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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 651

[Docket No. 960216032–6138–03; I.D.

021296E]

RIN 0648–AI94

Northeast Multispecies Fishery;

Amendment 7

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

implement approved measures

contained in Amendment 7 to the

Northeast Multispecies Fishery

Management Plan (FMP) including a

resubmitted part of the amendment.

These regulations: Establish an annual

target Total Allowable Catch (TAC) for

regulated species; accelerate the current

days-at-sea (DAS) effort reduction

program; eliminate most of the

exemptions to the effort control program

and revise the requirements for taking

time out of the fishery; add new closed

areas; restrict fisheries in the Gulf of

Maine/Georges Bank (GOM/GB) and

Southern New England (SNE) regulated

mesh areas having more than a minimal

bycatch of regulated species; establish

the current experimental Nantucket

Shoals dogfish fishery as an exempted

fishery; modify the permit categories;

establish restrictions on charter/party

and recreational vessels; and revise and

expand the existing framework

provisions. The intended effect of this

rule is to rebuild multispecies stocks. In

addition, NMFS informs the public of

the approval by the Office of

Management and Budget (OMB) of the

collection-of-information requirements

contained in this rule and publishes the

OMB control numbers for these

collections.

EFFECTIVE DATE: July 1, 1996.

ADDRESSES: Copies of Amendment 7, its

regulatory impact review (RIR) and the

initial regulatory flexibility analysis

(IRFA) contained within the RIR, and

the Final Supplemental Environmental

Impact Statement (FSEIS), and copies of

the resubmitted part and its supporting

documents, are available from Douglas

Marshall, Executive Director, New

England Fishery Management Council,

Suntaug Office Park, 5 Broadway (US

Rte. 1), Saugus, MA 01906–1097.

Comments regarding the collection-ofinformation requirements contained in

this final rule should be sent to Andrew

A. Rosenberg, Director, Northeast

Region, NMFS, One Blackburn Drive,

Gloucester, MA 01930–2298 and to the

Office of Information and Regulatory

Affairs, OMB, Washington, D.C. 20503

(Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Susan A. Murphy, Fishery Policy

Analyst, 508–281–9252.

SUPPLEMENTARY INFORMATION: This final

rule implements approved measures

contained in Amendment 7 to the

multispecies FMP which was approved

by NMFS on behalf of the Secretary of

Commerce (Secretary) on May 16, 1996.

Three measures contained in

Amendment 7, as originally submitted,

were disapproved by NMFS on behalf of

the Secretary when they were submitted

and consequently were not a part of the

proposed rule published on March 5,

1996 (61 FR 8540). Reasons for

disapproval of those measures were

given in the proposed rule and are not

repeated here. Two of these measures, a

provision that would allow additional

DAS for vessels enrolled in the Large

Mesh Individual DAS category and a

300-lb (136.1-kg) possession limit when

fishing in an exempted fishery with 8-

inch (20.32-cm) mesh, were resubmitted

by the New England Fishery

Management Council (Council). The

latter measure was again disapproved.

The provision that would allow

additional DAS for vessels enrolled in

the Large Mesh Individual DAS category

was contained in a proposed rule

published on April 18, 1996 (61 FR

16892). During the public comment

period, no comments were received.

This measure was approved by NMFS

on behalf of the Secretary on May 17,

1996, and is also implemented by this

rule.

Details concerning the justification for

and development of Amendment 7 were

provided in the notice of proposed

rulemaling (61 FR 8540, March 5, 1996)

and are not repeated here.

In that notice, NMFS requested the

public to comment on all proposed

measures, but to focus on several

measures of concern in particular. After

NMFS reviewed the amendment and the

public comments received relative to

the amendment and the proposed rule,

NMFS disapproved three additional

measures based on its determination

that they are inconsistent with one or

more of the national standards of the

Magnuson Fishery Conservation and

Management Act (Magnuson Act) or

other applicable law. These measures

are: A call-in requirement for charter/

party vessels; counting DAS for gillnet

vessels by the amount of time that

gillnet gear is in the water; and a winter

flounder possession allowance when

fishing in the Mid-Atlantic regulated

mesh area.

Disapproved Measures

Amendment 7 imposes new

restrictions on charter and party vessels.

Such vessels may, under certain

circumstances and criteria, fish under

either the recreational or commercial

requirements of these regulations. A

call-in requirement for charter/party

vessels was proposed by the Council to

provide a way for law enforcement

officers to discern which of these

requirements a vessel was subject to.

This measure has been disapproved

because NMFS believes that sufficient

means exist to distinguish recreational

and commercial activities. Further, the

U.S. Coast Guard (USCG) and NMFS

Office of Law Enforcement have

recommended against adoption of this

measure because it would not improve

enforceability of the charter/party

restrictions. This recommendation led

the Council, in their comments on the

proposed rule, to also recommend

against adoption of this measure.

Because this requirement would place a

significant administrative burden on the

call-in system with no discernable

benefit, it is neither consistent with

National Standard 7 nor Executive

Order 12866 and is disapproved.

The second disapproved measure

proposed counting gillnet DAS as time

when gear is in the water, rather than

time when the vessel is away from the

dock. The Council proposed this

measure in an attempt to resolve

perceived inequities in the DAS

accounting methods for fixed gear

versus mobile gear. However, the

proposal did not adequately resolve

enforcement difficulties of monitoring

the amount of time gear was in the

water or the administrative problems in

determining baseline allocations for

gillnet Individual DAS category vessels.

Moreover, the Council itself has

expressed concern with this measure

and has initiated the process to

reconsider the method for counting

gillnet DAS structure. Because the

administrative burden of establishing a

method of accounting and allocating

DAS is extensive, the efficiency

standards of E.O. 12866 and National

Standard 7 would be compromised by

the almost immediate change to the

system that the Council is

contemplating. Disapproval of this

measure means that DAS for gillnet

vessels will be counted in the same way

that DAS are counted for all other

vessels, as time away from port.
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27711

The measure that would have allowed

a bycatch of winter flounder by vessels

fishing in the Mid-Atlantic regulated

mesh area (10 percent by weight of all

other species on board or 200 lb (90.7

kg), whichever is less) has also been

disapproved. The most recent

assessment of winter flounder advises

that fishing mortality should be reduced

immediately to the lowest possible

level. Therefore, there is no justification

for treating this regulated species any

differently than others in similar

condition. Although the cap on the

allowed catch would discourage vessels

from targeting winter flounder, this

measure would reduce the beneficial

conservation effect of the DAS program

on the winter flounder resource and is,

therefore, inconsistent with National

Standard 1.

Approved Measures

Amendment 7 establishes a procedure

for setting annual target TAC levels for

specific cod, haddock, and yellowtail

flounder (CHY) stocks (GB CHY, SNE

yellowtail flounder, and GOM cod), and

an aggregate TAC for the other regulated

species (pollock, redfish, white hake,

witch flounder, American plaice, winter

flounder and windowpane flounder).

The procedure would be used annually

to set target TACs, with the exception of

target TACs for the 1996 fishing year

(May 1, 1996, through April 30, 1997),

which are set as follows:

TABLE 1.—1996 TAC SPECIFICATIONS

Species/area

1996

Target

TACs

(metric

tons)

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

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

Georges Bank yellowtail flounder ... 385

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

Southern New England yellowtail

flounder ....................................... 150

Aggregate for remaining regulated

species ........................................ 25,500

DAS allocations are reduced in two

equal increments at the start of the 1996

and 1997 fishing years from current

levels to the full 50 percent reduction

called for originally in the final year of

Amendment 5 to the FMP. In addition,

because the effective date of this rule is

2 months after the start of the 1996

fishing year, which commenced on May

1, 1996, 1996 DAS allocations are

prorated based on the amount of time

remaining in the 1996 fishing year, or 83

percent (10 months/12 months).

Amendment 7 eliminates the current

exemptions to the DAS program (vessels

45 ft (13.7 m) and less, limited access

Hook-Gear and Gillnet vessels) and

allocates either Individual DAS or Fleet

DAS to these vessels, except for vessels

30 ft (9.1 m) or less in length. Limited

access vessels 30 ft (9.1 m) or less in

length may choose either to fish under

the DAS program or be restricted to a

possession limit of CHY up to a

maximum combined weight of 300 lb

(136.1 kg).

This rule eliminates the existing

requirement for vessels in the Fleet DAS

category to take blocks of time ‘‘out of

the multispecies fishery.’’ It also

eliminates the layover days currently

required after completion of a

multispecies trip. However, all vessels

subject to the DAS effort control

program are required to take one 20-

consecutive-day block of time out of the

multispecies fishery between March 1

through May 31. Vessels 30 ft (9.1 m) or

less in length issued a Small Vessel

permit and vessels issued an open

access Handgear permit are not allowed

to fish for, possess, or land regulated

multispecies between March 1 and

March 20.

The existing time/area closures to

sink gillnet vessels specified to reduce

harbor porpoise bycatch are now also

closed to other gear types as part of the

effort reduction program. These areas

are known as the Northeast Closure

Area, the Mid-Coast Closure Area, and

the Massachusetts Bay Closure Area.

Because Small Mesh Area 1 lies entirely

within the Mid-coast Closure Area, the

season termination date for this

exemption is changed from November

15 to October 31, which coincides with

the closure of the Mid-coast area.

This final rule prohibits vessels from

fishing in the GOM/GB and SNE

regulated mesh areas, unless they are

fishing in an authorized multispecies

fishery, under a scallop DAS, or in an

exempted fishery. An exempted fishery

is one in which it has been determined

that there is a minimal bycatch of

regulated species.

The existing Nantucket Shoals

experimental dogfish fishery has been

found to meet the criteria for this

exemption. This rule permanently

exempts that fishery from June 1

through October 15.

Because the exemptions to the DAS

program are removed by the

amendment, some limited access permit

categories have been eliminated and

vessels in those categories have been

reassigned to an appropriate category. A

new category is established for vessels

in the current Hook-Gear open access

category and an opportunity to qualify

for a new limited access Hook-Gear

permit under specified criteria is

granted. New limited access permit

categories are also established for

vessels electing to fish with large mesh.

Vessels reassigned as a result of this rule

will have 45 days from the date of

publication of this rule to change their

1996 permit category.

Three new open access permit

categories established are Handgear,

Charter/Party and Scallop Multispecies

Possession Limit, each with specific

possession and gear restrictions.

This rule imposes several new

restrictions for recreational and charter/

party vessels, including a 20 inch (50.8

cm) minimum fish size for cod and

haddock for the first year of the plan,

increasing to 21 inches (53.3 cm) in the

second year, a prohibition on the sale of

multispecies finfish, and a 10 fish

possession limit on cod and haddock,

combined, for individual recreational

anglers.

The FMP’s existing framework

provisions are revised to remove the 10

percent cap on annual reductions in

fishing mortality and to allow

implementation of measures to protect

right whales and other marine mammals

through the framework process. An

annual process to set target TACs,

review progress towards fishing

mortality goals and to make any

necessary changes in the management

program is also established.

The Mid-Atlantic regulated mesh area

is redefined to include all New York

and Connecticut state waters.

Vessels fishing in the SNE regulated

mesh area are authorized to retain a

bycatch of skate or skate parts up to 10

percent of the total weight of other fish

possessed on board.

A provision is added that allows the

costs of observer coverage to be funded

by sources other than NMFS.

The haddock possession limit is

increased from 500 (227 kg) to 1,000 lb

(453.6 kg) for vessels fishing under a

multispecies DAS. The tote and box

volumetric equivalency measure for

determining the weight of possession

limits is eliminated, instead,

compliance with possession limits will

be determined by shoreside weighing.

However, vessels will be required to

carry one tote on board for use by USCG

boarding parties to estimate possible

excessive catches.

Comments and Responses

Written comments were submitted by

the Associated Fisheries of Maine,

Offshore Mariners Association, Inc.,

Gloucester Fishermen’s Wives

Association, Massachusetts Fishermen’s

Partnership, Gloucester Fishermen’s

Committee, Maine Department of

Marine Resources (DMR), Wildlife

Habitat Preservation Association, Inc.,
27712 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Senator Judd Gregg, Senator Bob Smith,

Senator Olympia J. Snowe, Senator

William S. Cohen, Congressman Patrick

J. Kennedy, Seafarers International

Union of North America, Conservation

Law Foundation, Mass Audubon

Society, The Groundfish Group of

Associated Fisheries of Maine,

Associated Fisheries of Maine, Maine

Fishermen’s Wives Association,

Federation of Inshore Seafood

Harvesters, Darling Marine Center of the

University of Maine, New Bedford

Seafood Coalition, Massachusetts State

Senator Bruce Tarr, Gloucester United,

Vessel Services Inc., the New England

Fishery Management Council (NEFMC),

Center for Marine Conservation,

Environmental Defense Fund, Cape Cod

Commercial Hook Fishermen’s

Association, Resource Trading Co., King

& Sons Fishing Co., Inc., Cape Ann

Gillnetters’ Association, Action, Inc.,

Wellspring House, Inc., Massachusetts

Lobstermen’s Association, Inc.,

Connecticut Department of

Environmental Protection (DEP), the

Marine Mammal Commission, and

approximately 290 individuals.

1. Comments in Favor of Approval of

Amendment 7

Comment 1: An association and

several environmental organizations

stated that Amendment 7 should be

approved, and 136 individuals stated

that Amendment 7 should be approved

without change. Many commenters

expressed concern for the health and

viability of the resource and urged the

Secretary not to give in to pressure to

weaken, modify or otherwise deviate

from the plan.

Response: Most of the measures

proposed in Amendment 7 have been

approved.

2. Comments on Elimination of the

Open Access Possession Limit and

Hook-Gear-Only Permit Categories

Comment 2: Several commenters

opposed elimination of the PossessionLimit permit category and/or the 500-lb

(226.8-kg) allowance of regulated

species associated with this permit.

These comments are summarized as

follows:

A commenter stated that he invested

in his vessel while fishing under the

500-pound (226.8-kg) possession limit

in the open access category and that

under Amendment 7, he will lose his

right to do so, due to the elimination of

the open access possession limit permit.

An association stated that vessels in

the Possession Limit permit category

that may have qualified for a limited

access permit under Amendment 5

should be allowed to prove their

eligibility and move into a DAS

category. The commenter further

explained that a few vessels opted for a

Possession Limit permit though their

history would have qualified them for a

limited access permit under the DAS

program. The association further stated

that it would have been impossible for

these vessel owners to know that this

permit category would be eliminated at

some future date.

Another commenter stated that

elimination of the Possession Limit

permit category denies him access to the

whiting fishery. He stated that his two

vessels surrendered their limited access

multispecies permits during 1996,

because he lengthened his vessels

beyond the upgrade restrictions of the

multispecies FMP to maximize their

productive capacities before the

effective date of Amendment 5 to the

Atlantic Mackerel, Squid and Butterfish

FMP (which allows no increase in size

after implementation). He stated that

since the vessels only fished a few

months each year for whiting, he had

planned to continue to do so under the

Possession Limit category.

Another commenter stated that under

Amendment 7 those fishers formerly

fishing for whiting and other small

mesh species in the experimental

whiting grate fishery, to use as bait

under the Possession Limit category will

not be able to continue this practice. He

stated that this gives bluefin tuna fishers

with a limited access multispecies

permit an unfair advantage.

Congressman Patrick J. Kennedy (RI)

forwarded an association’s petition

containing 98 signatures and 23

individual letters, all concerned with

the elimination under Amendment 7 of

the possession limit of regulated species

bycatch allowed when fishing for nonregulated species out of the DAS effort

reduction program. The association also

forwarded the petition and letters

directly to the Director, Northeast

Region, NMFS (Regional Director). They

further stated that the marketable

bycatch of regulated species would be

wastefully discarded. Twenty-three of

the commenters stated that they would

have to fish day and night to fully

utilize the full 24 hours of the

groundfish day DAS. They all sought

reinstatement in Amendment 7 of the

possession limit of regulated species

when fishing for non-regulated species

out of a DAS effort control program.

Another commenter stated he does

not qualify for the new limited access

hook permit, because he did not land

500-lb (226.8-kg) of regulated species

during the qualifying year, which is one

of the qualifying criteria. He said that it

is arbitrary and unfair to make just that

permit category meet certain criteria. He

further asked whether any consideration

was given for illness or investments. He

added that the labor intensive,

environmentally sound hook-fishery

had no negative impacts on the control

of future effort.

The Maine DMR commented

favorably on the open-access handgearonly permit category provision of

Amendment 7. It added that this permit

category provides a lowcost, egalitarian

point of entry for new participants in

the fishery within sensible conservation

rules.

The Maine DMR commented in

opposition to the eligibility

requirements for vessels desiring to

qualify for the new limited access hookgear permit-category, specifically, the

requirement that applicants must have

filed logs for their vessels by January 26,

1996 for the period June 1, 1994–June 1,

1995. It stated that since NMFS has

allowed logbook filers to file late this

year as part of a well-publicized

education effort designed to achieve

high compliance by next year, it is

unreasonable and inequitable to

disallow the same extension to those in

the open access hook permit category,

which was less intensively regulated

under Amendment 5. It explained that

participants in this category are less

likely to have understood and complied

with log requirements.

Response: The Council and NMFS are

aware that certain participants in the

groundfish fishery may be affected by

the elimination of the open access

possession limit permit category, but

NMFS has determined that conservation

needs outweigh the negative impact on

certain individual fishers.

The 500-lb (226.8-kg) regulated

species catch allowance is eliminated by

this rule. The control date for entry into

the multispecies fishery was February

21, 1991, at which time the public was

put on notice that future entry into the

fishery could be limited and that those

investing in the fishery after that date

were doing so at risk. The condition of

the stock complex has declined since

that time and more restrictive measures

have been implemented in Amendments

5 and 6 to the FMP. Amendment 7

eliminates the 500-lb (226.8-kg)

possession allowance in part because of

its open-access nature. While

Amendment 7 imposed significant

restrictions on the directed multispecies

fleet through DAS reductions, allowing

a potentially unlimited number of

vessels to land 500 lb (226.8 kg) of

regulated species per trip would be

inconsistent with the goals of the FMP.

Regarding the commenter’s concerns

about being ‘‘shut out’’ of the whiting
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27713

fishery as a result of disapproval of the

Limited-Access Possession Limit permit

category, NMFS disapproved that

category because of several flaws that

were described in the proposed rule.

The Council has reconsidered the

disapproval of this category and will

resubmit a revised proposal that, if

approved, would allow open access to

the non-regulated multispecies fisheries,

i.e., whiting, red hake and ocean pout.

One of the improvements made to the

permit proposal by the Council is the

designation as an open access permit,

which exempts vessels in this category

from the upgrade requirements.

As to eligibility requirements for the

new limited-access hook-gear permit

category, Amendment 7’s deadline for

filing logs for the period June 1, 1994–

June 1, 1995 was established as January

26, 1996, for purposes of qualifying into

the fishery. This deadline is much more

liberal than the Council’s requirement

that all logs be filed in a timely manner,

i.e., within 15 days of the fishing trip.

Additionally, those applicants denied a

new limited-access hook-gear permit

may appeal any denial under the

multispecies regulations.

And finally, the commenter

concerned about qualifying for the

Hook-Gear-Only permit will have two

options: (1) A vessel owner may elect to

fish with hand-held gear only and land

up to a total of 300 lb (136.1 kg) of CHY,

or (2) a vessel owner may elect to apply

for the hook-only limited access permit

and, if denied, may appeal the denial on

the basis that circumstances beyond the

applicant’s control prevented

attainment of the qualifying criteria.

3. Comment on the Framework

Provision for Annual Adjustments to

TACs and Restrictions

Comment 3: The Maine DMR stated

that a 2-year adjustment process, with

frameworks in the interim, would

provide a more constructive and

science-based process than the annual

adjustment process.

Another commenter stated that the

tight timeline established in the

framework adjustment process that

provides only 1 month prior to the

beginning of a fishing year to adapt to

the adjusted measures is insufficient.

Response: The changing conditions of

fish stocks warrant that frameworking

occur at least annually, while

considering factors such as the most

recent landings data as it compares with

the previous year’s target total allowable

catches. The timeline established for the

framework adjustment process was

decided on after consideration of

comments and public input during

public hearings on the Amendment.

Similarly, the adjustments that may be

proposed as a result of the framework

process will undergo a public

participation period, during which

sufficiency of notice prior to the fishing

year can be factored in as the Council

deliberates on the adjustments. The

alternatives to this timeframe are to

reduce the time period for public input

or, to begin the adjustment process

earlier in the year. This latter alternative

is not desirable because important data

and information about the fishery that

should be considered will most likely be

unavailable earlier in the year.

In addition, while a final rule may be

published 1 month prior to its effective

date, this process begins 6 months in

advance of the next fishing year to allow

the public several opportunities to

participate in development of measures,

to become aware of changes that would

result from implementation, and to

prepare for implementation in its final

form.

Comment 4: An environmental

organization stated that the process for

annual review and adjustment of

management measures described in

§ 651.40(a) of the proposed rule is too

open-ended and likely to result in a

stalemate between the Council and the

Regional Director. Under § 651.40(a)(6),

if the Council fails to submit a

recommendation to the Regional

Director that meets the FMP goals and

objectives, and the Council also rejects

all other options developed by the

Multispecies Monitoring Committee,

then the Regional Director must resort to

emergency regulations and/or a

Secretarial amendment.

The commenter recommended that

§ 651.40(a) be disapproved (in whole or

in part) until it includes default annual

adjustments that reflect how the actual

catch compares to the target TACs or

target catch rates. It opines that the

catch of at least cod and yellowtail

flounder in the 1996 fishing year is

likely to far exceed the target TACs, so

that DAS reductions initially assigned

for the 1997 fishing year would be

grossly inadequate to reduce fishing

mortality to F0.1. The commenter

included suggested language for a

default annual adjustment specification,

which it feels is needed because the

Council has a history of being unable to

make decisions quickly for conservation

purposes that are unpopular with

commercial fishermen.

Response: If the resource continues to

decline in the short-term, NMFS expects

the Council to be confronted with

difficult decisions regarding

adjustments to measures, just as it was

confronted by difficult options for this

Amendment. The framework provision

of the FMP was approved because

NMFS believes the Council will submit

an appropriate recommendation even if

those of the Monitoring Committee are

rejected. The default mechanism, in

terms of overall resource protection, is

to keep present restrictions in place. To

disapprove this measure would leave no

adjustment mechanism in place.

4. Comments on the Need for

Amendment 7 and the Scientific Basis

for the FMP

Comment 5: A commenter stated that

the proposed rule identifies only a GB

and SNE yellowtail flounder stock in

Table 1 of its specification of 1996

TACs. He points out that NMFS, in its

‘‘Status of Fishery Resources off the

Northeastern U.S. Technical

Memorandum-NMFS-NE–108,’’

continues to identify and characterize a

Cape Cod and mid-Atlantic stock as

well. His concern is that this omission

may lead to inappropriate catches based

solely on the status of the GB and SNE

stocks. He recommends that NMFS

issue a separate TAC for at least the

Cape Cod stock of yellowtail flounder

for 1996 and that the Northeast

Multispecies Monitoring Committee

consider continuing this practice in

subsequent TAC specifications.

Response: Tagging studies and

geographical patterns of landings and

survey data indicate discrete yellowtail

stocks in GB, SNE, Cape Cod and the

Mid-Atlantic. However, the Middle

Atlantic and Cape Cod yellowtail stocks

have historically been very small

relative to the SNE and GB stocks,

respectively. While NMFS recognizes

that this may no longer be the case, the

TACs specified are conservative. The

quality of available assessment data for

the Mid-Atlantic and Cape Cod stocks is

insufficient to permit a quantitative

estimate of stock abundance,

exploitation rates or TACs. The status of

all of these stocks is essentially the

same, in that they are all overexploited.

Therefore, it is appropriate to include

yellowtail flounder from Cape Cod with

the Georges Bank TAC for that species

and yellowtail flounder from the MidAtlantic with the Southern New

England TAC for that species for

management purposes. The Council will

have the option of including these

stocks within existing TACs or to

specify a separate TAC for the Cape Cod

stock, if necessary. At present there

seems to be little incentive for directed

fishing on these stocks because of their

low abundance.

Comment 6: An organization stated

that Amendment 7 is unnecessary at

this time, and, in fact, Amendment 5 is
27714 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

working and needs more time to reach

the goals of the Council and NMFS.

Response: Amendment 5 was

designed to correct the overfished

condition on the Multispecies Fishery

by a 50 percent reduction of fishing

mortality over a 5 to 7-year period.

However, by the time this amendment

took effect (in 1994), spawning stock

biomass levels for GB cod, haddock and

yellowtail were at or near historic lows

and reductions in fishing mortality of

more than 50 percent were needed

immediately to arrest further declines of

GB cod and yellowtail (advisory

presented at the August 1994 Stock

Assessment Review Committee (SARC)

plenary). By 1993, landings for GB cod,

haddock and yellowtail had declined to

30 percent of MSY; 1994 landings were

projected to decline to 23 percent of

MSY; and further declines were

projected for 1995. As reported at the

Plenary, GB haddock and yellowtail

stocks have collapsed—and it remains

clear that to avert stock collapse for GB

cod, and to begin the rebuilding process,

greater reductions in fishing mortality

over a shorter period of time are

necessary than provided for in

Amendment 5.

Comment 7: Senator Olympia J.

Snowe (ME) and Senator William S.

Cohen (ME) requested that the Secretary

establish an independent panel to

review the science that is the basis of

this plan. They further suggested that

such a review should be conducted

during the first year of the plan’s

implementation, and its results used as

adjustments for the second year of the

plan are formulated. Additionally, they

requested that the peer review include

a reassessment of the science that

supports the FMP and specifically, they

would require that scientific research

must address the effectiveness of

different management tools including

seasonal area closures and gear

modifications like mesh size.

Response: An intensive peer-review

process already exists, through the

Stock Assessment Workshop (SAW).

Assessments are prepared by

subcommittees including scientists from

state and Federal agencies and academic

institutions, reviewed by the Stock

Assessment Review Committee (SARC),

and presented to managers at SAW

Plenary sessions. Industry or other

interested parties are welcome to

participate. The SARC, and the

Multispecies Monitoring Committee

(MMC), created under the terms of

Amendment 7, will be available for

periodic reviews of the science

including evaluations of the relative

effectiveness of different management

tools. The Council can instigate such a

review through its Science and

Statistical Committee.

Comment 8: An environmental

organization stated that the measures

specified in the proposed rule cannot

result in the 80-percent reduction in

fishing mortality rate (F) that is needed

to reach the Amendment’s target of F0.1,

because the DAS reduction specified in

§ 651.22(b) for the 1997 fishing year is

only 50 percent from the initial

baseline. The F reduction that will

result from a 50-percent reduction in

DAS is certain to be less than 50 percent

because of compensatory increases in

other aspects of fishermen’s efforts. It

added that no analyses were presented

to the Council during development of

Amendment 7 that suggested that other

existing or proposed management

measures for groundfish (including the

closed areas) would accomplish the

remaining required reduction in F.

Response: NMFS understands that the

DAS reduction target is 50 percent at the

end of a 2-year timeframe. Analyses of

the effects of the closed areas

implemented by this rule were

presented to the Council which

projected that an additional 30 percent

reduction in F would be realized

through modifications which have been

made to time/area closures and

inclusion of additional vessel classes

under DAS limits. Also, the Council

will adjust the target TAC (upward or

downward) as stock size changes are

observed and will adjust the

management measures as needed to

keep catches below the target.

Comment 9: An environmental

organization stated that improvements

in spawning stock biomass (SSB)

expected under the assumptions built

into the proposed rule should be clearly

predicted, and used as a secondary

yardstick for the performance of the

overall program. Any time actual

estimated SSBs fall significantly below

predicted SSBs, reanalysis of SSB and

population projections should occur,

and emergency measures should be

adopted to restore progress toward

threshold SSBs. For this purpose of

establishing a trigger for reanalysis and

emergency measures, ‘‘fall significantly

below’’ should be defined precisely in

advance as a percentage shortfall as low

as possible approaching 10 percent, but

above the statistical margin of error.

Response: Such questions would fall

within the purview of the SARC and the

MMC. NMFS expects that the relative

effectiveness of different measures will

be examined routinely as part of the

monitoring process for Amendment 7.

Comment 10: An environmental

organization stated that tests should be

designed to measure the efficacy of each

important management measure, such

that its contribution to the overall

mortality reduction program can be

determined, and that such additional

mortality reduction measures can be

implemented with greater certainty

when target TACs are exceeded.

Examples include the seasonal closure

of certain areas, which will likely

reduce seasonal mortality, but which

may or may not reduce annual fishing

mortality, and which may or may not

enhance spawning success and

recruitment to the overall population.

