[Federal Register: June 27, 2003 (Volume 68, Number 124)]
[Rules and Regulations]
[Page 38234-38246]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn03-22]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 030409081-3154-02; I.D. 032103B]
RIN 0648-AQ72
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final emergency rule implements emergency measures
intended to reduce overfishing on species managed under the NE
Multispecies Fishery Management Plan (FMP), under the authority of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This action continues most interim measures specified in
the Settlement Agreement Among Certain Parties (Settlement Agreement),
ordered to be implemented by the U.S. District Court for the District
of Columbia (Court). The interim measures were implemented through an
interim final rule published on August 1, 2002. The final emergency
rule contains measures such as: A freeze on days-at-sea (DAS) at the
highest annual level used from fishing years 1996-2000 and a 20-percent
cut from that level; a freeze on the issuance of new open access Hand-
gear permits; gear restrictions; modifications and additions to closure
areas; and restrictions on yellowtail flounder catch. In addition, in
response to public comment, this final emergency rule implements
measures pertaining to haddock, including reducing the haddock minimum
size limit for private recreational and party/charter vessels to 21
inches (52.5 cm), and relaxing the haddock trip limit (also known as
bag limit) for charter/party and open access Handgear permit vessels.
NMFS and two of the plaintiffs filed a motion with the Court requesting
an extension of the August 22, 2003, implementation of Amendment 13 to
the NE Fishery Management Plan (FMP) schedule in the Order until May 1,
2004. On December 4, 2002, the Court granted an extension of the Court-
ordered timeline for implementation of Amendment 13 to
[[Page 38235]]
the FMP until May 1, 2004. Amendment 13 will put in place long-term
measures to end overfishing and rebuild multispecies stocks. This
emergency rule is necessary to ensure that there exist measures to
reduce overfishing until implementation of Amendment 13.
DATES: Effective July 28, 2003.
ADDRESSES: Written comments regarding the approved collection-of-
information requirements should be sent to Patricia A. Kurkul, Regional
Administrator, National Marine Fisheries Service, One Blackburn Drive,
Gloucester, MA 01930, and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503 (Attn:
NOAA Desk Officer). Copies of this final emergency rule, including the
Environmental Assessment/Regulatory Impact Review/Final Regulatory
Flexibility Analysis (EA/RIR/FRFA) are available upon request from the
Regional Administrator. The EA/RIR/FRFA is also accessible via the
Internet at http://www.nero.nmfs.gov.
FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst,
phone: 978-281-9347, fax: 978-281-9135; email: thomas.warren@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
A proposed emergency rule for this action, requesting public
comment, was published on April 24, 2003 (68 FR 20096), and
subsequently corrected on May 9, 2003 (68 FR 24914), that would
continue measures implemented on August 1, 2002, consistent with the
Settlement Agreement, which was ordered to be implemented by the Court
in a Remedial Order (Order) issued on May 23, 2002, as a result of
Conservation Law Foundation, et al. v. Evans, et al. In addition to
containing the interim measures implemented on August 1, 2002,
consistent with the Settlement Agreement, which are being implemented
through this final emergency rule, the proposed emergency rule
contained a program that would allow limited access NE multispecies
vessels to lease DAS. Due to the newness and potential controversiality
of the DAS Leasing Program and its implications, NMFS extended the
comment period through June 10, 2003, on the DAS leasing aspect of the
proposed emergency rule only (68 FR 28188; May 23, 2003). This final
emergency rule implements many of the same measures implemented through
the August 1, 2002, interim final rule with some modifications in
response to public comment, and does not implement the DAS Leasing
Program. If the DAS Leasing Program is approved, a separate final rule
will be published to implement that program.
Pursuant to the Court's Order, NMFS published an interim final rule
(67 FR 50292) on August 1, 2002, which implemented management measures
consistent with the Settlement Agreement that intended to reduce
overfishing on species managed under the FMP. Measures implemented on
August 1, 2002, included: A freeze on DAS based on the highest annual
level used from fishing years 1996-2000, reduced by 20 percent; a
freeze on the issuance of new open access Hand-gear permits; increased
gear restrictions for certain gear types, including gillnets, hook-gear
and trawl nets; modifications and additions to the closure areas;
limits on yellowtail flounder catch; a reduction in the haddock trip
limit for open access Handgear vessels; a haddock trip limit for
charter/party vessels fishing in the Gulf of Maine (GOM); and an
increase in minimum haddock size for private recreational and party/
charter vessels.
The Order specified that the management measures implemented by the
August 1, 2002, interim rule must remain in effect until implementation
of Amendment 13 to the FMP. Amendment 13 was initially scheduled to be
in effect no later than August 22, 2003. However, due to the need for
additional time to address unanticipated concerns related to NMFS'
Northeast Fisheries Science Center's trawl survey and the new
biological reference points developed for the NE multispecies stocks,
NMFS and two of the plaintiffs filed a motion with the Court requesting
an extension of the August 22, 2003, implementation schedule until May
1, 2004. On December 4, 2002, the Court granted an extension of the
Court-ordered timeline for Amendment 13 implementation until May 1,
2004.
On January 22, 2003, NMFS published a notice in the Federal
Register informing the public that NMFS was continuing the interim
regulations for a second 180-day period (ending July 27, 2003). Under
section 305(c)(3)(B) of the Magnuson-Stevens Act, interim regulations
implemented under section 305(c) are limited to two, consecutive 180-
day periods. The Court subsequently granted an extension of the
original schedule for implementation of Amendment 13 to May 1, 2004.
Thus, in order to comply with the Court Order to maintain the short-
term measures until implementation of Amendment 13, the Secretary is
implementing this final emergency rule under 305(c) of the Magnuson-
Stevens Act.
This final emergency rule implements many of the same measures
contained in the interim final rule published on August 1, 2002, as
described below, with slight modifications to measures pertaining to
haddock size and possession limits for recreational, party/charter, and
open access Handgear vessels. As acknowledged in the Settlement
Agreement, the Secretary maintains the discretion to modify measures
contained therein. NMFS determined that slight modifications to certain
haddock specific measures are justified due to the unique circumstances
of the haddock fishery, including, the fact that overfishing is not
occurring in the haddock fishery, the disproportionate haddock
restrictions among different sectors of the fishery, and the potential
for lowering discarded bycatch of haddock. Fishing mortality on haddock
in the 2002 fishing year continued at a level well below the level
necessary to ensure rebuilding of the stock within the timeframes
specified in the Magnuson-Stevens Act. In response to this low level of
fishing mortality, NMFS has relieved certain haddock trip limits during
the 2002 fishing year (67 FR 45401; July 9, 2002), on commercial
limited access multispecies vessels as allowed for in the multispecies
regulations. Public comments for this proposed action pointed out that
other fishing sectors fishing for haddock did not receive the same
consideration with respect to haddock restrictions. This emergency rule
significantly reduces these disproportionate haddock restrictions
without jeopardizing the objective of preventing overfishing on
haddock. Even though NMFS received public comments requesting
modifications to other measures, NMFS determined that the changes to
the haddock measures were the only appropriate ones because they apply
to haddock only and the analysis in the EA demonstrates that these
measures will not have a detrimental effect on haddock or any other
multispecies stock. Moreover, these changes were designed to limit the
changes to a return to haddock restrictions in effect before
implementation of the August 1, 2002, interim regulations. These unique
circumstances do not exist for implementing any other suggested
modifications affecting other stocks of multispecies. The measures
being implemented by this final emergency rule are described below.
