[Federal Register: November 6, 2002 (Volume 67, Number 215)]
[Rules and Regulations]
[Page 67568-67571]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no02-24]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 020329075-2124-03; I.D. 031902E]
RIN 0648-AP11
Fisheries of the Northeastern United States; Magnuson-Stevens
Fishery Conservation and Management Act Provisions; Monkfish Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Extension of an emergency interim rule.
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SUMMARY: NMFS informs the public that the emergency interim rule
published
[[Page 67569]]
on May 22, 2002, that temporarily amended the fishing mortality rate
(F) criteria in the Monkfish Fishery Management Plan (FMP) to be
consistent with the best scientific information available, and which
implemented the management measures proposed in Framework 1 to the FMP,
is extended through April 30, 2003. The purpose of this emergency
interim rule extension is to delay further the implementation of
restrictive Year-4 default management measures that were scheduled to
become effective on May 1, 2002, in the FMP, and to continue measures
implemented for the monkfish fishery that are based on the best
scientific information.
DATES: The expiration date of the emergency interim rule, published May
22, 2002 (67 FR 35928), and effective on May 17, 2002, is extended from
November 18, 2002, to April 30, 2003.
ADDRESSES: Copies of the small entity compliance guide prepared for the
monkfish emergency rule are available from Patricia Kurkul, Regional
Administrator, Northeast Regional Office, National Marine Fisheries
Service, One Blackburn Drive, Gloucester, MA 01930-2298. The guide is
also accessible via the Internet at http://www.nero.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy
Analyst, (978) 281-9103, fax (978) 281-9135, e-mail
Allison.Ferreira@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
The directed monkfish fishery closed on May 1, 2002, due to the
implementation of default management measures scheduled to take effect
during Year 4 of the FMP (May 1, 2002 - April 30, 2003). The Year-4
default measures were included in the FMP to ensure that the FMP
objectives were attained. These measures eliminate the directed
monkfish fishery by allocating zero monkfish days-at-sea (DAS), and by
allowing only incidental landings of monkfish. The New England and Mid-
Atlantic Fishery Management Councils (Councils) developed Framework 1
to the FMP in order to delay the implementation of the Year-4 default
management measures for 1 year, until May 1, 2003, and to implement
alternative measures for Year-4, since a 3-year review of the status of
the monkfish stock determined that the implementation of these
restrictive default measures was not necessary. However, following the
submission of Framework 1 by the Councils to NMFS, and the publication
of a proposed rule, it was determined that Framework 1 was not
consistent with the F criteria specified in the FMP. As a result, NMFS
disapproved Framework 1 and implemented an emergency interim rule that
temporarily amended the F criteria in the FMP to be consistent with the
most recent stock assessment (SAW 34; January 2002). In this same
regulatory action, NMFS implemented the measures proposed in Framework
1 because, with the amendment of the F criteria in the FMP through the
emergency interim rule, the measures were found to be consistent with
the best available scientific information.
This action extends the emergency interim measures for 163 days,
effective November 19, 2002, through April 30, 2002. Emergency interim
measures extended by this action include a target total allowable catch
(TAC) of 19,595 metric tons (mt) for the 2002 fishing year (May 1, 2002
- April 30, 2003), with area-specific TACs of 11,674 mt and 7,921 mt
for the Northern Fishery Management Area (NFMA) and the Southern
Fishery Management Area (SFMA), respectively; allocation of 40 DAS to
limited access monkfish vessels for the 2002 fishing year (May 1, 2002
- April 30, 2003); a revision to the monkfish trip limits in the SFMA
to 550 lb (249 kg) (tail weight per DAS) for vessel permit categories A
and C, and 450 lb (204 kg) (tail weight per DAS) for vessel permit
categories B and D while fishing on a monkfish DAS in the SFMA; and
maintenance of all other measures as established for Year 3 of the FMP,
including less restrictive incidental catch limits.
Comments and Responses
Comment 1: NMFS failed to justify the need for emergency action
under section 305(c) of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act). The argument used by NMFS in
justifying the emergency interim rule had no merit.
