[Federal Register: March 7, 2003 (Volume 68, Number 45)]
[Proposed Rules]
[Page 11023-11030]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07mr03-26]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 030225045-3045-01; I.D. 020603A]
RIN 0648-AQ29
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Monkfish
Fishery; Framework Adjustment 2
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes regulations to implement Framework Adjustment 2
to the Monkfish Fishery Management Plan (FMP) developed by the New
England and Mid-Atlantic Fishery Management Councils (Councils).
Pursuant to the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act) and the FMP, this proposed rule would modify
the monkfish overfishing definition reference points and optimum yield
(OY) target control rule to be consistent with the most recent stock
assessment and other scientific information. This rule also proposes an
expedited process for setting annual target total allowable catch (TAC)
and a method for adjusting monkfish trip limits and days-at-sea (DAS)
allocations to achieve the annual target TACs. Based on this method,
this proposed rule would establish a target TAC and corresponding trip
limits and DAS allocations for fishing year (FY) 2003. In addition,
this proposed rule would eliminate the default measures adopted in the
original FMP that would result in elimination of the directed monkfish
fishery and reduce incidental catch limits. Finally, this proposed rule
would clarify the regulations pertaining to the monkfish area
declaration requirements by specifying that vessels intending to fish
under either a monkfish, multispecies, or scallop DAS, under the less
restrictive measures of the Northern Fishery Management Area (NFMA),
declare their intent to fish in the NFMA for a minimum of 30 days.
DATES: Public comments must be received on or before March 24, 2003.
ADDRESSES: Comments on the proposed rule should be sent to Patricia A.
Kurkul, Regional Administrator (RA), Northeast Region, NMFS, One
Blackburn Drive, Gloucester, MA 01930-2298. Mark the outside of the
envelope ``Comments on Monkfish Framework 2.'' Comments may also be
submitted via facsimile (fax) to 978-281-9135. Comments will not be
accepted if submitted via e-mail or the Internet.
Copies of Framework Adjustment 2 to the FMP, including the
Environmental Assessment (EA), Regulatory Impact Review (RIR), and the
Initial Regulatory Flexibility Analysis (IRFA) are available upon
request from Paul Howard, Executive Director, New England Fishery
Management Council (NEFMC), 50 Water Street, Newburyport, MA, 01950.
Copies of the Framework 2 EA/RIR/IRFA are also available online at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.nefmc.org under ``Plans and Reports.''
FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy
Analyst, (978) 281-9103, fax (978) 281-9135, e-mail
Allison.Ferreira@noaa.gov.
SUPPLEMENTARY INFORMATION: The monkfish fishery is jointly managed by
the Councils. The FMP contains default measures that would eliminate
the
[[Page 11024]]
directed monkfish fishery by allocating zero monkfish DAS. These
measures were scheduled to take effect during Year 4 (May 1, 2002) of
the FMP's 10-year rebuilding schedule, but were delayed until May 1,
2003, as a result of the implementation of an emergency interim rule
(67 FR 35928; May 22, 2002) and its extension (67 FR 67568; November 6,
2002). The emergency interim rule temporarily amended the fishing
mortality rate (F) criteria in the FMP to be consistent with the most
recent stock assessment. The emergency rule also implemented the
measures contained in Framework Adjustment 1 to the FMP (which was
disapproved by NMFS in conjunction with the implementation of the
emergency rule) since these measures were deemed to be consistent with
the revised F criteria.
The purpose of the proposed action is to continue the 10-year stock
rebuilding program started in 1999 under the original FMP, consistent
with updated scientific information. As noted above, the FMP contains
default measures that, unless eliminated or delayed, will end the
directed fishery (no allocation of monkfish DAS) and reduce several of
the incidental catch limits starting May 1, 2003. The default measures
were developed in the original FMP based on scientific analysis and
projections done in 1997. More recent analyses and stock assessments
have indicated that the scientific basis for the default measures is no
longer valid, and the measures are not appropriate. Furthermore, the
most recent stock assessment (SAW 34; January 2002) has invalidated the
lower F reference points contained in the FMP, and suggested
alternative reference points for the monkfish overfishing definition
and control rules. In addition to revising the overfishing definitions
in the FMP to make them consistent with the best available science and
the provisions of the Magnuson-Stevens Act, this action proposes to
establish an expedited process for setting annual target TACs, and the
necessary trip limits and/or DAS allocations to meet such target TACs.
Furthermore, this proposed rule would establish target TACs and
corresponding trip limits for FY 2003 utilizing the proposed method.
Monkfish Overfishing Definition Reference Points
The threshold fishing mortality rate (Fthreshold) is the
criterion by which the overfishing status is determined. Framework 2
would revise the Fthreshold reference point by setting
Fthreshold equal to Fmax=0.2, as recommended by
the 34th Stock Assessment Workshop. Fmax is the proxy for
the fishing mortality rate that will achieve maximum sustainable yield
(MSY) from a rebuilt stock.
