mesh area, the (SB/JL) juvenile protection area. Except finfish for a commercial purpose as minimum mesh size for any sink gillnet as provided in paragraphs (a)(3), (a)(6), specified in § 651.34(d). on a vessel, or used by a vessel, fishing (e), (f), and (j) of this section, unless (g) It is unlawful to violate any other under a DAS in the Large Mesh DAS otherwise restricted in paragraph provision of this part, the Magnuson programs specified in § 651.22(b)(6) and (a)(2)(ii) of this section, the minimum Act, or any regulation, permit or other (7) shall be 7 inch (17.78-cm) diamond mesh size for any trawl net, Scottish authorization issued under the mesh throughout the entire net. The seine, purse seine, or midwater trawl in Magnuson Act. minimum mesh size for any trawl net on use, or available for immediate use as (h) Presumption. The possession for a vessel, or used by a vessel, fishing described under paragraph (c)(4) of this sale of regulated species that do not under a DAS in the Large Mesh DAS section, by a vessel fishing in the meet the minimum sizes as specified in program shall be 8-inch (20.32-cm) following area shall be 6 inches (15.24 § 651.23 will be prima facie evidence diamond mesh throughout the entire cm) square mesh in the last 50 bars of that such regulated species were taken net. This restriction does not apply to the codend and extension piece for or imported in violation of these nets or pieces of nets smaller than 3 ft vessels 45 ft (13.7 m) in length and less, regulations. Evidence that such fish (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m 2)), and in the last 100 bars of the codend were harvested by a vessel not issued a or to vessels that have not been issued and extension piece for vessels greater permit under this part and fishing a Federal multispecies permit under than 45 ft (13.7 cm) in length. exclusively within state waters will be § 651.4 and that are fishing exclusively (6) * * * sufficient to rebut the presumption. This in state waters. (iii) * * * presumption does not apply to fish (iii) Other gear and mesh exemptions. (C) Vessels may not fish for, possess being sorted on deck. The minimum mesh size for any trawl on board, or land any species of fish 5. Section 651.10 is revised to read as net, sink gillnet, Scottish seine, mid- except when fishing in the areas follows: water trawl, or purse seine, on a vessel, specified in paragraphs (a)(4), (a)(9), (c), § 651.10 Facilitation of enforcement. or used by a vessel, when not fishing and (d) of this section. Vessels may under the multispecies DAS program (a) Radio hails. Permit holders, while retain exempted small mesh species as and when fishing in the GOM/GB provided in paragraphs (a)(4)(i), (a)(9)(i), underway, must be alert for regulated mesh area, is provided for communications conveying enforcement (c)(3), and (d)(3) of this section. under the exemptions specified in (7) Addition or deletion of instructions and immediately answer paragraphs (a)(3), (a)(4), (a)(6), (a)(8), via VHF-FM radio, channel 16, when exemptions. (i) An exemption may be (a)(9), (e), (f), (i), and (j) of this section. added in an existing fishery for which hailed by an authorized officer. Vessels Vessels that are not fishing in one of not required to have VHF-FM radios by there is sufficient data or information to these exemption programs, or with ascertain the amount of regulated the Coast Guard are exempt from this exempted gear (as defined under this requirement. species bycatch, if the Regional Director, part), or under the Scallop state waters after consultation with the Council, (b) Also see § 620.8 of this chapter. exemption program specified in 6. In § 651.20, paragraph (a)(9) is determines that the percentage of § 650.27 of this chapter, or under a added and paragraphs (a)(2), (a)(3)(i)(B), regulated species caught as bycatch is, multispecies DAS are prohibited from (a)(4)(i)(E), (a)(5), (a)(6)(iii)(C), (a)(7), or can be reduced to, less than 5 percent fishing in the GOM/GB regulated mesh paragraph (a)(8) introductory text by weight of total catch and that such area. preceding the table, paragraphs (a)(8)(i), exemption will not jeopardize fishing (3) * * * (a)(8)(iii)(B), (c)(1), (c)(2), (c)(3)(ii), mortality objectives. In determining (i) * * * (c)(5), (d), (e)(2), (f)(2), (g)(1), (g)(2), (i), whether exempting a fishery may (B) The following may be retained, (j) introductory text, and (j)(7) are jeopardize meeting fishing mortality with the restrictions noted, as allowable revised to read as follows: objectives, the Regional Director may bycatch species in the northern shrimp take into consideration factors such as, § 651.20 Regulated mesh areas and fishery as described in this section: but not limited to, juvenile mortality. A restrictions on gear and methods of fishing. Longhorn sculpin; up to two standard fishery can be defined, restricted or * * * * * totes of silver hake (whiting); monkfish allowed by area, gear, season, or other (a) * * * and monkfish parts up to 10 percent by means determined to be appropriate to (2) Gear restrictions. (i) Except as weight of all other species on board; and reduce bycatch of regulated species. An provided in paragraphs (a)(2)(iii) and (j) American lobster up to 10 percent by existing exemption may be deleted or of this section, and unless otherwise weight of all other species on board or modified if the Regional Director restricted under paragraphs (a)(2)(ii) and 200 lobsters, whichever is less. determines that the catch of regulated (a)(5) of this section, the minimum mesh * * * * * species is equal to or greater than 5 27738 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations percent by weight of total catch, or that following points in the order stated (see paragraph (a)(1) of this section, any nets continuing the exemption may Figure 4 to part 651): of mesh smaller than the regulated mesh jeopardize meeting fishing mortality * * * * * size specified in paragraph (a)(2) of this objectives. Notification of additions, (i) The fishing season is from July 15 section, must be stowed according to the deletions or modifications will be made through October 31 when fishing under provisions of paragraph (c)(4) of this through publication of a rule in the the exemption in Small Mesh Area 1. section. Federal Register. * * * * * (D) The following may be retained, (ii) The Council may recommend to (iii) * * * with the restrictions noted, as allowable the Regional Director, through the (B) Allowable bycatch. Vessels fishing bycatch species in the Nantucket Shoals framework procedure specified in for the exempted species identified in dogfish fishery exemption area as § 651.40(b), additions or deletions to paragraph (a)(8)(iii)(A) of this section described in this section: Longhorn exemptions for fisheries either existing may also possess and land the following sculpin, up to two standard totes of or proposed for which there may be species, with the restrictions noted, as silver hake (whiting); monkfish and insufficient data or information for the allowable bycatch species: Longhorn monkfish parts up to 10 percent by Regional Director to determine, without sculpin; monkfish and monkfish parts weight of all other species on board; public comment, percentage catch of up to 10 percent by weight of all other American lobster up to 10 percent by regulated species. species on board; and American lobster weight of all other species on board or (iii) The Regional Director may, using up to 10 percent by weight of all other 200 lobsters, whichever is less; and the process described in either species on board or 200 lobsters, skate or skate parts up to 10 percent by paragraphs (a)(7)(i) or (ii) of this section, whichever is less. weight of all other species on board. authorize an exemption to fish for, (9) Nantucket Shoals dogfish fishery (E) Authorized vessels must comply possess and land white hake by vessels exemption area. The Nantucket Shoals with any additional gear restrictions using regulated mesh or hook gear. dogfish fishery as defined in this part specified in the authorization letter Determination of the percentage of has been found to meet the exemption issued by the Regional Director. regulated species caught in such fishery qualification requirements specified in (ii) Sea Sampling. The Regional paragraph (a)(7) of this section. shall not include white hake. Director may conduct periodic sea Therefore, vessels subject to the mesh sampling to determine if there is a need (iv) Exempted fisheries authorized restrictions specified in paragraph (a)(2) to change the area or season under this paragraph are subject, at of this section may fish with, use, or designation, and to evaluate the bycatch minimum, to the following restrictions: possess nets of mesh smaller than the of regulated species. (A) With the exception of fisheries minimum size specified in paragraph * * * * * authorized under paragraph (a)(7)(iii) of (a)(2) of this section in the Nantucket (c) Southern New England regulated this section, possession of regulated Shoals dogfish fishery exemption area, mesh area. (1) Area definition. The species will be prohibited. if the vessel complies with the Southern New England regulated mesh (B) Possession of monkfish or requirements specified in paragraph area is that area bounded on the east by monkfish parts will be limited to 10 (a)(9)(i) of this section. The Nantucket straight lines connecting the following percent by weight of all other species on Shoals dogfish fishery exemption area is points in the order stated (see Figure 1 board. defined by straight lines connecting the part 651): (C) Possession of lobsters will be following points in the order stated (see limited to 10 percent by weight of all Figure 4 to part 651): SOUTHERN NEW ENGLAND REGULATED other species on board or 200 lobsters, MESH AREA whichever is less. NANTUCKET SHOALS DOGFISH (D) Possession of skate or skate parts EXEMPTION AREA Point Latitude Longitude in the SNE regulated mesh area will be limited to 10 percent by weight of all Point Latitude Longitude G5 ...... 