Response: There was substantial justification for the need for the
emergency interim rule in the May 22, 2002, Federal Register rule
implementing this action, and the accompanying environmental assessment
(EA). These documents discuss in detail how the emergency interim rule
meets the ``emergency criteria'' and ``emergency justification'' for
determining the appropriateness of section 305 (c) rulemaking outlined
in NMFS' Policy Guidelines for the Use of Emergency Rules (Emergency
Guidelines) found at 62 FR 44421, et seq. (August 21, 1997). In
summary, these documents stated that implementing the action through
section 305(c) emergency authority is justifiable because the need to
disapprove the framework action and immediately amend the FMP to make
it compatible with the best scientific information available only
became discoverable after NMFS had the time to fully evaluate the
framework action after the public comment period had ended, thus
creating a ``recently discovered circumstance''. In addition, to have
delayed the incorporation of the newest science into the FMP and
delayed implementation of the action necessary to avoid the default
measures would have resulted in substantial, unwarranted and
unnecessary economic harm to the industry and would have likely caused
wasteful bycatch of monkfish in other fisheries.
Comment 2: The emergency action does not contain any analysis
showing whether or not it will halt monkfish overfishing this year or
allow rebuilding by 2009.
Response: NMFS considered all available information regarding the
stock biomass level and fishing mortality rate in its decision to
implement the emergency interim rule. The fact that stock biomass has
increased significantly from 2000 to 2001 in both management areas at
current landing levels indicates that the level of fishing mortality
resulting from the measures in this action should allow the stock to
continue rebuilding. Therefore, there is no evidence that these
measures will prevent rebuilding by 2009. Furthermore, the emergency
interim rule and this extension postpone the default measures for only
1 year; in the absence of any further management action, the default
measures will become effective on May 1, 2003. Both Councils intend to
reconsider fully the best available scientific information in the
development of revised overfishing definitions in Framework 2, which is
scheduled to be implemented at the start of the 2003 fishing year on
May 1, 2003.
Comment 3: The emergency interim rule does not adequately assess
and minimize the impacts on essential fish habitat (EFH). Of particular
concern, the EA prepared for the emergency interim rule fails to
discuss the impacts of fishing gear on deep sea corals in the
continental slope habitats and on emergent epifauna on hard bottom.
Response: NMFS disagrees, and notes that the EA prepared for the
emergency interim rule contains an EFH assessment as required by the
Magnuson-Stevens Act. A comprehensive assessment of the adverse effects
of fishing on EFH is not
[[Page 67570]]
within the scope and context of this emergency action. Furthermore, the
commenter is a party to the litigation that challenged the
consideration of EFH in the FMP (American Oceans Campaign v. Daley
(D.D.C. 2000)). NMFS and the litigants have signed a settlement
agreement in that case, and have agreed that EFH will be fully
reconsidered in Amendment 2 to the FMP, which is scheduled to be
implemented during the fall of 2003. In the meantime, the settlement
agreement contemplates that the comprehensive assessment of the adverse
effects of fishing on EFH that was included in the New England
Council's EFH amendment to the FMP (Amendment 1) may be relied upon.
Further, since this action makes no change in effort from the prior
year, there should be no change in habitat impacts from those described
for the first 3 years of the FMP.
The commenter expressed specific concern about gillnet impacts on
deep-sea corals. Such corals are not designated as EFH for any species
in waters off of the northeastern United States, so it is not necessary
to address impacts to deep-sea corals in order to comply with EFH
requirements. Further, according to the NMFS Report on Fishing Gear
Effects on Marine Habitats off the Northeastern United States (February
2002), there is very little sink gillnet fishing gear used in waters
deeper than 100 m or in submarine canyons, which is where most of such
corals exist.
Comment 4: The emergency interim rule fails to establish a
standardized bycatch reporting methodology, or to minimize bycatch and
bycatch mortality as required by the Sustainable Fisheries Act and
recent case law. Of particular concern are the capture of deep-sea
species such as deep-sea jelly fish, octopi, and sharks as the monkfish
fishery extends its range further offshore.
Response: The existing data collection system requires vessel
operators to provide bycatch data on mandatory Vessel Trip Reports that
must be submitted for each fishing trip. In addition, detailed
information is collected through the NMFS Observer Program, which
deploys trained independent observers on commercial vessels. NMFS is
currently increasing the amount of observer coverage on vessels fishing
for Northeast multispecies, and this action will likely result in
further information concerning monkfish, as well. NMFS agrees that, in
the long term, it must improve the collection of bycatch information,
but disagrees that the emergency interim rule should be suspended
because it does not address this issue. As stated in the EA for the
emergency interim rule, to effectively address bycatch assessment
concerns would require a global set of measures applicable to all of
the Northeast region's fisheries, since most vessels in the region are
involved in a variety of fisheries, even during one fishing trip. NMFS
is committed to improving bycatch assessment, as evidenced by the
settlement agreement entered into with the other litigatory parties in
Conservation Law Foundation, et al. v. Evans, et al. It is beyond the
scope and context of the emergency interim rule process to require a
global system of measures to be established to improve bycatch
monitoring, assessment and reduction in only one fishery.