The minimum biomass threshold (Bthreshold) is the
criterion by which a stock is determined to be overfished. The biomass
target (Btarget) is a proxy for the expected biomass at MSY
(Bmsy). The National Standard Guidelines prescribe that
Bthreshold be set at whichever of the following is greater:
At one-half the Btarget, or the minimum stock size at which
rebuilding to Btarget would be expected to occur within 10
years, if the stock were exploited at Fthreshold. The
existing Bthresholds in the FMP were established based on
the 33rd percentile of NMFS' fall trawl survey biomass index values for
the years 1963-1994; Bthreshold = 1.46 kg/tow for the NFMA
and Bthreshold = 0.75 kg/tow for the Southern Fishery
Management Area (SFMA). At the time the FMP was implemented, the
Councils believed that this was an acceptable proxy for a risk adverse
Bthreshold. Language in the FMP, however, indicates that it
is unclear how this Bthreshold relates to rebuilding because
of the inability to model monkfish stock dynamics and predict
rebuilding potential due to a lack of biological data on the monkfish
resource. Although a recent cooperative industry survey provided
valuable biological information on the monkfish resource, there
continues to be a lack of sufficient information necessary to conduct
reliable projections for monkfish rebuilding, or to produce a reliable
estimate of F. As a result, it is currently not possible for NMFS to
determine the minimum stock size at which rebuilding to Btarget
would be expected to occur within 10 years if the stock were exploited
at Fthreshold. Because a Bthreshold of one-half
the Btarget is consistent with National Standard 1, and
because there are no other suitable proxies for Bthreshold
given the data-poor situation, the proposed action would revise the
Bthreshold values contained in the FMP to be equivalent to
one-half the Btarget established for each management area.
This would establish a Bthreshold = 1.25 for the NFMA, and
Bthreshold = 0.93 for the SFMA. Under the proposed action,
the Btargets established in the FMP would remain unchanged.
The results of the 2002 NMFS fall trawl survey indicate that the 3-
year average biomass index is 2.23 kg/tow for the NFMA and 0.813 kg/tow
for the SFMA. Applying the new Bthreshold criteria that
would be established by this rule, the stock in the NFMA remains not
overfished. However, the stock in the SFMA, which is currently
considered not overfished, would be considered overfished under the
proposed revision.
Setting Annual Target TACs and Associated Management Measures
Framework 2 would require the Monkfish Monitoring Committee (MFMC)
to submit to the Council and Regional Administrator the target TACs for
the upcoming year by December 1 based on a formulaic index- and
landings-based method. This method would compare the current 3-year
average biomass index (observed biomass index) values to annual biomass
index targets, which are based on 10 equal increments between the 1999
biomass index (the start of the rebuilding program) and the 2009
biomass index target (Btarget), a proxy for the monkfish
biomass level at MSY. Annual target TACs would be set based on the
ratio of the observed biomass index to the annual index target applied
to the monkfish landings for the previous fishing year. Once the annual
target TACs are established and submitted to the RA, the RA would
adjust trip limits and/or DAS, if necessary, through rulemaking
consistent with the Administrative Procedures Act (APA) based on the
methodology established in this framework. If the TAC resulting from
the application of the TAC setting procedures described herein does not
require a change to existing management measures, then the RA would not
required to take any regulatory action under the procedures established
in Framework 2.
The MFMC is currently required to meet on or before November 15
each year to review the status of the monkfish resource and develop
TACs for the upcoming fishing year. If the results of the most recent
NMFS fall trawl survey are available at that time, the MFMC would
incorporate these results into the formulaic method as described in
this framework to establish target TACs for the upcoming fishing year.
Under the target TAC setting method contained in Framework 2, if
the observed biomass index is below the annual index target, the target
TAC would be set proportionally below the previous year's landings. If
the observed biomass index is above the annual index target, the target
TAC would be increased from the previous year's landings by \1/2\ of
the ratio of the biomass index to the index target, with certain
limitations as described below. In cases where F can be determined, the
annual target TAC would always be set at a value that would not exceed
Fthreshold (F=0.2). For example, if F for the previous
fishing year exceeded Fthreshold, but a reduction in the
target TAC is not required under the index-based method,
[[Page 11025]]
the target TAC would be reduced proportionally from the previous year's
landings to end overfishing. When F cannot be determined and the
observed biomass index is above the annual index target, the target TAC
for the previous year would be increased by the method described above,
but not by more than 20 percent of the previous year's landings.
Once the stock in a management area is rebuilt (the observed
biomass index is at or above Btarget), the target TAC would
be adjusted based on the ratio of current F to Fthreshold,
allowing for an increase in the target TAC if F is below
Fthreshold. This would set the OY target reference point at
Fthreshold. However, if F cannot be determined and the
observed biomass index is above Btarget, the target TAC would be set at
no more than 20 percent above the previous year's landings.
In the situation where landings decline from the previous fishing
year and the observed biomass index is above the annual index target,
the MFMC would review the circumstances surrounding the landings
decline and recommend to the Councils a target TAC equivalent to either
the previous year's landings or target TAC. The Councils, after
considering the MFMC's recommendation, would then recommend a target
TAC to the RA regarding whether the target TAC should be set at the
previous year's landings or target TAC. If the RA concurs with this
recommendation, the target TAC and associated trip limits would be
promulgated through rulemaking and consistent with the requirements of
the APA. Otherwise, the RA would notify the Councils in writing of his
or her reasons for non-concurrence.
The intent of the Councils in establishing a formulaic method for
setting annual target TACs, described above, was to enable the RA to
set future TACs and associated management measures outside of the
framework adjustment process established in the FMP. In this proposed
rule, NMFS is clarifying that the expedited process for setting annual
TACs contained in the Framework 2 document is to be done through the
rulemaking process specified under the APA.
The Framework 2 document analyzes a range of target TAC
alternatives for FY 2004. The intent of this analysis is to facilitate
the expedited process for annual adjustments and to provide the public
with ample notice of the possible impacts of such adjustments. The
expedited annual adjustment process to be established in this framework
would not preclude the Councils from initiating a framework adjustment
at anytime to implement other measures deemed necessary to meet the
objectives of the FMP.