Regulated Mesh Areas (RMAs)
This action continues the RMAs established by the August 1, 2002,
interim rule for the Gulf of Maine
[[Page 38236]]
(GOM), Georges Bank (GB), Southern New England (SNE) and Mid-Atlantic
(MA) RMAs. The GOM RMA is the area north of the GOM cod exemption line,
which is currently used to define the areas where the GOM cod and GB
cod trip limits apply, and the GB RMA lies south of the GOM cod
exemption line, and continues south to the U.S. Exclusive Economic Zone
(EEZ) for the areas east of 69 00' W. long. The SNE RMA is defined as
the area west of the GB RMA and east of a line beginning at the
intersection of 74 00' W. long. and the south-facing shoreline of Long
Island, NY, and running southward along the 74 00' W. long. line. The
MA RMA is defined as the area west of the SNE RMA. Specific management
measures apply, depending on the area fished. For the purposes of the
exempted fishery programs already implemented under the FMP, the GOM/GB
and SNE RMAs, as defined under Amendment 7 to the FMP, remain in effect
and are referred to as ``Exemption Areas.''
DAS Freeze
This action continues the DAS baseline that was established for
each vessel by the August 1, 2002, interim rule, based on the permit
history of that vessel. This baseline is as follows: The used DAS
baseline for a limited access permit is calculated based on the highest
number of DAS that a vessel(s) fished during any single fishing year
among the 1996 through 2000 fishing years, which includes the period
May 1, 1996, through April 30, 2001, not to exceed the vessel's current
DAS allocation in any given year. For any vessel where the calculation
of the baseline DAS results in a net amount of DAS less than 10, that
vessel is allocated a used DAS baseline of 10 DAS. Because vessel
owners were already provided an opportunity to correct any errors
regarding their current DAS baselines (under the August 1, 2002,
interim rule), and the DAS baseline will incorporate any corrections
made, no additional opportunity to correct used DAS baseline
allocations is provided under this action.
DAS Effort Reduction
These emergency measures will result in DAS allocations for the
2003 fishing year consistent with the 20-percent DAS reductions that
were implemented by the August 1, 2002, interim rule (i.e., the current
DAS allocations). That is, for the 2003 fishing year, each vessel's DAS
allocation is equal to that vessel's used DAS baseline, minus 20
percent of that vessel's used DAS baseline. Effective July 28, 2003,
each vessel's DAS remaining for the 2003 fishing year is equal to that
vessel's used DAS baseline, minus 20 percent of that vessel's used DAS
baseline, minus any DAS that the vessel fished during the period May 1
through July 27, 2003.
Freeze on Issuance of New Hand-gear Permits
Under this action, vessels that have never been issued an open
access NE multispecies Hand-gear permit are prohibited from obtaining a
Hand-gear permit for the duration of this action.
Prohibition on Front-loading the DAS Clock
The term ``frontloading the DAS clock'' refers to the practice of
vessel owners starting their DAS clock in advance of the actual
departure of the vessel. This final emergency rule continues the
prohibition on frontloading. Under this prohibition, a vessel owner or
authorized representative is required to notify NMFS no earlier than 1
hour prior to the vessel leaving port to fish under the NE multispecies
DAS program. A DAS will begin once the call has been received and a
confirmation number is given. This measure applies to all management
areas.
Closed Area Additions/Modifications
This final emergency rule continues the closure areas established
under the August 1, 2002, interim rule for the Western Gulf of Maine
(WGOM) Area Closure, the Rolling Closure Areas, the Cashes Ledge
Closure Area, and the GB Seasonal Closure Area. Exemptions to the GOM
rolling closure areas, WGOM, Cashes Ledge Closure Area, and GB Seasonal
Closure Area remain the same as established under the August 1, 2002,
interim rule (and corrected in 68 FR 14347, March 25, 2003). Charts of
the closure areas are available from the Regional Administrator upon
request (see ADDRESSES).
Gear Restrictions
Trawl Vessels, When Fishing in the GOM, GB, or MA RMAs
Under this final emergency rule, vessels fishing with otter trawl
gear, and fishing any part of a NE multispecies DAS trip in the GOM,
GB, or MA RMAs, are required to fish with a minimum 6.5-inch (16.5-cm)
diamond or square mesh codend. This requirement applies only to the
codend of the net; the minimum mesh-size for the remaining portion of
the net is 6.0-inch (15.24-cm) diamond mesh or 6.5-inch (16.5-cm)
square mesh, or any combination thereof. The codend is defined as
follows: 25 meshes for diamond mesh, or 50 bars in the case of square
mesh, from the terminus of the net for vessels 45 ft (13.7 m) in length
and less; and 50 meshes for diamond mesh, or 100 bars in the case of
square mesh, from the terminus of the net for vessels greater than 45
ft (13.7 m) in length.
Gillnet Vessels, When Fishing in the GOM RMA
Under this action, limited access NE multispecies vessels that
obtain an annual designation as a Trip gillnet vessel, when fishing in
the GOM RMA during any part of a trip under a multispecies DAS, are
required to fish with nets with a minimum of 6.5-inch (16.5-cm) mesh
and are restricted to 150 nets, with one tag fixed to each net.
Multispecies vessels that obtain an annual designation as a Day gillnet
vessel are allowed to fish up to 100 nets, provided that, when fishing
any part of a trip under a NE multispecies DAS in the GOM RMA, the
vessel complies with the following specifications: When fishing with
flatfish nets, vessels can fish no more than 100 nets, with a minimum
mesh size of 7 inches (17.8 cm), with one tag affixed to each net;
vessels may only fish roundfish nets from July through February, and
are allowed to fish no more than 50 nets, with a minimum mesh size of
6.5 inches (16.5 cm), with two tags affixed to each net. Any tag not
affixed to a net must be retained on the vessel and be immediately
available for inspection.
Gillnet Vessels, When Fishing in the GB RMA
Under this final emergency rule, limited access NE multispecies
vessels that fish under a NE multispecies DAS with gillnet gear in the
GB RMA at any time throughout the fishing year are required to declare
into the Day or Trip gillnet category. Vessels fishing under either the
Day or Trip gillnet category in the GB RMA during any part of a trip
under a NE multispecies DAS are required to fish with nets with a
minimum of 6.5-inch (16.5-cm) mesh and are restricted from fishing more
than 50 nets, with two tags fixed to each net.
Trawl Vessels, When Fishing in the SNE RMA
Under this final emergency rule, when fishing any part of a NE
multispecies DAS in the SNE RMA, otter trawl vessels are required to
fish with a minimum 7.0-inch (17.8-cm) diamond or 6.5-inch (16.5-cm)
square mesh codend. This requirement applies only to the codend of the
net, which is
[[Page 38237]]
defined as described above under the GOM and GB trawl mesh
restrictions.
Gillnet Vessels, When Fishing in the SNE RMA
Under this final emergency rule, limited access NE multispecies
vessels that fish under a NE multispecies DAS with gillnet gear in the
SNE RMA at any time throughout the fishing year are required to declare
into the Day or Trip gillnet category. Vessels fishing under either the
Day or Trip gillnet category in the SNE RMA during any part of a trip
under a NE multispecies DAS are required to fish with nets with a
minimum of 6.5-inch (16.5-cm) mesh, and are restricted from fishing
more than 75 nets, with two tags fixed to each net.