Response: Again, such questions

would fall within the purview of the

SARC and the MMC.

Comment 11: An environmental

organization stated that GOM cod stocks

remain overexploited and are

inadequately addressed in the proposed

rule. It added that the proposed rule

establishes a biological reference point

for GOM cod with fishing mortality

equal to F(max)—potentially too high

for this stock, especially in light of the

uncertainty in the relationship between

fishery management practices and

actual fishing mortality—and a target

TAC that is very high.

Response: Fishing at Fmax (0.27) for

GOM cod would represent a 70-percent

reduction in fishing mortality from 1993

levels, and is in fact below the

overfishing definition level

(F20%=0.35) for this stock. NMFS

believes, based on the best scientific

information, that specification of a TAC

corresponding to the Fmax level for this

stock is appropriate as a first step in the

rebuilding process. Effects and

implications would be subject to review

by the MMC.

5. Comments on the Area Closures and

Time Periods

Comment 12: The Maine DMR stated

that the GOM closures should be

replaced with targeted closures of

specified areas based on spawning, prespawning and juvenile fish habitats.

DMR added that the proposed GOM

closures are unfocused and a relatively

ineffective conservation tool that will

have serious impacts on its industry.

Senator Olympia J. Snowe (ME) and

Senator William S. Cohen (ME) urged

that any additional closures be carefully

targeted to protect specific areas with

value as spawning, pre-spawning, and

juvenile fish habitats.

A commenter stated that the

November and December (Mid-coast)

closure may have validity for gillnets as

pertains to harbor porpoises, but that

draggers have zero interaction with

harbor porpoises.

A commenter stated that the

November and December closure time
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27715

period would cause New Hampshire

day boats (trawlers) to tie to the dock

during this 2-month period.

Another commenter stated that the

Mid-coast closure area is subject to an

additional 30-day timeframe as

compared to the other two closure areas.

The Mid-coast small vessel fleet thus

bears an additional burden when

compared to other areas with 30-day

closures.

Response: The GOM closures were

adopted as a default mechanism to meet

Amendment 7 goals while other

possible closed areas were investigated.

Because the purpose of the GOM closed

areas is to reduce fishing mortality by

the shortfall created when DAS

reductions alone were insufficient (and

not solely to protect harbor porpoises),

the impacts on the industry are

acknowledged and incorporated into the

analysis of impacts of Amendment 7.

The GOM closures, which were

previously in place to protect harbor

porpoises, now serve a dual purpose

until alternative areas are identified. A

Council subcommittee has been

assigned to examine alternative areas

having equivalent or greater value in

reducing fishing effort and will consider

changing the area closures through the

framework adjustment process.

Amendment 7 does not require

vessels to tie to the dock during the

closure periods, but many smaller

vessels are not able to fish safely

offshore, beyond the GOM area closures.

Again, the purpose of the closed areas

is to reduce fishing effort by the

shortfall created when DAS alone were

insufficient.

An alternative to the closed areas was

to reduce DAS further, but that

alternative was rejected by the Council

based, in part, on public and industry

comment which indicated a preference

for flexibility.

During the GOM closures, small

vessel owners have the option of tying

to the dock, seek alternative ports or

alternative fisheries. In regard to the 2-

month time period, although this

closure is for a longer period of time, it

occurs at a time of the year when

weather is a factor and fishing activity

is limited. Thus, to achieve equivalent

conservation benefit, a longer period of

time is necessary as compared to a

closure occurring in the spring, summer

or early fall months.

Comment 13: A commenter stated that

the larger vessels, which account for the

most groundfish harvesting capacity and

production, have the capability to

merely exit the area closures and fish

outside the boundaries thus not

contributing to any effort reduction or

fishing mortality reduction. The

commenter further stated that the

inshore and small boat sector thus bears

the most burden of the closures and

added that most of these vessels must

now enroll in the DAS program due to

elimination of the 45-ft (13.7-m)

exemption. The commenter summarized

that this is unfair and inequitable

amongst users and participants and

creates an unfair allocation

circumstance.

Response: Amendment 7 implements

a broad set of measures affecting all

sectors of the industry necessitated by

severe overfishing on cod, haddock and

yellowtail flounder. Larger vessels,

unlike small inshore vessels, contribute

to the effort reduction goals because

they are subject to additional closed

areas offshore where concentrations of

multispecies are traditionally found.

Unlike the inshore areas, which are

closed for limited periods, these

offshore areas are closed permanently.

Amendment 7 eliminates some of the

exemptions from the DAS program that

were established by Amendment 5 to

ensure that all vessels contribute toward

the rebuilding goals. Amendment 5 tried

to alleviate some of the burden on small

vessels, but it is no longer possible to do

this without sacrificing the more

rigorous conservation objectives of

Amendment 7.

Comment 14: A commenter noted that

Amendment 7 does not exempt midwater trawls from the closed areas, but

authorizes their exemption at some

future time based on the analysis of

observer data. The commentor added

that in a report given by the Regional

Director to the Council, the Regional

Director stated that preliminary data

showed zero bycatch of groundfish in

mid-water trawls. If the final analysis

bears this out, the commenter requested

that mid-water trawls be exempt from

the closed areas. The commentor added

that such an exemption would not only

address the high cost of rerigging but

would also address the possibility of

being precluded from large areas of

potential herring catch grounds. The

commentor indicated a willingness to

alleviate any enforcement concerns by

placing Vessel Monitoring Systems

(VMSs) on all of its catcher vessels.

The Maine DMR strongly urged NMFS

not to exempt mid-water trawl gear from

Amendment 7 without first determining

that this gear cannot be fished to take

significant quantities of groundfish. It

added that it had enough anecdotal

evidence to suggest that skilled skippers

with sophisticated net-monitoring

technology can fish these nets very close

to the bottom. It reiterated that its

concern is not that mid-water trawls can

be fished very cleanly but that they may

have the potential to direct on regulated

species.

Response: Amendment 7 does not

specifically exempt mid-water trawl

gear from the GOM area closures, but

allows this gear to be exempted in the

future. Even if mid-water trawlers were

allowed in the closed areas, they would

not be allowed to possess any regulated

species, therefore they would have no

incentive to direct on regulated species.

6. Comments on Minimum Mesh and

Fish Sizes

Comment 15: A commenter stated that

minimum fish sizes are responsible for

the collapse of the New England stocks

of cod, haddock and other species of

groundfish. He added that prior to

minimum size regulations, quotas and

trip limits worked quite well and all

that was needed to maintain the stocks

was 51⁄2-inch (13.97-cm) square mesh

and no minimum sizes.

Response: Many members of the

industry and the public favor minimum

sizes because allowing fish to grow to a

particular size prior to harvest can

increase yields and enhance spawning.

The need for fishing mortality

reductions is paramount, however, and

minimum size limits do not necessarily

translate into such reductions.

Possession limits and quotas were

considered during the development of

Amendment 7 and were put forth in the

public hearing document under

Alternative 4. Public response during

the hearing phase was opposed to the

use of quotas and trip limits.

Comment 16: The Maine DMR stated

that Amendment 7 does not address

increased mesh and fish sizes, and

suggests that these options should be

integrated more fully into the plan,

including new conservation

engineering. It said that NMFS’ concern

about the lack of selectivity studies for

mesh larger than regulation size (6

inches or 15.24 cm) may be somewhat

allayed by Canadian studies showing an

approximately linear relationship

between mesh and fish sizes. It added

that it is reasonable to assume that this

relationship holds for the slightly larger

meshes at issue here (7-inch (17.8-cm)

gillnets and 8-inch (20.3-cm) codends).

Another commenter stated that if 7-

inch (17.8-cm) square mesh were used

exclusively for regulated species, there

would be no need for diamond mesh

and possibly no need for a minimum

fish size, resulting in no discards.

A third commenter stated his concern

that the provision pertaining to

adjustments of minimum fish size,

originally contained in Amendment 5,

has never been adopted despite ‘‘reports

of high flatfish discard rates in
27716 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

management areas where use of square

mesh is mandatory.’’

Response: Increased mesh sizes and

increased fish sizes were addressed and

discussed as an option in the draft

public hearing document but were not

adopted by the Council. Amendment 7

continues the established minimum fish

sizes, except for some increased fish

sizes for recreational and charter/party

vessels not fishing under a DAS.

Increased mesh and fish sizes can be

accomplished under this plan through

framework action. The use of mesh size

as the sole measure to control fishing

mortality is problematic for a variety of

reasons. One reason is the wasteful and

unlawful practice of using small mesh

liners or other devices to circumvent

conservation regulations. Another is the

likelihood that a net will become

clogged during long tows, rendering the

mesh increase ineffective. Nevertheless,

7-inch (17.8-cm) mesh would contribute

toward conservation and Amendment 7

includes incentives to use larger mesh.

Use of square mesh is required in

juvenile protection areas where

concentrations of small cod and

haddock are usually found. Square

mesh is designed to allow round-shaped

fish to escape but it is not as effective

an escapement mechanism for flatfish.

Several research experiments on gear

conservation methods (some financed

by the Saltonstall-Kennedy Grant

program administered by NMFS) are

underway to devise a net configuration

that will enhance escapement of both

juvenile flat and roundfish. Meanwhile,

the Council has the option of increasing

minimum fish and mesh sizes through

framework actions, and may elect to do

so in the future.

7. Comments on the TACs

Comment 17: An association stated

that TACs should differentiate between

hook fisheries and other commercial

fisheries, and that one TAC should be

established for the longline and jig

fishery and another TAC should be

established for the other commercial

groundfish fisheries.

Response: The public hearing

document did consider allocating DAS

by gear group. Note that DAS can be

considered an extension of quotas, by

gear. This alternative was rejected by

the Council; however, it may be

reconsidered at a later time.

Comment 18: Senator Bob Smith (NH)

stated that TAC levels have been set

unrealistically low. He and other

commenters argued that such low levels

provide larger vessels with the

opportunity to consume the TAC prior

to the small-vessel fleet having an

opportunity to use their DAS.

Senators Olympia J. Snowe (ME) and

William S. Cohen (ME) stated their

concern about equity for smaller vessels

and added their concern that

Amendment 7 goes too far, too fast.

An association stated that the only

way a target TAC could alleviate a

‘‘derby-style’’ fishery and give the same

opportunity to all size class vessels

throughout the year would be to allow

fishing to continue after the target is

reached. The association asked how this

achieves conservation?

A commenter stated that the proposal

of allowing extra days for using larger

mesh while the majority uses regulated

mesh makes no sense when a TAC is in

place. He added that the vessels

selecting this large mesh alternative in

all likelihood will never get to use extra

days assigned them.

Another commenter stated that large

vessels would have access to three

different TACS under Amendment 7

while most of the New Hampshire

small-vessel fleet would have access to

only the GOM TAC.

Response: TAC levels were

established based on the Council’s

Amendment 7 objective to reduce

fishing mortality to F0.1, which

translated to the established TACs.

Additionally, Amendment 7 establishes

a target TAC system rather than one

with absolute TACs. Should a target

TAC be exceeded, the Council will

respond by adjusting the management

measures in the following fishing year

to keep catches below the target. Fishers

should understand that should the

TACs be reached during the fishing

year, the fishery will not necessarily

close, but rather, adjustments to the

measures will be made for the following

fishing year taking into account the

impact of the adjustments on different

sectors of the industry. ‘‘Target’’ TACs

rather than an absolute TAC were

adopted in part to provide equity and

fairness to the different types of

participants in the fishery. It allows the

Council to take into account impacts of

adjustment measures on different

sectors of the industry. The Council will

adjust the target TAC (upward or

downward) as stock size changes are

observed and will adjust the

management measures as needed to

keep catches below the target. This

should alleviate a ‘‘derby-style’’ fishery

and give the same opportunity to all size

class vessels throughout the year. Also,

the small-vessel fleet is not restricted by

Amendment 7 to fishing in any one area

but may move vessels to areas where

different TACs apply.

Comment 19: An environmental

organization stated that the F 0.1 target

and resulting 1996 TAC for GB haddock

are too high for the rebuilding needs of

the stock and should be reduced. It said

that at this fishing rate, the probability

of GB haddock reaching the spawning

stock threshold within 10 years is

calculated to be only 22 percent. It

added that the 1,000-lb (454-kg) trip

limit for haddock, contained in

§ 651.27(a) of the proposed rule, is more

restrictive because it is not expected to

result in landings as high as the

specified TAC for this stock. Thus, a

discrepancy exists between the 1996

TAC for this stock and the management

measures, as well as between the 1996

TAC and the rebuilding goal. It urged

NMFS to correct this discrepancy by

determining a fishing mortality rate for

GB haddock that is likely to achieve the

spawning stock threshold within ten

years, and then to respecify the 1996

TAC for this stock. It further stated that

if this is not done, the 1996 TAC will

be used to argue for less restrictive

management measures that will not

achieve the rebuilding goal of

Amendment 7 for this stock. It opined

that future TACs will be set too high if

the F target for this stock is not reduced.

Another environmental organization

opposed the increase in trip limits for

haddock from 500 lb (226.8 kg) to 1,000

lb (453.6 kg). It added that the GB

haddock fishing mortality target and

target TAC are set significantly too high

and that a specific (and lower) fishing

mortality target and target TAC should

be set for GOM haddock. It reasoned

that a higher trip limit simply increases

the incentive to continue fishing when

and where haddock bycatch occurs and

at some level creates an incentive to fish

specifically to target haddock to catch

the trip limit.

The organizations made these specific

points:

(a) The F0.1 fishing mortality target

and the resulting 2,800 mt 1996 target

TAC for GB haddock are unacceptably

high. Moreover, these targets result in

only a 22 percent probability of

rebuilding to the 20-percent SSB level

within 10 years (NEFMC, 1995, Draft

Proposals for Amendment 7 to the

Northeast Multispecies Plan, p.12). The

answer to the Council’s perceived

‘‘problem’’ that the haddock trip limit

may be too low to allow the fleet to

catch the entire GB haddock target TAC

is to reduce the GB haddock fishing

mortality target and target TAC to much

lower levels that would allow at least a

50 percent probability of rebuilding of

this stock to the 20 percent SSB levels

within a minimum of ten years.

(b) Given the extremely poor

condition of the GOM haddock stock, a

specific and very low fishing mortality

target and initial target TAC should be
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27717

set for this stock that allows a similar

rebuilding timetable and probability.

The 21st SAW Advisory Report on

Stock Status concluded that GOM

haddock biomass declined to nearly

undetectable levels over the last two or

three decades (p.28). Under this

circumstance, it is inappropriate to

manage GOM haddock with other

regulated groundfish under an aggregate

fishing mortality target of F0.1 and a

single aggregate target TAC of 25,500 mt

in 1996.

Response: These issues were

addressed at the April, 1996 meeting of

the New England Fishery Management

Council by both the Council and the

Regional Director. The 1996 TAC for

this stock is a maximum, not a quota to

be achieved, and NMFS feels that

coupled with other haddock

conservation measures, the haddock trip

limit and TAC are not inconsistent.

Under the annual frameworking

provision, NMFS and the Council will

reconsider whether various measures

related to the haddock fishery are

sufficient to meet the objectives of

Amendment 7.

NMFS is advocating very conservative

management strategies for this stock to

promote prospects for stock rebuilding,

i.e., to restore SSB to certain levels. The

haddock trip limit was established as a

disincentive to target this species on a

trip or tow. NMFS believes that an

increase from 500 lb (226.8 kg) to 1,000

lb (453.6 kg) is not effectively an

increase, considering that the former

measurement by totes has been

eliminated. That volumetric measure, in

practice, allowed vessels to land more

than the 500-lb haddock trip limit

because volumetric equivalent measures

proved to be too generous. Any

additional increase beyond 1,000 lb

(453.6 kg) in the haddock trip limit

would have to be accompanied by

compensatory measures. A trip limit

will remain in place unless and until

alternative restrictions that achieve the

same result are developed and

implemented.

Comment 20: An environmental

organization stated that the aggregate

TAC for the remaining regulated species

(other than cod, haddock, and yellowtail

flounder) as specified in the proposed

rule is set too high to prevent

overfishing of at least some of the other

regulated species. It said that the

aggregate TAC was set ‘‘at levels

corresponding to recent fishing

mortality rates to ensure that effort is

not redirected to these stocks.’’ It argued

that the report of the 21st SAW

indicates that pollock, GB winter

flounder, and both stocks of

windowpane flounder are currently at

or near record low levels of abundance

and biomass, while redfish have

continued to fail to rebuild. It said that

this indicates that recent fishing

mortality rates have been too high on at

least these four additional species.

Therefore, continued fishing at recent

rates will fail to prevent overfishing and

to allow overfished stocks to rebuild. At

a minimum, it argued, the aggregate

TAC for the remaining regulated species

needs to be recalculated to consider the

conservation needs of these other

species.

It further questioned the advisability

of including overfished species in an

aggregate TAC.

Response: NMFS has been and

remains concerned about the

conservation of each stock for a given

species within this species complex but

Amendment 7 addresses the species

rebuilding needs of CHY and deals with

the remaining multispecies as a stock

complex, in the aggregate. The national

standards require that overfishing

definitions have to be addressed for

each species of the multispecies

complex, so that the Council should

reconsider the issue annually. It is

possible that additional measures will

be required on a species by species

basis, after further analyses later (e.g.,

analysis of data from one or two fishing

years after implementation of

Amendment 7 begins). The MMC will

be charged with the responsibility for

addressing this issue and for making

appropriate management

recommendations to the Council.

Comment 21: An environmental

organization stated that the final rule

should establish in advance the specific

improvements in management programs

that would be implemented if target

TACs are exceeded by 10 percent or

more.

Response: Any specific improvements

in management programs to be made if

target TACs are exceeded would be

tailored to the situation requiring such

actions. Because of the combination of

factors that would need to be

considered, it would be difficult to

establish a fixed action in advance. Any

future action should be subject to

comment from the public at the time it

is under consideration.

8. Comments on the DAS Program

Comment 22: An association stated

that additional DAS should be offered as

an inducement to vessels converting to

hook fishing.

Response: Increases for DAS for

individual gear types were considered

in the public hearing document, but

rejected by the Council. The Council

and NMFS recognized the possible

benefits of hook fishing by allowing for

a permit in the new, hook-only limitedaccess category. The commenter’s

option was not specifically addressed by

the Council but could be considered by

the Council as a framework adjustment

measure.

Comment 23: In a joint

correspondence two associations stated

that Amendment 7 incentives that offer

additional DAS for use of larger mesh

are not equal across gear type. They

added that fishing effort restriction must

not favor one gear type over another;

otherwise anticipated conservation

benefits could be negated by gear

conversion.

Response: The Council recently

clarified that the proposed measure to

increase fishing time (DAS) for the Large

Mesh Individual DAS option would

apply to all vessels using large mesh,

whether they are trawl vessels or gillnet

vessels. This resubmitted measure of

Amendment 7, was described in a

notice of proposed rulemaking

published in the Federal Register on

April 18, 1996 (61 FR 16892), and is

designed to promote conservation by

providing an equitably applied

incentive to use nets constructed of

mesh that are larger than the minimum

size. NMFS approved the resubmitted

measure on behalf of the Secretary on

May 17, 1996.

Comment 24: A commenter stated that

Amendment 7 does away with the

‘‘layover provision,’’ which would have

done some good for the resource. He

added that it was eliminated to placate

the large boat sector. He stated that,

without this provision, large boats could

engage in back-to-back trips to the

detriment of the resource.

Response: Both the layover day

provision and the fleet blocks of time

out of the fishery have been eliminated

under the preferred alternative. Given

the 50 percent reduction in DAS

allocation, the possibility of back-toback trips undermining mortality

reduction goals does not appear to be

significant. The layover day provision

would not be effective and would be

difficult to enforce under the reduced

DAS allocations implemented by this

rule and were removed. In addition,

removal of this provision is intended to

encourage some vessels to move out of

groundfishing for significant portions of

the year.

Comment 25: A commenter stated that

vessels in the Fleet DAS permit category

are at a disadvantage when compared

with vessels in the individual DAS

category, because it gives them less

access to the resource and most of them

are smaller, more weather dependent

boats.
27718 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Response: These categories were

established by Amendment 5 after a

lengthy public hearing process and are

not changed by this rule. The principle

behind the individual DAS program is

to provide those vessels that primarily

direct their operations on multispecies a

baseline allocation of DAS that reflects

actual fishing. All other vessels were

allocated a general average of the fleet

(Fleet DAS). The Fleet DAS program

was established, in part, as a default

type allocation for vessels that could not

prove their actual DAS, vessels that did

not wish to purchase vessel monitoring

devices and other vessels that may not

have had sufficient DAS in the

groundfish fishery. Vessels that could

demonstrate that they fished more than

the fleet average could apply for an

Individual DAS permit. Individual DAS

vessels received a higher allocation of

DAS because, historically, they fished

for DAS more than the average of the

fleet. In any event, smaller vessels that

traditionally engage in day trips will

essentially be allowed twice the number

of allocated DAS because their trips will

be allocated on an hourly basis. That is,

a day trip that lasts only 12 hours will

only use up one-half of a DAS.

Comment 26: A commenter stated that

the Council acknowledged that the

method used to calculate the DAS for

the gillnet sector of the fleet was wrong.

He stated that the Council assumed it

would be corrected by a framework

adjustment. He stated that the

framework adjustment process was not

intended to be used to correct

deficiencies recognized prior to

implementation. He suggested that

Amendment 7 should be disapproved

on this basis alone.

Response: One of the disapproved

measures of the amendment was the

measure that counts gillnet DAS as time

when gear is in the water, as referenced

by the commenter. NMFS’ Office of Law

Enforcement also cited difficulties in

monitoring gear in the water. Moreover,

the Council submitted a comment on

the proposed rule stating that it is

seeking alternatives to the gillnet DAS

structure through framework action.

Until such time, the DAS counting

method will be the same as that for

other DAS categories, i.e., the time spent

away from port.

Comment 27: A commenter stated that

management’s use of DAS as effort

reduction raises questions of equity and

fairness. In support of his statement, he

asked the following questions: (1) Does

a vessel’s past history of DAS show

whether it was away from the dock for

10 or 24 hours? (2) Can a day boat that

fished 300 10- or 12-hour days in the

years that are being credited with DAS

apply those days to the current DAS

regulations? (3) Can this vessel now take

his allotted DAS and apply them to

fishing offshore with 24-hour days? (4)

Can a day boat that historically fished

120 12-hour days now be entitled to 278

days in year 1 and 176 days in year 2,

if he makes all 12-hour trips? (5) Are

these 12-hour day boats benefiting with

twice the days as boats that fish full

days? (6) Should a gillnet fleet from

Cape Cod be penalized because the

practice of ‘‘soaking’’ nets is not

acceptable to the majority of the fishing

fleet?

Response: To question (1) Yes, for

vessel trips where captains were

interviewed by a port agent, the hours

away from the dock are recorded,

however, other records are usually

needed to augment NMFS’ data because

submission of vessel trip reports was

not mandatory and not every trip could

be interviewed; (2) yes, if a vessel can

show 300 DAS, it can be allocated, as a

baseline, that many DAS; (3) yes, used

DAS are counted in hourly increments;

(4) the vessel would be subject to a 120

DAS baseline with a 10-percent

reduction for 1994 and 1995, an

additional 15 percent reduction for 1996

and a final reduction of another 15

percent for 1997; (5) DAS used is

computed in hours, therefore, any vessel

using less than 24 hours in a DAS is on

record for that portion of the day used

in hours away from the dock; (6) DAS

for gillnetters is based on time away

from the dock, which should reflect

their actual fishing time.

Notwithstanding the possibility that

vessels that fish only partial days may

be able to fish more ‘‘days’’ than their

DAS allocation appears to allow, NMFS

has determined that the overall effort

reduction measures are adequate in

achieving mortality reduction goals. If it

appears that such measures are not

effective they can be adjusted through

framework measures.

9. Comments on the Socio-economic

Analysis

Comment 28: In a joint

correspondence two associations stated

that the socio-economic statement for

Amendment 7 states that class 3 and 4

vessels will not be financially viable in

year 2. They further stated that other

fleet sectors will be viable, because the

regulations have been skewed to make

it so. They added that the Magnuson

Act, specifically, National Standard 4,

clearly states that all user groups are to

be treated equally. They further added

that the socio-economic statement was

drawn up several weeks prior to the

adoption of major segments of

Amendment 7 and that its accuracy was

questioned on numerous occasions.

They stated that the Regional Director

had also indicated publicly his concern

about it being a solid appraisal of the

future.

Response: The requirements of the

Magnuson Act require that fisheries

regulations do not discriminate against

residents of different states and that any

allocation of fishing privileges to fishers

be fair and equitable to all such fishers,

that the allocation be calculated to

promote conservation and that no

particular entity acquire an excessive

share of such privileges. The Council

and NMFS considered these factors in

developing Amendment 7 and

concluded that the measures adopted

were the best suited to provide fair and

equitable fishing opportunities to all

sectors of the fishery. As to the accuracy

of the socio-economic impact statement

(SIA), there were some changes to

specific details of various Amendment 7

regulations after the broad-scale

analyses such as the cost-benefit

analysis, the sector analysis, and the

break-even analysis in the SIA were

completed. However, the sector analysis

and the break-even analysis in the SIA

are not affected by these changes

because the analyses are based on broad

effort reduction goals, (i.e., 50-percent

and 80-percent reductions in fishing

effort). The cost-benefit analysis is also

based on total levels of effort reduction

(independent of how the reductions are

achieved) and on projected landings.

These broad-based analyses did not

change in the final weeks, nor did the

general characterizations of the fleet

change, such as are found in the

‘‘Human Environment’’ Chapter.

If the comment alludes to specific

discussions of particular measures, such

as some of the comments in the SIA, all

changes up to and including those made

at the January 25–26, 1996 Council

meeting, which included the vote to

send Amendment 7 to the Secretary,

were analyzed. Analyses to minor

changes to measures were encompassed

in the broad scale analyses.

Any and all limitations to the data

and analyses are discussed in the FSEIS.

However, NMFS stands behind the

stated quality of the data used and

academic rigor of the analyses

performed. It is true that the analyses

may be insufficient to pinpoint precise

impacts, especially for a given

individual vessel. The test of the EIS

specifically states this. The analyses do,

however, give an accurate general

picture of the range of likely impacts.

Comment 29: A commenter stated that

the only way to rebuild the stocks is to

do away with big fleet boats 60 ft and
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27719

greater in length, which caused the

stock damage in the first place.

Sen. Judd Gregg (NH) added his

concern that the amendment inequitably

treats the interests of the small-vessel

fleet relative to the large-vessel fleet or

corporate trawler fleet operating in the

GOM. He stated that without

appropriate modification, Amendment 7

threatens the economic viability of the

New England small-vessel fleet and

argued that it has a relatively small

interaction with the groundfish

population. He further stated that the

FMP failed to appropriately focus

management measures on the industry

segment responsible for pressuring the

resource.

Response: The amendment is

intended to be constructive in the long

term, that is, to rebuild the resource by

equitably applying reductions in fishing

effort and to allow vessel owners to

individually maximize their abilities

within a fair set of constraints.

Individually, large vessels do tend to

have greater fishing power and

consequently can exert more fishing

pressure on the stocks than do smaller

vessels. Smaller vessels in the 31 to 45

ft (9.5 m to 13.7 m) class (approximately

46 percent of all limited access permits)

can cumulatively exert a significant

amount of fishing effort as well as

individual vessels 60 ft and greater in

length. Because of the large reductions

in effort needed to rebuild severely

depleted groundfish stocks, all vessels

that are greater than 30 ft (9.1 m) in

length, and all other vessels formerly

exempted from the DAS effort reduction

program (Hook-Gear and Gillnet

vessels), are brought under the DAS

program. Moreover, given the variability

and types of vessels and gear used in

this fishery, it would not be possible to

design management measures with

precisely equal impact on all

participants. In approving Amendment

7, NMFS has concluded that the overall

conservation benefit of the measures

outweigh the hardship on individual

vessels.

Comment 30: In a joint

correspondence two associations stated

that the socio-economic analysis of

Amendment 7 regulations does not

include any additional monitoring and

enforcement costs, yet the document

suggests that these are likely to exceed

the projected benefits. The analysis

must factor in the cost of adding all the

previously exempted vessels to the DAS

call-in system, the cost of the vessel

tracking system (VTS) to boats and to

the Government for the monitoring

hardware and software, and the United

States Coast Guard’s (USCG) costs for

monitoring and enforcing DAS, closed

areas, gear restrictions and trip limits.