41°18.6′ N. 66°24.8′ W. ° ′ ° ′ other species on board. G6 ...... 40 55.5 N. 66 38 W. NS1 ...... 41°45′ N 70°00′ W. G7 ...... 40°45.5′ N. 68°00′ W. ° ′ ° ′ (8) Small Mesh Area 1/Small Mesh NS2 ...... 41 45 N. 69 20 W. G8 ...... 40°37′ N. 68°00′ W. ° ′ ° ′ Area 2. Fisheries using nets of mesh NS3 ...... 41 30 N. 69 20 W. G9 ...... 40°30.5′ N. 69°00′ W. ° ′ ° ′ smaller than the minimum size Cl1 ...... 41 30 N. 69 23 W. NL3 ...... 40°.7′ N. 69°00′ W. ° ′ ° ′ NS5 ...... 41 26.5 N. 69 20 W. NL2 ...... 40°18.7′ N. 69°40′ W. specified in paragraph (a)(2) of this ° ′ ° ′ section in subareas described as Small NS6 ...... 40 50 W. 69 20 N. NL1 ...... 40°50′ N. 69°40′ W. NS7 ...... 40°50′ W. 70°00′ N. ° ′ ° ′ Mesh Area 1 and Small Mesh Area 2 of ° ′ ° ′ G11 ...... 40 50 N. 70 00 W. NS1 ...... 41 45 N 70 00 W. ° ′ 1 the Small Mesh Exemption Area as G12 ...... 70 00 W. specified under paragraph (a)(3) of this (i) Requirements. Vessels authorized 1 Northward to its intersection with the section, and defined in this paragraph to fish in this fishery must have on shoreline of mainland Massachusetts; and on (a)(8), have been found to meet the the west by the eastern boundary of the Mid- board an authorizing letter issued by the Atlantic regulated mesh area. exemption qualification requirements Regional Director. Vessels are subject to specified in paragraph (a)(7) of this the following conditions: (2) Gear restrictions. (i) Minimum section. Therefore, vessels subject to the (A) Authorized vessels may not fish mesh restrictions. Except as provided in mesh restrictions specified in paragraph for, possess on board or land any paragraphs (c)(2) (iii) and (j) of this (a)(2) of this section may fish with or species of fish other than dogfish except section, and unless otherwise restricted possess nets of mesh smaller than the as provided under paragraph (a)(9)(i)(D) under paragraph (c)(2)(ii) of this section, minimum size specified in paragraph of this section. the minimum mesh size for any trawl (a)(2) of this section in these areas, if the (B) Authorized vessels may fish under net, sink gillnet, Scottish seine, purse vessel complies with the restrictions this exemption during the season of seine or mid-water trawl, in use, or specified in paragraphs (a)(8)(i) through June 1 through October 15. available for immediate use as described (iii) of this section. These subareas are (C) When transiting the GOM/GB under paragraph (c)(4) of this section, by defined by straight lines connecting the regulated mesh area as specified under a vessel fishing under a DAS in the Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27739 multispecies DAS program in the searobins; black sea bass; red hake; Mesh DAS program shall be 8 inch Southern New England (SNE) regulated tautog (blackfish); blowfish (puffer); (20.32 cm) diamond mesh throughout mesh area, shall be 6 inches (15.24 cm) cunner; John Dory; mullet; bluefish; the net. This restriction does not apply square or diamond mesh throughout the tilefish; longhorn sculpin; fourspot to nets or pieces of nets smaller than 3 entire net. This restriction does not flounder; alewife; hickory shad; ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 apply to vessels that have not been American shad; blueback herring; sea m 2)), or to vessels that have not been issued a Federal multispecies permit ravens; Atlantic croaker; spot; issued a Federal multispecies permit under § 651.4 and that are fishing swordfish; monkfish and monkfish parts under § 651.4 and that are fishing exclusively in state waters. up to 10 percent by weight of all other exclusively in state waters. (ii) Large Mesh vessels. When fishing species on board; American lobster up (iii) Net stowage exemption. Vessels in the SNE regulated mesh area, the to 10 percent by weight of all other may possess regulated species while in minimum mesh size for any sink gillnet species on board or 200 lobsters, possession of nets with mesh smaller on a vessel, or used by a vessel, fishing whichever is less; and skate and skate than the minimum size specified in under a DAS in the Large Mesh DAS parts up to 10 percent by weight of all paragraph (d)(2)(i) of this section, program specified in § 651.22(b)(6) and other species on board. provided that the nets are stowed and (7) shall be 7 inch (17.78-cm) diamond * * * * * are not available for immediate use in mesh throughout the entire net. The (5) Addition or deletion of accordance with paragraph (c)(4) of this minimum mesh size for any trawl net on exemptions. An exemption may be section, and provided that regulated a vessel, or used by a vessel, fishing added, deleted or modified pursuant to species were not harvested by nets of under a DAS in the Large Mesh DAS the procedure described in paragraph mesh size smaller than the minimum program shall be 8 inch (20.32-cm) (a)(7) of this section. mesh size specified in paragraph diamond mesh throughout the entire (d) Mid-Atlantic regulated mesh area. (d)(2)(i) of this section. net. This restriction does not apply to (1) Area definition. The Mid-Atlantic (3) Additional Exemptions. The nets or pieces of nets smaller than 3 ft (RMA) regulated mesh area is that area Regional Director may, using the (0.9 m)×3 ft (0.9 m), (9 sq. ft (0.81 m 2)), bounded on the east by a line running process described in either (a)(7)(i) or or to vessels that have not been issued from the Rhode Island shoreline at (a)(7)(ii), authorize an exemption to fish a Federal multispecies permit under 41°18.2′ N. and 71°51.5′ W. (Watch Hill, for, possess, or land white hake by § 651.4 and that are fishing exclusively RI) southwesterly through Fishers vessels using regulated mesh or hook in state waters. Island, NY, to Race Point, Fishers gear. Determination of the percentage of (iii) Other gear and mesh exemptions. regulated species caught in such a The minimum mesh size for any trawl Island, NY, and from Race Point, Fishers Island, NY, southeasterly to the fishery shall not include white hake. net, sink gillnet, Scottish seine, mid- (e) * * * water trawl, or purse seine, in use, or intersection of the 3 nautical mile line east of Montauk Point, southwesterly (2) When fishing under this available for immediate use as described exemption in the GOM/GB Regulated under paragraph (c)(4) of this section, by along the 3 nautical mile line to the ° Mesh Area vessels must have on board a vessel when not fishing under the intersection of 72 30 W. Longitude and south along that line to the intersection an authorizing letter issued by the multispecies DAS program and when Regional Director; fishing in the SNE regulated mesh area, of the outer boundary of the EEZ. (see is provided for under the exemptions Figure 1 to part 651). * * * * * specified in paragraphs (c)(3), (e), (f), (i), (2) Gear restrictions. (i) Mesh size (f) * * * and (j) of this section. Vessels that are restrictions. Except as provided in (2) When fishing under this not fishing in one of these exemption paragraph (j) of this section, and unless exemption in the GOM/GB Regulated programs, with exempted gear (as otherwise restricted under paragraph Mesh Area vessels must have on board defined under this part), or under the (d)(2)(ii) of this section, the minimum an authorizing letter issued by the Scallop state waters exemption program mesh size for any trawl net, sink gillnet, Regional Director; specified in § 650.27 of this chapter, or Scottish seine, purse seine or mid-water * * * * * under a multispecies DAS are trawl, in use, or available