Gillnet Vessels, When Fishing in the MA RMA
Under this final emergency rule, limited access NE multispecies
vessels that fish under a NE multispecies DAS with gillnet gear in the
MA RMA are allowed to fish the same type and number of nets as allowed
prior to the implementation of the August 1, 2002, interim rule. That
is, vessels are allowed to fish up to 160 nets. Vessels fishing under
the monkfish DAS program are limited to 150 nets.
Gillnet Vessels, When Fishing Under a Monkfish DAS
Under this final emergency rule, any monkfish vessel that has a
monkfish limited access Category C or D permit (i.e., a vessel that
possesses both a monkfish and NE multispecies limited access permit)
and that is fishing under a monkfish DAS, in all areas, is restricted
from fishing more than 150 nets, provided the vessel fishes with nets
with a minimum mesh size of 10 inches (25.4 cm). Vessels are required
to affix one tag to each net. Category A and B monkfish vessels remain
unaffected by these measures.
Large-Mesh Vessel Permit Categories
Under this final emergency rule, vessels that have a valid limited
access NE multispecies Large Mesh Individual DAS category or a Large
Mesh Fleet DAS category permit, when fishing in the GOM, GB, and SNE
RMAs, with trawl nets or sink gillnets, are required to fish with nets
with a minimum mesh size of 8.5-inch (21.6-cm) diamond or square mesh
throughout the entire net. Vessels fishing with trawl nets or sink
gillnets when fishing in the MA RMA are required to fish with nets with
a minimum mesh size of 7.5-inch (19.0-cm) diamond or 8.0-inch (20.3-cm)
square mesh throughout the entire net.
Hook-gear Vessels
Under this final emergency rule, vessels that have a valid NE
multispecies limited access permit are prohibited from using de-hookers
(crucifiers) with less than 6-inch (15.2-cm) spacing between the
fairlead rollers. In addition, limited access Small-vessel permitted
vessels and limited access permitted vessels that fish any part of a NE
multispecies DAS trip in the GOM, GB or SNE RMAs are required to use
12/0 or larger circle hooks on longline gear, and are subject to a
maximum number of rigged hooks on board the vessel. Specifically,
vessels fishing in the GOM or SNE RMAs are prohibited from possessing
more than 2,000 rigged hooks, and vessels fishing in the GB RMA are
prohibited from possessing more than 3,600 rigged hooks.
Table 1 summarizes the gear restriction measures for each gear
sector when fishing in the various RMAs.
BILLING CODE 3510-22-S
[[Page 38238]]
[GRAPHIC] [TIFF OMITTED] TR27JN03.003
BILLING CODE 3510-22-C
[[Page 38239]]
Cod Minimum Fish Size (Commercial Vessels)
Under this final emergency rule, the minimum size for cod that may
be lawfully sold is 22 inches (55.9-cm) total length.
NE Multispecies Possession Restrictions
Yellowtail Flounder
This final emergency rule requires enrollment in one of two
authorization programs for any possession of yellowtail flounder, and
continues restrictions on the harvest of yellowtail flounder when
fishing in the SNE and MA RMAs and in the GB RMA south of 40 00' N.
lat. From March 1 through April 30, 2004, all vessels are subject to a
possession and landing limit of 250 lb (113.4 kg) of yellowtail
flounder per trip when fishing any part of a trip in the SNE and MA
RMAs north of 40[deg]00' N. lat. In addition, from June 1 through
February 28, all vessels are subject to a possession and landing limit
of 750 lb (340.3 kg) of yellowtail flounder per day, and a maximum trip
limit of 3,000 lb (1,361.2 kg) per trip when fishing any part of the
trip in the SNE and MA RMAs north of 40[deg]00' N. lat. A vessel
fishing for yellowtail flounder in the SNE and MA RMAs north of
40[deg]00' N. lat. may possess and land up to the seasonal yellowtail
flounder allowable limits, provided the vessel does not fish south of
40 00' N. lat. and has on board a SNE/MA yellowtail flounder
possession/landing authorization issued by the Administrator, Northeast
Region, NMFS (Regional Administrator). Under this final emergency rule,
all vessels are prohibited from possessing yellowtail flounder in the
MA, SNE or GB RMAs unless fishing north of 40[deg]00' N. lat., or
unless the vessel is transiting areas south of 40[deg]00' N. lat. and
all fishing gear on board the vessel is properly stowed according to
the regulations. Vessels fishing east or north of this area are not
subject to the yellowtail flounder possession limit restrictions,
provided that the vessel does not fish west of the GB RMA and possesses
on board a GOM/GB yellowtail flounder possession/landing authorization
issued by the Regional Administrator. Vessels exempt from the
yellowtail flounder possession limit requirements may transit areas
outside of the specific exempted area that they are fishing, provided
that their gear is stowed in accordance with one of the provisions of
Sec. 648.23(b).
Hand-gear Permitted Vessels
Under this final emergency rule, the maximum haddock possession
limit for vessels that have been issued a valid open access Hand-gear
permit has been modified from the interim measures to allow up to the
trip limit in effect prior to the implementation of the Settlement
Agreement, 300 lb (136.1 kg) of haddock per trip. However, the maximum
possession limit for cod or yellowtail flounder, combined, remains at
200 lb (90.7 kg) per trip. In other words, such vessels may land a
maximum of 300 lb (136.1 kg) combined cod, haddock, or yellowtail
flounder, provided that no more than 200 lb (90.7 kg) of which are cod
or yellowtail flounder. Such vessels are not required to obtain a
yellowtail flounder possession/landing authorization in order to
harvest yellowtail flounder, but are not allowed to harvest yellowtail
flounder south of 40[deg] 00' N. lat. The haddock limit is changed in
order to enhance the equitable distribution of fish harvest among
sectors of the NE multispecies fishery, decrease discarding, and
mitigate economic impacts resulting from the measures implemented as a
result of the Settlement Agreement.
GB Cod Trip Limit
This final emergency rule continues the current method of how the
DAS clock accrues for those vessels fishing in the GB RMA and
harvesting GB cod, which is consistent with how the DAS clock accrues
when fishing in the GOM RMA and harvesting GOM cod. That is, a vessel
subject to this landing limit restriction can come into port with, and
offload cod in excess of the landing limit, as determined by the number
of DAS elapsed since the vessel called into the DAS program, provided
that the vessel operator does not call out of the DAS program and does
not depart from a dock or mooring in port until the rest of the
additional 24-hr block of the DAS has elapsed, regardless of whether
all of the cod on board is offloaded.
GOM Cod
This action maintains the daily possession limit for GOM cod at 500
lb (227.3 kg) per DAS, with a maximum possession limit of 4,000 lb
(1,818.2 kg) per trip.
Recreational and Charter/Party Vessel Restrictions
Under this final emergency rule, the minimum fish size for haddock
that can be retained by a federally permitted charter/party vessel not
on a NE multispecies DAS, or a private recreational vessel not holding
a Federal permit and fishing in the EEZ, is reduced from 23 inches
(58.4-cm) to 21 inches (52.5-cm) total length, which was the minimum
size limit in effect prior to the implementation of the Settlement
Agreement. This final emergency rule also removes the haddock bag limit
for the charter/party sector when fishing in the GOM RMA and not under
a NE multispecies DAS. This final emergency rule continues the current
cod bag (possession) limit for the charter/party sector when a vessel
is fishing in the GOM RMA and not under a DAS. Each person on a
charter/party vessel not fishing under a DAS in the GOM RMA is allowed
to possess no more than 10 cod per trip during the period April through
November, and no more than 5 cod per trip during the period December
through March. This final emergency rule continues the minimum fish
size of 23 inches (58.4-cm) total length for cod that can be retained
by a federally permitted charter/party vessel not on a NE multispecies
DAS, or a private recreational vessel not holding a Federal permit and
fishing in the EEZ. This action continues the cod and haddock
possession limit of no more than 10 cod or haddock, combined, for
private recreational vessels, and continues the further restriction of
the cod possession limit for private recreational vessels when fishing
in the GOM RMA, by requiring that during the period December through
March, each person on a recreational vessel may possess no more than
five cod. Cod and haddock harvested by recreational vessels with more
than one person aboard can be pooled in one or more containers.