They added that the Federal

Government has committed $25 million

to the Fishing Capacity Reduction

Program. This is either a pure cost, or

the cost-benefit must be analyzed. The

loss of revenue from monkfish landings,

constrained by management measures to

reduce landings of regulated species, is

not included. They further stated that

market loss due to foreign substitutes,

and the recent policy changes in the bid

process for military fish supply, are not

included and market rebuilding costs

are not estimated.

The associations stated their

understanding that these costs, and

others yet to be anticipated, are difficult

to predict and quantify but added that

effort must be made to do so, as these

costs have the potential of negating any

estimated benefits.

Response: The FSEIS submitted by

the Council as part of Amendment 7

contains a discussion of other costs

(Appendix X, E.7.2.3.8). The FEIS

document states that many other costs

of the nature referred to by the

commenter were not considered because

they are only marginally different from

the status quo in Amendment 5 or

because the information is unavailable,

as the commenter concedes. For

instance, the marginal cost of adding

vessels to the DAS call-in system is

expected to be insignificant because the

system is in place and can easily be

upgraded to receive an increased

volume of phone calls, if necessary.

Additional costs associated with

installation of VTS systems on

individuals vessels were not considered

since Amendment 7 does not change

which vessel categories would be

required to install a VTS. Thus, VTS

costs to vessels are not affected by

Amendment 7 relative to the staus quo

(SQ).

The USCG’s estimate of potential

costs of Amendment 7 assumes that

much of the enforcement effort would

be conducted at-sea. Because of the

comparatively high-cost of at-sea

enforcement, NMFS believes that

enforcement efforts will necessarily be

land-based. During implementation of

Amendment 7, NMFS encourages

increases in sea-based support to

improve the overall effectiveness of

programs implemented under

Amendment 5, e.g., DAS compliance,

gear restrictions, etc. However, although

such costs may occur during

Amendment 7, they actually represent

programmatic improvements that could

also be expected to be made in the out

years of the status quo amendment.

Appropriate analyses of the $25

million Fishing Capacity Reduction

Program will be conducted once it has

been approved.

Losses from landings of associated

species as a result of conservation

actions directed at the regulated

groundfish species are acknowledged in

the plan. The benefits derived from

foregoing monkfish landings in order to

conserve groundfish stocks are deemed

positive. There is no way to distinguish

whether trips in which monkfish is

landed along with regulated groundfish

constitute a monkfish trip or a

groundfish trip with monkfish bycatch.

Fisheries where it is shown that bycatch

(in weight) of regulated species is less

than 5 percent are permitted to operate

under Amendment 7. This is not the

case for any monkfish fishery. A

Monkfish plan or amendment is under

development, and it is generally

acknowledged that monkfish stocks are

overexploited.

Losses in market as a result of

reduced landings under Amendment 7

are recognized. NMFS undertook a

study of the impacts of landings

reductions under Amendment 5 on

intermediate markets (Georgianna,

Dirlam and Townsend), results of which

were commented on in the FSEIS. The

costs of the steeper reduction in

landings as a result of the more rapid

effort reduction will be higher still. The

Council took the qualitative step to

modify the reduction schedule from 1 to

2 years with exactly these impacts in

mind. This will provide time for

diversification into other marine

products that would result from shifted

effort. Similarly, the Council chose

among the alternatives it considered, the

effort reduction process (DAS reduction)

least disruptive to shore-side activities.

Again, the reduction schedules

discussed are relevant to groundfish

only.

Changes in procurement contracting

is nationwide and encourages

competition within the United States

among fish producers. The intention is

to achieve greater value for dollar of

procurement. Our analyses suggests that

prices to groundfish landings will not be

significantly impacted by the removal of

a price floor in the early years of the

plan. In later years, as occasions of

congested landings occur, the removal

of this support might lower that day’s

prices somewhat from what they might

have been. However, this procedural

change would have been in effect under

either Amendment 7 or its default,

Amendment 5 as modified.

Comment 31: In a joint

correspondence, two associations stated

that the DAS reduction objectives are

based on the hypothesis that a 50-

percent reduction in DAS will achieve
27720 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

a 50-percent reduction in fishing

mortality. They argued that a 50-percent

reduction in DAS is more likely to

achieve a much higher reduction in

mortality as large number of vessels exit

the fishery because of insufficient DAS

to remain economically viable.

Response: That economic viability

will be a problem for the average trawler

as the DAS are reduced was

acknowledged in the plan and

particularly in the break-even analysis,

which analysis dealt with groundfish

days only. Lack of data on individual

vessel costs and effort precluded

prediction of the number that would

find conditions intolerable. To

compensate, a yearly adjustment

mechanism was established to attempt

to reconcile the DAS reductions with

the desired fishing mortality trajectory.

Where vessels exit the fishery and do

not exercise their DAS allocation, the

effect may result in an easing of the

reduction schedule for the remaining

vessels. This would not occur without a

lag of about 1 year. Much of this uneven

distribution of impacts might be

alleviated by programs which permit

transfers of DAS, e.g., through

consolidation. These were not included

in Amendment 7 but may be considered

in the future.

Comment 32: A commenter, on behalf

of nine offshore lobster vessels, stated

that Amendment 7 should not be

implemented until the impacts of

redirection of trawler effort on the

depletion of the lobster resource and on

gear conflicts are adequately addressed.

He stated that section E.7.1.1.2, Impact

on other fisheries, on p. 204 of the

FSEIS is totally inadequate and ignores

substantial Council comment and

deliberation on the issue of impact on

other fisheries, and also ignores the

experienced re-directed effort that is

evident from Amendment 5 and from

similar restrictions on fishing days in

the sea scallop FMP.

The commentor also stated that it is

completely disingenuous for the EIS to

say that ‘‘there is no practical way to

predict where the effort from

groundfishing will go and what the

impact of the proposed action on other

fisheries will be.’’ He argued that NMFS

has a great deal of data on the trends in

fishing effort, the productivity of

various fisheries, and the impacts

evident from the trends in shifting

fishing effort. He cites as sources NMFS

information on the value of fishing gear

lost to conflicts with trawlers over the

past few years, the analysis of the shift

in effort to the monkfish fishery, the

Fishing Industry Grant program and

USCG data.

An attorney representing a group of

offshore lobstermen mirrored the above

concerns and added that the Council

stated, in support of the emergency

action for gear conflict in southern New

England, that the gear conflicts were

related to additional regulations on the

groundfish industry which forced

vessels to fish in areas for nontraditional

species. Another commentor finds it

inconsistent that the Council can make

this statement in support of an

emergency action request and then, in

support of Amendment 7, state that the

impact cannot be quantified.

Response: As stated in the analysis of

impacts on other fisheries, the degree to

which trawlers may redirect fishing

effort onto the lobster resource cannot

be estimated at this time. NMFS

believes that such redirection would be

mitigated by the exemption program in

the GB/GOM area, which requires all

fisheries outside of the DAS program to

meet the 5-percent bycatch limitation

for regulated species.

Comment 33: A commenter stated that

a NOAA study of critical socio-cultural

issues is presently underway for the

New England fishing industry. The

commenter added that the final report

from this study of the Northeast fishery

is due by June 15, 1996, and that such

analysis of the fishery is required by the

Magnuson Act and no plan amendment

should be implemented prior to this

report.

Response: The report mentioned by

the commenter contains baseline

information about the fishing industry

that could be used for future framework

actions or FMP amendments. It was not

ready in time for the Council to consider

for Amendment 7. Amendment 7

included analyses based on the best

information available to date.

Comment 34: An association stated

that under E.O. 12866 the Agency must

submit to the Office of Information and

Regulatory Affairs (OIRA), with respect

to any significant action, the text of

proposed regulatory action, an

assessment of the costs and benefits of

the action, an assessment of alternatives,

and an analysis as to the reasons for

selecting the preferred alternative (PA).

It added that the Agency must provide

the public the information provided to

OIRA, and the changes between the

draft submitted to OIRA and the

subsequent action. It stated that it is not

clear what documents were submitted to

OIRA and what analysis was reviewed.

Response: NMFS complied with the

requirements of E.O. 12866. All public

hearing documents, as well as the

scientific, economic, and social impact

analyses, and comments to public

comments on the DSEIS, were provided

to OIRA along with a copy of the

proposed rule and its preamble. No

changes were made to the proposed rule

at the suggestion or recommendation of

OIRA.

Comment 35: An association stated

that NMFS failed to consider a wide

range of costs associated with the PA.

Response: The economic analysis

considered all relevant currently

available data. The availability of

information on the full range of

economic activities associated with

commercial fishing is quite limited.

Economic data on many shoreside

activities such as offloading, processing,

and sales of inputs to commercial

fishing vessels is simply not available.

Given this lack of data many of the

referenced economic factors could not

be incorporated into the economic

analysis. However, had these factors

been included, it is not a foregone

conclusion that they would be economic

costs. The benefit-cost analysis must

consider benefits to the Nation as a

whole. This has two ramifications. First,

losses in one region may be offset by

gains in others, leaving National income

unchanged. This might be the case if

vessels and/or crew were to leave the

Northeast and move to other regions.

Second, in over-capitalized fisheries,

reductions in resources that are devoted

to fishing may be viewed as a net gain

from a National perspective. Given the

lack of adequate economic data, it was

not possible to determine the extent to

which economic dislocations such as

crew share losses, impacts on suppliers

and processors, or the impacts of

bankruptcies might be considered

transfer payments, national economic

gains, or net losses in National income.

Comment 36: An association stated

that all the biological and economic

estimates for analyses contained in

Amendment 7 occurred outside the

public’s view. It said that it is

impossible for experts to replicate any

of the sets of projections set forth in the

supporting analysis.

Response: All of the recruitment

simulator results that included landings

streams were described at several Plan

Development Team meetings at the

Council offices and subsequently at

Council Groundfish Oversight

Committee meetings. Both types of

meetings are attended by the public. In

addition, the public hearing document

and an extensive draft EIS document

were made available to the public

months ahead of the Council vote to

adopt Amendment 7. An explicit

description of the economic information

used in the final EIS was contained in

the latter.
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27721

Comment 37: An organization stated

that the IRFA of the impacts of

Amendment 7 should contain a

description of any significant

alternatives to the proposed rule that

accomplish the stated objective and that

minimizes any significant economic

impacts of the proposed rule on small

business. The organization further

stated that the final regulatory flexibility

analysis (FRFA) should provide a

summary of issues raised by the public

in response to the initial analysis, along

with a description of each significant

alternative to the rule consistent with

the objective of minimizing economic

impact, and a statement of why any

alternative was rejected.

An association stated that under the

Regulatory Flexibility Act (RFA), an

agency must assess the impact of new

regulations on small business. It said

that the NMFS has failed to comply

with its obligations. It argued that the

Small Business Administration (SBA)

had been largely omitted from the

process. The intent of the statute is to

limit regulatory actions having a

significant impact on small business. It

argued that this particular preferred

alternative (PA) is specifically designed

in such a way that trawl vessels will not

be allocated sufficient DAS to break

even during year 2. This extremely

harsh anticipated result flies in the face

of the statutory intent of the RFA.

Response: Amendment 7 contains an

IRFA that incorporates supporting

analyses and portions of the amendment

that provide the public with information

on the effects on small entities of the PA

and any other alternatives considered by

the Council, including those that

minimize the impacts on small entities.

The classification section of the

proposed rule for Amendment 7 also

contains a statement regarding the

probable effects of the PA on small

entities and an initial determination

under the RFA.

NMFS transmitted a copy of the

Amendment 7 and its initial

determination that the amendment

would have a significant economic

impact on a substantial number of small

entities to the SBA shortly after NMFS’

receipt of the amendment, following

standard procedure for all new FMPs

and FMP amendments under Secretarial

review.

The preamble to this final rule

contains a summary of the comments

received by NMFS in response to the

notices of proposed rulemaking,

including comments on the IRFA,

NMFS’ responses to those comments,

and any changes made to the rule as a

result of those comments. The IFRA as

submitted by the Council, together with

the summary of the comments received

and NMFS’ responses thereto, in this

preamble, constitutes the FRFA.

Alternative actions were not taken in

response to comments on the IRFA.

NMFS believes that the responses in

this preamble to the public comments

adequately explain why NMFS did not

adopt alternatives having less of a

significant economic impact on small

entities compared to those measures in

Amendment 7 that NMFS approved.

NMFS disagrees that the final rule

violates the intent of the RFA. The

intent of the RFA is not to limit

regulations having adverse economic

impacts on small entities, rather the

intent is to have the agency focus

special attention on the impacts its

proposed actions would have on small

entities, to disclose to the public which

alternatives it considered to lessen

adverse impacts, to require the agency

to consider public comments on impacts

and alternatives, and to require the

agency to state its reasons for not

adopting an alternative having less of an

adverse impact on small entities.

The Council and Center performed

‘‘break-even’’ analyses, apart from the

benefit-cost analysis, specifically to

assess the financial viability of small

business fishing vessels. Where a

quantitative assessment was not

possible, qualitative comments noting

sectoral impacts were offered.

The differential impact of

Amendment 7 on trawlers was noted.

The cost-benefit analysis is designed to

analyze net national benefits of the

action affecting many gears and

component fisheries. A single sector

analysis is inappropriate. NMFS agrees

that trawlers will be more heavily

impacted than hook vessels and

possibly gillnetters (though this latter is

unclear since final gillnet framework

measures have not been established).

Without better cost-earnings, labor

response and alternative employment

options data, NMFS is limited in the

precision of vessel and fleet level

economic/financial impact assessments

it can make for such gear-based

allocations. Further, additional data on

family structure and community social

structure would be required for a

stronger, more comprehensive social

impact assessment of such measures.

Comment 38: An association stated

that the NMFS is required, under E.O.

12866, to seek the involvement of those

who are intended to benefit and those

who are intended to be burdened by any

regulation. It added that the Agency

must also use consensual mechanisms

for developing regulations, including

negotiated rulemaking.

Response: The Council process by its

nature involves representatives of

groups that benefit and are burdened by

the management process, either directly

as members of the Council, or indirectly

as persons with access to the public

process at the Council, oversight

committee and plan team meeting level.

Negotiated Rulemaking is not required.

Comment 39: An association stated

that the RIR understates the impact on

the trawl vessels and fails to highlight

the speculative nature of the benefits of

the preferred alternative (PA) in years 9

and 10.

Response: NMFS disagrees. The RIR

adequately covers economic impacts.

Estimates of economic benefits in years

9 and 10 are seldom as precise in this

kind of analysis as are the estimated

benefits and costs in earlier years.

Comment 40: An association stated

that the PA (Amendment 7) will result

in the insolvency of an entire sector of

the fishing industry in the Northeast. It

commented that the Agency has

selected the alternative that causes that

result even though the benefits of that

plan over the status quo (SQ)

(Amendment 5) are questionable and

even though the SQ would achieve the

same results with respect to stock

replenishment over a slightly longer

period of time while preserving all

segments of the fleet.

Response: The statement does not

accurately portray the key difference in

objectives for Amendment 5 and

Amendment 7. The stock rebuilding

objective for Amendment 5 is to reduce

fishing mortality on CHY to halt the

decline in spawning stock biomass.

Rebuilding of spawning potential under

Amendment 5 is limited to levels that

would reduce the risk of recruitment

failure, but would still leave the fishery

in an overfished state. By contrast, the

objective of Amendment 7 is to rebuild

SSB to levels that would exceed

minimum threshold levels for the three

key species. The differences between

the stock replenishment scenarios of

Amendments 5 and 7 are clearly

illustrated on pages 195–199 of

Amendment 7. In every instance,

Amendment 7 results in substantially

greater levels of SSB as compared to

Amendment 5. Thus, the contention

that Amendments 5 and 7 result in the

same level of stock replenishment

cannot be supported.

Comment 41: An association attached

a study entitled ‘‘Evaluation of the

Economic Impacts of the Proposed

Action (Section E.7.2).’’ The study, by

Dr. Andrew Plantinga and Dr. James

Wilson from the University of Maine,

acknowledged that NMFS’

methodological approach to its socio-economic
27722 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

analysis is well-accepted within the

field of economics and is applied in an

appropriate manner. It stated that some

of the specific assumptions employed in

NMFS’ analysis, however, are

unconventional and highly

questionable. The purpose of the study

is to reconsider the economic impacts of

the proposed action under a more

plausible set of assumptions.

Response: (1) Issue—Treatment of

Imports. Holding imports constant is

standard practice in economic analysis

of fisheries management, and reflects

uncertainty over how trading partners

will manage their resources within the

ten-year time horizon. Holding price

constant ignores dramatic increases in

groundfish prices over the next two

decades. Finally, the constant price

analysis offered by the commentors still

demonstrates a superior result for

Amendment 7 compared to Amendment

5, in fact, even more so than for an

assumption of constant imports.

(2) Issue—Treatment of crew costs.

Since labor employed in a fishery is a

resource that would otherwise be

employed in another activity, it has a

resource cost. Given the lack of data on

the opportunity cost of this labor, the

entire value of crew share is used in

some analyses as an economic benefit.

However, this approach is inappropriate

in overcapitalized fisheries, which is the

case for this fishery.

(3) Issue—Time horizon. A 10-year

horizon is standard practice in bioeconomic analyses of northeast

fisheries, reflecting the time period

necessary for stock recovery.

Uncertainty is addressed through the

simulation model, which is a more

rigorous approach than arbitrarily

dropping two years from the analysis.

A more detailed discussion in terms

of a response to this comment is

available upon request from the

Regional Director.

10. Comments Related to National

Standards

Comment 42: An association

commented that Amendment 7 is

inconsistent with National Standard 1

which requires the NMFS to prevent

overfishing while achieving an optimum

yield from each fishery. It added that

the varying mesh requirements from

fishery to fishery fly in the face of

National Standard 1. Moreover, NMFS’

failure to consider the unique factors of

different segments of the fleet and

different fisheries conflicts with the

goals of National Standard 1.

Response: NMFS has determined that

the provisions of Amendment 7 not

disapproved are consistent with

National Standard 1. Allowing different

meshes for several small fisheries in the

overall groundfishery reflects the effort

to incorporate unique factors of each of

these fisheries. Mesh regulations reflect

area, gear and species concerns. Small

mesh fisheries are allowed to operate

once bycatch effects have been

considered. A single mesh applied to all

fisheries would constrain more

opportunities. Benefits to other fisheries

are foregone in the closed areas

included in the plan.

Comment 43: An association stated

that National Standard 4 prohibits

discrimination among the residents of

states. It added that the regulated

species constitute a much lower

percentage of overall groundfish

landings in Maine than in any other of

the states impacted by the PA.

Moreover, the GOM cod stocks have

been determined to be healthier than GB

stocks. NMFS’ failure to account for

differences in local factors results in an

exaggerated detriment to the

commercial fishermen in a region where

the problem is less pronounced. The

association added that this failure also

violates National Standard 6, which

requires NMFS to consider variations in

fisheries, resources and catches.

In a joint correspondence, two other

associations stated that regulations

designed to rebuild stocks of CHY will

exact a higher economic burden for

Maine than for other New England

states. They stated that Maine’s industry

supports 22,000 fishing and fishingdependent jobs. They added that Maine

is a rural state with few alternative

employment opportunities. The

associations said that the percentage of

CHY in the overall groundfish landings

of Maine vessels is much less than that

of other New England states. However,

Amendment 7 fishing restrictions will

greatly constrain landings of other

regulated species, which comprise the

largest percentage of Maine’s overall

groundfish landings. They stated that

GOM stocks were determined to be

healthier than GB stocks, yet all fishing

vessels, regardless of fishing region,

must take the same direct effort

reductions as measured by DAS.

Response: NMFS recognizes that ports

in some states may be affected

differently than ports in other states.

However, National Standard 4 states

that management measures shall not

discriminate between residents of

different states. None of the measures

discriminates between residents since

all are treated similarly, and thus the

amendment is consistent with National

Standard 4. The amendment is also

consistent with National Standard 6,

because the Council and NMFS have

considered variations in fisheries

resources and catches in attempting to

recognize all sectors of the industry

through numerous exemptions and

special provisions.

The white hake fishery is of

increasing importance to many vessels

in the GOM. A white hake provision in

the amendment allows the Regional

Director, upon consideration of the

exempted bycatch criteria, to allow a

directed fishery on white hake outside

of the DAS program.

Comment 44: An association stated

that National Standard 5 requires NMFS

to promote efficiency and National

Standard 7 requires NMFS to minimize

costs and avoid unnecessary

duplication. It asserted that NMFS has

failed to consider less drastic steps, that

could be taken to achieve the same

result. It argued that regulations should

include procedures to relax restrictions

quickly. It said that the amendment’s

analysis also fails to consider

heightened enforcement costs.

Response: Amendment 7 is consistent

with both of these national standards.

The Council and NMFS considered

alternatives and included special

provisions designed to minimize to

some degree the impact of management

measures. NMFS notes it is consistent

with both standards to take actions only

‘‘where practicable.’’ Both harvesting

and enforcement costs were less for the

DAS reduction program alternative than

for several other alternatives under

discussion. For the most part the

systems necessary were adopted under

Amendment 5. Other alternatives

included strict quotas with the likely

result of fishing derbies, an extensive

closed area grid requiring enforcement

features far beyond the capability of the

region’s USCG, and complete closure of

all fisheries taking groundfish.

The rebuilding trajectory was

modified from a single year reduction in

fishing effort, to 50 percent of recent

levels, to a two-year reduction schedule.

In addition, an annual review process

will examine the deviation of the actual

from desired rebuilding trajectories.

Adjustments (increases or decrease in

fishing effort) in DAS or other

management measures will occur as

they become necessary, upon annual

review of the target TACs and actual

fisheries data for a given year.

Comment 45: An association stated

that Amendment 7 violates National

Standards 2, 4, 5, and 6 because: It uses

poor, untimely and incomplete

information; it is not fair and equitable

to all fisheries; it is not reasonably

calculated to promote conservation, but

rather downsizes fishing fleets as they

once were; it unfairly puts concerns of

one fishery over another; it discards in
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27723

favor of expediency and it does not

account or allow for variations of the

fisheries.

Response: NMFS disagrees. As

discussed above, the provisions of

Amendment 7 that were not

disapproved comply with the national

standards and other applicable laws

discussed in response to other

comments. As discussed above, NMFS

has determined that the measures are

based on the best available scientific

information (National Standard 2), do

not discriminate between residents of

different states (National Standard 4),

and are fair and equitable and

reasonably calculated to promote

conservation. NMFS notes that National

Standard 5 requires fishery management

plans to promote efficiency in

utilization of resources ‘‘where

practicable,’’ as discussed elsewhere in

response to comments; in a fishery as

severely overfished as Northeast

multispecies the ‘‘where practicable’’

caveat is a constraining factor. NMFS

has approved measures that include

several exemption programs and

management measures tailored to

account for contingencies (geographic,

seasonal) as specified in National

Standard 6.

11. Comments on the Procedural

Aspects of Amendment 7

Comment 46: In a joint

correspondence, two associations stated

that it is the responsibility of the

regional fishery management councils to

see that the intent of the Magnuson Act

is carried out so all parties concerned

are treated fairly and equally, that

public input be allowed and comments

be seriously considered in making major

decisions. The associations added that

such has not been the case in the

development of Amendment 7 by the

Council.

Response: The industry has been

actively involved in the plan process,

and their viewpoints were solicited and

taken quite seriously. In addition to its

regularly scheduled meetings, the

Council held a large number of

committee meetings during the

development of the alternatives

proposed in the public hearings. Notice

of these meetings was sent to everyone

who indicated an interest in receiving

such notice. Furthermore, these

meetings, as well as public hearings,

were open to the public and provided

an opportunity for representatives from

all the different sectors of the fishery to

be heard. As the Council developed

Amendment 7, the severity of measures

under consideration was widely

publicized in trade and general

publications. The Regional Director

personally met repeatedly with fishing

industry groups, including those

associations whose comment this

responds to, both during Council

meetings and in their home ports.

Furthermore, most of the proposals

made in the associations’ position paper

of September 19, 1995, were

incorporated in some form in

Amendment 7. These include the

removal of layover day provisions, the

elimination of exemptions for vessels

under 45 ft (13.7 m), and the closure of

areas to maximize recruitment, as well

as the continued use of DAS as a

primary management tool.

Comment 47: In a joint

correspondence, two associations stated

that the fisheries management process

failed its Magnuson Act obligation to

involve the Groundfish Industry

Advisory Committee in the

development of Amendment 7.

Response: Members of the Groundfish

Industry Advisory Committee were

notified of each scheduled Groundfish

Committee meeting and were well

represented and actively participated at

most of them. Furthermore, from

representative membership on the

Council, through the scoping process

and both formal and informal

opportunities to be heard, industry

representatives were involved in the

development of Amendment 7 from its

inception through implementation.

Comment 48: A commenter stated that

none of the alternatives to Amendment

7 presented by New Hampshire fishers

at public hearings (such as mobile gear

night closures and gillnet restrictions)

was considered by the Council.

Response: In fact, such issues were

considered by the Council. The Council

is continuing its consideration of

additional gillnet restrictions for

implementation by the Amendment 7

framework adjustment process. The

Council continues to receive testimony

regarding night closures for mobile gear,

but has not developed a proposal to

implement this measure.

Comment 49: An environmental

association urged NMFS to waive the

Administrative Procedure Act’s (APA’s)

30-day delay in effective date and

implement Amendment 7’s

conservation measures immediately

upon publication of the rule.

Response: The APA allows the 30-day

delay in effective date requirement to be

waived if there is good cause to do so.

While the commenter seeks such a

waiver in order to provide immediate

conservation benefits, NMFS believes

that it would not be reasonable to

require compliance with management

measures of this complexity on an

immediate basis. The 30-day delay in

effectiveness will provide NMFS an

opportunity to inform the public about

the new requirements. It will also

provide the industry with the time

required to make the necessary

adjustments to fishing activities and

gear.

12. Comments on Enforcement of the

Amendment

Comment 50: The Council submitted

comments addressing enforceability

issues associated with the proposed

regulations. Their comments are as

follows:

They noted that there was an error in

§ 651.22(g) with respect to the

requirement to take 20 days out of the

multispecies fishery during the

spawning season. Their suggested

revision is incorporated.

They identified a mesh size

measuring procedure to be used for

gillnets and suggested that

implementation of this procedure be

delayed until October 1996. These

recommendations were adopted.

They requested a revision of the

definition for ‘‘Port’’ to clarify when a

vessel must call under the call-in

requirements. This change is

incorporated.

NMFS notes that it has made some

changes in the final rule in response to

concerns raised by the Council (see

changes from the proposed to final rule).

13. Miscellaneous Comments

Comment 51: The Maine DMR stated,

as regards NMFS concerns expressed in

the preamble to the proposed rule about

the availability of open-access handgearonly permits to party/charter vessels

and the resulting administrative and

monitoring burden about what set of

rules party/charter boats are operating

under, that this burden could be

reduced by requiring that such vessels

only call in upon embarking on a

commercial groundfish trip. At other

times, party/charter vessels would be

presumed to be fishing under

recreational rules.

Response: The Council commented

that the call-in requirement for charter/

party vessels would not enhance

enforcement and should be

disapproved. NMFS agrees and the

measure has been disapproved.

Comment 52: An environmental

organization stated that the phrase,

‘‘FMP goals and objectives,’’ is used in

some places in § 651.40(a) while in

other places the phrase, ‘‘FMP

objective,’’ is used. It believes that the

former phrase should be used

throughout the section both because it

reflects the Council’s intention and

because it is important to assure that
27724 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

future management decisions will be

guided by the need to reach specified

spawning stock thresholds as well as by

the fishing mortality rates that the

Council hopes will achieve those

thresholds.

Response: NMFS agrees and the

commenter’s suggestion has been

adopted.

Comment 53: The Maine DMR stated

that DAS program results in

compensations by fishermen to

maintain their revenues in the face of

reduced fishing time for regulated

species. In addition to subtle increases

in fishing power, this also results in

displacement of effort onto other species

and into other regions.

It added that large mobile gear vessels

that had fished long trips on offshore

grounds are shifting their effort to

nearshore and inshore grounds to

maximize landings from fewer DAS.

This not only concentrates effort in

areas known to be important spawning

and juvenile habitat but is responsible

for a sharp escalation in mobile/fixed

gear conflicts as draggers and gillnetters

compete for the same grounds.

Response: The habitat question raised

is responded to in Section 13,

‘‘Comments on Protection of Habitat.’’

The Council is aware of the gear conflict

issue raised and is presently discussing

resolution of the problem. Any such

resolution may be effected through the

framework adjustment process.