FY 2003 TACs and Possession Limits
For FY 2003, the TACs under the proposed action would be 10,211 mt
in the SFMA and 17,708 mt in the NFMA. As a result, trip limits for
monkfish limited access vessels in the SFMA would be increased from FY
2002 (May 1, 2002 - April 30, 2003) levels (550 lb (249.5 kg) tail
weight per DAS for Category A and C vessels, and 450 lb (204.1 kg) tail
weight per DAS for Category B and D vessels), to 1,250 lb (567 kg) tail
weight per DAS for Category A and C vessels, and 1,000 lb (453.6 kg)
tail weight per DAS for Category B and D vessels. In the NFMA, there is
currently no trip limit for monkfish limited access vessels while
fishing under either a monkfish or Northeast (NE) multispecies DAS, and
no change is proposed. However, monkfish open-access Category E vessels
fishing exclusively in the NFMA on a NE multispecies DAS would have
their monkfish incidental catch limits increased from 300 lb (136.1 kg)
tail weight per DAS or 25 percent of the total weight of fish on board
to the lesser of 400 lb (181.4 kg) tail weight per DAS or 50 percent of
total weight of fish on board.
Revision to the Area Declaration Regulations
Regulations implementing the FMP (64 FR 54732; October 7, 1999)
specify that a vessel intending to fish for or catch monkfish under a
monkfish DAS only in the NFMA must declare into the NFMA for a minimum
of 30 days in order to fish under the less restrictive size and trip
limits of this management area. However, the FMP also requires vessels
fishing under a multispecies or scallop DAS to declare into the NFMA in
order to fish under the less restrictive measures of this area. Because
NMFS inadvertently referenced only limited access monkfish DAS vessels
in the regulations implementing the FMP, Framework 2 proposes to
correct the area declaration provision by requiring vessels with
limited access multispecies and scallop DAS permits, in addition to
vessels possessing limited access monkfish DAS permits, to declare into
the NFMA for a minimum of 30 days in order to fish under the less
restrictive size and trip limits of this management area.
Revisions to Prohibitions
Since they are ambiguous and do not contain the appropriate cross-
references to the monkfish regulations specified under 50 CFR Part 648
Subpart F, this action also proposes to clarify the monkfish
prohibitions found at Sec. 648.14(y).
Classification
This proposed rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866 because it does not have an
annual effect on the economy of 100 million dollars or more, or
adversely effect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities.
The proposed action also does not raise any novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in E.O. 12866.
The Council prepared an initial regulatory flexibility analysis
(IRFA) that describes the economic impact this proposed rule, if
adopted, would have on small entities. The IRFA prepared for this
action by the NEFMC follows NMFS' ``Guidelines for Economic Analysis of
Fishery Management Actions'' (NMFS' guidelines). A description of the
action, why it is being considered, and the legal basis for this action
are contained at the beginning of this section in the preamble and in
the SUMMARY. A summary of the analysis follows:
There are approximately 714 limited access monkfish permit holders,
of which about 85 percent record some monkfish activity. Of the
approximately 1,900 open-access Category E permits, only about 25
percent have recorded landing monkfish. Vessels range in size from less
than 30 ft (9.14 m) to over 90 ft (27.43 m), with the median being less
than 50 ft (15.24 m) in overall length. Most of the inactive vessels
(those not landing monkfish or not landing any species) are in the
smaller size classes, while 70 percent of the limited access vessels
over 50 ft (15.24 m) have recorded monkfish landings. In achieving OY
from the fishery on an annual basis while rebuilding the resource to
levels that will sustain MSY, the proposed action strikes a reasonable
balance between biological requirements and uncertainties, and the
financial requirements of small entities.
NMFS' guidelines specify two criteria to be used for evaluating
whether a proposed action is significant: Disproportionality and
profitability. Disproportionality relates to the effect on small
entities compared to large entities. Since all entities engaged in the
fishery fall under the Small Business
[[Page 11026]]
Administration approved definition of ``small entity,'' this evaluation
standard is not relevant to the fishery. According to the analysis of
the impact on vessels in the SFMA, relative to performance during
calendar years 1998-2000, net return on monkfish-only trips would
improve by 23 percent for the median and range from no change to an
improvement of 78 percent at the proposed FY 2003 quota level. Given
these levels of expected change in profitability, the proposed trip
limits may have a significant positive impact on limited access
monkfish vessels that fish in the SFMA. At other quota levels, median
vessel performance would be reduced by 63 percent at a 5,000-mt quota,
but would increase by 29 percent at a 13,000-mt quota. In either of
these two scenarios, the change in profitability would be significant;
negative for the former, and positive for the latter.
In the NFMA, the only change in management measures would be an
increase in the incidental catch limit for open access Category E
monkfish vessels. During FY 2001 (May 1, 2001 - April 30, 2002), 255
Category E vessels caught monkfish in the NFMA. Average monkfish catch
by these vessels (62 lb (28.1 kg) per NE multispecies DAS) is well
below the current and proposed incidental catch limits. Therefore, in
terms of improvements to participating vessels' annual profit, the
proposed change is not likely to have a significant impact. While the
current trip limit does not constrain the majority of the 255 Category
E vessels catching monkfish in the NFMA, the proposed increase could
allow those vessels that are constrained by the current trip limit to
increase their monkfish landings by as much as 33 percent without
jeopardizing the stock rebuilding program.