Compliance with the possession limit is determined by dividing the
number of fish on board by the number of persons on board. The haddock
minimum size and bag limit are changed in order to enhance the
equitable distribution of fish harvest among sectors of the NE
multispecies fishery, decrease discarding, and mitigate potential
economic impacts resulting from the measures implemented as a result of
the Settlement Agreement.
For a vessel that intends to charter/party fish in the GOM closed
areas, this final emergency rule requires that the vessel possess on
board a letter of authorization (LOA) issued by the Regional
Administrator. The LOA is required for the entire fishing year if the
vessel intends to fish in the year-round GOM closure areas, and for a
minimum of 3 months if the vessel intends to fish in the seasonal GOM
closure areas. Vessels can obtain an LOA by calling the NMFS Permit
Office at 978-281-9370.
All other existing recreational measures remain in effect,
including the no-sale provision for all fish caught for both the party/
charter and private recreational sectors when not fishing
[[Page 38240]]
under a NE multispecies DAS. Table 2 summarizes the party/charter and
private recreational sector measures.
Table 2. Charter/Party and Private Recreational Fishing Measures.
----------------------------------------------------------------------------------------------------------------
Minimum Fish GOM Closure Exemption
Size\1\ Bag Limit (combined) Authorization
----------------------------------------------------------------------------------------------------------------
Charter/party not on a NE haddock 21 April-November: A minimum of 3 months, or
multispecies DAS (52.5 cm) 10 cod\2\ duration of closure
cod 23 December-March ...........................
(57.5 cm) 5 cod\2\
Private Recreational haddock 21 Areas outside of GOM RMA: N/A
(52.5 cm) 10 cod/haddock
cod 23 GOM RMA: N/A
57.5 cm) 10 cod/haddock, no more than 5
which can be cod, Dec.-Mar.
----------------------------------------------------------------------------------------------------------------
\1\ All other minimum fish sizes remain unchanged.
\2\ When fishing in the GOM RMA.
Observer Coverage
NMFS was ordered by the Court to expand its observer coverage for
all gear sectors in the NE multispecies fishery by providing 5-percent
coverage, or higher, if statistically necessary to monitor and collect
information on bycatch, as well as other biological and fishery-related
information. Additionally, NMFS was ordered, by May 1, 2003, to expand
further its observer coverage to 10 percent for all gear sectors, or
that level necessary to provide statistically reliable data. NMFS has
determined, based upon internal agency decision-making, that 5-percent
observer coverage would provide sufficiently robust statistical data to
assess the amount and type of bycatch in the NE multispecies fishery.
This conclusion is based upon an analysis of the relative precision of
discard estimates of 17 groundfish stocks, using observer coverage and
landings data for the year 2000 (Northeast Fisheries Science Center,
2003), and NMFS has therefore implemented this level of observer
coverage in the NE multispecies fishery.
Other Modifications to Regulations
For the 2002 fishing year, vessels electing a Day or Trip gillnet
designation were allowed to change their designation prior to September
1, 2002, because the interim final rule was implemented during the
middle of the fishing season. This exemption was only necessary for the
2002 fishing year and, therefore, is not included in this final
emergency rule. In the August 1, 2002 interim rule, the Cashes Ledge
Area Closure regulations inadvertently omitted a reference to
transiting, under a listing of allowable exemptions to the closure. The
relevant reference is added by this final emergency rule.
Comments and Responses
A total of 76 comments were received on the proposed emergency rule
that pertain to the management measures specified by the Settlement
Agreement. Because management measures contained in this final
emergency rule are being implemented as a result of a negotiated
Settlement Agreement and a Court Order, NMFS has limited discretion to
alter the measures that were published in the August 1, 2002, interim
rule.
Comment 1: Sixty-nine commenters from the charter/party and private
recreational sectors commented on the haddock restrictions implemented
under the August 1, 2002, interim final rule and that were proposed to
continue under this final emergency rule. Specifically, the commenters
noted the disparity between the substantially higher haddock trip
limits associated with the NE multispecies DAS limited access vessels
and the lower trip limits associated with the charter/party and private
recreational vessels. Some commenters stated that the difference in
trip limits between the two sectors was not justified in light of the
relatively small amount of haddock landed by the private recreational
and charter/party sectors in comparison to the commercial DAS sector.
They believe that the disparity in trip limits is unfair, and cited
National Standard 4, which requires that assignment of fishing
privileges among fishermen be fair and equitable.
Thirty-seven commenters from the charter/party or private
recreational sectors suggested that haddock should be removed from the
combined cod/haddock trip limit, which would result in a bag limit of
10 cod. Three commenters believed that the limit should be 20 cod/
haddock combined, and one commenter thought that the bag limit should
be five for haddock. Two commenters stated that the haddock stock does
not need the protection provided by the 10- haddock bag limit, and one
commenter requested an explanation of why the recreational haddock
catch should be restricted at all. One commenter stated that other
factors such as the amount of free time available for fishing and
weather, were more important determinants to overall levels of
recreational catch than bag limits.
Response: The fact that a trip limit is different for various
sectors of the groundfish fishery does not necessarily make those trip
limits unfair. However, in this situation, the changes to the
recreational sector regulations, when compared to the commercial sector
regulations, created an unfair situation. Low numbers of haddock
landings reported by private recreational and party/charter fishers, as
indicated by the Marine Recreational Fisheries Statistics Survey and
Vessel Trip Reports (VTR), supports the assertion that the total amount
of haddock landed by the recreational and charter party sectors is
small relative to the amount of haddock landed by the commercial
sector.
Comparison of the most recent estimate of fishing mortality on the
GOM stock of haddock with the recent estimate of the fishing mortality
rate associated with maximum sustainable yield (Fmsy), indicates that
fishing mortality could increase substantially over current levels. An
increase in fishing mortality will not undermine the ability of the
stock to rebuild within the timeframe required by the Magnuson-Stevens
Act. In light of the current status of the haddock stocks, the current
trip limit in effect for the NE multispecies limited access DAS
vessels, the negative economic impacts that may have resulted from the
10 cod/haddock combined trip limit (see response to comment 2), and the
[[Page 38241]]
potential impact on discarding bycatch of haddock, a charter/party
haddock bag limit is not necessary, and has therefore been removed
under this final emergency rule. With respect to private recreational
vessels, the haddock bag limit was unchanged by the Settlement
Agreement and is, therefore, not changed by this final emergency rule.
These changes make the haddock measures more consistent with National
Standard 4.
Comment 2: Thirty-six commenters from the charter/party sector
commented that the haddock size and trip limit restrictions that have
been in effect since August 2002, and that were proposed to continue
under this emergency action, have made customers reluctant to sign up
for charter/party trips or caused trip cancellations. According to the
commenters, this has resulted in about a 50-percent reduction in the
number of trips and, thus, has created economic hardship for this
sector of the fishing industry. One commenter predicted that relaxation
of the haddock limits would have positive effects on businesses that
rely on the recreational fishery (e.g., lodging, food, and tackle).