Comment 54: Two environmental

associations opposed the proposed

exemption that could allow a directed

fishery for a regulated species (white

hake) outside of DAS restrictions. They

stated that NMFS classifies the white

hake stock as fully-exploited and at a

medium biomass level. They

recommended that increased fishing

effort on white hake should be

discouraged, not promoted.

The Maine DMR added that the white

hake exemption should only be

implemented if management is

confident that this stock is underexploited and sufficient sea-sampling

data is available to determine that this

fishery can meet the 5 percent rule

throughout the fishing year.

Response: NMFS recognizes that this

species is fully exploited. The measure

would allow the Regional Director to

exempt such a fishery in consultation

with the Council, which may be an

option if recruitment and biomass

remain stable. Any such exemption

cannot be granted if it jeopardizes FMP

goals and objectives, including not

allowing overfishing on white hake.

Another commenter stated that any new

participants to the dogfish trawl fishery

implemented by Amendment 7 should

be monitored to assure conformity with

the present gear.

The commenter cautioned that any

deviation from the gear used could

negatively alter the fishery and increase

the regulated species bycatch. He

suggested that a level of sea sampling be

mandated so that the fishery does not

proceed unmonitored to assure that

those who developed this fishery do not

see its conservation benefit

compromised.

Comment 55: An environmental

organization added that it supports the

dogfish trawl fishery on Nantucket

Shoals as long as skate bycatch

restrictions are maintained and as long

as periodic review indicates that: (1)

Bycatch rates do not escalate, and (2)

appropriate contributions to overall

fishing mortality for multispecies targets

due to this fishery are recognized.

Response: NMFS will monitor the

dogfish trawl fishery through sea

sampling, as possible. No skate bycatch

is allowed. Should the situation

warrant, the Regional Director has

discretion to cancel the exemption for

the fishery.

Comment 56: The Maine DMR stated

that it favored inclusion of two state

representatives and an industry member

on the Multispecies Monitoring

Committee.

An environmental association

recommended that membership on the

technically based MMC proposed by

Amendment 7 (61 FR 8546, March 5,

1996) include an environmental

representative and meet for purposes in

addition to the annual review (61 FR

8559, March 5, 1996). It added that the

MMC should meet when appropriate,

including whenever data suggests that

target TACs for any population are or

may be likely to be overrun by more

than 10 percent during any fishing year.

Response: The MMC is formed by the

Council. NMFS will forward the

suggestions of these commenters to the

Council.

Comment 58: A commenter stated that

the Council’s mandate, as defined by the

Magnuson Act, is to take immediate

action to conserve and manage the

fishery resources. He added that while

Amendment 7 purports to be a

conservation measure, it is rather a

measure that redirects fishing effort. He

explained that it addresses the

groundfish problem in a manner that

ignores the fishery as a whole. He said

that Amendment 7 will, in meeting its

objective, create and prolong existing

problems in the remaining fisheries.

Specifically:

1. DAS that place passive (i.e., fixed)

gear in the same category of effort with

mobile draggers and scallopers grossly

discriminates against the passive gear

fisherman. For example, an average

gillnet fisherman with 120 nets in the

water will utilize 6 nautical miles (nm)

of bottom and occupy 0.41 acre. A

dragger towing at 5.5 nm per hour will

drag over 132 miles in 24 hours of

towing and with a net sweep of 205 ft

will drag over 3,864 acres. Therefore, if

DAS are used to manage the

multispecies fishery, then DAS should

be separate for passive and mobile gear,

and DAS for passive gear should be

greater than that assigned to the mobile

gear sector.

2. The proposed bycatch of lobster (in

the mobile gear sector) should be

eliminated. The lobster fishery must

reduce lobster landings by 20 percent

over 5 years. A 200 count lobster

bycatch allowance leaves the door open

for high grading and for non-reported

landings. The value of 200 lobsters will

result in a directed fishery by those

vessels fishing outside of any DAS

restrictions for non-regulated species.

(The monetary value of the lobster is

greater than the monetary value of their

directed catch.) Finally, the lobster can

be returned unharmed to the sea, which

eliminates the wasteful discard

argument.

3. Dealers should report their

purchases from all fishermen in a

manner that allows a cross check on the

mandated vessel reporting systems.

Response: (1) Fishing mortality is not

a function of the amount of area covered

by the catch per unit of effort—a rough

equivalent is a DAS. In theory, if each

vessel gives up a DAS, each vessel

experiences a 1/365th reduction in

effort. As discussed in response to other

comments, NMFS has disapproved the

proposed measure for counting gillnet

DAS in an effort to put that gear sector

on the same basis as other gear sectors.

Also, the Council is continuing to

explore other alternatives for the gillnet

sector.

(2) The lobster bycatch allowance is

not established as a means to conserve

lobsters, but rather to reflect a legitimate

bycatch in a fishery that may target for

multispecies. If further lobster

conservation measures are needed, they

would more appropriately be addressed

in management measures designed to

protect that species.

(3) NMFS has implemented a vessel

reporting system that can be crosschecked to the dealer reporting system.

Comment 59: The Maine DMR

commented favorably on Amendment

7’s exemption for fisheries certified by

the Regional Director as having less than

a 5 percent bycatch of regulated species.

It noted with concern, however, that the

procedures for identifying candidate
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27725

fisheries for exemption and the

methodologies for establishing

certification are not yet specified or in

place. It urged the Regional Director to

develop and set forth the requirements

for application and certification as a

matter of high priority.

Response: Application procedures are

in place and this rule establishes

exemption procedures for the newly

impacted large mesh fishery. Applicant

must submit a written request to the

Regional Director. The request must at

least describe the area in which the

fishery would operate, the period in

which it would operate, the gear it

would use, the approximate number of

vessels likely to participate, and the

species it would target, retain and land.

Any evidence of the likelihood of such

a fishery succeeding should be included

with the request. The request will be

reviewed by the Regional Director and

a letter sent to the requestor explaining

the process, which follows. The request

will be analyzed to determine whether

such a fishery would meet the 5 percent

regulated species bycatch standard

which, under Amendment 7, has been

revised to reflect the Council’s intent

that it is an absolute maximum (other

restrictions on fishing gear and/or

seasons may also be considered to

reduce bycatch). The completed

analysis will be forwarded, along with

the request, to the Council, which will

place the request for a large mesh

exemption on the agenda of the next

scheduled Council meeting.

Comment 60: A commenter stated his

concern that the majority of the small

vessels fishing off of Cape Cod fish

primarily in the same area that is

designated for the small mesh dogfish

fishery. He said that these small vessels

fish exclusively for codfish and 80

percent of the fishing occurs from June

through October. He stated that the

small mesh used combined with less

than 100 percent observer coverage

raises the potential for large cod

bycatches. The commenter recommends

that regulated mesh or larger be

required. He added that permitting a

small mesh size in the dogfish fishery

simply because the dogfish are difficult

to remove from the net and does not

justify the potential harm to stocks of

CHY. He concluded that allowing

vessels to use small mesh to target

dogfish in the area can only lead to high

discarding of regulated species as well

as juvenile dogfish.

Response: The Nantucket Shoals

experimental dogfish fishery was

monitored by the Massachusetts

Division of Marine Fisheries for two

seasons. During the first year of the

program, 17 trips were observed and

bycatch of regulated multispecies was

less than one-half of 1 percent. This

program can be terminated if the

Regional Director determines that

bycatch of regulated species is

excessive.

Comment 61: An association

commented that Amendment 7 data

confirms that commercial hook fishing

is labor intensive. It stated that based on

Council data, small longline boats catch

only 300 lb (136.1 kg)/man/day as

compared to large draggers, which catch

880 lb/man/day. Amendment 7, Vol. I,

Table E.6.4.1.1.4 b & e. The commenter

added that commercial hook fishing

should thus be encouraged to reduce

employment losses.

An association commented that

restoring habitat already destroyed by

draggers would be another means of

overcoming Amendment 7’s

employment dislocation with an eye

toward rebuilding stocks in the future.

The commenter suggested that

displaced draggermen could be

temporarily employed building artificial

reefs ashore and towing them out to GB

and the Great South Channel to enhance

stock recovery. It concluded that even

buy-back vessels could be sunk offshore

to provide groundfish gardens.

Response: NMFS is not opposed to

any organization encouraging hook

fishing. For NMFS’ position on habitat

protection, see Section 14, ‘‘Comments

on Protection of Habitat.’’

Comment 62: The Connecticut DEP

commented that it shares NMFS’

concern about the condition of the

winter flounder resource (as stated in

the preamble to the proposed rule) but

does not agree that eliminating the

winter flounder possession limit in the

Mid-Atlantic (MA) Regulated Mesh Area

(RMA) will measurably improve the

stock. The commenter cited the 21st

SAW report, which states that only

about 18 percent of the SNE and MA

area winter flounder landings are from

fisheries in the MA RMA. He added

that, ‘‘(w)hatever increased management

effort the Atlantic States Marine

Fisheries Commission (ASMFC) and the

Council adopt in response to the SAW

advice will be more critical to

successful flounder rebuilding than

whether or not the 10 percent/200 lb

(90.7 kg) exemption exists during the

1996 fishing season.’’

Response: NMFS’ concern about the

winter flounder resource is not

unfounded. Winter flounder are

currently overexploited, at low biomass

levels, and in need of fishing mortality

that is reduced to as low a level as

possible. As the winter flounder stock

begins to rebuild, the Council may want

to reconsider the MA RMA exemption at

a later time.

Comment 63: In response to NMFS’

reservations expressed in the preamble

to the proposed rule, the Connecticut

DEP commented that likely changes in

winter flounder management during

1996 will make more of a difference

than the availability of state waters

winter flounder exemption programs. It

stated that the value of the program is

that it allows a state to choose not to

participate or withdraw. It said that

participating states have been in

compliance with the ASMFC plan but

expects that, by summer, most states

will (by review and revision of the plan)

be out of compliance because the

current SAW advice indicates a more

pessimistic condition of the stock than

did the previous SAW. The DEP raised

the issue of whether disapproval of this

exemption program outweighs the

problems that may arise of a

jurisdictional nature. It suggested that

the program is better off preserved and

opportunity should be provided through

ASMFC and the Council to develop a

more aggressive winter flounder

conservation program, which also

preserves the states’ right to manage

fisheries within their jurisdiction in

accordance with approved plans.

The Connecticut DEP further

commented that both Connecticut and

New York question the rationale of new

§ 651.20(j)(7), the 500-lb (226.8-kg)

possession limit when fishing in the

State Waters Exemption Program (SWP)

and not fishing under the DAS program.

It explained that under Amendment 5,

vessels enrolled in the SWP and not

fishing under DAS could retain 500 lb

(226.8 kg) of winter flounder, consistent

with the exclusive economic zone (EEZ)

fishermen not fishing under their DAS.

Under Amendment 7, however, the

possession limit of regulated species for

EEZ fishermen when not under DAS is

zero. The commenter stated that

Connecticut and New York believe that

fishermen under the SWP should be

using their DAS when in possession of

winter flounder, that when in the SWP

and not on DAS, that possession of

winter flounder should be prohibited.

The Connecticut DEP argued that there

is no indication that the Council

intended to allow 500 lb (226.8 kg) of

winter flounder in the SWP when not

fishing under DAS, while prohibiting

EEZ fishermen from any possession of

winter flounder when not fishing under

DAS.

Response: NMFS has not disapproved

the State Waters Winter Flounder

exemption program. NMFS believes the

Council intended to allow the 500-lb

(226.6-kg) limit when it voted to keep
27726 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

current exemption programs in place.

The 500-lb (226.8-kg) allowance was

established by Amendment 5.

Comment 64: The Connecticut DEP

commented that the proposal to move

the boundary of the MA area may create

an enforcement problem in Block Island

Sound. It stated that there is no longer

a territorial sea within 3 miles north and

west of Montauk, due to a supreme

court decision in the 1980’s that had the

effect of changing New York’s

‘‘baseline’’ and consequently, the

location of the New York territorial sea.

It suggested that the matter could be

resolved by revising the location of the

line as follows:

Section 651.20(d) Mid-Atlantic

regulated mesh area.

(1) Area definition. The Mid-Atlantic

regulated mesh area is that area

bounded on the east by a line running

from the Rhode Island shoreline at

Watch Hill, RI southwesterly through

Fishers Island, NY, to Orient Point, NY,

and from Orient Point southeasterly to

the intersection of the 3-nautical mile

line east of Montauk Point,

southwesterly along the 3-nautical mile

line to the intersection of 72°30′ W.

Long. and south along that line to the

intersection of the outer boundary of the

EEZ.

In support of the above, the

commenter stated that the problem with

the northern terminus of the line in the

proposed rule is that it would bisect the

shoreline along the Rhode Island south

shore, an area in which Connecticut,

Rhode Island, and New York vessels

commonly trawl. It said that it is

inadvisable to have a mesh separation

line fall in the middle of an area

commonly trawled, for enforcement

reasons. The commenter stated that its

suggested revision resolves the original

problem of splitting Long Island Sound

into two mesh management areas (the

original 72°30′ line) and avoids splitting

Block Island Sound into two mesh

management areas. The Connecticut

DEP added that its proposal has been

confirmed to be acceptable to Rhode

Island, New York, and the USCG.

Response: NMFS has adopted the

Connecticut DEP’s suggested revision as

requested by the States of Connecticut,

Rhode Island and New York, and by the

Council.

Comment 65: An association

commented that the elimination of a

proposed 100-lb (45.4-kg) groundfish

allowance for lobster trap fishermen is

unnecessary. It added that this would

prohibit a lobster fisherman from

bringing home a legal size codfish for

dinner. It further noted that if a lobster

fisherman has a multispecies permit and

his vessel is more than 30 ft (9.1 m)

long, he may not qualify for a DAS

allowance, and would still be unable to

land a (legal size) codfish.

The association added that the

proposed rule says that no groundfish

may be taken without a groundfish

permit and while no more permits will

be issued, those vessels with permits

that are over 30 ft (9.1 m) (many of the

association’s lobster vessels are in the

31- to 42-ft range (9.5 m to 12.8 m))

must prove groundfish landings of at

least 500 lb (226.8 kg) to renew their

permits. The association expressed

concern that these vessels would

actually lose their permits. The

association stated that some allowance

should be permitted if only for personal

use. Further, no restrictions are in place

to keep groundfish fishermen from

taking lobster.

The association suggested that some

small incidental groundfish catch be

allowed for all lobstermen with a

groundfish permit or that an incidental

bag limit permit be established to

accommodate these circumstances.

Response: This issue was raised and

considered by the Council. The Council

decided to disallow a regulated species

bycatch in the lobster fishery, because

the TACs are set so low and

Amendment 7 focuses on eliminating

regulated species bycatch in fisheries

capable of taking a bycatch of regulated

species.

Comment 66: An association

commented that it presumes that

restrictions on possession of groundfish

by lobstermen do not include

possession of ‘‘groundfish racks’’ that

were purchased for use as bait. It

suggests that some wording be inserted

into Amendment 7 to recognize

‘‘groundfish racks’’ as legal bait

possessed by lobster vessels.

Response: The Northeast Multispecies

regulations apply to fish and fish parts,

and as such, ‘‘groundfish racks’’ must

meet the minimum size established by

the multispecies regulations.

Furthermore, a Northeast Multispecies

permit is required to possess ‘‘racks’’ of

multispecies finfish.

Comment 67: An association

commented that it strongly opposes the

total absence of any restrictions that

would control the targeting of lobsters

by groundfish vessels. It further stated

that the absence of any wording

regarding the subject allows the

unrestricted targeting of lobsters while

fishing both during DAS and outside of

DAS. The commenter said that this

omission encourages a redirection of

effort onto the lobster resource.

The association suggested that some

significant controls on the targeting of

lobsters by groundfish vessels be

included in the plan.

Response: Such a restriction is within

the purview of the American Lobster

FMP and is not, as such an Amendment

7 issue.

Comment 68: A commenter stated that

under Amendment 7 (and

acknowledged under Amendment 5 as

well), a vessel’s length, gross registered

tonnage, and net tonnage may be

increased only once, not exceeding 10

percent of its previous size. He asserted

that, in light of encouragement to

pursue underutilized species such as

herring which are usually high-volume

fisheries, some vessels were rigged for

mid-water trawling. As a result, he

stated that his vessel is often loaded to

the point of being unsafe. He stated that

he has already experienced a swamping

and suggested that such vessels be

allowed to increase hold capacity, i.e.,

length and tonnage. He stated that the

restriction on horsepower is an adequate

control on the vessel’s fishing power

and, therefore, limiting the vessel’s

other dimensions is not necessary.

Response: This issue relates to the

provisions for vessel upgrades as

established by the regulations

implementing Amendment 5 and which

are unchanged by this rule. The purpose

of the upgrade restrictions is to prevent

limited access multispecies permit

holders from increasing the fishing

power of their vessels, exacerbating

overcapitalization and overfishing

issues in this fishery. Horsepower alone

is not a sufficient limitation of vessel

fishing power, especially where the

current horsepower of the vessel may

allow the other dimensions to be

increased. Moreover, a vessel that

wishes to fish for herring and other midwater trawl fisheries not regulated

under the Northeast Multispecies FMP

may elect to give up their limited access

permits thereby avoiding vessel upgrade

restrictions.

Comment 69: The Marine Mammal

Commission stated that to make

meaningful progress towards meeting

the Council’s revised harbor porpoise

goal and requirements of the Marine

Mammal Protection Act (MMPA), the

network of time-area closures for the

coming year should be expanded. The

Marine Mammal Commission suggested

that the Council’s Harbor Porpoise

Review Team (HPRT) meet in time to

implement any recommendations it

might make for the summer-fall fishing

season off the coast of central and

northern Maine. It also recommended,

to better cover the potential periods of

high bycatch in the Mid-coast area as

reflected by current observer data, that

the Council and/or NMFS consider
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27727

expanding the effective dates for the

Mid-coast closure to include the months

of September through December and

April through May. It added that it

believed that it would be reasonable to

allow fishing with acoustic deterrents in

the extended closure periods

recommended above provided evidence

continues to indicate their effectiveness.

Response: The Council’s HPRT met in

May to discuss additional expansion of

time-area closures. The HPRT

recommendations were scheduled for

presentation to the Marine Mammal

Committee in late May so that measures

could be considered by the full Council

at its June meeting. This will allow any

approved measures to be effective in the

mid-coast area by September. Continued

use of acoustical devices in these closed

areas will be considered based on the

results of recently concluded

experimental fisheries held this spring

and the recommendations of the Harbor

Porpoise Take Reduction Team,

expected to be available later this

summer.

Comment 70: The Marine Mammal

Commission stated that as the number

of northern right whale calves counted

in 1995 is exceeded by the 3 percent

mortality reported for the past 12

months, action must be taken to exclude

gillnet gear in times and areas where

right whales are known to occur in

greatest numbers. It added that these

areas include the Great South Channel

from April through June, and Cape Cod

Bay from February through May. It said

that action taken by the Council to

reduce entanglement threats has been

limited, i.e., it has prohibited gillnet

fishing in parts of one area (the Great

South Channel) that are important for

groundfish spawning during part of the

peak period of right whale occurrence.

The Marine Mammal Commission

acknowledged that Amendment 7

proposes expanding the scope of the

Council’s framework adjustment

procedure to include possible closures

to protect right whales and other

endangered whales, however, no further

measures are proposed in Amendment 7

in this regard and it is unclear whether

or when the Council might use this

authority.

Therefore, the Marine Mammal

Commission recommended that NMFS

either expand Amendment 7 or take

separate action under authority of the

Endangered Species Act (ESA) and

MMPA to prohibit the use of gillnets

from April through June in the Great

South Channel area, which is

designated as critical right whale

habitat).

In addition, the Marine Mammal

Commission recommended that NMFS

consult with the Commonwealth of

Massachusetts to develop measures for

gillnets and other fishing gear capable of

entangling right whales from February

through May in the Cape Cod Bay right

whale critical habitat.

Response: The issues raised in this

comment can be addressed under the

framework actions, provided for in the

final rule. The NEFMC did not forward

a recommendation to expand the Area 1

closure to include the entire right whale

critical habitat in time for

implementation this spring. In order for

NMFS to issue a regulation under the

ESA, to be effective by April 1997,

NMFS would need to publish a

proposed rule within the next few

months. NMFS is considering regulatory

options to accomplish this.

NMFS will soon sign a Cooperative

Agreement with the Commonwealth of

Massachusetts to enter into a

coordinated state-Federal effort to

protect and recover the endangered and

threatened marine fauna of

Massachusetts, including the right

whale. Once signed, both parties will

begin discussion of several endangered

species issues within the

Commonwealth, including additional

protection for the right whale critical

habitat area in Cape Cod Bay.

Comment 71: An association stated

that under the MMPA, NMFS classifies

the sink gillnet fishery as a Category I

and bottom trawl, longline, and hook

and line fisheries as Category III.

However, Amendment 7 states ‘‘it

should be noted that the bottom trawl

fishery has incidental takes of striped

dolphins, coastal bottlenose dolphins

and pilot whales.’’ The commenter

suggested that based on this finding

alone, the bottom trawl; fishery ought to

be moved to Category II.

Response: This comment relates to

MMPA requirements and is not relevant

to Amendment 7. In any event, most of

the few takes observed in this fishery

were determined to have been dead

before being taken. In addition, because

the observer coverage was low, the

estimated serious injury and mortality

levels extrapolated from those few data

points is statistically weak. Therefore, it

was determined that the ‘‘North Atlantic

Bottom Trawl’’ fishery would remain as

a Category III fishery under the MMPA

in the final rule to establish the 1996

List of Fisheries (60 FR 67063,

December 28, 1995).

Comment 72: An association stated

that closed areas should be opened to

low-impact hook fishing during nonspawning periods.

Response: One reason for the

existence of closed areas is to halt

fishing mortality during the period of

closure. Any type of fishing would

defeat the purpose of the closure.

14. Comments on Protection of Habitat

Comment 73: Many comments were

submitted raising issues related to the

impact of certain fishing gears on

marine habitat and, in some cases,

proposing restrictions on this gear and

providing incentives for other gear

types. The major points of all habitatrelated comments are summarized

below, with emphasis on comments

from the Darling Marine Center at the

University of Maine and the Cape Cod

Commercial Hook Fishermen’s

Association, because they are

representative of issues raised in the

majority of the other comments

received.

One said NMFS should be an active

partner with the Council in identifying

areas of critical concern and investigate

the use of intensive gear, and if

necessary, restrict or prohibit particular

gear use. There was general

disagreement that additional studies

would be a sufficient management

approach and further disagreement with

the decision not to include trawl gear

restrictions at this time.

One group stated that trawling and

dredging activities have the capability of

altering structurally complex bottom

communities, principally through the

removal of biomass, and that these

alterations will result in completely

different bottom communities

occupying these locations.

In discussing the legal standards of

the Magnuson Act and the APA, this

group stated that an international

consensus is emerging that management

agencies should apply a precautionary

approach to fisheries management. It

was emphasized that it would be more

prudent to protect some of these areas

as soon as possible by establishing

marine reserves to protect specific

habitat features such as habitat

complexity. Increased complexity

would result in increasing survivorship

of postlarval and early juvenile size

classes, thus increasing recruitment to

harvested populations. Given the

particular relevance of the

precautionary approach to the

numerous uncertainties involved in

managing fisheries, it would seem to be

incumbent upon managers and research

scientists alike to prevent long-term

damage to ecosystems from occurring

while their theories are being tested.

An association contends that

Amendment 7 fails the following

national standards for the reasons

mentioned: National Standard 1, by

ignoring gears’ differential habitat and

selectivity impacts; National Standard 2,
27728 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

because best science demonstrates

landings approximate catch only in the

hook fishery and also demonstrates that

heavy dragger gear damages groundfish

habitat, diminishing stocks; National

Standard 3, by ignoring management

units based on types of gear and similar

fishing practices; National Standard 4,

since allocation is necessary to

discourage dragging on hard bottom and

encourage conversion to hook fishing;

National Standard 5, as Amendment 7

does not promote long-run efficiency

since fishing power is not reduced

absent dragger gear restrictions; and

National Standard 6, by ignoring fishing

practices and by wrongly incorporating

the ‘‘fair and equitable’’ standard into

analysis of this national standard.

An association disputed the

amendment’s statement that, as

currently drafted, ‘‘(t)he Magnuson Act

limits the Council’s role to commenting

on proposals that would affect fishery

resources and their habitats.’’ In fact, the

commenter notes that beyond merely

commenting, the Council is empowered

to ‘‘make recommendations concerning

any activity . . . that, in the view of the

Council, may affect the habitat of a

fishery resource * * *.’’ 16 U.S.C.

section 1852(I)(1)(A).

Response: There is growing interest

and research into trawling and dredging

effects on bottom habitat and benthic

communities. Research to date indicates

that mobile gear is having observable

effects on the bottom in some areas and

little discernable effect in other areas.

The causes for differing effects have not

yet been identified. In addition, the

ecological impacts of mobile gear on

commercially important stocks remain

largely unknown. NMFS does not

believe that the scientific information

currently available is adequate to show

that placing restrictions on mobile gear

would result in benefits for

commercially important stocks. NMFS

does not intend to wait for ‘‘full

scientific certainty’’ before making a

recommendation that might restrict the

use of mobile gear in certain areas, but

rather is cautious in instituting such

restrictions with uncertain and

inadequate data. To seek resolution of

this issue, the NMFS and the Council

support additional research on this

topic so that future management

measures can account more for the

effects of fishing gear, especially if

additional research indicates that

recruitment could be enhanced by

reducing the amount of disturbance to

benthic habitat. Currently the

Stellwagen Bank National Marine

Sanctuary and NOAA’s National

Undersea Research Program are among

those proposing research into the effects

of bottom gear on groundfish habitat.

While NMFS and the Council are not

advocating specific management

measures to avoid or reduce the effect

of mobile fishing gear on bottom habitat,

it is worth noting that Amendment 7

does include measures such as closed

areas and overall effort reductions that

will reduce the amount of trawling and

thus reduce the frequency of

disturbance to bottom habitat used by

multispecies stocks. Although these

effort reductions will not include

permanent marine reserves that are offlimits to trawling and dredging gear,

they might provide opportunities to

investigate whether reduced pressure on

habitat from bottom gear may over time

enhance the structural complexity of the

bottom in some areas and increase

survivorship of early life stages of

commercially important species.

Regarding the role of the Council in

respect to habitat, the commenters raise

some valid points. Fishery management

plans prepared by the Council or

Secretary include habitat sections that

identify the habitat needs of the species.

NMFS works with developers and

permitting agencies to avoid, minimize

and mitigate the anticipated habitat

impacts from a proposed activity.

Fishery management plans are one tool

NMFS and the Council can use to

identify habitat essential to commercial

stocks.

The commenters disagree with the

Council’s approach taken in

Amendment 7 that concentrates on

achieving reductions in fishing

mortality through controls on fishing

effort. The supporting analyses for

Amendment 7 referenced by the

commenters demonstrates that the

Council and NMFS realize that the

recovery of severely depleted fish stocks

can be enhanced by incorporating more

comprehensive scientific information

into management decisions. In

particular, NMFS is committed to

conducting additional research into the

habitat requirements and life histories of

multispecies stocks so that future

management actions can focus on those

measures that will be most effective in

enhancing recruitment. For Amendment

7, NMFS and the Council used available

information to develop a suite of

management measures, including closed

areas and effort reductions, that will

reduce fishing pressure on the stocks as

well as their habitat. NMFS

acknowledges that more work is needed

in this area to tailor future management

actions to the biological needs of target

species, which include habitat

requirements.

As discussed throughout this

document, NMFS has determined that

Amendment 7 is consistent with the

national standards, which conclusion is

supported by the record of decision.

Comment 74: The Maine DMR stated

that the science (both data and theory)

supporting management must change

and that the importance of such

parameters as fish size and the

qualitative differences of habitat

protection at different seasons should be

more effectively integrated into the

analysis.

Response: The Council acknowledges,

in its discussion on research to support

fishery habitat protection (Volume I of

Amendment 7), the need to conduct

research to determine which habitats are

most important to support groundfish

stocks throughout their life history

stages and to understand factors

essential for sustained fisheries

production. As stated earlier, habitat

protection and conservation is an

integral component of fishery

management; NMFS strongly supports

the advancement of marine research to

improve its understanding of the

relationship between species and

habitat during various life stages. Such

information will be incorporated into

fishery management plans as it becomes

better understood and defined.

Comment 75: An association

commented that the national standards

dictate a differentiation between hook

fishing and other commercial

groundfishing, just as has occurred in

other regions of the country. It added

that the Council predictably relies on

the fair and equitable argument to

defend its failure to distinguish the

commercial hook fishery; however, a

Magnuson Act guideline states: ‘‘An

allocation need not preserve the status

quo in the fishery to qualify as fair and

equitable, if a restructuring of fishing

privileges would maximize overall

benefits.’’