for immediate (g) Mesh measurements—(1) Gillnets. prohibited from fishing in the SNE use as described under paragraph (c)(4) Beginning October 15, 1996, mesh size regulated mesh area. of this section, by a vessel fishing under of gillnet gear shall be measured by (3) * * * a DAS in the multispecies DAS program lining up 5 consecutive knots (ii) Possession and net stowage in the MA regulated mesh area shall be perpendicular to the float line and, with requirements. Vessels may possess that specified in the summer flounder a ruler or tape measure, measuring 10 regulated species while in possession of regulations at § 625.24(a) of this chapter. consecutive stretched meshes on the nets with mesh smaller than the This restriction does not apply to diamond, inside knot to inside knot. minimum size specified in paragraph vessels that have not been issued a The mesh size shall be the average of (c)(2)(i) of this section, provided that the Federal multispecies permit under the measurements of the 10 consecutive nets are stowed and are not available for § 651.4 and that are fishing exclusively meshes. immediate use in accordance with in state waters. (2) All other nets. With the exception paragraph (c)(4) of this section, and (ii) Large mesh vessels. When fishing of gillnets, mesh size shall be measured provided that regulated species were not in the MA regulated mesh area, the by a wedge-shaped gauge having a taper harvested by nets of mesh size smaller minimum mesh size for any sink gillnet of 2 cm in 8 cm and a thickness of 2.3 than the minimum mesh size specified on a vessel, or used by a vessel, fishing mm, inserted into the meshes under a in paragraph (c)(2)(i) of this section. under a DAS in the Large Mesh DAS pressure or pull of 5 kg. Vessels fishing for the exempted species program specified in § 651.22(b)(6) and (i) Square-mesh measurement. Square identified in paragraph (c)(3)(i) of this (b)(7) shall be 7 inch (17.78 cm) mesh in the regulated portion of the net section may also possess and retain the diamond mesh throughout the entire shall be measured by placing the net following species, with the restrictions net. The minimum mesh size for any gauge along the diagonal line that noted, as incidental take to these trawl net on a vessel, or used by a connects the largest opening between exempted fisheries: Conger eels; vessel, fishing under a DAS in the Large opposite corners of the square. The 27740 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations square mesh size shall be the average of and that have no other gear on board provided that there is no other gear on the measurements of 20 consecutive capable of catching multispecies finfish; board capable of catching multispecies adjacent meshes from the terminus and finfish. (iii) Classified as charter, party, forward along the long axis of the net. * * * * * or recreational. The square mesh shall be measured at (b) * * * (g) Mid-coast Closure Area. (1) During least five meshes away from the lacings (2) * * * the period November 1 through of the net. (i) Fishing with or using pot gear December 31, no fishing vessel or (ii) Diamond-mesh measurement. designed or used to take lobsters, or pot person on a fishing vessel may enter, Diamond mesh in the regulated portion gear designed or used to take hagfish, fish, or be, and no fishing gear capable of the net shall be measured running and that have no other gear on board of catching multispecies finfish unless parallel to the long axis of the net. The capable of catching multispecies finfish; otherwise allowed in this part may be, mesh size shall be the average of the * * * * * in the area known as the Mid-coast measurements of any series of 20 (c) * * * Closure Area (Figure 3 to part 651), as consecutive meshes. The mesh shall be (2) * * * defined by straight lines connecting the measured at least five meshes away (i) Fishing with or using pot gear following points in the order stated, from the lacings of the net. designed and used to take lobsters, or except as specified in paragraphs (d) * * * * * pot gear designed and used to take and (g)(2) of this section: (i) Scallop vessels. (1) Except as hagfish, and that have no other gear on provided in paragraph (i)(2) of this board capable of catching multispecies Point Latitude Longitude finfish; section, scallop vessels that possess a ° ′ valid limited access permit under MC1 ...... 42 30 N...... Massachu- * * * * * setts § 650.4 of this chapter, and that a (d) Transiting. Vessels may transit shoreline. scallop multispecies possession limit Closed Area I, the Nantucket Lightship MC2 ...... 42°30′ N...... 70°15′ W. permit under § 650.4(c), and that are Closed Area, the Northeast Closure MC3 ...... 42°40′ N...... 70°15′ W. fishing under the scallop DAS program Area, the Mid-coast Closure Area, and MC4 ...... 42°40′ N...... 70°00′ W. described in § 650.24, may possess and the Massachusetts Bay Closure Area, as MC5 ...... 43°00′ N...... 70°00′ W. land up to 300 lb (136.1 kg) of regulated defined in paragraphs (a)(1), (c)(1), MC6 ...... 43°00′ N...... 69°30′ W. species, unless otherwise restricted (f)(1), (g)(1), and (h)(1), respectively, of MC7 ...... 43°15′ N...... 69°30′ W. MC8 ...... 43°15′ N...... 69°00′ W. pursuant to § 651.27(a)(2). Vessels this section, provided that their gear is ° ′ subject to this possession limit shall stowed in accordance with the MC9 ...... Maine shoreline 69 00 W. have at least one standard tote on board. provisions of paragraph (e) of this (2) Combination vessels, and scallop section. (2) Exceptions. Paragraph (g)(1) of this vessels not equipped with or fishing (e) Gear stowage requirements. section does not apply to persons on with dredge gear, fishing lawfully under Vessels transiting the closed areas must fishing vessels or fishing vessels: a multispecies DAS are subject to the stow their gear as follows: (i) That have not been issued a gear restrictions specified in § 651.20 * * * * * Federal multispecies permit under and may possess and land unlimited (f) Northeast Closure Area. (1) During § 651.4 and that are fishing exclusively amounts of regulated species. Such the period August 15 through in state waters. vessels may simultaneously fish under a September 13, no fishing vessel or (ii) Fishing with or using exempted scallop DAS. person on a fishing vessel may enter, gear as defined under this part, (j) State waters winter flounder fish, or be, and no fishing gear capable excluding mid-water trawl gear, exemption. Any vessel issued a Federal of catching multispecies finfish, unless provided that there is no other gear on limited access multispecies permit otherwise allowed in this part may be, board capable of catching multispecies under this part may fish for, possess, or in the area known as the Northeast finfish. (iii) Classified as charter, party, land winter flounder while fishing with Closure Area (Figure 3 to part 651), as or recreational. nets of mesh smaller than the minimum defined by straight lines connecting the (h) Massachusetts Bay Closure Area. size specified in paragraphs (a)(2), (c)(2), following points in the order stated, (1) During the period March 1 through and (d)(2) of this section provided that: except as specified in paragraphs (d) March 30, no fishing vessel or person on * * * * * and (f)(2) of this section: a fishing vessel may enter, fish, or be, (7) The vessel, when not fishing under and no fishing gear capable of catching the DAS program, does not fish for, Point Latitude Longitude multispecies finfish, unless otherwise possess, or land more than 500 lb (226.8 allowed in this part may be, in the area NE1 ...... Maine shoreline 68°55.0′ W. kg) of winter flounder and, when subject ° ′ ° ′ known as the Massachusetts Bay NE2 ...... 43 29.6 N ...... 68 55.0 W. Closure Area (Figure 3 to part 651), as to this possession limit, has at least one NE3 ...... 44°04.4′ N ...... 67°48.7′ W. standard tote on board; NE4 ...... 44°06.9′ N ...... 67°52.8′ W. defined by straight lines connecting the * * * * * NE5 ...... 44°31.2′ N ...... 67°02.7′ W. following points in the order stated, 7. In § 651.21, paragraphs (a)(2)(i), NE6 ...... Maine shoreline 67°02.7′ W. except as specified in paragraphs (d) (b)(2)(i), (c)(2)(i), (d) and (e) and (h)(2) of this section: introductory text are revised, and (2) Exceptions. Paragraph (f)(1) of this paragraphs (f), (g), and (h) are added to section does not apply to persons on Point latitude Longitude read as follows: fishing vessels or fishing vessels: ° ′ (i) That have not been issued a MB1 42 30 N...... Massachusetts shore- § 651.21 Closed areas. line. Federal multispecies permit under MB2 42°30′ N...... 70°30′ W. (a) * * * § 651.4 and that are fishing exclusively MB3 42°12′ N...... 70°30′ W. (2) * * * in state waters. MB4 42°12′ N...... 70°00′ W. (i) Fishing with or using pot gear (ii) Fishing with or using exempted MB5 Cape Cod 70°00′ W. designed or used to take lobsters, or pot gear as defined under this part, shoreline. gear designed or used to take hagfish, excluding mid-water trawl gear, MB6 42°00′ N...... Cape Cod shoreline. Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27741