Sixty-five commenters from the charter/party and private
recreational sectors commented on the haddock minimum size restriction,
recommending that the minimum size be reduced to 19 or 21 inches (47.5
or 52.5 cm, respectively). The rationale provided was that few haddock
reach 23 inches (57.5 cm), that the recreational size limit should be
the same as the commercial size limit, and that culling of undersized
fish (discarding) represents a waste of a valuable resource that
results in increased fishing mortality on the stock. One commenter
supported the current 23-inch (57.5-cm) minimum length for cod.
Response: NMFS agrees that fish size and trip limit restrictions on
haddock, coupled with the size and trip limit restrictions on cod for
the charter/party sector, may have been a factor in the decrease in the
number of charter/party trips. Relaxation of the haddock restrictions
may benefit the charter/party fishery and businesses that rely on the
charter/party fishery, while not having a negative impact on the
haddock resource, but restrictions on the GOM stock of cod are
necessary in order to reduce overfishing. Prior to the Settlement
Agreement, the minimum fish size limit for the private recreational and
party/charter fisheries for both cod and haddock was 21 inches (52.5
cm). Reduction of the haddock minimum length restriction to 21 inches
(52.5 cm) would decrease haddock bycatch mortality by enabling fishers
to keep some fish that they would otherwise be required to discard.
Given this, and the current relatively low level of fishing mortality
on haddock, this final emergency rule reduces the haddock minimum size
restrictions for both the private recreational and charter/party
vessels to 21 inches (52.5 cm), the minimum fish size regulation that
was in effect prior to the Settlement Agreement.
Comment 3: Eight commenters did not support the more restrictive
cod limits in December through March because they believe business was
hurt by the low limit, that five fish are not worth the risks
associated with winter fishing, and that the restriction amounts to a
GOM closure for party/charter and private recreational vessels.
Response: NMFS continues to believe that the GOM bag limit of five
cod during December through March for the private recreational and
charter/party sectors is justified due to the need for a substantial
reduction in fishing mortality for the GOM stock of cod. Data suggest
that the majority of charter/party catch of cod occurs from November
through April. Maintaining the five-cod bag limit from December through
March will, therefore, afford continued needed protection for this
stock, which is overfished.
Comment 4: One commenter stated that the proposed rule would not
impose a seasonal bag limit on recreational cod caught on GB, despite
the fact that the GB stock of cod is at a low level. The commenter
believed this was justification for removal of the seasonal
recreational bag limit (five cod in December through March) on GOM cod.
Response: A GB charter/party bag restriction for cod was not an
alternative contained in the proposed rule or analyzed in the EA for
this emergency action. Therefore, there is not a sufficient
justification in the record to support implementation of such measures.
Comment 5: The State of Massachusetts Division of Marine Fisheries
and the Associated Fisheries of Maine indicated that the limitations on
the number of gillnets allowed for vessels with a Trip gillnet
designation disadvantages that sector of the fishery, and suggested
that the 150-net restriction either be eliminated, or that the 150-net
limit apply everywhere, and not only to the GOM RMA. The commenters
noted that the number of nets that can be safely carried on board the
vessel is limited by the size of the vessel, and that access to pollock
and haddock is restricted. One commenter suggested that a limit of 75
nets be set for both Day and Trip gillnet vessels, that the flatfish
net restriction in the GOM be removed, and that the day vessels have a
6.5-inch (16.3-cm) requirement year round.
Response: Several stocks of groundfish in the GOM and GB RMAs
require significant mortality reductions, and the gillnet restrictions
were part of the measures designed to reduce overfishing because such
gear is extensively used in the areas where reductions are needed. NMFS
agrees that a subset of the gillnet fishery will be affected by both
types of gillnet restrictions (mesh size and maximum number of nets).
Although the aggregate reduction in groundfish landings that may be
attributed to the gear restrictions imposed on gillnet vessels is
relatively small (e.g., 2.6 percent for GOM cod), such restrictions
have the potential to achieve important reductions in fishing mortality
on several stocks, particularly cod and yellowtail flounder, which are
overfished. Although, the complexity of the management measures makes
it difficult to compare precisely the impacts of all regulations across
gear sectors, the EA concludes that the Preferred Alternative would not
result in disproportionate impacts among gear groups. Therefore, this
final emergency rule does not modify the gillnet restrictions that were
part of the Settlement Agreement. Amendment 13 to the FMP will reassess
the continuation of these measures.
Comment 6: One commenter stated that the haddock trip limit
associated with the open access Handgear permit category is not fair,
given the more liberal haddock trip limit rules that the NE
multispecies DAS vessels have been fishing under, and therefore should
be removed. The commenter recommended that the cod and yellowtail
flounder trip limits be set at the levels existing prior to
implementation of the Settlement Agreement.
Response: In light of the current fishing mortality rate on the
haddock stocks, the limit in effect for the NE multispecies limited
access vessels concurrent with the implementation of the Settlement
Agreement, the negative economic impacts that may have resulted from
the 200-lb (90.7-kg) haddock trip limit, and the potential to reduce
discarding, this final emergency rule increases the trip limit for the
open access Handgear permitted vessels to 300 lb (136.1 kg) of cod,
haddock, and yellowtail flounder, combined, no more than 200 lb (90.7
kg) of which, may consist of cod and yellowtail, combined. Maintenance
of the 200-lb (90.7-kg) maximum for cod and yellowtail
[[Page 38242]]
flounder, combined, is necessary to ensure continued protection of
those stocks.
Comment 7: Two commenters did not support the method used to
calculate the NE multispecies DAS baseline implemented under the August
1, 2002, interim final rule, which was proposed to continue under this
rule. One commenter suggested that, instead of a 20-percent DAS
reduction from the baseline level, all vessels should have their DAS
reduced by an equal number of days. Although not related to method by
which days-at-sea are calculated, one commenter suggested that NE
multispecies limited access DAS permit holders be compensated for lost
DAS.
Response: The DAS baseline was chosen as a compromise to lessen
impact on vessels as much as possible during a short-term interim
period while Amendment 13 is being developed. NMFS recognizes that for
some vessel owners the criterion may result in more severe impacts than
for others. For such a broadly based measure, some differences in
individual impacts are unavoidable. The conservation benefits of having
a reduced overall cap on the amount of effort available for this
fishery, on balance, justifies the freeze for this interim period,
despite the more severe impacts on a few vessel owners. To help
mitigate these impacts, in August, 2002, the President and Congress
signed an Act that allocated funds to provide 12 million dollars in
economic assistance to fishing communities of New England affected by
federal restrictions. Amendment 13 is considering various alternative
methods that define DAS baselines.
Comment 8: One commenter requested that the western border of the
SNE RMA, which was redesignated by the Settlement Agreement, be
returned to its original location. The commenter stated that it was not
represented during the Settlement Agreement negotiations, and that the
redesignation has been detrimental to some members of the industry,
especially during January to June.
Response: NMFS acknowledges that re-designation of the western
border of the SNE RMA from 72 30' W. long. to 74 00' W. long. altered
the area of the SNE RMA and may have particularly impacted vessels
fishing under a NE multispecies DAS in this re-designated area.
Although the particular challenges facing fishers in this area may be
unique, the implementation of the measures consistent with the
Settlement Agreement made the minimum mesh requirements more
restrictive in all the RMAs. Thus, NMFS believes the continuance of the
mesh size restrictions is justifiable, based on the overfished status
of many stocks managed under the NE Multispecies FMP, and the positive
impacts that may result from an increase in mesh size (e.g., improved
spawning success and recruitment).
