[Federal Register Volume 76, Number 101 (Wednesday, May 25, 2011)]
[Rules and Regulations]
[Pages 30265-30276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12979]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 090225241-1233-03]
RIN 0648-AX70
Fisheries of the Northeastern United States; Monkfish; Amendment
5
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements measures that were approved in
Amendment 5 to the Monkfish Fishery Management Plan (FMP). The New
England and Mid-Atlantic Fishery Management Councils (Councils)
developed Amendment 5 to bring the FMP into compliance with the annual
catch limit (ACL) and accountability measure (AM) requirements of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This rule establishes the mechanisms for specifying ACLs
and AMs and sets the annual catch target (ACT) and associated measures
for days-at-sea (DAS) and trip limits for the Southern Fishery
Management Area (SFMA). NMFS disapproved the proposed ACT, and
associated measures, for the Northern Fishery Management Area (NFMA) on
the grounds that they are not consistent with the most recent
scientific advice. This final rule implements three additional
Amendment 5 management measures to promote efficiency and reduce waste,
brings the biological and management reference points in the Monkfish
FMP into compliance with recently revised National Standard 1 (NS1)
Guidelines, and makes one correction to the monkfish weight conversion
factors.
DATES: Effective May 25, 2011.
ADDRESSES: An environmental assessment (EA) prepared for Amendment 5 at
the time of its submission by the Councils describes the proposed
action and other considered alternatives, and provides a thorough
analysis of the impacts of the proposed measures and alternatives. NMFS
prepared an Addendum to the Amendment 5 EA for the purpose of analyzing
the potential impacts of the amendment on Atlantic sturgeon. Copies of
Amendment 5, including the EA and the Initial Regulatory Flexibility
Analysis (IRFA), are available on request from Paul J. Howard,
Executive Director, New England Fishery Management Council (NEFMC), 50
Water Street, Newburyport, MA 01950. Copies of the Addendum to
Amendment 5 are available from Patricia A. Kurkul, Regional
Administrator, NMFS, 55 Great Republic Drive, Gloucester, MA 01930.
These documents are also available online at http://www.nefmc.org.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to the Northeast Regional Office of NMFS at
55 Great Republic Drive, Gloucester, MA 01930, and by e-mail to [email protected], or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Allison McHale, Fishery Policy
Analyst, (978) 281-9103; fax: (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements approved measures in Amendment 5, which
was partially approved by NMFS on behalf of the Secretary of Commerce
(Secretary) on April 28, 2011. A proposed rule to implement the
measures in Amendment 5 published in the Federal Register on March 3,
2011 (76 FR 11737), with public comment accepted through April 4, 2011.
Details concerning the development of Amendment 5 were contained in the
preamble of the proposed rule and are not repeated here.
A recent assessment of the monkfish resource was conducted during
the first half of 2010 by the 50th Stock Assessment Review Committee
(SARC 50). The full assessment report was released in August 2010 and
can be found at http://www.nefsc.noaa.gov/publications/crd/crd1017/.
The SARC 50 assessment concluded that both stocks are above their
respective current biomass thresholds, and above the new biomass
thresholds recommended by the assessment, indicating that both stocks
are not overfished. Furthermore, the current estimated fishing
mortality rate for each stock is below its respective fishing mortality
threshold. Thus, overfishing is not occurring on either stock.
The 2010 assessment panel expressed serious concerns regarding the
high levels of scientific uncertainty in the assessment results. The
Monkfish Assessment Summary Report for 2010 states, ``The assessment
results continue to be uncertain due to cumulative effects of under-
reported landings, unknown discards during the 1980s, uncertainty in
survey indices, and incomplete understanding of key biological
parameters such as age and growth, longevity, natural mortality and
stock structure contributing to retrospective patterns primarily in the
northern management area.'' Unlike the Data Poor Working Group (DPWG)
assessment conducted in 2007 (see Monkfish Assessment Summary Report at
http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0713/), the 2010
assessment utilized projections to evaluate stock trends based on
anticipated fishing levels. However, these projections are also
considered highly uncertain because they are based on the outputs of
the assessment model. Despite this uncertainty, the projections
indicated that the NFMA is more vulnerable to overfishing or becoming
overfished during 2011-2016 if total catches approach the acceptable
biological catch (ABC) value of 17,485 mt in Amendment 5 that was based
on the results of the DPWG assessment. Conversely, the SFMA was found
to be less vulnerable based upon the ABC value of 13,326 mt in
Amendment 5.
[[Page 30266]]
Disapproved Measure
NMFS disapproved the proposed Amendment 5 ACT for the NFMA, and the
specification of DAS and trip limits to achieve that ACT. The proposed
NFMA ACT and specification of DAS and trip limits were included in
Amendment 5 based on the recommended interim ABC, and assessments
available at the time the amendment document was finalized by the
Councils. Specifically, Amendment 5 proposed an ACT for the NFMA of
10,750 mt, an allocation of 40 DAS, and trip limits of 1,250 lb (567
kg) tail wt. per DAS for Category A and C vessels, and 800 lb (363 kg)
tail wt. per DAS for Category B and D vessels. For the SFMA, Amendment
5 proposed an ACT of 11,513 mt, and allocation of 28 DAS, and trip
limits of 550 lb (249 kg) tail wt. per DAS for Category A and C
vessels, and 450 lb (204 kg) tail wt. per DAS for Category B and D
vessels.