NMFS' guidelines state that ``a rule may be determined to affect a
substantial number of small entities if the rule is controversial,
impacts more than just a few entities, or affects the structure of the
regulated industry even though only a small number of entities may be
impacted.'' The proposed action may affect a substantial number of
small entities because it will impact approximately 700 limited access
monkfish permit holders, although not in an adverse way, by means of an
increase to the trip limits for the SFMA. An analysis of projected
change in fishing performance under the proposed TACs and trip limits
for FY 2003, as compared to FY 2002, indicates that the median vessel
will realize a 23-percent increase in net returns on monkfish-only
trips. According to this analysis, the change in net returns resulting
from the proposed trip limit increase ranged from no change to an
improvement of 78 percent. A vessel would realize no change in net
revenues under the proposed trip limit increase if the vessel was not
constrained by the 2002 trip limits; in other words, the vessel did not
fish at a level exceeding the trip limits established for FY 2002.
Under future TACs that could range from 5,000 mt to 13,000 mt, the
median vessel would realize gross revenue impacts ranging from a loss
of 49 percent to a gain of 17 percent in net income. In the NFMA,
approximately 255 vessels out of approximately 1,500 limited access
multispecies permit holders landed monkfish under the open-access
Category E (incidental catch) permit. These vessels will mostly be
unaffected by the proposed incidental catch limit increase since they
land, on average, only about 20 percent of the current limit.
Combining the two evaluation criteria, the proposed regulations
would likely have a considerable positive impact on a substantial
number of vessels that participate in the SFMA on monkfish-only DAS.
The incidental catch trip limit change in the NFMA would impact a
substantial number of participating small entities, but the overall
impact on vessel profitability is not expected to be significant.
A copy of this analysis is available from the NEFMC (see
ADDRESSES).
This proposed rule does not duplicate, overlap or conflict with
other Federal rules, and does not contain new reporting or
recordkeeping requirements. However this action makes a correction to
the regulatory language referencing area declaration procedures. This
collection-of-information requirement that is subject to the Paperwork
Reduction Act (PRA) has previously been approved by OMB under control
number 0648-0202. Public reporting burden for this collection of
information is estimated to average 3 minutes per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate, or any other aspect of this data collection, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington DC 20503 (Attention: NOAA Desk Officer).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a 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: February 28, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be 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.
2. In Sec. 648.14, paragraphs (y) introductory text, (y)(1),
(y)(4), (y)(6), (y)(9) through (y)(11), (y)(13), and (y)(17) through
(y)(21) are revised to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(y) In addition to the general prohibitions specified in Sec.
600.725 of this chapter and in paragraph (a) of this section, it is
unlawful for any person owning or operating a vessel that engages in
fishing for monkfish to do any of the following:
(1) Fish for, possess, retain or land monkfish, unless:
(i) The monkfish are being fished for, or were harvested, in or
from the EEZ by a vessel issued a valid monkfish permit under Sec.
648.4(a)(9); or
(ii) The monkfish were harvested by a vessel not issued a Federal
monkfish permit that fishes for or possesses monkfish exclusively in
state waters; or
(iii) The monkfish were harvested in or from the EEZ by a vessel
not issued a Federal monkfish permit that engaged in recreational
fishing.
* * * * *
(4) Operate or act as an operator of a vessel fishing for,
possessing, retaining, or landing monkfish in or from the EEZ without
having been issued and possessing a valid operator permit pursuant to
Sec. 648.5, and this permit is onboard the vessel.
* * * * *
(6) Violate any provision of the monkfish incidental catch permit
restrictions as provided in Sec. Sec. 648.4(a)(9)(ii) or 648.94(c).
* * * * *
(9) Fail to comply with the monkfish size limit restrictions of
Sec. 648.93 when
[[Page 11027]]
issued a valid monkfish permit under Sec. 648.4(a)(9).
(10) Fail to comply with the monkfish possession limits and landing
restrictions, including liver landing restrictions, specified under
Sec. 648.94 when issued a valid monkfish permit under Sec.
648.4(a)(9).
(11) Fail to comply with the monkfish DAS provisions specified at
Sec. 648.92 when issued a valid limited access monkfish permit, and
fishing for, possessing, or landing monkfish in excess of the
incidental catch limits specified at Sec. 648.94 (c).
* * * * *
(13) Combine, transfer, or consolidate monkfish DAS allocations.
* * * * *
(17) If the vessel has been issued a valid limited access monkfish
permit, and fishes under a monkfish DAS, fail to comply with gillnet
requirements and restrictions specified in Sec. 648.92(b)(8).
(18) Fail to produce gillnet tags when requested by an authorized
officer.
(19) Tagging a gillnet with or otherwise using or possessing a
gillnet tag that has been reported lost, missing, destroyed, or issued
to another vessel, or using or possessing a false gillnet tag.
(20) Selling, transferring, or giving away gillnet tags that have
been reported lost, missing, destroyed, or issued to another vessel.
(21) Fail to comply with the area declaration requirements
specified at Sec. Sec. 648.93(b)(2) and 648.94(f) when fishing under
a scallop, multispecies or monkfish DAS exclusively in the NFMA under
the less restrictive monkfish size and possession limits of that area.
* * * * *
3. In Sec. 648.92, paragraph (b)(1) is revised to read as follows:
Sec. 648.92 Effort control program for monkfish limited access
vessels.