Comment 9: One commenter suggested that the Settlement Agreement
management measures should be discontinued, due to the lack of a public
process during the development of the measures.
Response: When implementing the August 1, 2002, interim action,
NMFS was responding to a Court decision, in which the Court adopted the
Settlement Agreement. In order to involve the public and solicit
comment on the proposed rule, NMFS provided a 30-day comment period for
the August 1, 2002, interim final rule and the proposed emergency rule
published on April 24, 2003. In addition, the public had an opportunity
to comment on the proposed emergency rule measures at the May 20, 2003,
New England Fisheries Management Council meeting. Although the public
was not involved in the development of the Settlement Agreement, NMFS
has, to the extent possible, taken into consideration public comments
and made alterations to the proposed measures.
Comment 10: Two conservation organizations, The Ocean Conservancy
and Oceana, supported extension of the Settlement Agreement management
measures, but were concerned that NMFS concluded that a 5 percent level
of observer coverage is sufficient.
Response: NMFS agrees that it is appropriate and necessary to
continue the majority of the Settlement Agreement measures until such
time that Amendment 13 is implemented. The level of observer coverage
is a result of NMFS' internal deliberations related to the adequacy of
observer coverage and is neither specified in the regulations nor a
part of this rulemaking. Pursuant to the Court Order NMFS was required
to provide 10 percent observer coverage for all gear sectors, effective
May 1, 2003, unless it was able to establish by the most reliable and
current scientific information available that such increase was not
necessary. NMFS' Northeast Fisheries Science Center conducted an
analysis of the relative precision of discard estimates for the NE
multispecies fishery and concluded that a 5 percent level of observer
coverage on all trips fished under a NE multispecies DAS would provide
sufficiently robust statistical data to assess and estimate the amount
and type of bycatch in the NE multispecies fishery.
Comment 11: The State of Maine's Department of Marine Resources
supported the continuance of the measures specified in the Settlement
Agreement, urged that no changes to the regulations be made, and stated
that Amendment 13 is the appropriate vehicle for resolution of
outstanding issues.
Response: As discussed above, NMFS is continuing most of the
measures contained in the Settlement Agreement. The measures in the
emergency proposed rule that were changed in this final emergency rule
were limited to management measures for the haddock fishery, which is
not subject to overfishing and where there are inequities between
fishery sectors.
Comment 12: One commenter suggested that the requirement for Day
gillnet vessels to take 120 days out of the fishery be modified to
allow blocks to be taken in 3 to 7-day increments, and one commenter
suggested that the commercial haddock limit be removed and therefore,
there is not a sufficient basis to make such a change to the measures.
Response: These suggested changes were not analyzed or contained in
the emergency proposed rule for this short term interim set of
measures, and therefore, there is no justification in the record that
such a change to these measures should be made.
Changes to the Proposed Interim Rule
The following changes to the proposed emergency rule are based upon
public comment, and NMFS' decision to extend the comment period on the
DAS Leasing Program. The changes listed below are in the order that
they appear in the regulations.
In Sec. 648.2, proposed new definitions pertaining to the DAS
Leasing Program are removed to reflect that the DAS Leasing Program is
not being implemented by this final emergency rule.
In Sec. 648.4, the proposed modification to the consolidation
restriction is removed to reflect that the DAS Leasing Program is not
being implemented by this final emergency rule.
In Sec. 648.14, the proposed prohibitions pertaining to the DAS
Leasing Program are removed to reflect that the DAS Leasing Program is
not being implemented by this final emergency rule.
In Sec. 648.82(a)(1), the proposed modification to the DAS carry-
over restrictions are removed to reflect that the DAS Leasing Program
is not being
[[Page 38243]]
implemented by this final emergency rule.
In Sec. 648.82, the proposed removal of paragraph (l)(3) is
rescinded.
In Sec. 648.82, proposed paragraph (m) is removed to reflect that
the DAS Leasing Program is not being implemented by this final
emergency rule.
In Sec. 648.88, paragraph (a)(1) is modified to reflect that the
NE multispecies open access Handgear permit category possession limit
has changed in response to public comment, as described in the response
to comment 6.
In Sec. 648.89, paragraphs (b)(1) and (c)(2)(i) and (ii), the
recreational cod and haddock minimum sizes and the charter/party
haddock bag limit, respectively, are modified in response to public
comment, as described in the response to comments 1 and 2.
In Sec. 648.92(b)(2), the proposed modifications to monkfish DAS
restrictions are removed to reflect that the DAS Leasing Program is not
being implemented by this final emergency rule.
Classification
This rule has been determined to be significant for purposes of
Executive Order 12866.
Final Regulatory Flexibility Analysis
NMFS prepared a FRFA that analyzes the potential economic impacts
of the final rule on small commercial fishing entities. The proposed
emergency rule was published in the Federal Register on April 24, 2003.
A copy of the Initial Regulatory Flexibility Analysis (IRFA) is
available from the Regional Administrator (see ADDRESSES). Changes to
the emergency proposed rule were made as a result of comments, as
explained in the responses to comments 1, 2, and 3, and to reflect that
the DAS Leasing Program was removed from this final emergency rule. A
description of the action, why it is being considered, and the legal
basis for this action are contained at the beginning of the preamble,
in the SUMMARY, and in the FRFA. Gross revenue, in the absence of
reliable cost data, is considered to be a proxy for profitability. A
summary of the analysis follows:
The FRFA considered three alternatives: The Preferred Alternative,
the No Action Alternative, and a Hard TAC Alternative. Analysis of the
Preferred Alternative examined the impacts on industry that would
result from the continuation of the current management measures
(Settlement Agreement), with modifications to the haddock measures.
Analysis of the No Action Alternative examined the impacts on industry
that would result from implementation of the management measures that
were in place for the 2001 fishing year (prior to implementation of the
Court Order) and allowing fishing inside the WGOM Area Closure.
Analysis of the Hard TAC Alternative examined the impacts to the
industry that would result from a hard TAC system that achieved similar
fishing mortality reductions as the Preferred Alternative. The economic
impacts of the first two alternatives were analyzed and described
according to the type of management measure as follows: (a) Commercial
measures that were modeled (DAS restrictions, area closures, and trip
limits); (b) commercial measures that were not modeled (changes to the
open access hand gear category, prohibition on frontloading,
prohibition on de-hooker use, mesh size restrictions, and limitations
on the number of gillnets and hooks); and (c) recreational measures
(private recreational vessel and party/charter). The Hard TAC
Alternative is a fundamentally different type of management scheme and
the economic impacts were examined in a qualitative manner because this
fishery has not operated under Hard TAC system and therefore, there is
insufficient data to provide a quantitative assessment of the economic
impacts.
A total of seventy-six comments were received on the proposed
emergency rule. Of these comments, fifty-eight addressed the economic
impacts of the proposed measures. The principal concerns were the
private recreational and party/charter haddock and cod restrictions,
the haddock restrictions for the open access Handgear permit category,
the limitations on the number of gillnets allowed, the boundary of the
SNE RMA, and the DAS baseline calculation.