Point latitude Longitude DAS category shall be allocated 139 multispecies permit issued under DAS for the 1996 fishing year § 651.4. MB7 42°00′ N...... Massachusetts shore- multiplied by the proration factor equal (D) Adjustments to the small-boat line. to 0.83 for a total of 115 DAS, and 88 category requirements, including DAS for the 1997 fishing year and changes to the length requirement, if (2) Exceptions. Paragraph (h)(1) of this beyond. required to meet fishing mortality goals, section does not apply to persons on (ii) Initial assignment. As of the may be made following a reappraisal fishing vessels or fishing vessels: effective date of the final rule for and analysis under the framework (i) That have not been issued a Amendment 7, vessels issued valid provisions specified in subpart C. Federal multispecies permit under permits in one of the following (4) Hook-Gear Category—(i) DAS § 651.4 and that are fishing exclusively categories shall be initially assigned to allocation. Vessels issued a valid in state waters. this category: Fleet DAS permit holders; limited access multispecies Hook-Gear (ii) Fishing with or using exempted limited access multispecies Hook-Gear permit shall be allocated 139 DAS gear as defined under this part, permit holders; limited access multiplied by the proration factor equal excluding mid-water trawl gear, multispecies Gillnet permit holders; to 0.83 for a total of 115 DAS for the provided that there is no other gear on limited access multispecies 45 ft (13.7 1996 fishing year and 88 DAS for the board capable of catching multispecies m) category permit holders that are 1997 fishing year and beyond. A vessel finfish. larger than 20 ft (6.1 m) in length as fishing in this permit category under the (iii) Classified as charter, party, or determined by the most recent permit DAS program must meet or comply with recreational. application. determined by the most the following while fishing for, in 8. Section 651.22 is revised to read as recent permit application. possession of, or landing, regulated follows: (3) Small vessel category—(i) DAS species: § 651.22 Effort-control program for limited allocation. Vessels qualified and (A) Vessels, and persons on such access vessels. electing to fish under the Small Vessel vessels, are prohibited from possessing (a) A vessel issued a limited access category may retain cod, haddock, and gear other than hook gear on board the multispecies permit under § 651.4(b) yellowtail flounder, combined up to 300 vessel. may not fish for, possess or land lb (136.1 kg) per trip without being (B) Vessels, and persons on such regulated species except during a DAS subject to DAS restrictions. These vessels, are prohibited from fishing, as allocated under and in accordance vessels are not subject to a possession setting, or hauling back, per day, or with the applicable DAS program limit for the other multispecies finfish. possessing on board the vessel, more described below, unless otherwise (ii) Initial assignment. All vessels than 4,500 rigged hooks. An unbaited provided in these regulations. issued a valid limited access hook and gangion that has not been (b) DAS program—Permit categories, multispecies permit and fishing under secured to the ground line of the trawl allocations and initial assignments to the small boat exemption (less than or on board a vessel is deemed to be a categories. For the remainder of the equal to 45 ft (13.7 m)) permit as of the replacement hook and is not counted 1996 fishing year, all limited access effective date of the final rule for toward the 4,500 hook limit. A ‘‘snap- multispecies permit holders shall be Amendment 7, and that are 20 ft (6.1 m) on’’ hook is deemed to be a replacement assigned to one of the following DAS or less in length as determined by the hook if it is not rigged or baited. permit categories according to the vessel’s last application for a permit (ii) Initial assignment. No vessel shall criteria specified. Permit holders may shall be initially assigned to this be initially assigned to the Hook-Gear request a change in permit category for category. Other vessels may elect to category. Any vessel that meets the the remainder of the 1996 fishing year change into this category as provided for qualifications specified in § 651.4(b)(1) and all fishing years thereafter as in § 651.4(f)(3) if such vessel meets or may apply for and obtain a permit to specified in § 651.4(f)(3). Each fishing complies with the following: fish under this category. year shall begin on May 1 and extend (A) The vessel is 30 ft (9.1 m) or less (5) Combination Vessel Category—(i) through April 30 of the following year. in length overall as determined by DAS allocation. Vessels assigned to the (1) Individual DAS Category—(i) DAS measuring along a horizontal line drawn Combination Vessel category shall be allocation. Vessels assigned to the from a perpendicular raised from the allocated 65 percent of their initial 1994 Individual DAS category shall be outside of the most forward portion of allocation as determined by regulations allocated 65 percent of their initial 1994 the stem of the vessel to a perpendicular implementing Amendment 5 to the FMP allocation baseline determined by raised from the after most portion of the multiplied by the proration factor equal regulations implementing Amendment 5 stern. to 0.83 for the 1996 fishing year and 50 to the FMP for the 1996 fishing year (B) Vessels for which construction percent of the vessel’s initial allocation multiplied by the proration factor equal was begun after May 1, 1994, must be baseline for the 1997 fishing year and to 0.83 and 50 percent of the vessel’s constructed such that the quotient of the beyond, as calculated under paragraph initial allocation baseline for the 1997 overall length divided by the beam will (d)(1) of this section. fishing year and beyond, as calculated not be less than 2.5. (ii) Initial assignment. All vessels under paragraph (d)(1) of this section. (C) Acceptable verification for vessels issued a valid limited access (ii) Initial assignment. All vessels 20 ft (6.1 m) or less in length shall be multispecies permit qualified to fish as issued valid Individual DAS limited U.S. Guard documentation or state a Combination Vessel as of the effective access multispecies permits, with the registration papers. For vessels over 20 date of the final rule for Amendment 7 exception of vessels that have also been ft (6.1 m) in length, the measurement of shall be assigned to this category. issued limited access multispecies length must be verified in writing by a (6) Large Mesh Individual DAS Gillnet category permits, as of the qualified marine surveyor, or the Category—(i) DAS allocation. Vessels effective date of the final rule for builder, based on the boat’s construction fishing under the Large Mesh Individual Amendment 7, shall be initially plans, or by other means determined DAS category shall be allocated a DAS assigned to this category. acceptable by the Regional Director. A increase that is equivalent to a 12 (2) Fleet DAS Category—(i) DAS copy of the verification must percent increase in DAS in year 1 and allocation. Vessels assigned to the Fleet accompany an application for a Federal a 36 percent increase in DAS in year 2 27742 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations beyond the DAS allocations specified in elects to fish under the Individual DAS Individual DAS allocation is under (b)(1)(i) of this section, which includes category, is eligible to appeal its appeal, may fish under the Fleet DAS the proration factor for 1996. To be allocation of gillnet DAS, as described category until the Regional Director has eligible to fish under the Large Mesh under paragraph (d)(2) of this section. made a final determination on the Individual DAS permit category a vessel Each of these vessels’ initial allocation appeal. Any DAS spent fishing for while fishing under the DAS program, of Individual DAS will be considered to regulated species by a vessel while that must fish with gillnet gear with a be 176 for purposes of this appeal (that vessel’s initial DAS allocation is under minimum mesh net of 7 inch (17.78 cm) is, the Fleet DAS category baseline prior appeal, shall be counted against any diamond or trawl gear with a minimum to the 1996–97 reductions). DAS allocation that the vessel may mesh size of 8 inch (20.32 cm) diamond, (d) Individual DAS allocations—(1) ultimately receive. for the