An association discusses Norwegian

studies that documented how longlining

is a more size-selective fishing method

than trawling. The commenters pointed

out that these studies further proved

that yield and employment effects were

greater in the longline fishery as

compared to the trawl fishery.

Another association commented that

the Council rejected the Cape Cod

Commercial Hook Fishermen’s

Association (CCCHFA) plan because it

had no measurable objectives, only

covered a limited region, and had direct

allocation effects on a particular sector

of the industry. The association said

that the reasons for rejection are without

support and invalid as they are contrary
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27729

to the administrative record already

submitted to the Council.

Response: Gear selectivity was

discussed in the development process of

Amendment 7 but rejected as an option

in the final outcome. In making this

decision, the Council and NMFS

determined that the management regime

should, to the extent practicable,

preserve the multifaceted nature of the

Northeast Multispecies fishery. The

Council could revisit this issue at a later

time through the expansive framework

capability under Amendment 7.

Comments on Enforceability Issues

The USCG and NMFS Enforcement

requested that a vessel operator be

required to retain on board all DAS

confirmation numbers for the current

fishing year. The Council decided that

this was an unnecessary burden on the

industry and recommended instead that

they be required to retain numbers for

the current and immediately prior trips.

The Council’s recommendation is

adopted here.

They requested that the current

provision requiring a vessel to have a

standard tote on board the vessel be

retained. This provision was

inadvertently deleted in the proposed

rule and is reinserted here.

They commented that the call-in

requirement for charter/party vessels

would not enhance enforcement and

should be disapproved. The measure

has been disapproved.

They requested a change to require a

vessel operator when hailed by an

authorized officer via VHF–FM radio, to

respond to such hail. This change has

been incorporated.

The Council requested a revision to

the definition for the ‘‘Multispecies

Monitoring Committee’’ to clarify their

intent with respect to membership. This

change is incorporated in the final rule.

The Council suggested an addition to

the qualification criteria for Hook-gear

limited access permits to clarify how

recreational landings should be

handled. This change is incorporated.

Additional comments of enforcement

concern follow.

Comment 76: The USCG stated that

Amendment 7 cannot be successful

without a fully integrated approach

between its at-sea efforts and NMFS

Enforcement shoreside activities. It

stated that it is prepared to assign a high

priority to enforcement concerns.

A commenter stated that Amendment

7, without enforcement, will not affect

that segment of the fleet that

systematically uses small mesh liners

inside the regulated mesh size codend.

The commenter added that during the

lag time between assessment and final

judgment of those perpetrators that are

caught, the perpetrators still fish,

contract debt and shelter revenue. He

stated that at-sea enforcement must be

fast and without warning to be effective

and justice should be swift. He added

that a port reporting and enforcement

system that effectively detects

misreporting or no reporting of catch is

also needed.

Another commenter stated that some

kind of incentive to follow the rules is

needed. He implied that some people

who will be left in the fishery will not

follow the rules.

An association stated that TACs

encourage non-compliance in the form

of under-reporting and high-grading and

are costly to enforce.

Response: NMFS Northeast Region

enforcement personnel and the USCG

First District Commander have

integrated their planning to ensure that

there is an effective USCG—NMFS

enforcement strategy in place to support

Amendment 7. NMFS Law Enforcement

continues to work toward effective

implementation of the effort control and

monitoring measures in the

Multispecies fishery and will explore

ways to improve compliance with

existing regulations in partnership with

the USCG and natural resources

divisions of each coastal state. NMFS

Law Enforcement and NOAA General

Counsel work cooperatively to

investigate and bring to a conclusion, all

cases involving violation of the

conservation regulations. NMFS Law

Enforcement believes in the concept of

voluntary compliance and is actively

pursuing education as a means to

attainment of voluntary compliance.

This effort, combined with penalties as

appropriate, provide the incentives to

adhere to conservation regulations.

Comment 77: A commenter stated that

the present vessel call-in system to

monitor DAS is obsolete and

recommends instituting a basic VTS

without messaging capability or a

magnetic card system with PIN number

verification.

Response: Under Amendment 7

approximately 800 additional vessels

operating in the Northeast Multispecies

Fishery will be required to report their

departures and arrivals from and to port

via telephone under applicable effort

reduction reporting provisions. A

magnetic card system is not logistically

feasible as it would require installation

of a magnetic card reader device in

every operating port on the Northeast

seaboard. When a basic VTS system is

adopted, the final performance

standards for all VMS identify two-way

messaging capability as a fundamental

performance requirement for any VMS

system approved by NMFS. A VTS

requirement was established in

Amendment 5, but is awaiting testing

and vendor certification procedures to

be complete before it becomes fully

implemented.

Changes in the Final Rule From the

Proposed Rule

As discussed above, some changes

from the proposed rule were necessary

to respond to a review of the

amendment by NMFS Office of Law

Enforcement, the Council’s Law

Enforcement Committee and the USCG.

Other changes made are technical or

administrative in nature and clarify or

otherwise enhance enforcement and

administration of the fishery

management program. These changes

are listed below in the order that they

appear in the regulations.

In § 651.2, the definition for ‘‘DAS

(Days-at-Sea)’’ is revised to remove the

disapproved provision to count DAS for

gillnet vessels as time when gear is in

the water.

In § 651.2, the definition for

‘‘Multispecies Monitoring Committee’’

is revised to clarify that the number of

representatives from the affected coastal

states appointed by the ASMFC is

limited to two.

In § 651.2, definitions ‘‘Prior to

leaving port’’ and ‘‘Upon returning to

port’’ are added to clarify when a vessel

must begin and end a multispecies DAS

trip under the call-in requirement.

In § 651.2, the definition for

‘‘Standard box’’ is no longer necessary

and is removed.

In § 651.2, the definition for ‘‘Sink

gillnet’’ is revised for clarification.

In § 651.4, paragraph (b)(1)(ii)(A) is

revised to clarify the qualification

criteria for limited access Hook-Gear

permits for recreational vessels that

recorded landings by number and not by

weight.

In § 651.4, paragraph (f)(3) is revised

to clarify that a vessel has only one

opportunity to change its permit

category in 1996 during the 45-day time

period after implementation of this rule

and that this 45-day opportunity will be

available each fishing year.

In § 651.9, paragraph (a)(3) duplicated

(a)(4) in the proposed rule and is

removed, paragraphs (a)(4) through

(a)(13) are redesignated as (a)(3) through

(a)(12), respectively.

In § 651.9, paragraph (b)(4), the

prohibition on possession limits is

revised to reflect changes in § 651.27

due to the disapproval of the possession

limit for winter flounder.

In § 651.9, paragraph (b)(8), which

referenced a disapproved provision, is

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

(b)(11), respectively.

In § 651.9, paragraphs (c)(4) and (d)(4)

are added to enhance enforcement of the

provisions in § 651.33(a) and (c).

In § 651.9, paragraph (e)(8), a

reference to § 650.20 is corrected to read

§ 651.20.

In § 651.9, paragraphs (e)(12), (e)(13),

(e)(14), and (e)(15), are revised by being

made more explicit.

In § 651.9, paragraph (e)(17) is revised

by eliminating the reference to

§ 651.20(d)(3), a reference to the

disapproved winter flounder exemption

in the Mid-Atlantic regulated mesh area.

In § 651.9, paragraph (e)(22) is made

more explicit.

In § 651.9, paragraph (e)(32) is made

more explicit.

In § 651.9, paragraph (e)(38) is added

to reflect the requirement to have a

standard tote on board when fishing

under a possession limit restriction.

Section 651.10 is revised, as requested

by the Council, NMFS Enforcement and

the USCG, to include a requirement that

a vessel operator respond if hailed by an

authorized officer via VHF-FM radio.

In § 651.20, paragraphs (a)(2)(ii),

(c)(2)(ii), and (d)(2)(ii) are revised to

include cross references to the Large

Mesh Individual DAS Category in

§ 651.22(b)(7) approved under the

resubmitted portion of Amendment 7.

In § 651.20, paragraph (d)(2) is revised

to remove the reference to paragraph

(d)(3), the disapproved winter flounder

possession limit.

In § 651.20, paragraph (d) the

definition of the ‘‘Mid-Atlantic

Regulated Mesh area,’’ is slightly

revised as a result of comments from

and an agreement between the states

bordering the area, the USCG and NMFS

enforcement.

In § 651.20, paragraph (d)(3) is

removed to reflect the disapproval of the

winter flounder possession limit in the

Mid-Atlantic regulated mesh area.

In § 651.20, paragraph (g) is revised to

clarify that the net measurement

procedure described referred to all nets

with the exception of gillnets. Paragraph

(g)(4) is added to include net

measurement procedures for gillnet

gear. Implementation of this procedure

is delayed to allow the gillnet fleet time

to adjust to this new procedure.

In § 651.20, paragraph (i) is revised to

clarify that scallop vessels possessing

multispecies must have a valid

multispecies permit issued under this

part.

In § 651.20 (i) and (j)(7), § 651.27, and

§ 651.33(a) and (c), a measure

inadvertently deleted in the proposed

rule, that requires vessels when subject

to a possession limit to have on board

at least one standard tote, is added.

In § 651.22, paragraphs (b)(1)(i) and

(b)(2)(i), (b)(5)(i), (b)(6)(i), and (b)(7)(i)

have been revised to reflect that the

DAS allocations for the 1996 fishing

year have been prorated based on the

amount of time remaining in the 1996

fishing year, or 83 percent.

In § 651.22, paragraphs (b)(1)(ii) and

(b)(2)(ii) are revised to reflect that

vessels holding both Gillnet and

Individual DAS category permits are to

be initially assigned into the Fleet DAS

category, rather than the Individual DAS

category.

In § 651.22, paragraph (b)(6) is revised

and paragraph (b)(7) is added to reflect

the approval of the measures included

in the resubmitted part of Amendment

7, which allows vessels the ability to

elect either the Large Mesh Fleet DAS

program or the Large Mesh Individual

DAS program.

In § 651.22, paragraph (c) is

redesignated as paragraphs (c)(1) and

(c)(2) to clarify that a vessel possessing

both a 1995 limited access Gillnet

permit and Individual DAS permit is

eligible to appeal its initial allocation of

gillnet DAS.

In § 651.22, paragraph (d)(2)(i), the

date by which a vessel may appeal its

allocation of DAS is revised to reflect a

later than anticipated implementation

date for this amendment.

In § 651.22, paragraph (g), is clarified

by replacing the phrase ‘‘fishing year’’

with ‘‘calender year’’ and by clarifying

the requirement for the 1996 calender

year.

In § 651.27, paragraph (b) is removed

to reflect that the possession limit for

winter flounder has been disapproved,

paragraph (c) is redesignated as

paragraph (b), and the title to § 651.27

was revised accordingly.

In § 651.28, paragraph (c) is removed

to reflect the disapproval of the charter/

party call-in requirement.

In § 651.29, paragraphs (b)(1), (b)(2),

(b)(4), and (b)(5), all references to

charter/party vessels are removed to

reflect that the call-in requirement for

charter/party vessels has been

disapproved.

In § 651.29, paragraph (b)(3) is revised

to clarify that DAS confirmation

numbers for the current trip and

immediately prior multispecies fishing

trip must be retained on board the

vessel.

In § 651.29, paragraph (d) is revised to

reflect the disapproval of the proposal to

count gillnet DAS as time when gillnet

gear is in the water.

In § 651.29, paragraph (e) is added to

describe the call-in requirement for the

20 day spawning season restriction.

In § 651.32, paragraph (a), the

reference to § 651.32(h) is corrected to

read § 651.21(h), and paragraph (a) is

redesignated as paragraphs (a)(1) and

(a)(2) to include gillnet area closures

that were implemented on March 5,

1996 (61 FR 8494) under Framework 14

to the FMP.

In § 651.33, paragraph (b), the phrase

‘‘and has declared into the charter/party

fishery’’ is removed to reflect that the

declaration into the charter/party

fishery has been disapproved.

In § 651.40, paragraph (a)(3), the

reference to (a)(5) is corrected to read

(a)(6).

Classification

The Regional Director determined that

Amendment 7 to the FMP is necessary

for the conservation and management of

the Northeast multispecies fishery and

that it is consistent with the Magnuson

Act and other applicable laws.

The Council prepared a FSEIS for

Amendment 7; a notice of availability

was published on February 16, 1996 (61

FR 6230). This action is expected to

have a significant economic impact on

the human environment. The Assistant

Administrator for Fisheries, NOAA

(AA), determined upon review of the

FSEIS and public comments on the

Draft SEIS that the PA of the

amendment is environmentally

preferable to the SQ. The FSEIS

demonstrates that the PA contains

management measures able to rebuild

severely depleted stocks of haddock,

cod, and yellowtail flounder; protect

harbor porpoise; provides economic and

social benefits to the fishing industry in

the long term; and should provide better

balance in the ecosystem in terms of

groundfish resources.

This final rule has been determined to

be ‘‘economically significant’’ for

purposes of E.O. 12866, but probably

will not have an annual impact on the

economy of $100 million or more, and

will not adversely affect the

productivity, environment, public

health or safety or state, local or tribal

governments or communities in the long

term. By increasing multispecies catch

rates in the long term and reducing

operating costs, this action is expected

to make the industry more productive

after recovery of multispecies stock

abundance and to increase the

competitiveness of the domestic

industry in comparison to foreign

suppliers.

In compliance with the RFA, the

Council prepared an IRFA as part of the

RIR that concluded that this action

would have significant economic

impacts on a substantial number of

small entities. The FRFA consists of the
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27731

IRFA and comments and responses in

this final rule associated with the

public’s concerns about possible effects

of this rule on small entities. Responses

to comment numbers 12, 13, 14, 18, 22,

23, 25, 26, 27, 28, 29, 35, 37, 39, 40, 43,

46, 48, 51, 58, 65, and 67 are especially

relevant to concerns of the public about

possible effects of one or more measures

contained in this rule on small entities,

often focusing on a particular group of

small entities. The measures contained

in this rule are restrictive, and impacts

on the industry are expected to be

significant. In the early years of the

program, some vessels may be unable to

cover their costs in part because of these

restrictions and also due to the poor

condition of the stocks. Such vessels are

expected to leave the fishery. Relative to

the SQ, however, this program is

expected to produce higher long-term

benefits to the industry and the Nation.

The majority of the vessels in the

Northeast multispecies fishery are

considered small entities. This action is

expected to reduce the overall revenues

of the multispecies industry by

approximately 10 to 25 percent in the

first 3 years of the program compared to

the SQ. The impact of the action will

not be uniform for all vessels or all

sectors. Instead, the action will have

differential effects on gear groups, with

trawlers potentially being relatively

more disadvantaged than other vessels.

This is primarily because trawlers

produce the largest share of total

multispecies landings and have higher

costs. Alternately, smaller and

independent vessels are well suited to

adapting to year to year changes in

species as availability changes.

Generally, smaller vessels are more

flexible and have lower costs. This

action will allow vessels less than or

equal to 30 ft (9.1 m) to be exempt from

the DAS program, provided they comply

with the 300-lb (136.1–kg) CHY

possession limit. The CHY comprise 15

percent of the revenue of these vessels.

The negative effects of the nonselected alternatives would be greater

than those of the selected measures.

Expected impacts of the action on crew

income are negative in the first 5 years

of the program and positive thereafter.

Likewise, the level of employment is

expected to decline in the short-term to

an undetermined extent but will

rebound over the long term. Projected

revenues from fishing will be positive

beginning in the year 2001, which will

create demand for other goods and

services in the area and lead to

increased production and employment.

The overall impacts will be positive.

The action is expected to increase net

benefits to the nation by $18 million

over the 10-year rebuilding period. The

recreational sector is not expected to be

negatively impacted by this action.

Also, regarding the RFA, steps are

being taken by NOAA to reduce the

socio-economic burden on small entities

through a buyout program, being

implemented in two phases, aimed at

reducing fishing capacity in the

groundfish fishery and offering an

economic alternative to vessel owners in

the fishery. NOAA awarded grants to 11

New England fishing vessels under a $2

million pilot buyout program in

February, 1996, in return for scrapping

their vessels and surrendering their

fishing permits. A larger vessel buyout

program for as much as $25 million is

being developed for implementation

after Amendment 7 is made effective.

Notwithstanding any other provision

of law, no person is required to respond

to nor shall a person be subject to a

penalty for failure to comply with a

collection of information subject to the

requirements of the Paperwork

Reduction Act unless that collection of

information displays a currently valid

OMB control number.

This rule contains six new collection

of information requirements subject to

the Paperwork Reduction Act. The

collection of this information has been

approved by the OMB, and the OMB

control numbers and public reporting

burden are listed as follows:

1. The Nantucket Shoals Dogfish

exemption, OMB# 0648–0202, will

require vessel notification (2 minutes/

response).

Revisions to the existing requirements

are:

2. Proof of VTS installation, OMB#

0648–0202, (2 minutes/response);

3. Call-in or card system, OMB# 0648–

0202, (2 minutes/response);

4. Limited access permit, OMB#

0648–0202. Appeal of the DAS

allocation will require written

submission (2 hours/response);

5. Limited access permit appeals,

OMB# 0648–0202, appeal of denied

permits will require written submission

(0.5 hours/response);

6. Three new vessel permit categories

(Handgear, Charter/Party and Scallop

Multispecies Possession Limit), OMB #

0648–0202, are created with no increase

in burden above that currently

associated with vessel permits.

A formal section 7 consultation under

the ESA was initiated for Amendment 7

to the FMP. In a biological opinion

dated February 16, 1996, the AA

determined that fishing activities

conducted under Amendment 7 and its

implementing regulations may affect,

but are not likely to jeopardize the

continued existence of any endangered

or threatened species under the

jurisdiction of NMFS or result in the

destruction or adverse modification of

critical habitat.

Adverse impacts on marine mammals

resulting from fishing activities

conducted under this rule are discussed

in the FSEIS.

List of Subjects in 50 CFR Part 651

Fisheries, Fishing, Reporting and

recordkeeping requirements.

Dated: May 28, 1996.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 651 is amended

to read as follows:

PART 651—NORTHEAST

MULTISPECIES FISHERY

1. The authority citation for part 651

continues to read as follows:

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

2. In § 651.2, the definition for

‘‘Charter and party boats’’, ‘‘Sink

gillnet’’, and ‘‘Standard Box’’ are

removed; the definitions for ‘‘Alewife’’,

‘‘American shad’’, ‘‘Atlantic croaker’’,

‘‘Black sea bass’’, ‘‘Blowfish’’,

‘‘Bluefish’’, ‘‘Charter or party boat or

charter/party boat’’, ‘‘Conger eels’’,

‘‘Cunner’’, ‘‘Dogfish’’, ‘‘Exempted gear’’,

‘‘Fourspot flounder’’, ‘‘Hagfish’’,

‘‘Handgear’’, ‘‘Handline or handline

gear’’, ‘‘Hickory shad’’, ‘‘John Dory’’,

‘‘Longhorn sculpin’’, ‘‘Mullet’’,

‘‘Multispecies Monitoring Committee’’,

‘‘Prior to leaving port’’, ‘‘Rod and reel’’,

‘‘Scup’’, ‘‘Sea raven’’, ‘‘Searobin’’, ‘‘Sink

gillnet or bottom-trawling gillnet’’,

‘‘Skate’’, ‘‘Spot’’, ‘‘Summer flounder’’,

‘‘Swordfish’’, ‘‘Target Total Allowable

Catch (TAC)’’, ‘‘Tautog’’, ‘‘Tilefish’’,

‘‘Upon returning to port’’, and

‘‘Weakfish’’ are added, in alphabetical

order; and the definitions for ‘‘DAS

(Day(s)-at-sea)’’, and ‘‘Out of the

multispecies fishery or DAS program’’

are revised to read as follows:

§ 651.2 Definitions.

* * * * *

Alewife means Alosa

pseudoharengus.

* * * * *

American shad means Alosa

sapidissima.

Atlantic croaker means

Micropogonias undulatus.

* * * * *

Black sea bass means Centropristis

striata.

Blowfish (puffer) means any species

in the family Tetraodontidae.
27732 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations

Bluefish means Pomatomus saltatrix.

* * * * *

Charter or party boat or charter/party

boat means any vessel carrying

passengers for hire to engage in

recreational fishing and that is not

fishing under a DAS.

* * * * *

Conger eels means Conger oceanicus.

* * * * *

Cunner means Tautogolabrus

adspersus.

DAS (Day(s)-at-sea) means the 24-

hour periods of time during which a

fishing vessel is absent from port in

which the vessel intends to fish for,

possess or land, or fishes for, possesses,

or lands regulated species.

* * * * *

Dogfish means spiny dogfish, Squalus

acanthias, or smooth dogfish, Mustelus

canis.

* * * * *

Exempted gear means gear that is

deemed to be not capable of catching

multispecies finfish and includes:

Pelagic hook and line, pelagic longline,

spears, rakes, diving gear, cast nets,

tongs, harpoons, weirs, dipnets, stop

nets, pound nets, pelagic gillnets, pots

and traps, purse seines, shrimp trawls

(with a properly configured grate as

defined under this part), and mid-water

trawls.

* * * * *

Fourspot flounder means Paralichthys

oblongus.

* * * * *

Hagfish means Myxine glutinosa.

Handgear means handline or rod and

reel gear.

Handline or handline gear means

fishing gear that is released by hand and

consists of one main line to which is

attached up to two leaders for a total of

not more than three hooks. Handlines

are retrieved only by hand, not by

mechanical means.

* * * * *

Hickory shad means Alosa mediocris.

* * * * *

John Dory means Zenopsis conchifera.

* * * * *

Longhorn sculpin means

Myoxocephalus octodecimspinosus.

* * * * *

Mullet means any species in the

family Mugilidae.

* * * * *

Multispecies Monitoring Committee

means a team of scientific and technical

staff appointed by the Council to

review, analyze, and recommend

adjustments to the management

measures. The team will consist of staff

from the New England and Mid-Atlantic

Fishery Management Councils, the

NMFS Northeast Regional Office, the

NEFSC, the U.S. Coast Guard, an

industry representative, and up to two

representatives from each affected

coastal state appointed by the Atlantic

States Marine Fisheries Commission.

* * * * *

Out of the multispecies fishery or DAS

program means the period of time

during which a vessel is absent from

port and is not fishing for regulated

species under the multispecies DAS

program.

* * * * *

Prior to leaving port, for purposes of

the notification systems described in

§ 651.29, means prior to departing from

the last dock or mooring in port to

engage in fishing, including the

transport of fish to another port.

* * * * *

Rod and reel means a hand-held

(including rod holder) fishing rod with

a manually operated reel attached.

* * * * *

Scup means Stenotomus chrysops.

Sea raven means Hemitripterus

americanus.

Searobin means any species in the

family Triglidae.

Sink gillnet or bottom-tending gillnet

means any gillnet, anchored or

otherwise, that is designed to be, or is

fished on or near the bottom in the

lower third of the water column.

Skate means any species in the family

Rajidae.

Spot means Leiostomus xanthurus.

* * * * *

Summer flounder means Paralichthys

dentatus.

Swordfish means Xiphias gladius.

Target Total Allowable Catch (TAC)

means the annual domestic harvest

targets for regulated species.

Tautog (blackfish) means Tautoga

onitis.

* * * * *

Tilefish means Lopholatilus

chamaeleonticeps.

* * * * *

Upon returning to port, for purposes

of the call-in notification system, means

the first point when a vessel ties up at

a dock or mooring in a port at the end

of a fishing trip.

* * * * *

Weakfish means Cynoscion regalis.

* * * * *

3. In § 651.4, paragraphs (a), (b), (c),

(e), (f), (h)(1)(ii), (h)(1)(iii), and (q) are

revised to read as follows:

§ 651.4 Vessel permits.

* * * * *

(a) General. Any vessel of the United

States, including a charter or party boat,

must have been issued and have on

board a valid Federal multispecies

permit issued under this part to fish for,

possess or land multispecies finfish in

or from the EEZ. Recreational vessels

and vessels fishing for multispecies

exclusively in state waters are exempt

from this requirement.

(b) Limited access permits—(1)

Eligibility—(i) Limited access

multispecies permit. To be eligible for a

multispecies limited access permit,

specified in § 651.22, in 1996 and

thereafter, a vessel must have been

issued a limited access multispecies

permit for the preceding year, must be

replacing a vessel that was issued a

limited access multispecies permit for

the preceding year, or must qualify for

a 1996 limited access multispecies

permit under paragraph (b)(1)(ii) of this

section.

(ii) Limited access Hook-Gear permit.

A vessel issued a 1995 open access

Hook-Gear permit may apply for and

obtain a 1996 limited access Hook-Gear

permit provided it meets the criteria for

eligibility described below. Vessels

must apply for a limited access HookGear permit before September 1, 1996,

to receive an automatic mailing of an

application to renew their permit in

1997 and to be ensured that their permit

application will be processed within the

30 days allowed under paragraph (e) of

this section. Vessels applying after

December 31, 1996, will be ineligible to

apply for a 1997 limited access HookGear permit. A vessel qualifying for a

limited access Hook-Gear permit may

not change its limited access permit

category. The criteria for eligibility are

as follows:

(A) The vessel held a 1995 open

access Hook-Gear permit and submitted

to the Regional Director, no later than

January 26, 1996, fishing log reports

dated between June 1, 1994 and June 1,

1995, when fishing with hook gear

under the open access Hook-Gear

permit, documenting landings of at least

500 lb (226.8 kg) of multispecies finfish;

or its equivalent in numbers of fish; or

(B) The vessel is replacing a vessel

that meets the criteria set forth in

paragraph (b)(1)(ii)(A) of this section.

(2) Qualification restriction. Unless

the Regional Director determines to the

contrary, no more than one vessel may

qualify, at any one time, for a limited

access multispecies permit based on

that or another vessel’s fishing and

permit history. If more than one vessel

owner claims eligibility for a limited

access multispecies permit, based on

one vessel’s fishing and permit history,

the Regional Director shall determine

who is entitled to qualify for the limited

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)

of this section.

(3) Change in ownership. The fishing

and permit history of a vessel is

presumed to transfer with the vessel

whenever it is bought, sold, or

otherwise transferred, unless there is a

written agreement, signed by the

transferor/seller and transferee/buyer, or

other credible written evidence,

verifying that the transferor/seller is

retaining the vessel’s fishing and permit

history for purposes of replacing the

vessel.

(4) Replacement vessels. To be

eligible for a limited access permit

under this section, the replacement

vessel must meet the following criteria

and any applicable criteria under

paragraph (b)(5) of this section:

(i) The replacement vessel’s

horsepower may not exceed by more

than 20 percent the horsepower of the

vessel that was initially issued a limited

access multispecies permit as of the date

the initial vessel applied for such

permit.

(ii) The replacement vessel’s length,

gross registered tonnage, and net

tonnage may not exceed by more than

10 percent the length, gross registered

tonnage, and net tonnage of the vessel

that was initially issued a limited access

multispecies permit as of the date the

initial vessel applied for such permit.

For purposes of this paragraph, a vessel

not required to be documented under

title 46, U.S.C. will be considered to be

5 net tons. For undocumented vessels,

gross registered tonnage does not apply.

(5) Upgraded vessel. To remain

eligible to retain a valid limited access

permit under this part, or to apply for

or renew a limited access permit under

this part, a vessel may be upgraded,

whether through refitting or

replacement, only if the upgrade

complies with the following limitations:

(i) The vessel’s horsepower may be

increased, whether through refitting or

replacement, only once. Such an

increase may not exceed 20 percent of

the horsepower of the vessel initially

issued a limited access multispecies

permit as of the date the initial vessel

applied for such permit.

(ii) The vessel’s length, gross

registered tonnage, and net tonnage may

be upgraded, whether through refitting

or replacement, only once. Such an

increase shall not exceed 10 percent

each of the length, gross registered

tonnage, and net tonnage of the vessel

initially issued a limited access

multispecies permit as of the date the

initial vessel applied for such permit.

This limitation allows only one

upgrade, at which time any or all three

specifications of vessel size may be

increased. This type of upgrade may be

done separately from an engine

horsepower upgrade.

(6) Consolidation restriction. Limited

access permits under this permit and

DAS allocations may not be combined

or consolidated.

(7) Appeal of denial of limited access

multispecies permit.

(i) Any applicant eligible to apply for

an initial limited access Hook-Gear

permit who is denied such permit may

appeal the denial to the Regional

Director within 30 days of the notice of

denial. Any such appeal must be based

on one or more of the following

grounds, must be in writing, and must

state the grounds for the appeal:

(A) The information used by the

Regional Director was based on

mistaken or incorrect data;

(B) The applicant was prevented by

circumstances beyond his/her control

from meeting relevant criteria; or

(C) The applicant has new or

additional information.