Forty-three comments addressed the economic impacts of the proposed
charter/party and private recreational haddock regulations, and one
comment addressed the economic impacts of the recreational measures on
businesses related to the recreational fishery. According to the
commenters, the haddock size and trip limit restrictions that have been
in effect since August 2002, and that will continue under this final
emergency rule, have made charter/party customers reluctant to sign up
for trips or have caused trip cancellations resulting in about a 50-
percent reduction in the number of trips and concomitant reduction in
gross receipts. This rule restores the minimum size limit for haddock
to 21 inches (52.5-cm) for recreational and party/charter vessels and
restores the no haddock trip limit measure for party/charter vessels.
Relaxation of the haddock restrictions may provide additional revenue
for the charter/party fishery and businesses that rely on the charter/
party fishery by allowing increased catch and resulting in a greater
number of trips. Response numbers one and two in the comments and
responses section of this rule address these issues.
Five comments addressed the economic impacts of the proposed
charter/party and private recreational cod regulations. Commenters
believe that the five cod limit in combination with the haddock
restrictions has discouraged customers from taking trips. Although the
cod trip limit in the GOM may be a disincentive for fishers to book
charter/party trips, relaxation of the cod limit is not justified due
to the need to reduce fishing mortality on the GOM cod stock. The
relaxation of the haddock limit by this rule may mitigate some of the
economic impact of the continuation of the cod trip limit. Response
number three in the comments and responses section of this rule
addresses this concern.
Four comments were received relative to the impacts of the net
limits for the Trip gillnet category. The commenters stated that the
limitations on the number of gillnets allowed for vessels with a Trip
gillnet designation disadvantages that sector of the fishery. This
final emergency rule implements gear restrictions on all the limited
access sectors. Although the EA estimates that the gear limitations
will reduce gross revenues for 24 trip vessels, it concludes that the
Preferred Alternative would not result in disproportionate impacts
among gear groups. Consistent with the Settlement Agreement as order to
be implemented by the Court, the continuation of the Trip gillnet
restrictions is justified because of the potential for these
restrictions to achieve important reductions in fishing mortality and
is, therefore, unchanged by this rule. Response number five in the
comments and responses section of this rule addresses this issue.
One commenter stated that the haddock trip limit associated with
the open access Handgear permit category is unfair, and should be
increased to 300 lb (136.1-kg). This rule restores the haddock trip
limit for this sector resulting in increased gross revenues from an
increase in the amount of haddock retained for sale. Response number
six in the comments and response section addresses this comment.
[[Page 38244]]
One commenter requested that the western border of the SNE RMA,
which was redesignated by the Settlement Agreement, be returned to its
original location because of negative economic impacts. The designation
of the SNE RMA, the associated mesh restrictions, and the potential for
negative economic impacts on a portion of the industry is justifiable,
based on the following: The positive biological impacts that may result
from an increase in mesh size, the overfished status of many stocks,
and the fact that all the RMAs will be subject to restrictive minimum
mesh sizes. Response number nine in the comments and responses section
addresses this comment.
Four comments did not support the method used to calculate the DAS
baseline, based upon the resultant low numbers of DAS for some vessel
owners and the negative economic impacts. The DAS baseline implemented
by this rule results in a lower number of DAS available for use by the
fishery and a decrease in gross revenues earned by individual vessels.
The conservation benefits of having a reduced overall cap on the amount
of effort available for this fishery are consistent with the Court
Order, goals and objectives of the FMP and Magnuson-Stevens Act for
overfished fisheries. To help mitigate negative economic impacts from
DAS reductions, in August, 2002, the Congress passed and the President
signed an Act that allocated funds to provide 12 million dollars in
economic assistance to fishing communities of New England affected by
federal restrictions. Response number seven in the comments and
responses section addresses this issue.
All commercial vessels with a NE multispecies permit had gross
receipts less than $3.5 million, the SBA size standard for defining a
small versus large commercial fishing business (3,894 NE multispecies
vessels) (EA for the Settlement Agreement, June 2002). Therefore, there
will be no disproportionate economic impacts between small and large
entities.
This action will impact all limited access NE multispecies permit
holders (1,383), all open access Hand gear-only permit holders (2,973),
and all party/charter operators (1,028 open access permit holders).
Based upon the June 2002 EA, the number of participating vessels that
may be affected by any one or more of the measures is about 37 percent
of the total number of those eligible to participate in some component
of the NE multispecies fishery.
The DAS allocations implemented under the August 2002 interim final
rule continue under this emergency action. The reductions in 2002 DAS
allocations impacted all limited access permit categories. There were
1,383 limited access permits with baseline DAS allocations for the 2002
fishing year. Of these permits, 343 received the minimum allocation of
8 DAS. A total of 71,180 DAS were allocated for the fishing year; a
reduction of 45.7 percent compared to the final fishing year 2001
allocations.
The relative reduction in DAS allocations varied by permit
category. The total reduction for Individual allocation vessels
(Category A) was 21.7 percent, as compared with 49 percent for Category
B and 65.9 percent for Category D. Reductions in total DAS allocations
for FY 2002 were larger for small vessels (less than 50 ft (15.2 m)),
than for medium or large vessels. New York and New Jersey were the two
states with the largest reduction in fishing year 2002 DAS allocations.
In contrast, under the No Action Alternative, the DAS allocations would
be markedly larger, with the potential for DAS use to increase above
that which was recorded for the 2001 fishing year.
Relative changes to gross revenue were calculated based upon an
estimation that DAS use in fishing year 2003 would range from 25 to 35
percent less than the number of DAS used during the 2001 fishing year.
The estimated revenue loss for the 84 most affected vessels would be
21.3 percent, or greater, for an assumed 25-percent reduction in DAS,
and would be 25 percent for an assumed 35-percent reduction in DAS. For
vessels in the 25th to 50th percentile, the estimated revenue loss
range from 19.7 to 11.5 percent for a 35-percent reduction in DAS use.
Revenue loss for the least affected vessels would be no more than 1.5
percent. Relative dependence upon groundfish revenue is an important
factor among the various factors that may determine the severity of the
impact of the DAS measures on a particular vessel. The greater a
vessel's dependence upon groundfish for annual fishing income, the
greater the revenue loss is likely to be. The No Action Alternative
would have resulted in no negative impacts or slightly positive
impacts, in comparison with the measures being implemented.
With respect to gross annual revenue earned during the 2001 fishing
year (pre-Settlement Agreement), these measures may have the largest
adverse economic impacts on vessels in Maine, New Hampshire, and
Massachusetts, but among these states, the estimated impacts would be
similar. The No Action Alternative would have had positive economic
impacts on vessels that fish in the GOM and fish in the WGOM
specifically. The least adverse economic impacts may be for those
vessels from states bordering the GOM, and for small gillnet vessels or
large hook vessels.
The required changes to mesh size were estimated to affect 424
trawl vessels fishing in the GOM or GB area, and 221 trawl vessels
fishing in the SNE area. The average cost to replace a cod-end was
estimated to be $1,250. The mesh changes were estimated to affect 18
Day boat gillnet vessels that used tie-down nets fished in the GOM. The
average cost to these vessels to replace their nets was $7,794. The
mesh changes were estimated to affect 31 Day boat gillnet vessels that
used stand-up nets that fished in the GOM. The average cost to these
vessels to replace their nets was $9,300. The mesh changes were
estimated to affect 25 Trip gillnet vessels that fished in the GOM. The
average cost to these vessels to replace their nets was $18,352. The
mesh changes were estimated to affect 32 gillnet vessels that fished in
either GB or SNE. The average cost to these vessels to replace their
nets was $8,800.