entire fishing year, as described Calculation of a vessel’s Individual (e) Accrual of DAS. DAS shall accrue under § 651.20 (a)(2)(ii), (c)(2)(ii), and DAS. The DAS assigned to a vessel for in hourly increments, with all partial (d)(2)(ii). purposes of determining that vessel’s hours counted as full hours. (ii) Initial assignment. No vessel shall annual allocation under the Individual (f) Good Samaritan credit. Limited be initially assigned to the Large Mesh DAS Program shall be calculated as access vessels fishing under the DAS Individual DAS category. Any vessel follows: program and that spend time at sea for that is initially assigned to the (i) Calculate the total number of the one of the following reasons, and that Individual DAS, Fleet DAS, or Small vessel’s multispecies DAS for the years can document the occurrence through Vessel permit category may request and 1988, 1989, and 1990. Multispecies DAS the U.S. Coast Guard, will be credited be granted a change in category into this are deemed to be the total number of for the time documented: category as specified in § 651.4(f)(3). days the vessel was absent from port for (1) Time spent assisting in a U.S. (7) Large Mesh Fleet DAS Category— a trip where greater than 10 percent of Coast Guard search and rescue (i) DAS allocation. Vessels fishing under the vessel’s total landings were operation; or the Large Mesh Fleet DAS category shall comprised of regulated species, minus (2) Time spent assisting the U.S. Coast be allocated 155 DAS multiplied by the any days for such trips in which a Guard in towing a disabled vessel. proration factor equal to 0.83 for the scallop dredge was used. (g) Spawning season restrictions. 1996 fishing year, and 120 DAS for the (ii) Exclude the year of least 1997 fishing year and beyond. To be Vessels issued a valid Small Vessel multispecies DAS. category permit under paragraph (b)(3) eligible to fish under the Large Mesh (iii) If 2 years of multispecies DAS are Fleet DAS permit category a vessel must of this section may not fish for, possess, remaining, average those years’ DAS, or, or land regulated species between fish with gillnet gear with a minimum if only 1 year remains, use that year’s mesh net of 7 inch (17.78 cm) diamond March 1 and March 20 of each year. All DAS. other vessels issued limited access or trawl gear with a minimum mesh size (2) Appeal of DAS allocation—(i) permits must declare out and be out of of 8 inch (20.32 cm) diamond, as Initial allocations of Individual DAS to the regulated multispecies finfish described under § 651.20(a)(2)(ii), those vessels authorized to appeal under fishery for a 20-day period between (c)(2)(ii), and (d)(2)(ii). paragraph (c) of this section may be March 1 and May 31 of each calendar (ii) Initial assignment. No vessel shall appealed to the Regional Director if a year using the notification requirements be initially assigned to the Large Mesh request to appeal is received by the specified under § 651.29. If a vessel Fleet DAS category. Any vessel that is Regional Director no later than August owner has not declared, or taken, the initially assigned to the Individual DAS, 31, 1996, or 30 days after the initial period of time required between March Fleet DAS, or Small Vessel permit allocation is made, whichever is later. 1 and May 31 of each fishing year on or category may request and be granted a Any such appeal must be in writing and before May 12 of each such year, the change in category into this category as be based on one or more of the vessel is prohibited from fishing for, specified in § 651.4(f)(3). following grounds: (c) The 1996 DAS appeals. (1) (A) The information used by the possessing or landing any regulated Previously exempted vessels. A vessel Regional Director was based on species during the period May 12 that was issued a valid 1995 limited mistaken or incorrect data; through May 31, inclusive. If a vessel access multispecies permit, and has (B) The applicant was prevented by has taken a spawning season 20-day been fishing under the Small boat circumstances beyond his/her control block out of the multispecies fishery exemption (less than or equal to 45 ft from meeting relevant criteria; or during May, 1996, it shall not be (13.7 m)), Hook-Gear or Gillnet permit (C) The applicant has new or required to take a 20-day block out of categories, that elects to fish under the additional information. the multispecies fishery in 1997. Individual DAS category, and has not (ii) The Regional Director will appoint Beginning January 1, 1998, any such previously been allocated Individual a designee who will make an initial vessel must comply with the spawning DAS, is eligible to appeal its allocation decision on the written appeal. season restriction as specified in this of DAS if it has not previously done so, (iii) If the applicant is not satisfied part. as described under paragraph (d)(2) of with the initial decision, the applicant (h) Declaring DAS and 20-day blocks. this section. Each of these vessel’s may request that the appeal be A vessel’s owner or authorized initial allocation of Individual DAS will presented at a hearing before an officer representative shall notify the Regional be considered to be 176 for purposes of appointed by the Regional Director. Director of a vessel’s participation in the this appeal (that is, the Fleet DAS (iv) The hearing officer shall present DAS program and declaration of its 20- category baseline prior to the 1996–97 his/her findings to the Regional Director day spawning period out of the reductions). and the Regional Director will make a multispecies fishery using the (2) Exempted gillnet vessels that held decision on the appeal. The Regional notification requirements specified an Individual DAS permit. A vessel that Director’s decision on this appeal is the under § 651.29. was issued a valid 1995 limited access final administrative decision of the (i) Adjustments in annual DAS multispecies permit and fishing under Department of Commerce. allocations. Adjustments in annual DAS the Gillnet permit category and the (3) Status of vessels pending appeal of allocations, if required to meet fishing Individual DAS permit category, that DAS allocations. Vessels, while their mortality goals, may be made following Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27743 a reappraisal and analysis as specified (2) Scallop dredge vessels—(i) No under paragraph (d) of this section, are in subpart C. person owning or operating a scallop deemed to be fishing under the DAS 9. In § 651.23, paragraph (a) dredge vessel issued a permit under this program unless the vessel’s owner or introductory text, and paragraphs (d) part may land haddock from, or possess authorized representative declares the and (e) are revised to read as follows: haddock on board, a scallop dredge vessel out of the multispecies fishery, by vessel, from January 1 through June 30. notifying the Regional Director through § 651.23 Minimum fish size. (ii) No person owning or operating a the VTS. The owner or authorized (a) Minimum fish sizes for scallop dredge vessel without a permit representative of any vessel that has recreational vessels and charter/party under this part may possess haddock in, been declared out of the multispecies vessels that are not fishing under a or harvested from, the EEZ, from fishery must notify the Regional multispecies DAS are specified in January 1 through June 30. Director through the VTS prior to § 651.34. All other vessels are subject to (iii) From July 1 through December leaving port on the vessel’s next trip minimum fish sizes (total length) as 31, no scallop dredge vessel or persons under the DAS program. follows: owning or operating a scallop dredge (2) If the VTS is not available, or not * * * * * vessel, that is fishing under the scallop functional, and if authorized by the (d) Exception. Each person aboard a DAS program as described in Regional Director, a vessel owner must vessel issued a limited access permit § 651.20(i), may land, or possess on comply with the call-in notification and fishing under the DAS program may board, more than 300 lb (136.1 kg) of requirements specified in paragraph (b) possess up to 25 lb (11.3 kg) of fillets haddock. Haddock on board a vessel of this section. that measure less than the minimum subject to this possession limit must be (3) Notification that the vessel is not size, if such fillets are from legal-sized separated from other species of fish and under the DAS program must be fish and are not offered or intended for stored so as to be readily available for received prior to the vessel leaving port. sale, trade, or barter. inspection. Vessels subject to this A change in status of a vessel cannot be (e) Adjustments of minimum size. (1) possession limit shall have on board the made after