* * * * *
(b) * * *
(1) Limited access monkfish permit holders. All limited access
monkfish permit holders shall be allocated 40 monkfish DAS for each
fishing year, unless modified according to the provisions specified at
Sec. 648.96(b)(3). Limited access multispecies and limited access
scallop permit holders who also possess a valid limited access monkfish
permit must use a multispecies or scallop DAS concurrently with their
monkfish DAS, except as provided in paragraph (b)(2) of this section.
* * * * *
4. In Sec. 648.93, the introductory heading for paragraph (a), and
paragraphs (a)(1) and (b) are revised to read as follows:
Sec. 648.93 Monkfish minimum fish sizes.
(a) General provisions. (1) All monkfish caught by vessels issued a
valid Federal monkfish permit must meet the minimum fish size
requirements established in this section.
* * * * *
(b) Minimum fish sizes. (1) The minimum fish size for vessels
fishing in the SFMA, or for vessels not declared into the NFMA as
specified in paragraph (b)(2) of this section, is 21 inches (53.3 cm)
total length/14 inches (35.6 cm) tail length.
(2) Vessels fishing exclusively in the NFMA. The minimum fish size
for vessels fishing exclusively in the NFMA is 17 inches (43.2 cm)
total length/11 inches (27.9 cm) tail length. In order for this size
limit to be applicable, a vessel intending to fish for monkfish under a
scallop, multispecies, or monkfish DAS exclusively in the NFMA must
declare into the NFMA for a period of not less than 30 days pursuant to
the provisions specified at Sec. 648.94(f). A vessel that has not
declared into the NFMA under this paragraph shall be presumed to have
fished in the SFMA and shall be subject to the more restrictive
requirements of that area. A vessel that has declared into the NFMA may
transit the SFMA providing that it complies with the transiting and
gear storage provisions described in Sec. 648.94(e) and provided that
it does not fish for or catch monkfish, or any other fish, in the SFMA.
5. In Sec. 648.94, paragraph (b)(7) is removed and reserved; and
paragraphs (b)(1), (b)(2), introductory heading of paragraph (b)(3),
(b)(4) through (b)(6), (c)(1)(i), (c)(2), (c)(3)(i) and (f) are revised
to read as follows:
Sec. 648.94 Monkfish possession and landing restrictions.
* * * * *
(b) * * *
(1) Vessels fishing under the monkfish DAS program in the NFMA.
There is no monkfish trip limit for vessels issued a limited access
Category A, B, C, or D permit that are fishing under a monkfish DAS
exclusively in the NFMA.
(2) Vessels fishing under the monkfish DAS program in the SFMA--(i)
Category A and C vessels. Category A and C vessels fishing under the
monkfish DAS program in the SFMA may land up to 1,250 lb (567 kg) tail-
weight or 4,150 lb (1,882 kg) whole weight of monkfish per monkfish DAS
(or any prorated combination of tail-weight and whole weight based on
the conversion factor for tail-weight to whole weight of 3.32).
(ii) Category B and D vessels. Category B and D vessels fishing
under the monkfish DAS program in the SFMA may land up to 1,000 lb (454
kg) tail-weight or 3,320 lb (1,506 kg) whole weight of monkfish per
monkfish DAS (or any prorated combination of tail-weight and whole
weight based on the conversion factor for tail-weight to whole weight
of 3.32).
(iii) Administration of landing limits. A vessel owner or operator
may not exceed the monkfish trip limits as specified in paragraphs
(b)(2)(i) and (ii) of this section per monkfish DAS fished, or any part
of a monkfish DAS fished.
(3) Category C and D vessels fishing under the multispecies DAS
program. * * *
* * * * *
(4) Category C and D vessels fishing under the scallop DAS program.
A Category C or D vessel fishing under a scallop DAS may land up to 300
lb (136 kg) tail-weight or 996 lb (452 kg) whole weight of monkfish per
DAS (or any prorated combination of tail-weight and whole weight based
on the conversion factor for tail-weight to whole weight of 3.32). All
monkfish permitted vessels are prohibited from fishing for, landing, or
possessing monkfish while in possession of dredge gear unless fishing
under a scallop DAS.
(5) Category C and D scallop vessels declared into the monkfish DAS
program without a dredge on board, or not under the net exemption
provision. Category C and D vessels that have declared into the
monkfish DAS program and that do not fish with or have a dredge on
board, or are not fishing with a net under the net exemption provision
specified in Sec. 648.51(f), are subject to the same landing limits as
specified in paragraphs (b)(1) and (b)(2) of this section. Such vessels
are also subject to provisions applicable to Category A and B vessels
fishing only under a monkfish DAS, consistent with the provisions of
this part.
(6) Vessels not fishing under a multispecies, scallop or monkfish
DAS. The possession limits for all limited access monkfish vessels when
not fishing under a multispecies, scallop, or monkfish DAS are the same
as the possession limits for a vessel issued a monkfish incidental
catch permit specified under paragraph (c)(3) of this section.
* * * * *
(c) * * *
(1) * * *
(i) NFMA. Vessels issued a monkfish incidental catch permit fishing
under a multispecies DAS exclusively in the NFMA may land up to 400 lb
(181 kg) tail weight or 1,328 lb (602 kg) whole
[[Page 11028]]
weight of monkfish per DAS, or 50 percent (where the weight of all
monkfish is converted to tail weight) of the total weight of fish on
board, whichever is less. For the purposes of converting whole weight
to tail weight, the amount of whole weight possessed or landed is
divided by 3.32.