(ii) The Regional Director will appoint

a designee who will make the initial

decision on the appeal.

(iii) The appellant may request a

review of the initial decision by the

Regional Director by so requesting in

writing within 30 days of the notice of

the initial decision. If the appellant does

not request a review of the initial

decision within 30 days, the initial

decision shall become the final

administrative action of the Department

of Commerce.

(iv) Upon receiving the findings and

a recommendation, the Regional

Director will issue a final decision on

the appeal. The Regional Director’s

decision is the final administrative

action of the Department of Commerce.

(v) Status of vessels pending appeal of

a limited access permit denial. A vessel

denied a limited access Hook-Gear

permit may fish under the limited

access Hook-Gear category, provided

that the denial has been appealed, the

appeal is pending, and the vessel has on

board a letter from the Regional Director

authorizing the vessel to fish under the

limited access Hook-Gear category. The

Regional Director will issue such a letter

for the pendency of any appeal. Any

such decision is the final administrative

action of the Department of Commerce

on allowable fishing activity pending a

final decision on the appeal. The

authorizing letter must be carried on

board the vessel. If the appeal is finally

denied, the Regional Director shall send

a notice of final denial to the vessel

owner; the authorizing letter becomes

invalid 5 days after receipt of the notice

of denial.

(8) Limited access permit restrictions.

(i) A vessel may be issued a limited

access multispecies permit in only one

category during a fishing year. Vessels

are prohibited from changing limited

access multispecies permit categories

during the fishing year, except as

provided in paragraph (f)(3) of this

section. A vessel issued a limited access

Hook-Gear permit may not change its

limited access permit category at any

time.

(ii) With the exception of

Combination Vessels, sea scallop dredge

vessels are prohibited from being issued

a limited access multispecies permits.

(9) Confirmation of Permit History.

Notwithstanding any other provisions of

this part, a person who does not

currently own a fishing vessel, but who

has owned a qualifying vessel that has

sunk, been destroyed, or transferred to

another person, may apply for and

receive a Confirmation of Permit History

if the fishing and permit history of such

vessel has been retained lawfully by the

applicant. To be eligible to obtain a

Confirmation of Permit History, the

applicant must show that the qualifying

vessel meets the eligibility

requirements, as applicable, in this part.

Issuance of a valid and current

Confirmation of Permit History

preserves the eligibility of the applicant

to apply for or renew a limited access

multispecies permit for a replacement

vessel based on the qualifying vessel’s

fishing and permit history at a

subsequent time, subject to the

replacement provisions specified at

§ 651.4. A Confirmation of Permit

History must be applied for and

received on an annual basis in order for

the applicant to preserve the fishing

rights and limited access eligibility of

the qualifying vessel. If fishing

privileges have been assigned or

allocated previously under this part

based on the qualifying vessel’s fishing

and permit history, the Confirmation of

Permit History also preserves such

fishing privileges. Any decision

regarding the issuance of a Confirmation

of Permit History for a qualifying vessel

that has applied for or been issued

previously a limited access permit

under this part is a final agency action

subject to judicial review under 5 U.S.C.

704. Applications for a Confirmation of

Permit History must be received by the

Regional Director by the beginning of

the fishing year for which the

Confirmation of Permit History is

required. Information requirements for

the Confirmation of Permit History

application shall be the same as those

for a limited access permit with any

request for information about the vessel

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

transferred. Vessel permit applicants

who have been issued a Confirmation of

Permit History and who wish to obtain

a vessel permit for a replacement vessel

based upon the previous vessel history

may do so pursuant to paragraph (b)(4)

of this section.

(c) Open access permits. Subject to

the restrictions in § 651.33, a U. S.

vessel that has not been issued a limited

access multispecies permit may obtain

an open access Handgear or Charter/

party permit. Vessels that are issued a

valid scallop limited access permit

under § 650.4 of this chapter and that

have not been issued a limited access

multispecies permit may obtain an open

access Scallop Multispecies Possession

Limit permit.

* * * * *

(e) Vessel permit application.

Applicants for a permit under this

section must submit a completed

application on an appropriate form

obtained from the Regional Director.

The application must be signed by the

owner of the vessel, or the owner’s

authorized representative, and be

submitted to the Regional Director at

least 30 days before the date on which

the applicant desires to have the permit

made effective. The Regional Director

will notify the applicant of any

deficiency in the application pursuant

to this section. Applicants for limited

access multispecies permits shall

provide information with the

application sufficient for the Regional

Director to determine whether the vessel

meets the eligibility requirements

specified.

(f) Information requirements. (1) In

addition to applicable information

required to be provided by paragraph (e)

of this section, an application for a

permit must contain at least the

following information, and any other

information required by the Regional

Director: Vessel name; owner name,

mailing address, and telephone number;

U.S. Coast Guard documentation

number and a copy of the vessel’s

current U.S. Coast Guard documentation

or, if undocumented, state registration

number and a copy of the current state

registration; party/charter boat license;

home port and principal port of landing;

length overall; gross tonnage; net

tonnage; engine horsepower; year the

vessel was built; type of construction;

type of propulsion; approximate fishhold capacity; type of fishing gear used

by the vessel; number of crew; number

of party or charter passengers licensed

to carry (if applicable); permit category;

if the owner is a corporation, a copy of

the current Certificate of Incorporation,

or other corporate papers showing

incorporation and the names of the

current officers in the Corporation, and

the names and addresses of all

shareholders owning 25 percent or more

of the corporation’s shares; if the owner

is a partnership, a copy of the current

Partnership Agreement and the names

and addresses of all partners; if there is

more than one owner, names of all

owners owning a 25 percent interest or

more; and, name and signature of the

owner or the owner’s authorized

representative.

(2) Applications for an initial limited

access Hook-Gear permit must also

contain the following information:

(i) If the engine horsepower was

changed or a contract to change the

engine horsepower had been entered

into prior to May 1, 1996, such that it

is different from that stated in the

vessel’s most recent application for a

Federal Fisheries Permit before May 1,

1996, sufficient documentation to

ascertain the different engine

horsepower. However, the engine

replacement must be completed within

1 year of the date of when the contract

for the replacement engine was signed.

(ii) If the length, gross tonnage, or net

tonnage was changed or a contract to

change the length, gross tonnage or net

tonnage had been entered into prior to

May 1, 1996, such that it is different

from that stated in the vessel’s most

recent application for a Federal

Fisheries Permit, sufficient

documentation to ascertain the different

length, gross tonnage or net tonnage.

However, the upgrade must be

completed within 1 year from the date

when the contract for the upgrade was

signed.

(3) A vessel issued a limited access

multispecies permit may request a

change in permit category, unless

otherwise restricted by paragraph (b)(8)

of this section. In 1996, the vessel

owner, or the owner’s authorized

representative, has one opportunity to

request a change in permit category by

submitting an application to the

Regional Director by July 15, 1996. After

this date, the vessel must fish only in

the DAS program assigned for the

remainder of the 1996 fishing year and

must comply with the restrictions

applicable to such category. Any DAS

that a vessel uses prior to a change in

permit category will be counted against

its allocation received under any

subsequent permit category. For 1997

and beyond, limited access multispecies

vessels eligible to request a change in

permit category must elect a category

prior to the start of each fishing year and

will have one opportunity to request a

change in permit category by submitting

an application to the Regional Director

within 45 days of receipt of their permit.

After this date, the vessel must fish only

in the DAS program assigned for the

remainder of the fishing year and must

comply with the restrictions applicable

to such category. Any DAS that a vessel

uses prior to a change in permit category

will be counted against its allocation

received under any subsequent permit

category. A vessel issued an open access

permit may request a different open

access permit category by submitting an

application to the Regional Director at

any time.

(4) A vessel issued a limited access

combination permit or an Individual

DAS permit or a vessel applicant who

elects to use a VTS unit, is required to

submit a copy of the vendor installation

receipt from a NMFS-certified VTS

vendor as described in § 651.28(a).

* * * * *

(h) * * *

(1) * * *

(ii) The application was not received

by the Regional Director by the

deadlines set forth in paragraphs

(b)(1)(ii), and (q) of this section; or

(iii) The applicant and applicant’s

vessel failed to meet all eligibility

requirements described in paragraph

(b)(1) of this section; or

* * * * *

(q) Limited access multispecies permit

renewal. To renew or apply for a limited

access multispecies permit a completed

application must be received by the

Regional Director by the first day of the

fishing year for which the permit is

required. Failure to renew a limited

access multispecies permit in any year

bars the renewal of the permit in

subsequent years.

* * * * *

4. Section 651.9 is revised to read as

follows:

§ 651.9 Prohibitions.

(a) In addition to the general

prohibitions specified in § 620.7 of this

chapter, it is unlawful for any person

owning or operating a vessel issued a

valid Federal multispecies vessel permit

under this part, a permit under § 651.5

or a letter under § 651.4(b)(7)(v), to do

any of the following:

(1) Fail to report to the Regional

Director within 15 days any change in

the information contained in the permit

application as required under § 651.4(m)

or § 651.5(k).

(2) Fish for, possess, or land

multispecies finfish unless the operator

of the vessel has been issued an

operator’s permit under § 651.5, and a

valid permit is on board the vessel.

(3) Sell, barter, trade, or transfer, or

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

purpose, other than transport, any

multispecies, unless the dealer or

transferee has a dealer permit issued

under § 651.6.

(4) Fail to comply in an accurate and

timely fashion with the log report,

reporting, record retention, inspection,

and other requirements of § 651.7(b).

(5) Fail to affix and maintain

permanent markings as required by

§ 651.8.

(6) Enter, fail to remove gear from, or

be in the areas described in

§ 651.21(f)(1) through § 651.21(h)(1)

during the time period specified, except

as provided in § 651.21(d), (f)(2), (g)(2),

and (h)(2).

(7) Possess or land multispecies

finfish smaller than the minimum sizes

specified in § 651.23 or § 651.34, as

appropriate.

(8) Land, or possess on board a vessel,

more than the possession limits

specified in § 651.27(a), or violate any of

the other provisions of § 651.27.

(9) Land, offload, remove, or

otherwise transfer, or attempt to land,

offload, remove, or otherwise transfer

fish from one vessel to another vessel or

other floating conveyance unless

authorized in writing by the Regional

Director pursuant to § 651.30(a).

(10) Refuse or fail to carry an observer

if requested to do so by the Regional

Director.

(11) Interfere with or bar by

command, impediment, threat,

coercion, or refusal of reasonable

assistance, an observer conducting his

or her duties aboard a vessel.

(12) Fail to provide an observer with

the required food, accommodations,

access, and assistance, specified in

§ 651.31.

(b) In addition to the prohibitions

specified in paragraph (a) of this

section, it is unlawful for any person

owning or operating a vessel issued a

valid limited access multispecies permit

under § 651.4(b) or a letter under

§ 651.4(b)(7)(v), to do any of the

following:

(1) Fish for, possess, or land

multispecies finfish with or from a

vessel that has had the horsepower of

such vessel or its replacement upgraded

or increased in excess of the limitations

specified in § 651.4(b)(4) or (b)(5).

(2) Fish for, possess, or land

multispecies finfish with or from a

vessel that has had the length, gross

registered tonnage, or net tonnage of

such vessel or its replacement increased

or upgraded in excess of limitations

specified in § 651.4(b)(4) or (b)(5).

(3) Combine, transfer, or consolidate

DAS allocations.

(4) Fish for, possess at any time

during a trip, or land per trip more than

the possession limit of regulated species

specified in § 651.27(b) after using up

the vessel’s annual DAS allocation or

when not participating under the DAS

program pursuant to § 651.22, unless

otherwise exempted under

§ 651.22(b)(3) or § 651.34.

(5) Possess or land per trip more than

the possession limit specified under

§ 651.22(b)(3)(i) if the vessel has been

issued a limited access Small Vessel

permit.

(6) Fail to comply with the

restrictions on fishing and gear specified

in § 651.22(b)(4) if the vessel has been

issued a limited access Hook-Gear

permit.

(7) Fail to declare and be out of the

multispecies fishery as required by

§ 651.22(g), using the procedure

described under § 651.22(h), as

applicable.

(8) If required to have a VTS unit

specified in § 651.28(a) or § 651.29(a):

(i) Fail to have a certified, operational,

and functioning VTS unit that meets the

specifications of § 651.28(a) on board

the vessel at all times.

(ii) Fail to comply with the

notification, replacement, or any other

requirements regarding VTS usage

specified in § 651.29(a).

(9) Fail to comply with any

requirement regarding the DAS

notification specified in § 651.29(a) or

(b).

(10) Fail to comply with other

notification requirements, including a

call-in system specified in § 651.29(c), if

required by the Regional Director.

(11) Fail to provide notification of the

beginning or ending of a trip, as

required under § 651.29(b) and (d).

(c) In addition to the prohibitions

specified in paragraph (a) of this

section, it is unlawful for any person

owning or operating a vessel issued a

Handgear permit under § 651.4(c) to do

any of the following:

(1) Possess at any time during a trip,

or land per trip, more than the

possession limit of regulated species

specified in § 651.33(a), unless the

regulated species were harvested by a

charter or party vessel.

(2) Use, or possess on board, gear

capable of harvesting multispecies

finfish other than rod and reel or

handline while in possession of, or

fishing for, multispecies finfish.

(3) Possess or land multispecies

finfish during the time period specified

in § 651.33(a)(2).

(4) Violate any of the provisions of

§ 651.33(a).

(d) In addition to the prohibitions

specified in paragraph (a) of this

section, it is unlawful for any person

owning or operating a vessel issued a

Scallop Multispecies Possession Limit

permit under § 651.4(c) to do any of the

following:

(1) Possess or land more than the

possession limit of regulated species

specified in § 651.33(c).

(2) Possess or land regulated species

when not fishing under a scallop DAS.

(3) Violate any of the provisions of

§ 651.33(c).

(e) In addition to the general

prohibitions specified in § 620.7 of this

chapter and the prohibitions specified

in paragraphs (a) through (d) of this

section, it is unlawful for any person to

do any of the following:

(1) Fish for, possess, or land

multispecies finfish unless:

(i) The multispecies finfish were

being fished for or harvested by a vessel

issued a valid Federal multispecies

permit under this part, or a letter under

§ 651.4(b)(7)(v), and the operator aboard

such vessel was issued an operator’s

permit under § 651.5 and a valid permit

is on board the vessel;

(ii) The multispecies finfish were

harvested by a vessel not issued a

Federal multispecies permit that fishes

for and possesses multispecies finfish

exclusively in state waters; or

(iii) The multispecies finfish were

harvested by a recreational fishing

vessel.

(2) Sell, barter, trade, or otherwise

transfer, or attempt to sell, barter, trade,

or otherwise transfer, for a commercial

purpose, any multispecies finfish from a

trip unless the vessel is issued a valid

Federal multispecies permit under this

part, or a letter under § 651.4(b)(7)(v),

and is not fishing under the charter/

party restrictions specified in

§ 651.34(d), or unless the multispecies

finfish were harvested by a vessel that

qualifies for the exception specified in

paragraph (e)(1)(ii) of this section.

(3) To be or act as an operator of a

vessel fishing for or possessing

multispecies finfish in or from the EEZ,

or issued a Federal multispecies permit

under this part, without having been

issued and possessing a valid operator’s

permit issued under § 651.5.

(4) Purchase, possess, or receive for a

commercial purpose, or attempt to

purchase, possess, or receive for a

commercial purpose in the capacity of

a dealer, multispecies finfish taken from

a fishing vessel, unless in possession of

a valid dealer permit issued under

§ 651.6; except that this prohibition

does not apply to multispecies finfish

taken from a vessel that qualifies for the

exception specified in paragraph

(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

commercial purpose or attempt to

purchase, possess, or receive

multispecies finfish caught by a vessel

other than one issued a valid Federal

multispecies permit under this part, or

a letter under § 651.4(b)(7)(v), unless the

multispecies finfish were harvested by a

vessel that qualifies for the exception

specified in paragraph (e)(1)(ii) of this

section.

(6) Land, offload, cause to be

offloaded, sell, or transfer; or attempt to

land, offload, cause to be offloaded, sell,

or transfer multispecies finfish from a

fishing vessel, whether on land or at sea,

as an owner or operator without

accurately preparing and submitting, in

a timely fashion, the documents

required by § 651.7, unless the

multispecies finfish were harvested by a

vessel that qualifies for the exception

specified in paragraph (e)(1)(ii) of this

section.

(7) Purchase or receive multispecies

finfish, or attempt to purchase or receive

multispecies finfish, whether on land or

at sea, as a dealer without accurately

preparing, submitting in a timely

fashion, and retaining the documents

required by § 651.7.

(8) Possess or land fish caught with

nets of mesh smaller than the minimum

size specified in § 651.20 of this chapter,

or with scallop dredge gear, unless said

fish are caught, possessed or landed in

accordance with § 651.20, or unless the

vessel qualifies for the exception

specified in paragraph (e)(1)(ii) of this

section.

(9) Fish with, use, or have on board,

within the area described in

§ 651.20(a)(1) nets of mesh size smaller

than the minimum mesh size specified

in § 651.20(a)(2), except as provided in

§ 651.20 (a)(3) through (a)(6), (a)(8),

(a)(9), (e), (f), and (j), or unless the vessel

qualifies for the exception specified in

paragraph (e)(1)(ii) of this section.

(10) Fish for, harvest, possess, or land

in or from the EEZ northern shrimp,

unless such shrimp were fished for or

harvested by a vessel meeting the

requirements specified in § 651.20(a)(3).

(11) Fish within the areas described in

§ 651.20(a)(4) with nets of mesh smaller

than the minimum size specified in

§ 651.20(a)(2), unless the vessel is

issued and possesses on board the

vessel an authorizing letter issued under

§ 651.20(a)(4)(i).

(12) Violate any provisions of the

Cultivator Shoals Whiting Fishery

specified in § 651.20(a)(4).

(13) Fail to comply with the gear

restrictions for the Stellwagen Bank/

Jeffrey’s Ledge juvenile protection areas

specified in § 651.20(a)(5).

(14) Fail to comply with the gear

restrictions and time periods specified

for Small Mesh Area 1 and Small Mesh

Area 2 in § 651.20(a)(8).

(15) Fail to comply with the

requirements of the Nantucket Shoals

dogfish exemption specified in

§ 651.20(a)(9).

(16) Fish with, use, or have available

for immediate use within the area

described in § 651.20(c)(1) nets of mesh

size smaller than the minimum size

specified in § 651.20(c)(2), except as

provided in § 651.20(c)(3), (e), (f), and

(j), or unless the vessel qualifies for the

exception specified in paragraph

(e)(1)(ii) of this section.

(17) Fish with, use, or have available

for immediate use within the area

described in § 651.20(d)(1) nets of mesh

size smaller than the minimum size

specified in § 651.20(d)(2), except as

provided in § 651.20 (e), (f), and (j), or

unless the vessel qualifies for the

exception specified in paragraph

(e)(1)(ii) of this section.

(18) Fish for the species specified in

§ 651.20 (e) or (f) with a net of mesh size

smaller than the applicable mesh size

specified in § 651.20(a)(2), (c)(2) or

(d)(2), or possess or land such species,

unless the vessel is in compliance with

the requirements specified in § 651.20(e)

or (f), or unless the vessel qualifies for

the exception specified in paragraph

(e)(1)(ii) of this section.

(19) Obstruct or constrict a net as

described in § 651.20 (h)(1) and (h)(2).

(20) Fish for, land, or possess

multispecies finfish harvested by means

of pair trawling or with pair trawl gear,

except under the provisions of

§ 651.20(e), or unless the vessels that

engaged in pair trawling qualify for the

exception specified in paragraph

(e)(1)(ii) of this section.

(21) Violate any of the restrictions on

fishing with scallop dredge gear

specified in § 651.20(i), or any of the

other provisions of § 651.20(i).

(22) Violate any of the provisions of

the state waters winder flounder

exemption program specified in

§ 651.20(j).

(23) Enter or be in the area described

in § 651.21(a)(1) on a fishing vessel,

except as provided in § 651.21(a)(2) and

(d).

(24) Enter or be in the area described

in § 651.21(b)(1) on a fishing vessel,

except as provided in § 651.21(b)(2).

(25) Enter or be in the area described

in § 651.21(c)(1), on a fishing vessel,

except as provided in § 651.21(c)(2) and

(d).

(26) Enter or be on a fishing vessel, or

fail to remove gear from the EEZ portion

of the areas described in § 651.21(f)(1)

through § 651.21(h)(1), during the time

period specified, except as provided in

§ 651.21(d), (f)(2), (g)(2), and (h)(2).

(27) Import, export, transfer, land,

buy, sell or possess regulated species

smaller than the minimum sizes

specified in § 651.23, or attempt to do

any of the same, unless the regulated

species were harvested from a vessel

that qualifies for the exception specified

in paragraph (e)(1)(ii) of this section.

(28) Violate any terms of a letter

authorizing experimental fishing

pursuant to § 651.24 or fail to keep such

letter on board the vessel during the

period of the experiment.

(29) Fail to comply with the gearmarking requirements of § 651.25.

(30) Purchase, possess, or receive as a

dealer, or in the capacity of a dealer,

fish in excess of the possession limits

specified for vessels issued a Federal

multispecies permit.

(31) Tamper with, damage, destroy,

alter, or in any way distort, render

useless, inoperative, ineffective, or

inaccurate the VTS, VTS unit, or VTS

signal required to be installed on or

transmitted by vessel owners or

operators required to use a VTS by this

part.

(32) Violate any provision of the DAS

notification program as specified by

§ 651.29.

(33) Land, offload, remove, or

otherwise transfer, or attempt to land,

offload, remove or otherwise transfer

multispecies finfish from one vessel to

another vessel, unless both vessels

qualify under the exception specified in

paragraph (e)(1)(ii) of this section, or

unless authorized in writing by the

Regional Director pursuant to

§ 651.30(a).

(34) Assault, resist, oppose, impede,

harass, intimidate, or interfere with a

NMFS-approved observer aboard a

vessel.

(35) Make any false statement, oral or

written, to an authorized officer or

employee of NMFS, concerning the

taking, catching, harvesting, landing,

purchase, sale, or transfer of any

multispecies finfish.

(36) Make any false statement in

connection with an application under

§ 651.4 or § 651.5 or on any report

required to be submitted or maintained

under § 651.7.

(37) Interfere with, obstruct, delay, or

prevent by any means a lawful

investigation or search relating to the

enforcement of this part.

(38) Fail to have on board the vessel

at least one standard tote as specified

under § 651.20(i) and (j), § 651.27, and

§ 651.33(a) and (c).

(f) In addition to the general

prohibitions specified in § 620.7 of this

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

section, it is unlawful for the owner or

operator of a charter or party boat issued

a permit under § 651.4, or of a

recreational vessel, as applicable, to:

(1) Fish with gear in violation of the

restrictions specified in § 651.34(a).

(2) Possess regulated species smaller

than the minimum sizes specified in

§ 651.34(b).

(3) Possess cod and haddock in excess

of the possession limits specified in

§ 651.34(c).

(4) Sell, trade, barter, or otherwise

transfer, or attempt to sell, trade, barter

or otherwise transfer, multispecies

finfish for a commercial purpose as

specified in § 651.34(d).

(g) It is unlawful to violate any other

provision of this part, the Magnuson

Act, or any regulation, permit or other

authorization issued under the

Magnuson Act.

(h) Presumption. The possession for

sale of regulated species that do not

meet the minimum sizes as specified in

§ 651.23 will be prima facie evidence

that such regulated species were taken

or imported in violation of these

regulations. Evidence that such fish

were harvested by a vessel not issued a

permit under this part and fishing

exclusively within state waters will be

sufficient to rebut the presumption. This

presumption does not apply to fish

being sorted on deck.

5. Section 651.10 is revised to read as

follows:

§ 651.10 Facilitation of enforcement.

(a) Radio hails. Permit holders, while

underway, must be alert for

communications conveying enforcement

instructions and immediately answer

via VHF-FM radio, channel 16, when

hailed by an authorized officer. Vessels

not required to have VHF-FM radios by

the Coast Guard are exempt from this

requirement.

(b) Also see § 620.8 of this chapter.

6. In § 651.20, paragraph (a)(9) is

added and paragraphs (a)(2), (a)(3)(i)(B),

(a)(4)(i)(E), (a)(5), (a)(6)(iii)(C), (a)(7),

paragraph (a)(8) introductory text

preceding the table, paragraphs (a)(8)(i),

(a)(8)(iii)(B), (c)(1), (c)(2), (c)(3)(ii),

(c)(5), (d), (e)(2), (f)(2), (g)(1), (g)(2), (i),

(j) introductory text, and (j)(7) are

revised to read as follows:

§ 651.20 Regulated mesh areas and

restrictions on gear and methods of fishing.

* * * * *

(a) * * *

(2) Gear restrictions. (i) Except as

provided in paragraphs (a)(2)(iii) and (j)

of this section, and unless otherwise

restricted under paragraphs (a)(2)(ii) and

(a)(5) of this section, the minimum mesh

size for any trawl net, sink gillnet,

Scottish seine, mid-water trawl, or purse

seine, on a vessel, or used by a vessel

fishing under a DAS in the multispecies

DAS program in the GOM/GB regulated

mesh area, shall be 6 inches (15.24 cm)

square or diamond mesh throughout the

entire net. This restriction does not

apply to nets or pieces of nets smaller

than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq.

ft (0.81 m 2)), or to vessels that have not

been issued a Federal multispecies

permit under § 651.4 and that are

fishing exclusively in state waters.

(ii) Large Mesh vessels. When fishing

in the GOM/GB regulated mesh area, the

minimum mesh size for any sink gillnet

on a vessel, or used by a vessel, fishing

under a DAS in the Large Mesh DAS

programs specified in § 651.22(b)(6) and

(7) shall be 7 inch (17.78-cm) diamond

mesh throughout the entire net. The

minimum mesh size for any trawl net on

a vessel, or used by a vessel, fishing

under a DAS in the Large Mesh DAS

program shall be 8-inch (20.32-cm)

diamond mesh throughout the entire

net. This restriction does not apply to

nets or pieces of nets smaller than 3 ft

(0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m 2)),

or to vessels that have not been issued

a Federal multispecies permit under

§ 651.4 and that are fishing exclusively

in state waters.

(iii) Other gear and mesh exemptions.

The minimum mesh size for any trawl

net, sink gillnet, Scottish seine, midwater trawl, or purse seine, on a vessel,

or used by a vessel, when not fishing

under the multispecies DAS program

and when fishing in the GOM/GB

regulated mesh area, is provided for

under the exemptions specified in

paragraphs (a)(3), (a)(4), (a)(6), (a)(8),

(a)(9), (e), (f), (i), and (j) of this section.

Vessels that are not fishing in one of

these exemption programs, or with

exempted gear (as defined under this

part), or under the Scallop state waters

exemption program specified in

§ 650.27 of this chapter, or under a

multispecies DAS are prohibited from

fishing in the GOM/GB regulated mesh

area.

(3) * * *

(i) * * *

(B) The following may be retained,

with the restrictions noted, as allowable

bycatch species in the northern shrimp

fishery as described in this section:

Longhorn sculpin; up to two standard

totes of silver hake (whiting); monkfish

and monkfish parts up to 10 percent by

weight of all other species on board; and

American lobster up to 10 percent by

weight of all other species on board or

200 lobsters, whichever is less.

* * * * *

(4) * * *

(i) * * *

(E) The following may be retained,

with the restrictions noted, as allowable

bycatch species in the Cultivator Shoal

whiting fishery exemption area as

described in this section: Longhorn

sculpin; monkfish and monkfish parts

up to 10 percent by weight of all other

species on board; and American lobster

up to 10 percent by weight of all other

species on board or 200 lobsters,

whichever is less.

* * * * *

(5) Stellwagen Bank/Jeffreys Ledge

(SB/JL) juvenile protection area. Except

as provided in paragraphs (a)(3), (a)(6),

(e), (f), and (j) of this section, unless

otherwise restricted in paragraph

(a)(2)(ii) of this section, the minimum

mesh size for any trawl net, Scottish

seine, purse seine, or midwater trawl in

use, or available for immediate use as

described under paragraph (c)(4) of this

section, by a vessel fishing in the

following area shall be 6 inches (15.24

cm) square mesh in the last 50 bars of

the codend and extension piece for

vessels 45 ft (13.7 m) in length and less,

and in the last 100 bars of the codend

and extension piece for vessels greater

than 45 ft (13.7 cm) in length.