the vessel leaves port or At anytime when information is vessel at least one standard tote. before it returns to port on any fishing available, the Council will review the (b) Vessels are subject to any other trip. best available mesh selectivity applicable possession limit restrictions (b) Call-in notification. Vessel owners information to determine the of this part. authorized or required to provide 11. In § 651.28, paragraph (c) is appropriate minimum size for the notification using the call-in system removed, the heading and the first species listed in paragraph (a) of this shall be subject to the following sentence of paragraph (a), and paragraph section, except winter flounder, requirements: (b) are revised to read as follows: according to the length at which 25 (1) The vessel owner or authorized percent of the regulated species would § 651.28 Monitoring requirements. representative shall notify the Regional be retained by the applicable minimum (a) Individual DAS limited access Director, prior to leaving port, that the mesh size. multispecies vessels. Unless otherwise vessel will be participating in the (2) Upon determination of the authorized or required by the Regional applicable DAS program by calling 1– appropriate minimum sizes, the Council Director under § 651.29(b), vessel 800–260–8204 or 508–281–9335, and shall propose the minimum fish sizes to owners fishing under the Individual providing the following information: be implemented following the DAS program and Combination Vessels Vessel name and permit number, owner procedures specified in subpart C. must have installed on board an and caller name and phone number, the (3) Additional adjustments or changes operational VTS unit that meets the type of trip to be taken, the port of to the minimum fish sizes specified in minimum performance criteria specified departure, and that the vessel is paragraphs (a) and (b) of this section, in paragraph (a)(2) of this section, or as beginning a trip. and exemptions as specified in modified annually as specified in (2) A multispecies DAS begins once paragraphs (a) and (b) of this section, paragraph (a)(1) of this section. *** the call has been received and and exemptions as specified in (b) Fleet DAS and other limited access confirmation given by the Regional paragraph (c) of this section, may be multispecies vessels. Vessels issued Director. made at any time after implementation limited access multispecies permits who (3) The vessel’s confirmation numbers of the final rule as specified under are participating in a DAS program and for the current and immediately prior subpart C. who are not required to provide multispecies fishing trip must be 10. Section 651.27 is revised to read notification using a VTS shall be subject maintained on board the vessel and as follows: to the call-in requirements specified in provided to an authorized officer upon § 651.29(b). request. § 651.27 Additional haddock possession 12. Section 651.29 is revised to read (4) Upon returning to port, at the end restrictions. as follows: of a fishing trip as defined in paragraph (a) Haddock—(1) Multispecies DAS (d) of this section, the vessel owner or vessels. A vessel issued a limited access § 651.29 DAS notification program. owner’s representative shall notify the multispecies permit under this part that (a) VTS notification. Unless otherwise Regional Director that the trip has ended is fishing under a multispecies DAS authorized by the Regional Director as by calling 1–800–260–8204 or 508–281– may land, or possess on board, up to specified in paragraph (c) of this 9335, and providing the following 1000 lb (453.6 kg) of haddock. Haddock section, owners of vessels issued limited information: Vessel name and permit on board a vessel subject to this access multispecies permits that have number, owner and caller name and possession limit must be separated from elected to or are required to use a VTS telephone number, port landed, other species of fish and stored so as to system shall be subject to the following confirmation number, and that the be readily available for inspection. requirements: fishing trip has ended. Vessels subject to this possession limit (1) Vessels that are issued limited (5) A DAS ends when the call has shall have on board the vessel at least access multispecies permits, that have been received and confirmation given one standard tote. crossed the demarcation line specified by the Regional Director. 27744 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

(6) Any vessel issued a limited access temporary basis, the use of an § 651.29(a) are counted beginning with multispecies permit subject to the DAS alternative call-in system of notification. the first hourly location signal received program and call-in requirement, that If the call-in system is authorized or showing that the vessel crossed the possess or lands regulated species, required, the Regional Director shall Vessel Tracking System Demarcation except as provided in § 651.34, shall be notify affected permit holders through a Line leaving port. A trip concludes and deemed in the DAS program for letter, notification in the Federal accrual of DAS ends with the first purposes of counting DAS, regardless of Register, or other appropriate means. hourly location signal received showing whether or not the vessel’s owner or Vessel owners authorized or required by that the vessel crossed the Vessel authorized representative provided the Regional Director to provide Tracking System Demarcation Line notification by a call-in system under adequate notification as required by this upon its return to port. part. this paragraph shall be subject to the (7) Any change in status of a vessel requirements specified in paragraph (b) (2) Vessel Tracking System cannot be done after leaving port on any of this section. Demarcation Line. The VTS fishing trip. (d) Counting of DAS for vessels Demarcation Line is defined as straight (c) Temporary authorization for use of fishing under the VTS system. (1) DAS lines connecting the following points in the call-in system. The Regional Director for vessels that are under the VTS the order stated (see Figures 6 and 7 to may authorize or require, on a monitoring system described in part 651):

VESSEL TRACKING SYSTEM DEMARCATION LINE

Description Longitude Latitude

1. Northern terminus point (Canada land mass) ...... 45°03′ N. 66°47′ W. 2. A point east of West Quoddy Head Light ...... 44°48.9′ N. 66°56.1′ W. 3. A point east of Little River Light ...... 44°39.0′ N. 67°10.5′ W. 4. Whistle Buoy ``8BI'' (SSE of Baker Island) ...... 44°13.6′ N. 68°10.8′ W. 5. Isle au Haut Light ...... 44°03.9′ N. 68°39.1′ W. 6. Pemaquid Point Light ...... 43°50.2′ N. 69°30.4′ W. 7. A point west of Halfway Rock ...... 43°38.0′ N. 70°05.0′ W. 8. A point east of Cape Neddick Light ...... 43°09.9′ N. 70°34.5′ W. 9. Merrimack River Entrance ``MR'' Whistle Buoy ...... 42°48.6′ N. 70°47.1′ W. 10. Halibut Point Gong Buoy ``1AHP'' ...... 42°42.0′ N. 70°37.5′ W. 11. Connecting reference point ...... 42°40′ N. 70°30′ W. 12. Whistle Buoy ``2'' off Eastern Point ...... 42°34.3′ N. 70°39.8′ W. 13. The Graves Light (Boston) ...... 42°21.9′ N. 70°52.2′ W. 14. Minots Ledge Light ...... 42°16.2′ N. 70°45.6′ W. 15. Farnham Rock Lighted Bell Buoy ...... 42°05.6′ N. 70°36.5′ W. 16. Cape Cod Canal Bell Buoy ``CC'' ...... 41°48.9′ N. 70°27.7′ W. 17. A point inside Cape Cod Bay ...... 41°48.9′ N. 70°05′ W. 18. Race Point Lighted Bell Buoy ``RP'' ...... 42°04.9′ N. 70°16.8′ W. 19. Peaked Hill Bar Whistle Buoy ``2PH'' ...... 42°07.0′ N. 70°06.2′ W. 20. Connecting point, off Nauset Light ...... 41°50′ N. 69°53′ W. 21. A point south of Chatham ``C'' Whistle Buoy ...... 41°38′ N. 69°55.2′ W. 22. A point in eastern Vineyard Sound ...... 41°30′ N. 70°33′ W. 23. A point east of Martha's Vineyard ...... 41°22.2′ N. 70°24.6′ W. 24. A point east of Great Pt. Light, Nantucket ...... 41°23.4′ N. 69°57′ W. 25. A point SE of Sankaty Head, Nantucket ...... 41°13′ N. 69°57′ W. 26. A point west of Nantucket ...... 41°15.6′ N. 70°25.2′ W. 27. Squibnocket Lighted Bell Buoy ``1'' ...... 41°15.7′ N. 70°46.3′ W. 28. Wilbur Point (on Sconticut Neck) ...... 41°35.2′ N. 70°51.2′ W. 29. Mishaum Point (on Smith Neck) ...... 41°31.0′ N. 70°57.2′ W. 30. Sakonnet Entrance Lighted Whistle Buoy ``SR'' ...... 41°25.7′ N. 71°13.4′ W. 31. Point Judith Lighted Whistle Buoy ``2'' ...... 41°19.3′ N. 71°28.6′ W. 32. A point off Block Island Southeast Light ...... 41°08.2′ N 71°32.1′ W. 33. Shinnecock Inlet Lighted Whistle Buoy ``SH'' ...... 40°49.0′ N. 72°28.6′ W. 34. Scotland Horn Buoy ``S'', off Sandy Hook (NJ) ...... 40°26.5′ N. 73°55.0′ W. 35. Barnegat Lighted Gong Buoy ``2'' ...... 39°45.5′ N. 73°59.5′ W. 36. A point east of Atlantic City Light ...... 39°21.9′ N. 74°22.7′ W. 37. A point east of Hereford Inlet Light ...... 39°00.4′ N. 74°46′ W. 38. A point east of Cape Henlopen Light ...... 38°47′ N. 75°04′ W. 39. A point east of Fenwick Island Light ...... 38°27.1′ N. 75°02′ W. 40. A point NE of Assateague Island (VA) ...... 38°00′ N. 75°13′ W. 41. Wachapreague Inlet Lighted Whistle Buoy ``A'' ...... 37°35.0′ N. 75°33.7′ W. 42. A point NE of Cape Henry ...... 36°55.6′ N. 75°58.5′ W. 43. A point east of Currituck Beach Light ...... 36°22.6′ N. 75°48′ W. 44. Oregon Inlet (NC) Whistle Buoy ...... 35°48.5′ N. 75°30′ W. 45. Wimble Shoals, east of Chicamacomico ...... 35°36′ N. 75°26′ W. 46. A point SE of Cape Hatteras Light ...... 35°12.5′ N. 75°30′ W. 47. Hatteras Inlet Entrance Buoy ``HI'' ...... 35°10′ N. 75°46′ W. 48. Ocracoke Inlet Whistle Buoy ``OC'' ...... 35°01.5′ N. 76°00.5′ W. 49. A point east of Cape Lookout Light ...... 34°36.5′ N. 76°30′ W. 50. Southern terminus point ...... 34°45′ N. 76°41′ W. Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27745