* * * * *
(2) Scallop dredge vessels fishing under a scallop DAS. A scallop
dredge vessel issued a monkfish incidental catch permit fishing under a
scallop DAS may land up to 300 lb (136 kg) tail-weight or 996 lb (452
kg) whole weight of monkfish per DAS (or any prorated combination of
tail-weight and whole weight based on the conversion factor).
(3) * * *
(i) Vessels fishing with large mesh. A vessel issued a valid
monkfish incidental catch permit and fishing in the GOM, GB, SNE, or MA
RMAs with mesh no smaller than specified at Sec. 648.80(a)(3)(i),
(a)(4)(i), (b)(2)(i), and Sec. 648.104(a)(1), respectively, while not
on a monkfish, multispecies, or scallop DAS, may possess, retain, and
land monkfish (whole or tails) only up to 5 percent (where the weight
of all monkfish is converted to tail weight) of the total weight of
fish on board. For the purposes of converting whole weight to tail
weight, the amount of whole weight possessed or landed is divided by
3.32.
* * * * *
(f) Area declaration requirement for vessels fishing exclusively in
the NFMA. Vessels fishing under a multispecies, scallop, or monkfish
DAS under the less restrictive management measures of the NFMA, must
fish for monkfish exclusively in the NFMA and declare into the NFMA for
a period of not less than 30 days by obtaining a letter of
authorization from the Regional Administrator. A vessel that has not
declared into the NFMA under this paragraph shall be presumed to have
fished in the SFMA and shall be subject to the more restrictive
requirements of that area. A vessel that has declared into the NFMA may
transit the SFMA providing that it complies with the transiting and
gear storage provisions described in Sec. 648.94(e) and provided that
it does not fish for or catch monkfish, or any other fish, in the SFMA.
* * * * *
6. In Sec. 648.96, the section heading and paragraphs (a), (b) and
(c) are revised to read as follows:
Sec. 648.96 Monkfish annual adjustment process and framework
specifications.
(a) General. The Monkfish Monitoring Committee (MFMC) shall meet on
or before November 15 of each year to develop target TACs for the
upcoming fishing year in accordance with Sec. 648.96(b)(1), and
options for NEFMC and MAFMC consideration on any changes, adjustment,
or additions to DAS allocations, trip limits, size limits, or other
measures necessary to achieve the Monkfish FMP's goals and objectives.
The MFMC shall review available data pertaining to discards and
landings, DAS, and other measures of fishing effort; stock status and
fishing mortality rates; enforcement of and compliance with management
measures; and any other relevant information.
(b) Annual adjustment procedures--(1) Setting annual target TACs.
(i) The MFMC shall submit to the Councils and Regional Administrator
the target monkfish TACs for the upcoming fishing year by December 1
based on the control rule formula described in paragraph (b)(1)(ii) of
this section. The Regional Administrator shall then promulgate any
changes to existing management measures, pursuant to the methods
specified in paragraphs (b)(2) and (3) of this section, resulting from
the updated target TAC through rulemaking consistent with the
Administrative Procedures Act. If the annual target TAC generated
through the control rule formula described in paragraph (b)(1)(ii) of
this section does not require any changes to existing management
measures, then no action is required by the Regional Administrator.
(ii) Control rule method for setting annual targets TACs. The
current 3-year running average of the NMFS fall trawl survey index of
monkfish biomass will be compared to the established annual biomass
index target, and target annual TACs will be set in accordance with
paragraphs (b)(1)(ii)(A) through (F) of this section. The annual
biomass index targets established in Framework Adjustment 2 to the FMP
are provided in the following table (kg/tow).
----------------------------------------------------------------------------------------------------------------
FY FY FY FY FY FY FY FY
2003 2004 2005 2006 2007 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
NFMA 1.33 1.49 1.66 1.83 2.00 2.16 2.33 2.50
SFMA 0.88 1.02 1.15 1.29 1.43 1.57 1.71 1.85
----------------------------------------------------------------------------------------------------------------
(A) Unless the provisions of paragraphs (b)(1)(ii)(C) or (D) of
this section apply, if the current 3-year running average of the NMFS
fall trawl survey biomass index is below the annual index target, the
target TAC for the subsequent fishing year will be set equivalent to
the monkfish landings for the previous fishing year minus the
percentage difference between the 3-year average biomass index and the
annual index target.
(B) If the 3-year running average of the NMFS fall trawl survey
biomass index is above the annual index target, and the current
estimate of F is below Fthreshold=Fmax=0.2, the
target TAC for the subsequent fishing year shall be set equivalent to
the previous year's landings plus one-half the percentage difference
between the 3-year average biomass index and the annual index target,
but not to exceed an amount calculated to generate an F in excess of
Fthreshold. If current F cannot be determined, the target
TAC shall be set at not more than 20 percent above the previous year's
landings.
(C) If the current estimate of F exceeds Fthreshold, the
target TAC shall be reduced proportionally to stop overfishing, even if
a reduction is not called for based on biomass index status as
described in paragraph (b)(1)(ii)(A) of this section. For example, if
F=0.24, and Fthreshold=0.2, then the target TAC shall be
reduced to 20 percent below the previous year's landings.
(D) If the 3-year average biomass index is below the annual index
target, and F is above Fthreshold, the method (F-based or
biomass index based) that shall result in the greater reduction from
the previous year's landings will determine the target TAC for the
subsequent fishing year.
(E) If the observed index is above the 2009 index targets, the
target TAC for the subsequent fishing year shall be based on the ratio
of current F to F=0.2 applied to the previous year's landings. If
current F cannot be determined, the target TAC shall be set at not more
than 20 percent above previous year's landings.