(6) * * *

(iii) * * *

(C) Vessels may not fish for, possess

on board, or land any species of fish

except when fishing in the areas

specified in paragraphs (a)(4), (a)(9), (c),

and (d) of this section. Vessels may

retain exempted small mesh species as

provided in paragraphs (a)(4)(i), (a)(9)(i),

(c)(3), and (d)(3) of this section.

(7) Addition or deletion of

exemptions. (i) An exemption may be

added in an existing fishery for which

there is sufficient data or information to

ascertain the amount of regulated

species bycatch, if the Regional Director,

after consultation with the Council,

determines that the percentage of

regulated species caught as bycatch is,

or can be reduced to, less than 5 percent

by weight of total catch and that such

exemption will not jeopardize fishing

mortality objectives. In determining

whether exempting a fishery may

jeopardize meeting fishing mortality

objectives, the Regional Director may

take into consideration factors such as,

but not limited to, juvenile mortality. A

fishery can be defined, restricted or

allowed by area, gear, season, or other

means determined to be appropriate to

reduce bycatch of regulated species. An

existing exemption may be deleted or

modified if the Regional Director

determines that the catch of regulated

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

continuing the exemption may

jeopardize meeting fishing mortality

objectives. Notification of additions,

deletions or modifications will be made

through publication of a rule in the

Federal Register.

(ii) The Council may recommend to

the Regional Director, through the

framework procedure specified in

§ 651.40(b), additions or deletions to

exemptions for fisheries either existing

or proposed for which there may be

insufficient data or information for the

Regional Director to determine, without

public comment, percentage catch of

regulated species.

(iii) The Regional Director may, using

the process described in either

paragraphs (a)(7)(i) or (ii) of this section,

authorize an exemption to fish for,

possess and land white hake by vessels

using regulated mesh or hook gear.

Determination of the percentage of

regulated species caught in such fishery

shall not include white hake.

(iv) Exempted fisheries authorized

under this paragraph are subject, at

minimum, to the following restrictions:

(A) With the exception of fisheries

authorized under paragraph (a)(7)(iii) of

this section, possession of regulated

species will be prohibited.

(B) Possession of monkfish or

monkfish parts will be limited to 10

percent by weight of all other species on

board.

(C) Possession of lobsters will be

limited to 10 percent by weight of all

other species on board or 200 lobsters,

whichever is less.

(D) Possession of skate or skate parts

in the SNE regulated mesh area will be

limited to 10 percent by weight of all

other species on board.

(8) Small Mesh Area 1/Small Mesh

Area 2. Fisheries using nets of mesh

smaller than the minimum size

specified in paragraph (a)(2) of this

section in subareas described as Small

Mesh Area 1 and Small Mesh Area 2 of

the Small Mesh Exemption Area as

specified under paragraph (a)(3) of this

section, and defined in this paragraph

(a)(8), have been found to meet the

exemption qualification requirements

specified in paragraph (a)(7) of this

section. Therefore, vessels subject to the

mesh restrictions specified in paragraph

(a)(2) of this section may fish with or

possess nets of mesh smaller than the

minimum size specified in paragraph

(a)(2) of this section in these areas, if the

vessel complies with the restrictions

specified in paragraphs (a)(8)(i) through

(iii) of this section. These subareas are

defined by straight lines connecting the

following points in the order stated (see

Figure 4 to part 651):

* * * * *

(i) The fishing season is from July 15

through October 31 when fishing under

the exemption in Small Mesh Area 1.

* * * * *

(iii) * * *

(B) Allowable bycatch. Vessels fishing

for the exempted species identified in

paragraph (a)(8)(iii)(A) of this section

may also possess and land the following

species, with the restrictions noted, as

allowable bycatch species: Longhorn

sculpin; monkfish and monkfish parts

up to 10 percent by weight of all other

species on board; and American lobster

up to 10 percent by weight of all other

species on board or 200 lobsters,

whichever is less.

(9) Nantucket Shoals dogfish fishery

exemption area. The Nantucket Shoals

dogfish fishery as defined in this part

has been found to meet the exemption

qualification requirements specified in

paragraph (a)(7) of this section.

Therefore, vessels subject to the mesh

restrictions specified in paragraph (a)(2)

of this section may fish with, use, or

possess nets of mesh smaller than the

minimum size specified in paragraph

(a)(2) of this section in the Nantucket

Shoals dogfish fishery exemption area,

if the vessel complies with the

requirements specified in paragraph

(a)(9)(i) of this section. The Nantucket

Shoals dogfish fishery exemption area is

defined by straight lines connecting the

following points in the order stated (see

Figure 4 to part 651):

NANTUCKET SHOALS DOGFISH

EXEMPTION AREA

Point Latitude Longitude

NS1 ................ 41°45′ N 70°00′ W.

NS2 ................ 41°45′ N. 69°20′ W.

NS3 ................ 41°30′ N. 69°20′ W.

Cl1 .................. 41°30′ N. 69°23′ W.

NS5 ................ 41°26.5′ N. 69°20′ W.

NS6 ................ 40°50′ W. 69°20′ N.

NS7 ................ 40°50′ W. 70°00′ N.

NS1 ................ 41°45′ N 70°00′ W.

(i) Requirements. Vessels authorized

to fish in this fishery must have on

board an authorizing letter issued by the

Regional Director. Vessels are subject to

the following conditions:

(A) Authorized vessels may not fish

for, possess on board or land any

species of fish other than dogfish except

as provided under paragraph (a)(9)(i)(D)

of this section.

(B) Authorized vessels may fish under

this exemption during the season of

June 1 through October 15.

(C) When transiting the GOM/GB

regulated mesh area as specified under

paragraph (a)(1) of this section, any nets

of mesh smaller than the regulated mesh

size specified in paragraph (a)(2) of this

section, must be stowed according to the

provisions of paragraph (c)(4) of this

section.

(D) The following may be retained,

with the restrictions noted, as allowable

bycatch species in the Nantucket Shoals

dogfish fishery exemption area as

described in this section: Longhorn

sculpin, up to two standard totes of

silver hake (whiting); monkfish and

monkfish parts up to 10 percent by

weight of all other species on board;

American lobster up to 10 percent by

weight of all other species on board or

200 lobsters, whichever is less; and

skate or skate parts up to 10 percent by

weight of all other species on board.

(E) Authorized vessels must comply

with any additional gear restrictions

specified in the authorization letter

issued by the Regional Director.

(ii) Sea Sampling. The Regional

Director may conduct periodic sea

sampling to determine if there is a need

to change the area or season

designation, and to evaluate the bycatch

of regulated species.

* * * * *

(c) Southern New England regulated

mesh area. (1) Area definition. The

Southern New England regulated mesh

area is that area bounded on the east by

straight lines connecting the following

points in the order stated (see Figure 1

part 651):

SOUTHERN NEW ENGLAND REGULATED

MESH AREA

Point Latitude Longitude

G5 ................... 41°18.6′ N. 66°24.8′ W.

G6 ................... 40°55.5′ N. 66°38′ W.

G7 ................... 40°45.5′ N. 68°00′ W.

G8 ................... 40°37′ N. 68°00′ W.

G9 ................... 40°30.5′ N. 69°00′ W.

NL3 ................. 40°.7′ N. 69°00′ W.

NL2 ................. 40°18.7′ N. 69°40′ W.

NL1 ................. 40°50′ N. 69°40′ W.

G11 ................. 40°50′ N. 70°00′ W.

G12 ................. 70°00′ W.1

1 Northward to its intersection with the

shoreline of mainland Massachusetts; and on

the west by the eastern boundary of the MidAtlantic regulated mesh area.

(2) Gear restrictions. (i) Minimum

mesh restrictions. Except as provided in

paragraphs (c)(2) (iii) and (j) of this

section, and unless otherwise restricted

under paragraph (c)(2)(ii) of this section,

the minimum mesh size for any trawl

net, sink gillnet, Scottish seine, purse

seine or mid-water trawl, in use, or

available for immediate use as described

under paragraph (c)(4) of this section, by

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

Southern New England (SNE) regulated

mesh area, shall be 6 inches (15.24 cm)

square or diamond mesh throughout the

entire net. This restriction does not

apply to vessels that have not been

issued a Federal multispecies permit

under § 651.4 and that are fishing

exclusively in state waters.

(ii) Large Mesh vessels. When fishing

in the SNE regulated mesh area, the

minimum mesh size for any sink gillnet

on a vessel, or used by a vessel, fishing

under a DAS in the Large Mesh DAS

program specified in § 651.22(b)(6) and

(7) shall be 7 inch (17.78-cm) diamond

mesh throughout the entire net. The

minimum mesh size for any trawl net on

a vessel, or used by a vessel, fishing

under a DAS in the Large Mesh DAS

program shall be 8 inch (20.32-cm)

diamond mesh throughout the entire

net. This restriction does not apply to

nets or pieces of nets smaller than 3 ft

(0.9 m)×3 ft (0.9 m), (9 sq. ft (0.81 m 2)),

or to vessels that have not been issued

a Federal multispecies permit under

§ 651.4 and that are fishing exclusively

in state waters.

(iii) Other gear and mesh exemptions.

The minimum mesh size for any trawl

net, sink gillnet, Scottish seine, midwater trawl, or purse seine, in use, or

available for immediate use as described

under paragraph (c)(4) of this section, by

a vessel when not fishing under the

multispecies DAS program and when

fishing in the SNE regulated mesh area,

is provided for under the exemptions

specified in paragraphs (c)(3), (e), (f), (i),

and (j) of this section. Vessels that are

not fishing in one of these exemption

programs, with exempted gear (as

defined under this part), or under the

Scallop state waters exemption program

specified in § 650.27 of this chapter, or

under a multispecies DAS are

prohibited from fishing in the SNE

regulated mesh area.

(3) * * *

(ii) Possession and net stowage

requirements. Vessels may possess

regulated species while in possession of

nets with mesh smaller than the

minimum size specified in paragraph

(c)(2)(i) of this section, provided that the

nets are stowed and are not available for

immediate use in accordance with

paragraph (c)(4) of this section, and

provided that regulated species were not

harvested by nets of mesh size smaller

than the minimum mesh size specified

in paragraph (c)(2)(i) of this section.

Vessels fishing for the exempted species

identified in paragraph (c)(3)(i) of this

section may also possess and retain the

following species, with the restrictions

noted, as incidental take to these

exempted fisheries: Conger eels;

searobins; black sea bass; red hake;

tautog (blackfish); blowfish (puffer);

cunner; John Dory; mullet; bluefish;

tilefish; longhorn sculpin; fourspot

flounder; alewife; hickory shad;

American shad; blueback herring; sea

ravens; Atlantic croaker; spot;

swordfish; monkfish and monkfish parts

up to 10 percent by weight of all other

species on board; American lobster up

to 10 percent by weight of all other

species on board or 200 lobsters,

whichever is less; and skate and skate

parts up to 10 percent by weight of all

other species on board.

* * * * *

(5) Addition or deletion of

exemptions. An exemption may be

added, deleted or modified pursuant to

the procedure described in paragraph

(a)(7) of this section.

(d) Mid-Atlantic regulated mesh area.

(1) Area definition. The Mid-Atlantic

(RMA) regulated mesh area is that area

bounded on the east by a line running

from the Rhode Island shoreline at

41°18.2′ N. and 71°51.5′ W. (Watch Hill,

RI) southwesterly through Fishers

Island, NY, to Race Point, Fishers

Island, NY, and from Race Point, Fishers

Island, NY, southeasterly to the

intersection of the 3 nautical mile line

east of Montauk Point, southwesterly

along the 3 nautical mile line to the

intersection of 72°30 W. Longitude and

south along that line to the intersection

of the outer boundary of the EEZ. (see

Figure 1 to part 651).

(2) Gear restrictions. (i) Mesh size

restrictions. Except as provided in

paragraph (j) of this section, and unless

otherwise restricted under paragraph

(d)(2)(ii) of this section, the minimum

mesh size for any trawl net, sink gillnet,

Scottish seine, purse seine or mid-water

trawl, in use, or available for immediate

use as described under paragraph (c)(4)

of this section, by a vessel fishing under

a DAS in the multispecies DAS program

in the MA regulated mesh area shall be

that specified in the summer flounder

regulations at § 625.24(a) of this chapter.

This restriction does not apply to

vessels that have not been issued a

Federal multispecies permit under

§ 651.4 and that are fishing exclusively

in state waters.

(ii) Large mesh vessels. When fishing

in the MA regulated mesh area, the

minimum mesh size for any sink gillnet

on a vessel, or used by a vessel, fishing

under a DAS in the Large Mesh DAS

program specified in § 651.22(b)(6) and

(b)(7) shall be 7 inch (17.78 cm)

diamond mesh throughout the entire

net. The minimum mesh size for any

trawl net on a vessel, or used by a

vessel, fishing under a DAS in the Large

Mesh DAS program shall be 8 inch

(20.32 cm) diamond mesh throughout

the net. This restriction does not apply

to nets or pieces of nets smaller than 3

ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81

m 2)), or to vessels that have not been

issued a Federal multispecies permit

under § 651.4 and that are fishing

exclusively in state waters.

(iii) Net stowage exemption. Vessels

may possess regulated species while in

possession of nets with mesh smaller

than the minimum size specified in

paragraph (d)(2)(i) of this section,

provided that the nets are stowed and

are not available for immediate use in

accordance with paragraph (c)(4) of this

section, and provided that regulated

species were not harvested by nets of

mesh size smaller than the minimum

mesh size specified in paragraph

(d)(2)(i) of this section.

(3) Additional Exemptions. The

Regional Director may, using the

process described in either (a)(7)(i) or

(a)(7)(ii), authorize an exemption to fish

for, possess, or land white hake by

vessels using regulated mesh or hook

gear. Determination of the percentage of

regulated species caught in such a

fishery shall not include white hake.

(e) * * *

(2) When fishing under this

exemption in the GOM/GB Regulated

Mesh Area vessels must have on board

an authorizing letter issued by the

Regional Director;

* * * * *

(f) * * *

(2) When fishing under this

exemption in the GOM/GB Regulated

Mesh Area vessels must have on board

an authorizing letter issued by the

Regional Director;

* * * * *

(g) Mesh measurements—(1) Gillnets.

Beginning October 15, 1996, mesh size

of gillnet gear shall be measured by

lining up 5 consecutive knots

perpendicular to the float line and, with

a ruler or tape measure, measuring 10

consecutive stretched meshes on the

diamond, inside knot to inside knot.

The mesh size shall be the average of

the measurements of the 10 consecutive

meshes.

(2) All other nets. With the exception

of gillnets, mesh size shall be measured

by a wedge-shaped gauge having a taper

of 2 cm in 8 cm and a thickness of 2.3

mm, inserted into the meshes under a

pressure or pull of 5 kg.

(i) Square-mesh measurement. Square

mesh in the regulated portion of the net

shall be measured by placing the net

gauge along the diagonal line that

connects the largest opening between

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

the measurements of 20 consecutive

adjacent meshes from the terminus

forward along the long axis of the net.

The square mesh shall be measured at

least five meshes away from the lacings

of the net.

(ii) Diamond-mesh measurement.

Diamond mesh in the regulated portion

of the net shall be measured running

parallel to the long axis of the net. The

mesh size shall be the average of the

measurements of any series of 20

consecutive meshes. The mesh shall be

measured at least five meshes away

from the lacings of the net.

* * * * *

(i) Scallop vessels. (1) Except as

provided in paragraph (i)(2) of this

section, scallop vessels that possess a

valid limited access permit under

§ 650.4 of this chapter, and that a

scallop multispecies possession limit

permit under § 650.4(c), and that are

fishing under the scallop DAS program

described in § 650.24, may possess and

land up to 300 lb (136.1 kg) of regulated

species, unless otherwise restricted

pursuant to § 651.27(a)(2). Vessels

subject to this possession limit shall

have at least one standard tote on board.

(2) Combination vessels, and scallop

vessels not equipped with or fishing

with dredge gear, fishing lawfully under

a multispecies DAS are subject to the

gear restrictions specified in § 651.20

and may possess and land unlimited

amounts of regulated species. Such

vessels may simultaneously fish under a

scallop DAS.

(j) State waters winter flounder

exemption. Any vessel issued a Federal

limited access multispecies permit

under this part may fish for, possess, or

land winter flounder while fishing with

nets of mesh smaller than the minimum

size specified in paragraphs (a)(2), (c)(2),

and (d)(2) of this section provided that:

* * * * *

(7) The vessel, when not fishing under

the DAS program, does not fish for,

possess, or land more than 500 lb (226.8

kg) of winter flounder and, when subject

to this possession limit, has at least one

standard tote on board;

* * * * *

7. In § 651.21, paragraphs (a)(2)(i),

(b)(2)(i), (c)(2)(i), (d) and (e)

introductory text are revised, and

paragraphs (f), (g), and (h) are added to

read as follows:

§ 651.21 Closed areas.

(a) * * *

(2) * * *

(i) Fishing with or using pot gear

designed or used to take lobsters, or pot

gear designed or used to take hagfish,

and that have no other gear on board

capable of catching multispecies finfish;

and

* * * * *

(b) * * *

(2) * * *

(i) Fishing with or using pot gear

designed or used to take lobsters, or pot

gear designed or used to take hagfish,

and that have no other gear on board

capable of catching multispecies finfish;

* * * * *

(c) * * *

(2) * * *

(i) Fishing with or using pot gear

designed and used to take lobsters, or

pot gear designed and used to take

hagfish, and that have no other gear on

board capable of catching multispecies

finfish;

* * * * *

(d) Transiting. Vessels may transit

Closed Area I, the Nantucket Lightship

Closed Area, the Northeast Closure

Area, the Mid-coast Closure Area, and

the Massachusetts Bay Closure Area, as

defined in paragraphs (a)(1), (c)(1),

(f)(1), (g)(1), and (h)(1), respectively, of

this section, provided that their gear is

stowed in accordance with the

provisions of paragraph (e) of this

section.

(e) Gear stowage requirements.

Vessels transiting the closed areas must

stow their gear as follows:

* * * * *

(f) Northeast Closure Area. (1) During

the period August 15 through

September 13, no fishing vessel or

person on a fishing vessel may enter,

fish, or be, and no fishing gear capable

of catching multispecies finfish, unless

otherwise allowed in this part may be,

in the area known as the Northeast

Closure Area (Figure 3 to part 651), as

defined by straight lines connecting the

following points in the order stated,

except as specified in paragraphs (d)

and (f)(2) of this section:

Point Latitude Longitude

NE1 ........ Maine shoreline 68°55.0′ W.

NE2 ........ 43°29.6′ N .......... 68°55.0′ W.

NE3 ........ 44°04.4′ N .......... 67°48.7′ W.

NE4 ........ 44°06.9′ N .......... 67°52.8′ W.

NE5 ........ 44°31.2′ N .......... 67°02.7′ W.

NE6 ........ Maine shoreline 67°02.7′ W.

(2) Exceptions. Paragraph (f)(1) of this

section does not apply to persons on

fishing vessels or fishing vessels:

(i) That have not been issued a

Federal multispecies permit under

§ 651.4 and that are fishing exclusively

in state waters.

(ii) Fishing with or using exempted

gear as defined under this part,

excluding mid-water trawl gear,

provided that there is no other gear on

board capable of catching multispecies

finfish. (iii) Classified as charter, party,

or recreational.

(g) Mid-coast Closure Area. (1) During

the period November 1 through

December 31, no fishing vessel or

person on a fishing vessel may enter,

fish, or be, and no fishing gear capable

of catching multispecies finfish unless

otherwise allowed in this part may be,

in the area known as the Mid-coast

Closure Area (Figure 3 to part 651), as

defined by straight lines connecting the

following points in the order stated,

except as specified in paragraphs (d)

and (g)(2) of this section:

Point Latitude Longitude

MC1 ........ 42°30′ N. ............ Massachusetts

shoreline.

MC2 ........ 42°30′ N. ............ 70°15′ W.

MC3 ........ 42°40′ N. ............ 70°15′ W.

MC4 ........ 42°40′ N. ............ 70°00′ W.

MC5 ........ 43°00′ N. ............ 70°00′ W.

MC6 ........ 43°00′ N. ............ 69°30′ W.

MC7 ........ 43°15′ N. ............ 69°30′ W.

MC8 ........ 43°15′ N. ............ 69°00′ W.

MC9 ........ Maine shoreline 69°00′ W.

(2) Exceptions. Paragraph (g)(1) of this

section does not apply to persons on

fishing vessels or fishing vessels:

(i) That have not been issued a

Federal multispecies permit under

§ 651.4 and that are fishing exclusively

in state waters.

(ii) Fishing with or using exempted

gear as defined under this part,

excluding mid-water trawl gear,

provided that there is no other gear on

board capable of catching multispecies

finfish. (iii) Classified as charter, party,

or recreational.

(h) Massachusetts Bay Closure Area.

(1) During the period March 1 through

March 30, no fishing vessel or person on

a fishing vessel may enter, fish, or be,

and no fishing gear capable of catching

multispecies finfish, unless otherwise

allowed in this part may be, in the area

known as the Massachusetts Bay

Closure Area (Figure 3 to part 651), as

defined by straight lines connecting the

following points in the order stated,

except as specified in paragraphs (d)

and (h)(2) of this section:

Point latitude Longitude

MB1 42°30′ N. .......... Massachusetts shoreline.

MB2 42°30′ N. .......... 70°30′ W.

MB3 42°12′ N. .......... 70°30′ W.

MB4 42°12′ N. .......... 70°00′ W.

MB5 Cape Cod

shoreline.

70°00′ W.

MB6 42°00′ N. .......... Cape Cod shoreline.
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27741

Point latitude Longitude

MB7 42°00′ N. .......... Massachusetts shoreline.

(2) Exceptions. Paragraph (h)(1) of this

section does not apply to persons on

fishing vessels or fishing vessels:

(i) That have not been issued a

Federal multispecies permit under

§ 651.4 and that are fishing exclusively

in state waters.

(ii) Fishing with or using exempted

gear as defined under this part,

excluding mid-water trawl gear,

provided that there is no other gear on

board capable of catching multispecies

finfish.

(iii) Classified as charter, party, or

recreational.

8. Section 651.22 is revised to read as

follows:

§ 651.22 Effort-control program for limited

access vessels.

(a) A vessel issued a limited access

multispecies permit under § 651.4(b)

may not fish for, possess or land

regulated species except during a DAS

as allocated under and in accordance

with the applicable DAS program

described below, unless otherwise

provided in these regulations.

(b) DAS program—Permit categories,

allocations and initial assignments to

categories. For the remainder of the

1996 fishing year, all limited access

multispecies permit holders shall be

assigned to one of the following DAS

permit categories according to the

criteria specified. Permit holders may

request a change in permit category for

the remainder of the 1996 fishing year

and all fishing years thereafter as

specified in § 651.4(f)(3). Each fishing

year shall begin on May 1 and extend

through April 30 of the following year.

(1) Individual DAS Category—(i) DAS

allocation. Vessels assigned to the

Individual DAS category shall be

allocated 65 percent of their initial 1994

allocation baseline determined by

regulations implementing Amendment 5

to the FMP for the 1996 fishing year

multiplied by the proration factor equal

to 0.83 and 50 percent of the vessel’s

initial allocation baseline for the 1997

fishing year and beyond, as calculated

under paragraph (d)(1) of this section.

(ii) Initial assignment. All vessels

issued valid Individual DAS limited

access multispecies permits, with the

exception of vessels that have also been

issued limited access multispecies

Gillnet category permits, as of the

effective date of the final rule for

Amendment 7, shall be initially

assigned to this category.

(2) Fleet DAS Category—(i) DAS

allocation. Vessels assigned to the Fleet

DAS category shall be allocated 139

DAS for the 1996 fishing year

multiplied by the proration factor equal

to 0.83 for a total of 115 DAS, and 88

DAS for the 1997 fishing year and

beyond.

(ii) Initial assignment. As of the

effective date of the final rule for

Amendment 7, vessels issued valid

permits in one of the following

categories shall be initially assigned to

this category: Fleet DAS permit holders;

limited access multispecies Hook-Gear

permit holders; limited access

multispecies Gillnet permit holders;

limited access multispecies 45 ft (13.7

m) category permit holders that are

larger than 20 ft (6.1 m) in length as

determined by the most recent permit

application. determined by the most

recent permit application.

(3) Small vessel category—(i) DAS

allocation. Vessels qualified and

electing to fish under the Small Vessel

category may retain cod, haddock, and

yellowtail flounder, combined up to 300

lb (136.1 kg) per trip without being

subject to DAS restrictions. These

vessels are not subject to a possession

limit for the other multispecies finfish.

(ii) Initial assignment. All vessels

issued a valid limited access

multispecies permit and fishing under

the small boat exemption (less than or

equal to 45 ft (13.7 m)) permit as of the

effective date of the final rule for

Amendment 7, and that are 20 ft (6.1 m)

or less in length as determined by the

vessel’s last application for a permit

shall be initially assigned to this

category. Other vessels may elect to

change into this category as provided for

in § 651.4(f)(3) if such vessel meets or

complies with the following:

(A) The vessel is 30 ft (9.1 m) or less

in length overall as determined by

measuring along a horizontal line drawn

from a perpendicular raised from the

outside of the most forward portion of

the stem of the vessel to a perpendicular

raised from the after most portion of the

stern.

(B) Vessels for which construction

was begun after May 1, 1994, must be

constructed such that the quotient of the

overall length divided by the beam will

not be less than 2.5.

(C) Acceptable verification for vessels

20 ft (6.1 m) or less in length shall be

U.S. Guard documentation or state

registration papers. For vessels over 20

ft (6.1 m) in length, the measurement of

length must be verified in writing by a

qualified marine surveyor, or the

builder, based on the boat’s construction

plans, or by other means determined

acceptable by the Regional Director. A

copy of the verification must

accompany an application for a Federal

multispecies permit issued under

§ 651.4.

(D) Adjustments to the small-boat

category requirements, including

changes to the length requirement, if

required to meet fishing mortality goals,

may be made following a reappraisal

and analysis under the framework

provisions specified in subpart C.

(4) Hook-Gear Category—(i) DAS

allocation. Vessels issued a valid

limited access multispecies Hook-Gear

permit shall be allocated 139 DAS

multiplied by the proration factor equal

to 0.83 for a total of 115 DAS for the

1996 fishing year and 88 DAS for the

1997 fishing year and beyond. A vessel

fishing in this permit category under the

DAS program must meet or comply with

the following while fishing for, in

possession of, or landing, regulated

species:

(A) Vessels, and persons on such

vessels, are prohibited from possessing

gear other than hook gear on board the

vessel.

(B) Vessels, and persons on such

vessels, are prohibited from fishing,

setting, or hauling back, per day, or

possessing on board the vessel, more

than 4,500 rigged hooks. An unbaited

hook and gangion that has not been

secured to the ground line of the trawl

on board a vessel is deemed to be a

replacement hook and is not counted

toward the 4,500 hook limit. A ‘‘snapon’’ hook is deemed to be a replacement

hook if it is not rigged or baited.

(ii) Initial assignment. No vessel shall

be initially assigned to the Hook-Gear

category. Any vessel that meets the

qualifications specified in § 651.4(b)(1)

may apply for and obtain a permit to

fish under this category.

(5) Combination Vessel Category—(i)

DAS allocation. Vessels assigned to the

Combination Vessel category shall be

allocated 65 percent of their initial 1994

allocation as determined by regulations

implementing Amendment 5 to the FMP

multiplied by the proration factor equal

to 0.83 for the 1996 fishing year and 50

percent of the vessel’s initial allocation

baseline for the 1997 fishing year and

beyond, as calculated under paragraph

(d)(1) of this section.

(ii) Initial assignment. All vessels

issued a valid limited access

multispecies permit qualified to fish as

a Combination Vessel as of the effective

date of the final rule for Amendment 7

shall be assigned to this category.

(6) Large Mesh Individual DAS

Category—(i) DAS allocation. Vessels

fishing under the Large Mesh Individual

DAS category shall be allocated a DAS

increase that is equivalent to a 12

percent increase in DAS in year 1 and

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

(b)(1)(i) of this section, which includes

the proration factor for 1996. To be

eligible to fish under the Large Mesh

Individual DAS permit category a vessel

while fishing under the DAS program,

must fish with gillnet gear with a

minimum mesh net of 7 inch (17.78 cm)

diamond or trawl gear with a minimum

mesh size of 8 inch (20.32 cm) diamond,

for the entire fishing year, as described

under § 651.20 (a)(2)(ii), (c)(2)(ii), and

(d)(2)(ii).