(e) Call-in for 20 day blocks. With the each fishing year, the restrictions and (4) The Council shall provide the exception of vessels issued a valid requirements specified under paragraph public with advance notice of the Small Vessel category permit, vessels (a)(2) of this section shall apply to the availability of the proposals, appropriate subject to the spawning season Mid-coast Closure Area, as defined rationale, economic and biological restriction described in § 651.22 must under § 651.21(g)(1). analyses, and opportunity to comment notify the Regional Director of the (ii) Cape Cod South Area Closure. on them prior to and at the second commencement date of their 20-day During the period March 1 through Council meeting. The Council’s period out of the multispecies fishery March 30 of each fishing year, the recommendation on adjustments or through either the VTS system or by restrictions and requirements specified additions to management measures calling 1–800–260–8204 or 508–281– under paragraph (a)(2) of this section must come from one or more of the 9335 and providing the following shall apply to an area known as the categories specified under information: Vessel name and permit Cape Cod South Area Closure which is § 651.40(b)(1). number, owner and caller name and an area bounded by straight lines (5) If the Council recommends that phone number, and the commencement connecting the following points in the the management measures should be date of the 20 day period. order stated (see Figure 9 of this part). published as a final rule, the Council 13. In § 651.31, paragraph (d) is added must consider at least the factors to read as follows: CAPE COD SOUTH CLOSURE AREA specified in § 651.40(b)(2). § 651.31 At-sea observer coverage. (6) The Regional Director may accept, * * * * * Point Latitude Longitude reject, or with Council approval, modify (d) Industry funded observer coverage. the Council’s recommendation, CCS1 ...... RI shoreline ...... 71°45′ W. including the Council’s NMFS may accept observer coverage ° ′ ° ′ CCS2 ...... 40 40 N...... 71 45 W. recommendation to publish a final rule, funded by sources outside the U.S. CCS3 ...... 40°40′ N...... 70°30′ W. Government provided the following CCS4 ...... MA shoreline .... 70°30′ W. as specified under § 651.40(b)(3). requirements are met: 14. Section 651.33 is revised to read as follows: (1) All coverage conducted by such (b) Framework adjustment. (1) At least observers is determined by NMFS to be annually the Regional Director will § 651.33 Open access permit restrictions. in compliance with NMFS’ observer provide the Council with the best (a) Handgear permit. A vessel issued guidelines and procedures. available information on the status of (2) The owner or operator of the a valid open access Handgear permit Gulf of Maine harbor porpoise including vessel complies with all other issued under § 651.4(c) is subject to the estimates of abundance and estimates of provisions of this part. following restrictions: (3) The observer is approved by the bycatch in the sink gillnet fishery. (1) The vessel may possess and land Regional Director. Within 60 days of receipt of that up to 300 lb (136.1 kg) of cod, haddock, 14. Section 651.32 is revised to read information, the Council’s Harbor and yellowtail flounder, combined, per as follows: Porpoise Review Team shall complete a trip, and unlimited amounts of the other review of the data, assess the adequacy multispecies finfish provided that it § 651.32 Sink gillnet requirements to of existing regulations, evaluate the reduce harbor porpoise takes. does not use, or possess on board, gear impacts of other measures that reduce other than rod and reel or handlines (a) Areas closed to sink gillnets. (1) harbor porpoise take and, if necessary, while in possession of, fishing for, or Harbor porpoise take restrictions. The recommend additional measures in light landing multispecies finfish. Vessels closed area restrictions prohibiting sink of the Council’s harbor porpoise subject to this possession limit shall gillnets in the areas and times specified mortality reduction goals. In addition, have at least one standard tote on board. in § 651.21(f) through (h) are the HPRT shall make a determination on (2) A vessel may not fish for, possess, implemented in order to reduce the whether other conservation issues exist or land regulated species between takes of harbor porpoise consistent with that require a management response to the harbor porpoise mortality reduction March 1 and March 20 of each year. meet the goals and objectives outlined (b) Charter/party permit. A vessel that goals. in the FMP. The HPRT shall report its (2) Additional harbor porpoise area has been issued a valid open access findings and recommendations to the Charter/party permit under § 651.4(c), closures. All persons owning or Council. operating vessels must remove all of and has declared into the charter/party (2) After receiving and reviewing the their sink gillnet gear from, and may not fishery, is subject to the restrictions on HPRT’s findings and recommendations, use, set, haul back, fish with, or possess gear, recreational minimum fish sizes the Council shall determine whether on board, unless stowed in accordance and prohibitions on sale specified in adjustments or additional management with § 651.21(e)(4), a sink gillnet in the § 651.34, and any other applicable EEZ portion of the areas and for the measures are necessary to meet the goals provisions of this part. times specified in paragraphs (a)(2)(i) and objectives of the FMP. If the (c) Scallop Multispecies Possession and (ii) of this section; and, all persons Council determines that adjustments or Limit Permit. A vessel that has been owning or operating vessels issued a additional management measures are issued a valid open access Scallop Federal multispecies limited access necessary, or at any other time in Multispecies Possession Limit permit permit must remove all of their sink consultation with the HPRT, it shall under § 651.4(c) may possess and land gillnet gear from, and may not use, set, develop and analyze appropriate up to 300 lb (136.1 kg) of regulated haul back, fish with, or possess on board management actions over the span of at species when fishing under a scallop a vessel, unless stowed in accordance least two Council meetings. DAS as described under § 651.20(i), with § 651.21(e)(4), a sink gillnet in the (3) The Council may request at any provided the vessel does not fish for, areas, and for the times specified, in time that the HPRT review and make possess or land haddock during January paragraphs (a)(2)(i) and (ii) of this recommendations on any harbor 1 through June 30 as specified under section. porpoise take reduction measures or § 651.27(a)(2)(i). Vessels subject to this (i) Mid-coast Closure Area. During the develop additional take reduction possession limit shall have at least one period March 25 through April 25 of proposals. standard tote on board. 27746 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

15. Section 651.34 is added to subpart fishing under the DAS program, and (b) Recreational minimum fish sizes. B to read as follows: recreational fishing vessels in the EEZ, (1) Persons aboard charter or party are prohibited from fishing with more vessels permitted under this part and § 651.34 Recreational and charter/party than two hooks per line and one line per vessel restrictions. not fishing under the DAS program, and angler and must stow all other fishing recreational fishing vessels in the EEZ, (a) Recreational gear restrictions. gear on board the vessel as specified are subject to minimum fish sizes (total Persons aboard charter or party vessels under §§ 651.20(c)(4) and 651.21(e)(2), length) as follows: permitted under this part and not 651.21(e)(3) and 651.21(e)(4).