(F) If landings decline from the previous year and the current 3-
year average biomass index is above the annual index target, whether or
not F can be determined, the MFMC shall include in its report, prepared
under paragraph (a) of this section, after taking into account
circumstances surrounding the landings decline, a recommendation to the
Councils on whether the target TAC should be set at the previous year's
[[Page 11029]]
landings or previous year's target TAC. The Councils shall consider the
MFMC recommendation, and then recommend to the Regional Administrator
whether the target TAC should be set at the previous year's landings or
previous year's target TAC. If such a recommendation is made, the
Regional Administrator must decide whether to promulgate measures
consistent with the recommendation as provided for in paragraph (b)(4)
of this section.
(2) Setting trip limits for the SFMA. (i) Under the method
described in paragraph (b)(1)(ii) of this section, if the SFMA target
TAC is set at 8,000 mt or higher, the Regional Administrator shall
adjust the trip limits according to the method described in paragraph
(b)(2)(ii) of this section.
(ii) Trip limit analysis procedures. Trip limits shall be
determined annually using information from the mandatory fishing vessel
trip reports (FVTR). The 1999 fishing year shall be used as the
baseline year for this analysis. The most recent fishing year for which
there is complete FVTR information shall be utilized to establish the
level of landings and fishing effort under current regulations. For
example, the determination of trip limits for the 2004 fishing year
would be based on the ratio of landings and effort obtained from the
FVTRs for the 2002 fishing year, the most recent fishing year for which
complete FVTR information would be available. Using the relationship
between the fishing patterns for these two years, ratios shall be
calculated for each permit category. These ratios shall be used to
determine landings goals for each permit category based on the proposed
TAC for the SFMA. A simulation process will then be used to estimate
the landings per DAS for each permit category that would achieve the
established landings goals.
(3) Setting DAS allocations for the SFMA. Under the method
described in paragraph (b)(1)(ii) of this section, if the SFMA target
TAC is set below 8,000 mt, the Regional Administrator shall set the
trip limits as specified in paragraphs (b)(3)(i) and (ii) of this
section, and adjust the DAS allocations according to the method
described in paragraph (b)(3)(iii) of this section.
(i) Category A and C vessels. Category A and C vessels fishing
under the monkfish DAS program in the SFMA may land up to 550 lb (249
kg) tail-weight or 1,826 lb (828 kg) whole weight of monkfish per DAS
(or any prorated combination of tail-weight and whole weight based on
the conversion factor for tail-weight to whole weight of 3.32).
(ii)Category B and D vessels. Category B and D vessels fishing
under the monkfish DAS program in the SFMA may land up to 450 lb (204
kg) tail-weight or 1,494 lb (678 kg) whole weight of monkfish per DAS
(or any prorated combination of tail-weight and whole weight based on
the conversion factor for tail-weight to whole weight of 3.32).
(iii) DAS analysis. This procedure involves setting a maximum DAS
usage for all permit holders of 40 DAS; proportionally adjusting the
landings to a given DAS value based on the trip limits specified under
paragraphs (b)(3)(i) and (ii) of this section; and adjusting the
landings according to the same methodology used in the trip limit
analysis described in paragraph (b)(2)(ii) of this section.
(A) Limited access monkfish permit holders are allowed to carry
over up to 10 DAS from the previous fishing year to the current fishing
year. For this procedure, adjustments to DAS usage are made by first
reducing the landings for all permit holders who used more than 40 DAS
by the proportion of DAS exceeding 40, and then resetting the
upperlimit of DAS usage to 40.
(B) The expected landings at the adjusted DAS are calculated by
adding the landings of all permit holders who used less than the
proposed DAS limit to the landings of those who used more than the
proposed DAS limit, where landings are reduced by the proportion of the
proposed DAS limit to the actual DAS used by vessels during the
baseline fishing year, 1999.
(C) Landings are prorated between permit categories in the same
manner used in the trip limit analysis procedures described under
paragraph (b)(2)(iii) of this section.
(4) Council TAC recommendations. As described in paragraph
(b)(1)(ii)(F) of this section, if the Councils recommend a target TAC
to the Regional Administrator, and the Regional Administrator concurs
with this recommendation, the Regional Administrator shall then
promulgate the target TAC and associated management measures through
rulemaking consistent with the APA. If the Regional Administrator does
not concur with the Councils' recommendation, then the Councils shall
be notified in writing of the reasons for the non-concurrence.
(c)Annual and in-season framework adjustments to management
measures--(1) Annual framework process. (i) Based on their annual
review, the MFMC may develop and recommend, in addition to the target
TACs and management measures established under paragraph (b) of this
section, options necessary to achieve the Monkfish FMP's goals and
objectives, which may include a preferred option. The MFMC must
demonstrate through analysis and documentation that the options it
develops are expected to meet the Monkfish FMP goals and objectives.
The MFMC may review the performance of different user groups or fleet
sectors in developing options. The range of options developed by the
MFMC may include any of the management measures in the Monkfish FMP,
including, but not limited to: closed seasons or closed areas; minimum
size limits; mesh size limits; net limits; liver to monkfish landings
ratios; annual monkfish DAS allocations and monitoring; trip or
possession limits; blocks of time out of the fishery; gear
restrictions; transferability of permits and permit rights or
administration of vessel upgrades, vessel replacement, or permit
assignment; and other frameworkable measures included in Sec. Sec.
648.55 and 648.90.