The required changes to gear limits would affect 30 bottom longline
vessels, 72 Day gillnet vessels, and 24 Trip gillnet vessels. The
average revenue loss for these vessels was estimated to be $21,400.
Under these measures, individuals that provide passenger services
to recreational anglers (charter/party vessels) will also be directly
affected. Because the haddock bag limit for charter/party vessels, and
the minimum haddock size for charter/party and private recreational
vessels is relaxed by this rule, the negative economic impacts under
these bag and minimum size restrictions are expected to be less than
under the restrictions in effect since August 2002. Historic
information suggests that the relationship between changes in bag and
possession limits and passenger demand has been weak. Following
implementation of a reduction in minimum fish size in 1997, the number
of passengers on charter/party vessels increased. However, public
comment received in response to the proposed rule supports the
contention that low bag limits in conjunction with more restrictive
minimum fish size limits may reduce passenger demand.
Relative to the final measures, the No Action Alternative would
have mitigated most of the adverse economic impacts associated with
this action. In general, gross fishing incomes would have increased,
particularly for vessels
[[Page 38245]]
operating in the GOM, and would have had a particularly beneficial
impact on small vessels and gillnet vessels, in general. However, the
No Action Alternative also would have resulted in unacceptably high
increases in fishing mortality rates that could compromise the
rebuilding of several GOM stocks, GOM cod in particular. Therefore, it
was determined that the No Action Alternative would not meet the
regulatory objectives for this emergency action.
Relative to the final measures and the No Action Alternative, the
Hard TAC Alternative would have had a more severe adverse economic
impact because of the severe consequences of closing down fisheries
when a TAC is reached. In any event, neither the No Action Alternative
nor the Hard TAC Alternative were viable because they were not
consistent with the Settlement Agreement ordered by the Court to be
implemented.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and
shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a small entity compliance guide was prepared.
The guide will be sent to all holders of permits issued for the NE
multispecies fishery. In addition, copies of this final emergency rule
and guide (i.e., permit holder letter) are available from the Regional
Administrator (see ADDRESSES) and are also available at the following
web site: http://www.nmfs.gov/ro/doc/nero.html.
There are no new recordkeeping requirements associated with this
action.
This final emergency rule also contains previously-approved
collection-of-information requirements that have been approved under
OMB control number 0648-0202. Public reporting requirements for these
requirements are 15 minutes for a request for a change in permit
category and 5 minutes for an annual declaration as either a Day or
Trip gillnet vessel. The response time estimates include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection information. Public comment is sought regarding: Whether the
proposed collection-of-information is necessary for the proper
performance of the functions of the agency, including whether the
information shall have practical utility; the accuracy of the burden
estimates; ways to enhance the quality, utility, and clarity of the
information to be collected; and ways to minimize the burden of the
collection of information, including through the use of automated
collection techniques or other forms of information technology. Send
comments on these or any other aspects of the collection of information
to NMFS and OMB (see ADDRESSES).
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: June 24, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons stated in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
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2. In Sec. 648.4, paragraphs (a)(1)(i)(I)(2) and (c)(2)(iii) are
revised to read as follows:
Sec. 648.4 Vessel permits.
* * * * *
(a) * * *
(1) * * *
(i) * * *
(I) * * *
(2) The owner of a vessel issued a limited access multispecies
permit may request a change in permit category, unless otherwise
restricted by paragraph (a)(1)(i)(I)(1) of this section. The owner of a
limited access multispecies vessel eligible to request a change in
permit category must elect a category upon the vessel's permit
application and will have one opportunity to request a change in permit
category by submitting an application to the Regional Administrator
within 45 days of the effective date of the vessel's permit. If such a
request is not received within 45 days, the vessel owner may not
request a change in permit category and the vessel permit category will
remain unchanged for the duration of the fishing year. A vessel may not
fish in more than one multispecies permit category during a fishing
year.
* * * * *
(c) * * *
(2) * * *
(iii) An application for a limited access NE multispecies permit
must also contain the following information: For vessels fishing for NE
multispecies with gillnet gear, with the exception of vessels fishing
under the Small Vessel permit category, an annual declaration as either
a Day or Trip gillnet vessel designation as described in Sec.
648.82(k). A vessel owner electing a Day or Trip gillnet designation
must indicate the number of gillnet tags that he/she is requesting and
must include a check for the cost of the tags. A permit holder letter
will be sent to the owner of each eligible gillnet vessel informing
him/her of the costs associated with this tagging requirement and
directions for obtaining tags. Once a vessel owner has elected this
designation, he/she may not change the designation or fish under the
other gillnet category for the remainder of the fishing year.
Incomplete applications, as described in paragraph (e) of this section,
will be considered incomplete for the purpose of obtaining
authorization to fish in the NE multispecies gillnet fishery and will
be processed without a gillnet authorization.
* * * * *
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3. In Sec. 648.81, paragraph (h)(1) is revised to read as follows:
Sec. 648.81 Multispecies closed areas.
* * * * *
(h) * * *
(1) No fishing vessel or person on a fishing vessel may enter, fish
in, or be in, and no fishing gear capable of catching NE multispecies,
unless otherwise allowed in this part, may be in, or on board a vessel
in the area known as the Cashes Ledge Closure Area, 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:
* * * * *
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4. In Sec. 648.88, paragraph (a)(1) is revised to read as follows:
Sec. 648.88 Multispecies open access permit restrictions.
(a) * * *
(1) Unless otherwise restricted under Sec. 648.86(h), the vessel
may possess and land up to 300 lb (136.1 kg) of haddock, cod, and
yellowtail flounder, combined; one Atlantic halibut per trip; and
[[Page 38246]]
unlimited amounts of the other NE multispecies provided the following:
The vessel does not possess more than 200 lb (90.7 kg) of cod and
yellowtail flounder, combined; the vessel does not use or possess on
board gear other than rod and reel or handlines while in possession of,
fishing for, or landing NE multispecies; and provided it has at least
one standard tote on board.
* * * * *
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5. In Sec. 648.89, paragraphs (b)(1), (c)(2)(i) and (ii) are revised
to read as follows:
Sec. 648.89 Recreational and charter/party restrictions.
* * * * *
(b) * * *
(1) Minimum fish sizes. Persons aboard charter or party vessels
permitted under this part and not fishing under the NE multispecies DAS
program, and private recreational fishing vessels in the EEZ, may not
retain fish smaller than the minimum fish sizes, measured in total
length (TL) as follows:
MINIMUM FISH SIZES (TL) FOR CHARTER, PARTY, AND PRIVATE RECREATIONAL
VESSELS
------------------------------------------------------------------------
Species Size (inches)
------------------------------------------------------------------------
Cod..................................................... 23 (58.4 cm)
Haddock................................................. 21 (52.5 cm)
Pollock................................................. 19 (48.3 cm)
Witch flounder (gray sole).............................. 14 (35.6 cm)
Yellowtail flounder..................................... 13 (33.0 cm)
Atlantic halibut........................................ 36 (91.4 cm)
Americal plaice (dab)................................... 14 (35.6 cm)
Winter flounder (blackback)............................. 12 (30.5 cm)
Redfish................................................. 9 (22.9 cm)
------------------------------------------------------------------------
* * * * *
(c) * * *
(2) * * *
(i) During the period April 1 through November 30, each person on
the vessel may possess no more than 10 cod.
(ii) During the period December 1 through March 31, each person on
the vessel may possess no more than 5 cod.
* * * * *
[FR Doc. 03-16404 Filed 6-25-03; 11:19 am]
BILLING CODE 3510-22-S