[Federal Register: June 5, 2002 (Volume 67, Number 108)]
[Rules and Regulations]               
[Page 38608-38609]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn02-8]                         

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 020409080-2134-03; I.D. 052402C]
RIN 0648-AP78

 
Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS publishes this interim final rule to amend the 
regulations governing the Northeast multispecies fishery to bring them 
into compliance with a Court Order. On May 23, 2002, the U.S. District 
Court for the District of Columbia (Court) issued an Order in 
Conservation Law Foundation, et al. v. Evans, et al., which granted the 
motions for reconsideration submitted to the Court by NMFS and several 
other parties to the lawsuit in response to the Court's April 26, 2002, 
Remedial Order. In granting the motion for reconsideration, the Court 
ordered NMFS to implement, by June 1, 2002, an amended interim rule to 
bring the regulations into conformance with the Settlement Agreement 
Among Certain Parties (Settlement Agreement) that was filed earlier 
with the Court. Therefore, NMFS is making the following changes to the 
regulations: The year-round Cashes Ledge East and Cashes Ledge West 
Area Closures (blocks 128 and 130) are removed; the requirement to use 
a minimum of 6-inch (15.2-cm) spacing between the fairlead rollers of 
de-hooking gear (``crucifiers'') is removed; and the minimum fish size 
for cod that may be lawfully sold is decreased from 22 inches (55.9 cm) 
to 19 inches (28.3 cm).

DATES: Effective June 1, 2002, except for an amendment to Sec. 648.83 
paragraph (a)(3), which is effective from June 1, 2002, through July 
31, 2002. Comments on this interim final rule must be received no later 
than 5 p.m., local time, on July 5, 2002.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, National Marine Fisheries Service, One 
Blackburn Drive, Gloucester, MA 01930. Mark the outside of the 
envelope, ``Comments on the June Interim Final Rule for Groundfish.'' 
Comments also may be sent via facsimile (fax) to (978) 281-9135. 
Comments will not be accepted if submitted via e-mail or Internet.

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

    On December 28, 2001, a decision was rendered by the Court on a 
lawsuit brought by the Conservation Law Foundation (CLF), Center for 
Marine Conservation, National Audubon Society and Natural Resources 
Defense Council against NMFS (Conservation Law Foundation, et al., v. 
Evans, Case No. 00CVO1134, (D.D.C., December 28, 2001)). The lawsuit 
alleged that Framework Adjustment 33 to the Fishery Management Plan for 
the Northeast Multispecies Fishery (FMP) violated the overfishing, 
rebuilding and bycatch provisions of the Magnuson-Stevens Fishery 
Conservation and Management Act (18 U.S.C. 1801 et seq.), as amended by 
the Sustainable Fisheries Act (SFA). The Court granted Plaintiffs' 
Motion for Summary Judgment on all counts. The Court had not yet 
imposed a remedy, but it did ask the parties to the lawsuit to propose 
remedies consistent with the Court's findings. Additional background on 
the lawsuit is contained in the preamble to the interim rules published 
by NMFS on April 29, 2002 (67 FR 21140) and May 6, 2002 (67 FR 30331) 
and is not repeated here.
    From April 5-9, 2002, Plaintiffs, Defendants and Intervenors 
engaged in Court-assisted mediation to try to agree upon mutually 
acceptable short-term and long-term solutions to present to the Court 
as a possible settlement. Although these discussions ended with no 
settlement, several of the parties continued mediation and filed with 
the Court a Settlement Agreement on April 16, 2002. In addition to 
NMFS, the parties signing the agreement include CLF, which is one of 
the plaintiff conservation groups, all four state intervenors, and two 
of three industry intervenors.
    In order to ensure the implementation of protective management 
measures by May 1, 2002, NMFS, notwithstanding that the Court had not 
yet issued its Remedial Order, filed an interim final rule with the 
Office of the Federal Register on April 25, 2002, for publication on 
April 29, 2002. The interim final rule that was published on April 29, 
2002, implemented measures identical to the short-term measures 
contained in the Settlement Agreement filed with the Court.
    On April 26, 2002, the Court issued a Remedial Order that ordered 
the promulgation of two specific sets of management measures--one to be 
effective from May 1, 2002, to July 31, 2002, and the other from August 
1, 2002, until promulgation of Amendment 13 to the FMP. The Court-
ordered measures for the first set of measures were, in the majority, 
identical with those contained in the Settlement Agreement and the 
measures contained in NMFS' April 29, 2002, interim final rule. 
However, the Court-ordered measures included additional provisions and 
an accelerated schedule of effectiveness for all measures, which were 
not contained in either the Settlement Agreement or the April 29, 2002, 
interim final rule. According to the Court, these additional provisions 
were included to strengthen the Settlement Agreement provisions ``in 
terms of reducing overfishing and minimizing bycatch without risking 
the lives of fishermen or endangering the future of their communities 
and their way of life'' (Remedial Order, p.13). Further, the Court 
ordered that NMFS publish in the Federal Register, as quickly as 
possible, an ``amended interim rule and an amended second interim 
rule'' that would ``include the departures from the Settlement 
Agreement incorporated in the Remedial Order.'' To comply with the 
Court Order, NMFS published a second interim final rule (``amended 
interim rule'') to modify the measures implemented through the April 
29, 2002, interim final rule and to accelerate the effectiveness of the 
gear restrictions, as required by the Remedial Order.
    Because the Court's Remedial Order was not entirely consistent with 
the terms of the Settlement Agreement, NMFS, CLF, and the Intervenors 
filed motions for reconsideration with the Court, requesting that the 
Court implement the terms of the Settlement Agreement without change. 
On May 23, 2002, the Court issued an Order granting the motions for 
reconsideration on the basis that ``the important changes made by the 
Court in the complex and carefully crafted Settlement Agreement