(ii) The Councils shall review the options developed by the MFMC
and other relevant information, consider public comment, and submit a
recommendation to the Regional Administrator that meets the Monkfish
FMP's objectives, consistent with other applicable law. The Councils'
recommendation to the Regional Administrator shall include supporting
documents, as appropriate, concerning the environmental and economic
impacts of the proposed action and the other options considered by the
Councils. Management adjustments made to the Monkfish FMP require
majority approval of each Council for submission to the Secretary.
(A) The Councils may delegate authority to the Joint Monkfish
Oversight Committee to conduct an initial review of the options
developed by the MFMC. The oversight committee would review the options
developed by the MFMC and any other relevant information, consider
public comment, and make a recommendation to the Councils.
(B) If the Councils do not submit a recommendation that meets the
Monkfish FMP's goals and objectives, and is consistent with other
applicable law, the Regional Administrator may adopt any option
developed by the MFMC unless rejected by either Council, provided such
option meets the Monkfish FMP's goals and objectives, and is consistent
with other applicable law. If either the NEFMC or MAFMC has rejected
all options, then the Regional Administrator may select any measure
that has not been rejected by both Councils.
[[Page 11030]]
(iii) If the Councils submit, on or before January 7 of each year,
a recommendation to the Regional Administrator after one framework
meeting, and the Regional Administrator concurs with the
recommendation, the recommendation shall be published in the Federal
Register as a proposed rule. The Federal Register notification of the
proposed action shall provide a 30-day public comment period. The
Councils may instead submit their recommendation on or before February
1 if they choose to follow the framework process outlined in paragraph
(c)(3) of this section and request that the Regional Administrator
publish the recommendation as a final rule. If the Regional
Administrator concurs that the Councils' recommendation meets the
Monkfish FMP's goals and objectives, and is consistent with other
applicable law, and determines that the recommended management measures
should be published as a final rule, the action shall be published as a
final rule in the Federal Register. If the Regional Administrator
concurs that the recommendation meets the Monkfish FMP's goals and
objectives, 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, fishing may
continue. However, DAS used by a vessel on or after the start of a
fishing year shall be counted against any DAS allocation the vessel
ultimately receives for that year.
(iv) Following publication of a proposed rule and after receiving
public comment, if the Regional Administrator concurs in the Councils'
recommendation, a final rule will be published in the Federal Register
prior to the start of the next fishing year. If the Councils fail to
submit a recommendation to the Regional Administrator by February 1
that meets the goals and objectives of the Monkfish FMP, the Regional
Administrator may publish as a proposed rule one of the MFMC options
reviewed and not rejected by either Council, provided the option meets
the goals and objectives of the Monkfish FMP, and is consistent with
other applicable law.
(2) In-season action. At any time, the Councils or the Joint
Monkfish Oversight Committee (subject to the approval of the Councils'
chairmen) may initiate action to add or adjust management measures if
it is determined that action is necessary to meet or be consistent with
the goals and objectives of the Monkfish FMP. Recommended adjustments
to management measures must come from the categories specified under
paragraph (c)(1)(i) of this section. In addition, the procedures for
framework adjustments specified under paragraph (c)(3) of this section
must be followed.
(3) Framework adjustment procedures. Framework adjustments shall
require at least one initial meeting of the Monkfish Oversight
Committee or one of the Councils (the agenda must include notification
of the framework adjustment proposal) and at least two Council
meetings, one at each Council. The Councils 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 the first of the
two final Council meetings. Framework adjustments and amendments to the
Monkfish FMP require majority approval of each Council for submission
to the Secretary.
(i) Councils' recommendation. After developing management actions
and receiving public testimony, the Councils shall make a
recommendation to the Regional Administrator. The Councils'
recommendation must include supporting rationale and, if management
measures are recommended, an analysis of impacts and a recommendation
to the Regional Administrator on whether to issue the management
measures as a final rule. If the Councils recommend that the management
measures should be issued as a final rule, the Councils must consider
at least the following four factors and provide support and analysis
for each factor considered:
(A) 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;
(B) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Councils' recommended management measures;
(C) Whether there is an immediate need to protect the resource or
to impose management measures to resolve gear conflicts; and
(D) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(ii) Action by NMFS. (A) If the Regional Administrator approves the
Councils' recommended management measures and determines that the
recommended management measures should be issued as a final rule based
on the factors specified in paragraph (c)(3)(i) of this section, the
Secretary may, for good cause found under the standard of the
Administrative Procedure Act, waive the requirement for a proposed rule
and opportunity for public comment in the Federal Register. The
Secretary, in so doing, shall publish only the final rule. Submission
of the recommendations does not preclude the Secretary from deciding to
provide additional opportunity for prior notice and comment in the
Federal Register.
(B) If the Regional Administrator concurs with the Councils'
recommendation and determines that the recommended management measures
should be published first as a proposed rule, then the measures shall
be published as a proposed rule in the Federal Register. After
additional public comment, if NMFS concurs with the Councils'
recommendation, then the measures shall be issued as a final rule in
the Federal Register.
(C) If the Regional Administrator does not concur, then the
Councils shall be notified in writing of the reasons for the non-
concurrence.
(iii) Adjustments for gear conflicts. The Councils may develop a
recommendation on measures to address gear conflict as defined under
Sec. 600.10 of this chapter, in accordance with the procedure
specified in Sec. 648.55(d) and (e).
* * * * *
[FR Doc. 03-5172 Filed 3-3-03; 3:17 pm]
BILLING CODE 3510-22-S