(ii) Initial assignment. No vessel shall

be initially assigned to the Large Mesh

Individual DAS category. Any vessel

that is initially assigned to the

Individual DAS, Fleet DAS, or Small

Vessel permit category may request and

be granted a change in category into this

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

(7) Large Mesh Fleet DAS Category—

(i) DAS allocation. Vessels fishing under

the Large Mesh Fleet DAS category shall

be allocated 155 DAS multiplied by the

proration factor equal to 0.83 for the

1996 fishing year, and 120 DAS for the

1997 fishing year and beyond. To be

eligible to fish under the Large Mesh

Fleet DAS permit category a vessel must

fish with gillnet gear with a minimum

mesh net of 7 inch (17.78 cm) diamond

or trawl gear with a minimum mesh size

of 8 inch (20.32 cm) diamond, as

described under § 651.20(a)(2)(ii),

(c)(2)(ii), and (d)(2)(ii).

(ii) Initial assignment. No vessel shall

be initially assigned to the Large Mesh

Fleet DAS category. Any vessel that is

initially assigned to the Individual DAS,

Fleet DAS, or Small Vessel permit

category may request and be granted a

change in category into this category as

specified in § 651.4(f)(3).

(c) The 1996 DAS appeals. (1)

Previously exempted vessels. A vessel

that was issued a valid 1995 limited

access multispecies permit, and has

been fishing under the Small boat

exemption (less than or equal to 45 ft

(13.7 m)), Hook-Gear or Gillnet permit

categories, that elects to fish under the

Individual DAS category, and has not

previously been allocated Individual

DAS, is eligible to appeal its allocation

of DAS if it has not previously done so,

as described under paragraph (d)(2) of

this section. Each of these vessel’s

initial allocation of Individual DAS will

be considered to be 176 for purposes of

this appeal (that is, the Fleet DAS

category baseline prior to the 1996–97

reductions).

(2) Exempted gillnet vessels that held

an Individual DAS permit. A vessel that

was issued a valid 1995 limited access

multispecies permit and fishing under

the Gillnet permit category and the

Individual DAS permit category, that

elects to fish under the Individual DAS

category, is eligible to appeal its

allocation of gillnet DAS, as described

under paragraph (d)(2) of this section.

Each of these vessels’ initial allocation

of Individual DAS will be considered to

be 176 for purposes of this appeal (that

is, the Fleet DAS category baseline prior

to the 1996–97 reductions).

(d) Individual DAS allocations—(1)

Calculation of a vessel’s Individual

DAS. The DAS assigned to a vessel for

purposes of determining that vessel’s

annual allocation under the Individual

DAS Program shall be calculated as

follows:

(i) Calculate the total number of the

vessel’s multispecies DAS for the years

1988, 1989, and 1990. Multispecies DAS

are deemed to be the total number of

days the vessel was absent from port for

a trip where greater than 10 percent of

the vessel’s total landings were

comprised of regulated species, minus

any days for such trips in which a

scallop dredge was used.

(ii) Exclude the year of least

multispecies DAS.

(iii) If 2 years of multispecies DAS are

remaining, average those years’ DAS, or,

if only 1 year remains, use that year’s

DAS.

(2) Appeal of DAS allocation—(i)

Initial allocations of Individual DAS to

those vessels authorized to appeal under

paragraph (c) of this section may be

appealed to the Regional Director if a

request to appeal is received by the

Regional Director no later than August

31, 1996, or 30 days after the initial

allocation is made, whichever is later.

Any such appeal must be in writing and

be based on one or more of the

following grounds:

(A) The information used by the

Regional Director was based on

mistaken or incorrect data;

(B) The applicant was prevented by

circumstances beyond his/her control

from meeting relevant criteria; or

(C) The applicant has new or

additional information.

(ii) The Regional Director will appoint

a designee who will make an initial

decision on the written appeal.

(iii) If the applicant is not satisfied

with the initial decision, the applicant

may request that the appeal be

presented at a hearing before an officer

appointed by the Regional Director.

(iv) The hearing officer shall present

his/her findings to the Regional Director

and the Regional Director will make a

decision on the appeal. The Regional

Director’s decision on this appeal is the

final administrative decision of the

Department of Commerce.

(3) Status of vessels pending appeal of

DAS allocations. Vessels, while their

Individual DAS allocation is under

appeal, may fish under the Fleet DAS

category until the Regional Director has

made a final determination on the

appeal. Any DAS spent fishing for

regulated species by a vessel while that

vessel’s initial DAS allocation is under

appeal, shall be counted against any

DAS allocation that the vessel may

ultimately receive.

(e) Accrual of DAS. DAS shall accrue

in hourly increments, with all partial

hours counted as full hours.

(f) Good Samaritan credit. Limited

access vessels fishing under the DAS

program and that spend time at sea for

one of the following reasons, and that

can document the occurrence through

the U.S. Coast Guard, will be credited

for the time documented:

(1) Time spent assisting in a U.S.

Coast Guard search and rescue

operation; or

(2) Time spent assisting the U.S. Coast

Guard in towing a disabled vessel.

(g) Spawning season restrictions.

Vessels issued a valid Small Vessel

category permit under paragraph (b)(3)

of this section may not fish for, possess,

or land regulated species between

March 1 and March 20 of each year. All

other vessels issued limited access

permits must declare out and be out of

the regulated multispecies finfish

fishery for a 20-day period between

March 1 and May 31 of each calendar

year using the notification requirements

specified under § 651.29. If a vessel

owner has not declared, or taken, the

period of time required between March

1 and May 31 of each fishing year on or

before May 12 of each such year, the

vessel is prohibited from fishing for,

possessing or landing any regulated

species during the period May 12

through May 31, inclusive. If a vessel

has taken a spawning season 20-day

block out of the multispecies fishery

during May, 1996, it shall not be

required to take a 20-day block out of

the multispecies fishery in 1997.

Beginning January 1, 1998, any such

vessel must comply with the spawning

season restriction as specified in this

part.

(h) Declaring DAS and 20-day blocks.

A vessel’s owner or authorized

representative shall notify the Regional

Director of a vessel’s participation in the

DAS program and declaration of its 20-

day spawning period out of the

multispecies fishery using the

notification requirements specified

under § 651.29.

(i) Adjustments in annual DAS

allocations. Adjustments in annual DAS

allocations, if required to meet fishing

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

in subpart C.

9. In § 651.23, paragraph (a)

introductory text, and paragraphs (d)

and (e) are revised to read as follows:

§ 651.23 Minimum fish size.

(a) Minimum fish sizes for

recreational vessels and charter/party

vessels that are not fishing under a

multispecies DAS are specified in

§ 651.34. All other vessels are subject to

minimum fish sizes (total length) as

follows:

* * * * *

(d) Exception. Each person aboard a

vessel issued a limited access permit

and fishing under the DAS program may

possess up to 25 lb (11.3 kg) of fillets

that measure less than the minimum

size, if such fillets are from legal-sized

fish and are not offered or intended for

sale, trade, or barter.

(e) Adjustments of minimum size. (1)

At anytime when information is

available, the Council will review the

best available mesh selectivity

information to determine the

appropriate minimum size for the

species listed in paragraph (a) of this

section, except winter flounder,

according to the length at which 25

percent of the regulated species would

be retained by the applicable minimum

mesh size.

(2) Upon determination of the

appropriate minimum sizes, the Council

shall propose the minimum fish sizes to

be implemented following the

procedures specified in subpart C.

(3) Additional adjustments or changes

to the minimum fish sizes specified in

paragraphs (a) and (b) of this section,

and exemptions as specified in

paragraphs (a) and (b) of this section,

and exemptions as specified in

paragraph (c) of this section, may be

made at any time after implementation

of the final rule as specified under

subpart C.

10. Section 651.27 is revised to read

as follows:

§ 651.27 Additional haddock possession

restrictions.

(a) Haddock—(1) Multispecies DAS

vessels. A vessel issued a limited access

multispecies permit under this part that

is fishing under a multispecies DAS

may land, or possess on board, up to

1000 lb (453.6 kg) of haddock. Haddock

on board a vessel subject to this

possession limit must be separated from

other species of fish and stored so as to

be readily available for inspection.

Vessels subject to this possession limit

shall have on board the vessel at least

one standard tote.

(2) Scallop dredge vessels—(i) No

person owning or operating a scallop

dredge vessel issued a permit under this

part may land haddock from, or possess

haddock on board, a scallop dredge

vessel, from January 1 through June 30.

(ii) No person owning or operating a

scallop dredge vessel without a permit

under this part may possess haddock in,

or harvested from, the EEZ, from

January 1 through June 30.

(iii) From July 1 through December

31, no scallop dredge vessel or persons

owning or operating a scallop dredge

vessel, that is fishing under the scallop

DAS program as described in

§ 651.20(i), may land, or possess on

board, more than 300 lb (136.1 kg) of

haddock. Haddock on board a vessel

subject to this possession limit must be

separated from other species of fish and

stored so as to be readily available for

inspection. Vessels subject to this

possession limit shall have on board the

vessel at least one standard tote.

(b) Vessels are subject to any other

applicable possession limit restrictions

of this part.

11. In § 651.28, paragraph (c) is

removed, the heading and the first

sentence of paragraph (a), and paragraph

(b) are revised to read as follows:

§ 651.28 Monitoring requirements.

(a) Individual DAS limited access

multispecies vessels. Unless otherwise

authorized or required by the Regional

Director under § 651.29(b), vessel

owners fishing under the Individual

DAS program and Combination Vessels

must have installed on board an

operational VTS unit that meets the

minimum performance criteria specified

in paragraph (a)(2) of this section, or as

modified annually as specified in

paragraph (a)(1) of this section. * * *

(b) Fleet DAS and other limited access

multispecies vessels. Vessels issued

limited access multispecies permits who

are participating in a DAS program and

who are not required to provide

notification using a VTS shall be subject

to the call-in requirements specified in

§ 651.29(b).

12. Section 651.29 is revised to read

as follows:

§ 651.29 DAS notification program.

(a) VTS notification. Unless otherwise

authorized by the Regional Director as

specified in paragraph (c) of this

section, owners of vessels issued limited

access multispecies permits that have

elected to or are required to use a VTS

system shall be subject to the following

requirements:

(1) Vessels that are issued limited

access multispecies permits, that have

crossed the demarcation line specified

under paragraph (d) of this section, are

deemed to be fishing under the DAS

program unless the vessel’s owner or

authorized representative declares the

vessel out of the multispecies fishery, by

notifying the Regional Director through

the VTS. The owner or authorized

representative of any vessel that has

been declared out of the multispecies

fishery must notify the Regional

Director through the VTS prior to

leaving port on the vessel’s next trip

under the DAS program.

(2) If the VTS is not available, or not

functional, and if authorized by the

Regional Director, a vessel owner must

comply with the call-in notification

requirements specified in paragraph (b)

of this section.

(3) Notification that the vessel is not

under the DAS program must be

received prior to the vessel leaving port.

A change in status of a vessel cannot be

made after the vessel leaves port or

before it returns to port on any fishing

trip.

(b) Call-in notification. Vessel owners

authorized or required to provide

notification using the call-in system

shall be subject to the following

requirements:

(1) The vessel owner or authorized

representative shall notify the Regional

Director, prior to leaving port, that the

vessel will be participating in the

applicable DAS program by calling 1–

800–260–8204 or 508–281–9335, and

providing the following information:

Vessel name and permit number, owner

and caller name and phone number, the

type of trip to be taken, the port of

departure, and that the vessel is

beginning a trip.

(2) A multispecies DAS begins once

the call has been received and

confirmation given by the Regional

Director.

(3) The vessel’s confirmation numbers

for the current and immediately prior

multispecies fishing trip must be

maintained on board the vessel and

provided to an authorized officer upon

request.

(4) Upon returning to port, at the end

of a fishing trip as defined in paragraph

(d) of this section, the vessel owner or

owner’s representative shall notify the

Regional Director that the trip has ended

by calling 1–800–260–8204 or 508–281–

9335, and providing the following

information: Vessel name and permit

number, owner and caller name and

telephone number, port landed,

confirmation number, and that the

fishing trip has ended.

(5) A DAS ends when the call has

been received and confirmation given

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

multispecies permit subject to the DAS

program and call-in requirement, that

possess or lands regulated species,

except as provided in § 651.34, shall be

deemed in the DAS program for

purposes of counting DAS, regardless of

whether or not the vessel’s owner or

authorized representative provided

adequate notification as required by this

part.

(7) Any change in status of a vessel

cannot be done after leaving port on any

fishing trip.

(c) Temporary authorization for use of

the call-in system. The Regional Director

may authorize or require, on a

temporary basis, the use of an

alternative call-in system of notification.

If the call-in system is authorized or

required, the Regional Director shall

notify affected permit holders through a

letter, notification in the Federal

Register, or other appropriate means.

Vessel owners authorized or required by

the Regional Director to provide

notification by a call-in system under

this paragraph shall be subject to the

requirements specified in paragraph (b)

of this section.

(d) Counting of DAS for vessels

fishing under the VTS system. (1) DAS

for vessels that are under the VTS

monitoring system described in

§ 651.29(a) are counted beginning with

the first hourly location signal received

showing that the vessel crossed the

Vessel Tracking System Demarcation

Line leaving port. A trip concludes and

accrual of DAS ends with the first

hourly location signal received showing

that the vessel crossed the Vessel

Tracking System Demarcation Line

upon its return to port.

(2) Vessel Tracking System

Demarcation Line. The VTS

Demarcation Line is defined as straight

lines connecting the following points in

the order stated (see Figures 6 and 7 to

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

exception of vessels issued a valid

Small Vessel category permit, vessels

subject to the spawning season

restriction described in § 651.22 must

notify the Regional Director of the

commencement date of their 20-day

period out of the multispecies fishery

through either the VTS system or by

calling 1–800–260–8204 or 508–281–

9335 and providing the following

information: Vessel name and permit

number, owner and caller name and

phone number, and the commencement

date of the 20 day period.

13. In § 651.31, paragraph (d) is added

to read as follows:

§ 651.31 At-sea observer coverage.

* * * * *

(d) Industry funded observer coverage.

NMFS may accept observer coverage

funded by sources outside the U.S.

Government provided the following

requirements are met:

(1) All coverage conducted by such

observers is determined by NMFS to be

in compliance with NMFS’ observer

guidelines and procedures.

(2) The owner or operator of the

vessel complies with all other

provisions of this part.

(3) The observer is approved by the

Regional Director.

14. Section 651.32 is revised to read

as follows:

§ 651.32 Sink gillnet requirements to

reduce harbor porpoise takes.

(a) Areas closed to sink gillnets. (1)

Harbor porpoise take restrictions. The

closed area restrictions prohibiting sink

gillnets in the areas and times specified

in § 651.21(f) through (h) are

implemented in order to reduce the

takes of harbor porpoise consistent with

the harbor porpoise mortality reduction

goals.

(2) Additional harbor porpoise area

closures. All persons owning or

operating vessels must remove all of

their sink gillnet gear from, and may not

use, set, haul back, fish with, or possess

on board, unless stowed in accordance

with § 651.21(e)(4), a sink gillnet in the

EEZ portion of the areas and for the

times specified in paragraphs (a)(2)(i)

and (ii) of this section; and, all persons

owning or operating vessels issued a

Federal multispecies limited access

permit must remove all of their sink

gillnet gear from, and may not use, set,

haul back, fish with, or possess on board

a vessel, unless stowed in accordance

with § 651.21(e)(4), a sink gillnet in the

areas, and for the times specified, in

paragraphs (a)(2)(i) and (ii) of this

section.

(i) Mid-coast Closure Area. During the

period March 25 through April 25 of

each fishing year, the restrictions and

requirements specified under paragraph

(a)(2) of this section shall apply to the

Mid-coast Closure Area, as defined

under § 651.21(g)(1).

(ii) Cape Cod South Area Closure.

During the period March 1 through

March 30 of each fishing year, the

restrictions and requirements specified

under paragraph (a)(2) of this section

shall apply to an area known as the

Cape Cod South Area Closure which is

an area bounded by straight lines

connecting the following points in the

order stated (see Figure 9 of this part).

CAPE COD SOUTH CLOSURE AREA

Point Latitude Longitude

CCS1 ......... RI shoreline ...... 71°45′ W.

CCS2 ......... 40°40′ N. .......... 71°45′ W.

CCS3 ......... 40°40′ N. .......... 70°30′ W.

CCS4 ......... MA shoreline .... 70°30′ W.

(b) Framework adjustment. (1) At least

annually the Regional Director will

provide the Council with the best

available information on the status of

Gulf of Maine harbor porpoise including

estimates of abundance and estimates of

bycatch in the sink gillnet fishery.

Within 60 days of receipt of that

information, the Council’s Harbor

Porpoise Review Team shall complete a

review of the data, assess the adequacy

of existing regulations, evaluate the

impacts of other measures that reduce

harbor porpoise take and, if necessary,

recommend additional measures in light

of the Council’s harbor porpoise

mortality reduction goals. In addition,

the HPRT shall make a determination on

whether other conservation issues exist

that require a management response to

meet the goals and objectives outlined

in the FMP. The HPRT shall report its

findings and recommendations to the

Council.

(2) After receiving and reviewing the

HPRT’s findings and recommendations,

the Council shall determine whether

adjustments or additional management

measures are necessary to meet the goals

and objectives of the FMP. If the

Council determines that adjustments or

additional management measures are

necessary, or at any other time in

consultation with the HPRT, it shall

develop and analyze appropriate

management actions over the span of at

least two Council meetings.

(3) The Council may request at any

time that the HPRT review and make

recommendations on any harbor

porpoise take reduction measures or

develop additional take reduction

proposals.

(4) The Council shall provide the

public with advance notice of the

availability of the proposals, appropriate

rationale, economic and biological

analyses, and opportunity to comment

on them prior to and at the second

Council meeting. The Council’s

recommendation on adjustments or

additions to management measures

must come from one or more of the

categories specified under

§ 651.40(b)(1).

(5) If the Council recommends that

the management measures should be

published as a final rule, the Council

must consider at least the factors

specified in § 651.40(b)(2).

(6) The Regional Director may accept,

reject, or with Council approval, modify

the Council’s recommendation,

including the Council’s

recommendation to publish a final rule,

as specified under § 651.40(b)(3).

14. Section 651.33 is revised to read

as follows:

§ 651.33 Open access permit restrictions.

(a) Handgear permit. A vessel issued

a valid open access Handgear permit

issued under § 651.4(c) is subject to the

following restrictions:

(1) The vessel may possess and land

up to 300 lb (136.1 kg) of cod, haddock,

and yellowtail flounder, combined, per

trip, and unlimited amounts of the other

multispecies finfish provided that it

does not use, or possess on board, gear

other than rod and reel or handlines

while in possession of, fishing for, or

landing multispecies finfish. Vessels

subject to this possession limit shall

have at least one standard tote on board.

(2) A vessel may not fish for, possess,

or land regulated species between

March 1 and March 20 of each year.

(b) Charter/party permit. A vessel that

has been issued a valid open access

Charter/party permit under § 651.4(c),

and has declared into the charter/party

fishery, is subject to the restrictions on

gear, recreational minimum fish sizes

and prohibitions on sale specified in

§ 651.34, and any other applicable

provisions of this part.

(c) Scallop Multispecies Possession

Limit Permit. A vessel that has been

issued a valid open access Scallop

Multispecies Possession Limit permit

under § 651.4(c) may possess and land

up to 300 lb (136.1 kg) of regulated

species when fishing under a scallop

DAS as described under § 651.20(i),

provided the vessel does not fish for,

possess or land haddock during January

1 through June 30 as specified under

§ 651.27(a)(2)(i). Vessels subject to this

possession limit shall have at least one

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

B to read as follows:

§ 651.34 Recreational and charter/party

vessel restrictions.

(a) Recreational gear restrictions.

Persons aboard charter or party vessels

permitted under this part and not

fishing under the DAS program, and

recreational fishing vessels in the EEZ,

are prohibited from fishing with more

than two hooks per line and one line per

angler and must stow all other fishing

gear on board the vessel as specified

under §§ 651.20(c)(4) and 651.21(e)(2),

651.21(e)(3) and 651.21(e)(4).

(b) Recreational minimum fish sizes.

(1) Persons aboard charter or party

vessels permitted under this part and

not fishing under the DAS program, and

recreational fishing vessels in the EEZ,

are subject to minimum fish sizes (total

length) as follows:

RECREATIONAL

Species

Inches

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

or party vessels permitted under this

part and not fishing under the DAS

program, and recreational fishing

vessels in the EEZ, may possess fillets

less than the minimum size specified, if

the fillets are taken from legal-sized fish

and are not offered or intended for sale,

trade or barter.

(c) Possession restrictions. Each

person on a recreational vessel may not

possess more than 10 cod and/or

haddock, combined, in or harvested

from the EEZ:

(1) For purposes of counting fish,

fillets will be converted to whole fish at

the place of landing by dividing fillet

number by two. If fish are filleted into

a single (butterfly) fillet, such fillet shall

be deemed to be from one whole fish.

(2) Cod and haddock harvested by

recreational vessels with more than one

person aboard may be pooled in one or

more containers. Compliance with the

possession limit will be determined by

dividing the number of fish on board by

the number of persons aboard. If there

is a violation of the possession limit on

board a vessel carrying more than one

person, the violation shall be deemed to

have been committed by the owner and

operator.

(3) Cod and haddock must be stored,

so as to be readily available for

inspection.

(d) Restrictions on sale. It is unlawful

to sell, barter, trade, or otherwise

transfer for a commercial purpose, or to

attempt to sell, barter, trade, or

otherwise transfer for a commercial

purpose, multispecies finfish caught or

landed by charter or party vessels

permitted under this part not fishing

under a DAS or a recreational fishing

vessels fishing in the EEZ.

16. Section 651.40 is revised to read

as follows:

§ 651.40 Framework Specifications.

(a) Annual review. The Multispecies

Monitoring Committee (MSMC) shall

meet on or before November 15 of each

year to develop target TACs for the

upcoming fishing year and options for

Council consideration on any changes,

adjustment or additions to DAS

allocations, closed areas or other

measures necessary to achieve the FMP

goals and objectives.

(1) The MSMC must review available

data pertaining to the following:

(i) Catch and landings.

(ii) DAS and other measures of fishing

effort.

(iii) Survey results.

(iv) Stock status.

(v) Current estimates of fishing

mortality.

(vi) Any other relevant information.

(2) Based on this review, the MSMC

shall recommend target TACs and

develop options necessary to achieve

the FMP goals and objectives, which

may include a preferred option. The

MSMC must demonstrate through

analysis and documentation that the

options it develops are expected to meet

the FMP goals and objectives. The

MSMC may review the performance of

different user groups or fleet sectors in

developing options. The range of

options developed by the MSMC may

include any of the management

measures in the FMP including, but not

limited to:

(i) The annual target TACs which

must be based on the projected fishing

mortality levels required to meet the

goals and objectives outlined in the

FMP for the 10 regulated species.

(ii) DAS changes.

(iii) Possession limits.

(iv) Gear restrictions.

(v) Closed areas.

(vi) Permitting restrictions.

(vii) Minimum fish sizes.

(viii) Recreational fishing measures.

(ix) Any other management measures

currently included in the FMP.

(3) The Council shall review the

recommended target TACs and all of the

options developed by the MSMC, other

relevant information, consider public

comment, and develop a

recommendation to meet the FMP

objective that is consistent with other

applicable law. If the Council does not

submit a recommendation that meets

the FMP objectives and is consistent

with other applicable law, the Regional

Director may adopt any option

developed by the MSMC, unless

rejected by the Council, as specified in

(a)(6) of this section, provided that the

option meets the FMP objective and is

consistent with other applicable law.

(4) Based on this review, the Council

shall submit a recommendation to the

Regional Director of any changes,

adjustments or additions to DAS

allocations, closed areas or other

measures necessary to achieve the

FMP’s goals and objectives. Included in

the Council’s recommendation will be

supporting documents, as appropriate,

concerning the environmental and

economic impacts of the proposed

action and the other options considered

by the Council.

(5) If the Council submits, on or

before January 7, a recommendation to

the Regional Director after one Council

meeting, and the Regional Director

concurs with the recommendation, the

Regional Director shall publish the
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules and Regulations 27747

Council’s recommendation in the

Federal Register as a proposed rule. The

Federal Register notification of

proposed action will provide for a 30-

day public comment period. The

Council may instead submit its

recommendation on or before February

1 if it chooses to follow the framework

process outlined in paragraph (b) of this

section and requests that the Regional

Director publish the recommendation as

a final rule. If the Regional Director

concurs that the Council’s

recommendation meets the FMP

objectives and is consistent with other

applicable law and determines that the

recommended management measures be

published as a final rule, the action will

be published as a final rule in the

Federal Register. If the Regional

Director concurs that the

recommendation meets the FMP

objectives and is consistent with other

applicable law and determines that a

proposed rule is warranted, and as a

result the effective date of a final rule

falls after the start of the fishing year on

May 1, fishing may continue. However,

DAS used by a vessel on or after May

1 will be counted against any DAS

allocation the vessel ultimately receives

for that year.

(6) If the Regional Director concurs in

the Council’s recommendation, a final

rule shall be published in the Federal

Register on or about April 1 of each

year, with the exception noted in

paragraph (a)(5) of this section. If the

Council fails to submit a

recommendation to the Regional

Director by February 1 that meets the

FMP goals and objectives, the Regional

Director may publish as a proposed rule

one of the options reviewed and not

rejected by the Council, provided that

the option meets the FMP objective and

is consistent with other applicable law.

If, after considering public comment,

the Regional Director decides to approve

the option published as a proposed rule,

the action will be published as a final

rule in the Federal Register.

(b) Within season management action.

The Council may, at any time, initiate

action to add or adjust management

measures if it finds that action is

necessary to meet or be consistent with

the goals and objectives of the FMP.

(1) Adjustment process. After a

management action has been initiated,

the Council shall develop and analyze

appropriate management actions over

the span of at least two Council

meetings. The Council shall provide the

public with advance notice of the

availability of both the proposals and

the analysis, and opportunity to

comment on them prior to and at the

second Council meeting. The Council’s

recommendation on adjustments or

additions to management measures

must come from one or more of the

following categories:

(i) DAS changes.

(ii) Effort monitoring.

(iii) Data reporting.

(iv) Possession limits.

(v) Gear restrictions.

(vi) Closed areas.

(vii) Permitting restrictions.

(viii) Crew limits.

(ix) Minimum fish sizes.

(x) Onboard observers.

(xi) Minimum hook size and hook

style.

(xii) The use of crucifiers in the hook

fishery.

(xiii) Fleet sector shares.

(xiv) Recreational fishing measures.

(xv) Area closures and other

appropriate measures to mitigate marine

mammal entanglements and

interactions.

(xvi) Any other management measures

currently included in the FMP.

(2) Council recommendation. After

developing management actions and

receiving public testimony, the Council

shall make a recommendation to the

Regional Director. The Council’s

recommendation must include

supporting rationale, and, if

management measures are

recommended, an analysis of impacts,

and a recommendation to the Regional

Director on whether to publish the

management measures as a final rule. If

the Council recommends that the

management measures should be

published as a final rule, the Council

must consider at least the following

factors and provide support and

analysis for each factor considered:

(i) Whether the availability of data on

which the recommended management

measures are based allows for adequate

time to publish a proposed rule, and

whether regulations have to be in place

for an entire harvest/fishing season.

(ii) Whether there has been adequate

notice and opportunity for participation

by the public and members of the

affected industry in the development of

the Council’s recommended

management measures.

(iii) Whether there is an immediate

need to protect the resource.

(iv) Whether there will be a

continuing evaluation of management

measures adopted following their

implementation as a final rule.

(3) Regional Director action. If the

Council’s recommendation includes

adjustments or additions to management

measures, and if after reviewing the

Council’s recommendation and

supporting information:

(i) The Regional Director concurs with

the Council’s recommended

management measures and determines

that the recommended management

measures may be published as a final

rule based on the factors specified in

paragraph (b)(2) of this section, the

action will be published in the Federal

Register as a final rule; or

(ii) The Regional Director concurs

with the Council’s recommendation and

determines that the recommended

management measures should be

published first as a proposed rule, the

action will be published as a proposed

rule in the Federal Register. After

additional public comment, if the

Regional Director concurs with the

Council recommendation, the action

will be published as a final rule in the

Federal Register; or

(iii) The Regional Director does not

concur, the Council will be notified, in

writing, of the reasons for the nonconcurrence.

(c) Nothing in this section is meant to

derogate from the authority of the

Secretary of Commerce to take

emergency action under section 305(e)

of the Magnuson Act.

17. Figure 5 to part 651 is removed

and reserved, and Figures 1, 3, and 4 to

part 651 are revised to read as follows:

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