[[Page 38609]]

Among Certain Parties ... would produce unintended consequences.'' The 
Court ordered that the Settlement Agreement be implemented according to 
its terms; that the Secretary of Commerce (Secretary) publish an 
interim rule, effective no later than June 1, 2002, to reduce 
overfishing in the first quarter of the 2002-2003 fishing year; that 
the Secretary publish another interim rule to be effective no later 
than August 1, 2002, to reduce overfishing beginning with the second 
quarter of the 2002-2003 fishing year, and continuing until 
implementation of Amendment 13 to the FMP, which complies with the 
overfishing, rebuilding, and bycatch provisions of the SFA; and that, 
no later than August 22, 2003, the Secretary promulgate such an 
amendment to the FMP.

Changes to Management Measures

    Through this interim final rule, NMFS, on behalf of the Secretary, 
makes the changes ordered by the Court to be implemented by June 1, 
2002, and thus brings the regulations governing the Northeast 
multispecies fishery into full conformance with the terms of the 
Settlement Agreement. Specifically, three measures that were not in the 
Settlement Agreement, but that were ordered by the April 26, 2002, 
Remedial Order and implemented by the May 6, 2002, interim final rule, 
are removed from the regulations. They are:
    1. The year-round Cashes Ledge East and Cashes Ledge West Area 
Closures (blocks 128 and 130);
    2. The requirement to use a minimum of 6-inch (15.2-cm) spacing 
between the fairlead rollers of de-hooking gear (``crucifiers''); and
    3. The 22-inch (55.9-cm) minimum fish size limit for cod that may 
be lawfully sold (the minimum size limit for cod that may be lawfully 
sold is decreased to 19 inches (28.3 cm), consistent with the 
regulations that were in place prior to the Court's Remedial Order).