With respect to minimizing bycatch, NMFS notes that national
standard 9 requires minimization of bycatch to the extent practicable.
The EA prepared for the emergency interim rule notes that, with the
stock biomass increasing, there is an increased likelihood that vessels
targeting other species will incidentally harvest monkfish. Therefore,
if the emergency interim rule were not extended and Year-4 default
management measures became effective, the directed fishery would be
completely eliminated and vessels that previously participated in that
fishery would be expected to target other species. As such, the default
measures would be expected to increase bycatch and bycatch mortality,
providing no improved conservation to the stock.
With respect to the commenter's specific concern about bycatch of
deep-sea animals, NMFS notes that the 2001 cooperative survey, upon
which this comment is based, provided new information that will be
fully considered by the Councils as they develop Amendment 2 to the
FMP. NMFS also notes that the trip limits established for the SFMA
fishery under the emergency interim rule and this emergency rule
extension are restrictive and unlikely to support a directed fishery
offshore.
Comment 5: The environmental analysis accompanying the emergency
action is deficient, and the magnitude of the impacts require the
preparation of an environmental impact statement (EIS) rather than an
EA.
Response: Although NMFS agrees with the commenter that this action
makes a modification from the measures contemplated for Year-4 in the
FMP, NMFS has determined that this action does not have significant
impacts that would require the preparation of an EIS, as discussed in
the EA and its Finding of No Significant Impact (FONSI) statement. In
support of their comment that an EIS should have been prepared for this
action, the commenters mostly rely on comments already addressed herein
concerning consistency of the action with FMP overfishing and
rebuilding objectives, bycatch methodologies and minimization, and EFH
concerns. These concerns are addressed under Responses to Comments 2, 3
and 4. As explained in the responses to these comments, because this
action is for 1 year only, because an EIS is being prepared for
Amendment 2, and for other reasons stated in the EA and its FONSI, NMFS
concludes that an EA is appropriate for this emergency action.
Classification
The Assistant Administrator for Fisheries, NOAA (AA), has
determined that this extension is needed to prevent the restrictive
Year-4 default management measures from taking effect on November 19,
2002. Extending the current management measures established by the
emergency interim rule (67 FR 35928, May 22, 2002) through
implementation of Framework 2 on May 1, 2003, is necessary to prevent
substantial, unwarranted and unnecessary economic harm to the industry
and a likely increase in monkfish bycatch in other fisheries as a
result of terminating the directed monkfish fishery. Accordingly, the
AA is extending the expiration date of this emergency interim rule
until the effective date of the 2003 management measures, not to exceed
180 days.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a final regulatory flexibility analysis (FRFA) for
this action. A summary of the FRFA follows.
A description of the objectives of the emergency interim rule and
the need for this extension are explained in the preamble for this
action and are not repeated here. This action does not contain any
collection-of-information, reporting, record-keeping, or other
compliance requirements. It does not duplicate, overlap, or conflict
with any other Federal rules.
One public comment was received on the emergency interim rule.
However this comment did not address any of the economic impacts
associated with the implementation of this rule.
The measures contained in the emergency interim rule and its
proposed extension potentially affect the approximately 704 vessels
that currently hold a limited access monkfish permit. According to the
analysis presented in
[[Page 67571]]
the environmental assessment (EA) prepared for the emergency interim
rule, the preferred alternative (implementation of the emergency
interim rule) was expected to result in loss of income from fishing
year 2000 levels for several vessel types. However, these projected
losses in income were lower than the losses that would result from
implementation of either the non-preferred or no action alternatives.
Therefore, because the analysis showed that the emergency interim rule
would have the least effect on small entities compared to the non-
preferred and no action alternatives, this preferred alternative was
selected.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA) 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 (the
guide) was prepared. Copies of the guide will be sent to all holders of
permits issued for the monkfish fishery. The guide will be available on
the Internet at http://www.nero.noaa.gov. Copies of the guide can also
be obtained from the Regional Administrator (see ADDRESSES).
Authority: 16 U.S.C. 1801 et seq.
Dated: October 31, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 02-28196 Filed 11-1-02; 2:10 pm]
BILLING CODE 3510-22-S