RECREATIONAL

Inches Species 1996 1997+

Cod ...... 20(50.8 cm) ...... 21 (53.3 cm) Haddock ...... 20 (50.8 cm) ..... 21 (53.3 cm) Pollock ...... 19 (48.3 cm) ..... 19 (48.3 cm) Witch flounder (gray sole) ...... 14 (35.6 cm) ..... 14 (35.6 cm) Yellowtail flounder ...... 13 (33.0 cm) ..... 13 (33.0 cm) American plaice (dab) ...... 14 (35.6 cm) ..... 14 (35.6 cm) Winter flounder (blackback) ...... 12 (30.5 cm) ..... 12 (30.5 cm) Redfish ...... 9 (22.9 cm) ... 9 (22.9 cm)

(2) Exception. Persons aboard charter 16. Section 651.40 is revised to read (ii) DAS changes. or party vessels permitted under this as follows: (iii) Possession limits. part and not fishing under the DAS (iv) Gear restrictions. program, and recreational fishing § 651.40 Framework Specifications. (v) Closed areas. vessels in the EEZ, may possess fillets (a) Annual review. The Multispecies (vi) Permitting restrictions. less than the minimum size specified, if Monitoring Committee (MSMC) shall (vii) Minimum fish sizes. the fillets are taken from legal-sized fish meet on or before November 15 of each (viii) Recreational fishing measures. and are not offered or intended for sale, year to develop target TACs for the (ix) Any other management measures trade or barter. upcoming fishing year and options for currently included in the FMP. (c) Possession restrictions. Each Council consideration on any changes, (3) The Council shall review the person on a recreational vessel may not adjustment or additions to DAS recommended target TACs and all of the possess more than 10 cod and/or allocations, closed areas or other options developed by the MSMC, other haddock, combined, in or harvested measures necessary to achieve the FMP relevant information, consider public from the EEZ: goals and objectives. comment, and develop a (1) For purposes of counting fish, (1) The MSMC must review available recommendation to meet the FMP fillets will be converted to whole fish at data pertaining to the following: objective that is consistent with other the place of landing by dividing fillet (i) Catch and landings. applicable law. If the Council does not number by two. If fish are filleted into (ii) DAS and other measures of fishing submit a recommendation that meets a single (butterfly) fillet, such fillet shall effort. the FMP objectives and is consistent be deemed to be from one whole fish. (iii) Survey results. with other applicable law, the Regional (2) Cod and haddock harvested by (iv) Stock status. Director may adopt any option recreational vessels with more than one (v) Current estimates of fishing developed by the MSMC, unless person aboard may be pooled in one or mortality. rejected by the Council, as specified in more containers. Compliance with the (vi) Any other relevant information. (a)(6) of this section, provided that the possession limit will be determined by (2) Based on this review, the MSMC option meets the FMP objective and is dividing the number of fish on board by shall recommend target TACs and consistent with other applicable law. the number of persons aboard. If there develop options necessary to achieve (4) Based on this review, the Council is a violation of the possession limit on the FMP goals and objectives, which shall submit a recommendation to the board a vessel carrying more than one may include a preferred option. The Regional Director of any changes, person, the violation shall be deemed to MSMC must demonstrate through adjustments or additions to DAS have been committed by the owner and analysis and documentation that the allocations, closed areas or other operator. options it develops are expected to meet measures necessary to achieve the (3) Cod and haddock must be stored, the FMP goals and objectives. The FMP’s goals and objectives. Included in so as to be readily available for MSMC may review the performance of the Council’s recommendation will be inspection. different user groups or fleet sectors in supporting documents, as appropriate, (d) Restrictions on sale. It is unlawful developing options. The range of concerning the environmental and to sell, barter, trade, or otherwise options developed by the MSMC may economic impacts of the proposed transfer for a commercial purpose, or to include any of the management action and the other options considered attempt to sell, barter, trade, or measures in the FMP including, but not by the Council. otherwise transfer for a commercial limited to: (5) If the Council submits, on or purpose, multispecies finfish caught or (i) The annual target TACs which before January 7, a recommendation to landed by charter or party vessels must be based on the projected fishing the Regional Director after one Council permitted under this part not fishing mortality levels required to meet the meeting, and the Regional Director under a DAS or a recreational fishing goals and objectives outlined in the concurs with the recommendation, the vessels fishing in the EEZ. FMP for the 10 regulated species. Regional Director shall publish the Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27747

Council’s recommendation in the (1) Adjustment process. After a measures are based allows for adequate Federal Register as a proposed rule. The management action has been initiated, time to publish a proposed rule, and Federal Register notification of the Council shall develop and analyze whether regulations have to be in place proposed action will provide for a 30- appropriate management actions over for an entire harvest/fishing season. day public comment period. The the span of at least two Council (ii) Whether there has been adequate Council may instead submit its meetings. The Council shall provide the notice and opportunity for participation recommendation on or before February public with advance notice of the by the public and members of the 1 if it chooses to follow the framework availability of both the proposals and affected industry in the development of process outlined in paragraph (b) of this the analysis, and opportunity to the Council’s recommended section and requests that the Regional comment on them prior to and at the management measures. Director publish the recommendation as second Council meeting. The Council’s (iii) Whether there is an immediate a final rule. If the Regional Director recommendation on adjustments or need to protect the resource. concurs that the Council’s additions to management measures (iv) Whether there will be a recommendation meets the FMP must come from one or more of the continuing evaluation of management objectives and is consistent with other following categories: applicable law and determines that the measures adopted following their (i) DAS changes. implementation as a final rule. recommended management measures be (ii) Effort monitoring. (3) Regional Director action. If the published as a final rule, the action will (iii) Data reporting. Council’s recommendation includes be published as a final rule in the (iv) Possession limits. adjustments or additions to management Federal Register. If the Regional (v) Gear restrictions. measures, and if after reviewing the Director concurs that the (vi) Closed areas. recommendation meets the FMP Council’s recommendation and (vii) Permitting restrictions. objectives and is consistent with other supporting information: (viii) Crew limits. applicable law and determines that a (i) The Regional Director concurs with (ix) Minimum fish sizes. proposed rule is warranted, and as a the Council’s recommended result the effective date of a final rule (x) Onboard observers. management measures and determines falls after the start of the fishing year on (xi) Minimum hook size and hook that the recommended management May 1, fishing may continue. However, style. measures may be published as a final DAS used by a vessel on or after May (xii) The use of crucifiers in the hook rule based on the factors specified in 1 will be counted against any DAS fishery. paragraph (b)(2) of this section, the allocation the vessel ultimately receives (xiii) Fleet sector shares. action will be published in the Federal for that year. (xiv) Recreational fishing measures. Register as a final rule; or (6) If the Regional Director concurs in (xv) Area closures and other (ii) The Regional Director concurs the Council’s recommendation, a final appropriate measures to mitigate marine with the Council’s recommendation and rule shall be published in the Federal mammal entanglements and determines that the recommended Register on or about April 1 of each interactions. management measures should be year, with the exception noted in (xvi) Any other management measures published first as a proposed rule, the paragraph (a)(5) of this section. If the currently included in the FMP. action will be published as a proposed Council fails to submit a (2) Council recommendation. After rule in the Federal Register. After recommendation to the Regional developing management actions and additional public comment, if the Director by February 1 that meets the receiving public testimony, the Council Regional Director concurs with the FMP goals and objectives, the Regional shall make a recommendation to the Council recommendation, the action Director may publish as a proposed rule Regional Director. The Council’s will be published as a final rule in the one of the options reviewed and not recommendation must include Federal Register; or rejected by the Council, provided that supporting rationale, and, if (iii) The Regional Director does not the option meets the FMP objective and management measures are concur, the Council will be notified, in is consistent with other applicable law. recommended, an analysis of impacts, writing, of the reasons for the non- If, after considering public comment, and a recommendation to the Regional concurrence. the Regional Director decides to approve Director on whether to publish the (c) Nothing in this section is meant to the option published as a proposed rule, management measures as a final rule. If derogate from the authority of the the action will be published as a final the Council recommends that the Secretary of Commerce to take rule in the Federal Register. management measures should be emergency action under section 305(e) (b) Within season management action. published as a final rule, the Council of the Magnuson Act. The Council may, at any time, initiate must consider at least the following action to add or adjust management factors and provide support and 17. Figure 5 to part 651 is removed measures if it finds that action is analysis for each factor considered: and reserved, and Figures 1, 3, and 4 to necessary to meet or be consistent with (i) Whether the availability of data on part 651 are revised to read as follows: the goals and objectives of the FMP. which the recommended management BILLING CODE 3510±22±W 27748 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Figure 1 to Part 651—Regulated Mesh Area Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27749

Figure 3 to Part 651—Closed Areas 27750 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Figure 4 to Part 651—Exemption Areas

[FR Doc. 96–13707 Filed 5–30–96; 8:45 am] BILLING CODE 3510±22±W