Classification

    This rulemaking is required to be made effective by June 1, 2002, 
by the May 23, 2002, Order issued by the Court in Conservation Law 
Foundation, et al., v. Evans, Case No. 00CV01134 (D.D.C., Dec. 28, 
2001). This Order leaves NMFS with no discretion as to whether or when 
to promulgate this interim final rule.
    This rule has been determined to be significant for purposes of 
Executive Order 12866. NMFS has not prepared an assessment of the 
potential costs and benefits of this rule as required by the Executive 
Order. However, in the April 29, 2002, interim final rule, which 
implemented the short-term measures contained in the Settlement 
Agreement, NMFS conducted an assessment of the potential costs and 
benefits of the measures contained in that rule. Accordingly, the 
analyses contained in the April 29, 2002, interim final rule continue 
to be pertinent as NMFS is implementing the management measures 
contained in the Settlement Agreement. This interim final rule will 
relieve restrictions on the fishing industry.
    Because the Court mandated on May 23, 2002, that this rule must be 
made effective by June 1, 2002, it is impracticable for NMFS to provide 
prior notice and an opportunity for public comment. Such procedures 
would prevent NMFS from timely implementation of the Court's order. 
Accordingly, the Assistant Administrator for Fisheries (AA) finds that 
there exists good cause to waive the notice and comment requirements of 
the Administrative Procedure Act pursuant to 5 U.S.C. 553(b)(B). The AA 
is also waiving the 30 day delay in effective date under 5 
U.S.C.(d)(1), as this rule relieves a restriction on the fishing 
industry.
    Since notice and an opportunity for public comment are not required 
for this rule by 5 U.S.C. 553, or any other law, this rule is not 
subject to the analytical requirements of the Regulatory Flexibility 
Act. As such, no regulatory flexibility analysis is required for this 
rulemaking, and none has been prepared. 5 U.S.C. 603.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 31, 2002.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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


Sec. 648.14  [Amended]

    2. In Sec. 648.14, paragraphs (a)(149) through (151) are removed.


Sec. 648.80  [Amended]

    3. In Sec. 648.80, paragraph (n)(6) is removed.

    4. In Sec. 648.81, the heading of paragraph (u) and paragraph 
(u)(1) are revised to read as follows:


Sec. 648.81  Closed areas.

* * * * *
    (u) Cashes Ledge Closure Area. (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 
(s) and (u)(2) of this section:

                      CASHES LEDGE CLOSURE AREA\1\
------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
CL1                                              43 deg.07'   69 deg.02'
CL2                                             42 deg.49.5   68 deg.46'
                                                          '
CL3                                             42 deg.46.5  68 deg.50.5
                                                          '            '
CL4                                             42 deg.43.5  68 deg.58.5
                                                          '            '
CL5                                             42 deg.42.5  69 deg.17.5
                                                          '            '
CL6                                             42 deg.49.5   69 deg.26'
                                                          '
CL1                                              43 deg.07'   69 deg.02'
------------------------------------------------------------------------
\1\A chart depicting this area is available from the Regional
  Administrator upon request (see Table 1 to Sec.  600.502 of this
  chapter).

* * * * *

    5. In Sec. 648.83, paragraph (a)(3) is revised to read as follows 
(paragraph (a)(3) expires on July 31, 2002):


Sec. 648.83  Multispecies minimum fish sizes.

    (a) * * *
    (3) Minimum fish sizes for recreational vessels and charter/party 
vessels that are not fishing under a NE multispecies DAS are specified 
in Sec.  648.89. Except as provided in Sec.  648.17, all other vessels 
are subject to the following minimum fish sizes, determined by total 
length (TL):

             MINIMUM FISH SIZES (TL) FOR COMMERCIAL VESSELS
------------------------------------------------------------------------
                         Species                          Sizes (inches)
------------------------------------------------------------------------
Cod                                                         19 (48.3 cm)
Haddock                                                     19 (48.3 cm)
Pollock                                                     19 (48.3 cm)
Witch flounder (gray sole)                                  14 (35.6 cm)
Yellowtail flounder                                         13 (33.0 cm)
American plaice (dab)                                       14 (35.6 cm)
Atlantic halibut                                            36 (91.4 cm)
Winter flounder (blackback)                                 12 (30.5 cm)
Redfish                                                      9 (22.9 cm)
------------------------------------------------------------------------

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[FR Doc. 02-14050 Filed 5-31-02; 2:22 pm]
BILLING CODE 3510-22-S