The results of SARC 50 became available after the Councils took
final action on Amendment 5. In response to the new assessment, the New
England Council's Scientific and Statistical Committee (SSC) revisited
its previous ABC recommendation at a meeting in August 2010. The SSC,
after much discussion concerning the uncertainty with the assessment
and alternate methods for calculating ABC to account for this
uncertainty, agreed to maintain the existing interim ABC approach it
previously recommended. Using this interim ABC approach, the SSC
recalculated the recommended ABCs to incorporate the results of SARC
50. Thus, based on this recalculation using the ABC control rule
approved in Amendment 5, the ABCs are automatically revised to be 7,592
mt for the NFMA, and 12,316 mt for the SFMA. The result is a revised
ABC for the NFMA that is 3,158 mt lower than the NFMA ACT of 17,485 mt
in Amendment 5 that was calculated based on the 2007 DPWG Assessment,
creating an inconsistency with the recalculated ABC. Based on this
inconsistency, NMFS disapproved the DAS and trip limit specifications
for the NFMA in Amendment 5. Disapproval of the SFMA specifications was
not required because the recalculated ABC for the SFMA, even though
lower than the Amendment 5 SFMA ABC of 13,326 mt, is still 803 mt
higher than the Councils' recommended ACT for that area. Although this
reduces the Amendment 5 recommended buffer percentage between the ACT
and the ABC/ACL for the SFMA to only 6.5 percent, it still provides a
sufficient buffer to account for management uncertainty in order to
ensure that catch does not exceed the ABC/ACL for this portion of the
fishery. Therefore, NMFS determined that the Amendment 5 SFMA
specifications for monkfish are still consistent with Magnuson-Stevens
Act requirements.
Because it was too late for the Councils to revise Amendment 5 to
reflect the new recommendations, in light of the need to get the
amendment in place as quickly as possible in the new fishing year, the
NEFMC initiated Framework Adjustment 7 (Framework 7) at its September
28-30, 2010, meeting to revise the disapproved ACT for the NFMA to be
consistent with the recalculated ABC for the NFMA, and update the
biomass (B) reference points of Btarget and
Bthreshold in the FMP, that were not proposed for revision
in Amendment 5, to be consistent with the results of SARC 50. In
Framework 7, which was approved by the Councils in February 2011, the
Councils recommend an NFMA ACT of 6,567 mt, an allocation of 40 DAS,
and trip limits of 1,250 lb (567 kg) tail weight per DAS for limited
access monkfish Category A and C vessels, and 600 lb (272 kg) tail
weight per DAS for limited access monkfish Category B and D vessels. In
the meantime, disapproval of the NFMA specifications leaves current
measures in effect for the NFMA until they are superseded by a revised
ACT and specification of DAS and trip limits under Framework 7, which
is expected to be implemented during the summer of 2011.
The current NFMA measures, which will remain in place until
Framework 7 is implemented, result in a lower TAL than was recommended
by the Councils in the framework. Additionally, NFMA landings have been
well below the TAL for the past 2 years (29 percent below in 2008, and
33 percent below in 2009). Thus, NMFS does not expect delaying action
on the establishment of an ACT for the NFMA would result in landings
exceeding the ACTs being considered in Framework 7 during the 2011
fishing year (FY), which began May 1, 2011. Because this final rule is
being implemented after the start of FY 2011, any monkfish landings
that occurred between May 1, 2011, and the time this final rule is
effective will accrue against the 2011 ACT and be used to determine
whether AMs are triggered.
Approved Measures
1. Control Rules for Establishing Biological and Management Reference
Points
The biological and management reference points currently in the
Monkfish FMP are used to determine if overfishing is occurring on
either stock (Fthreshold), if either stock is overfished
(Bthreshold), or if either stock is rebuilt
(Btarget). However, these reference points alone are not
sufficient to comply with the Magnuson-Stevens Act and the recently
updated National Standard (NS) 1 guidelines. As a result, Amendment 5
establishes control rules to specify maximum sustainable yield (MSY),
optimum yield (OY), overfishing level (OFL), and ABC for each monkfish
stock, outlined as follows:
MSY shall be expressed as the product of the fishing
mortality threshold, (Fthreshold), and the biomass target,
Btarget;
OY shall be set equivalent to the ACT, which is described
under approved measure 4 below;
OFL shall be expressed as the product of
Fthreshold and current exploitable biomass
(Bcurrent);
ABC shall be expressed as the product of the average
exploitation rate during the recent period of stable or increasing
trend in biomass in both management units (determined to be 1999-2006
NFMA and 2000-2006 for SFMA) and the most recent estimate or index of
exploitable biomass.
2. ABC, ACL, and ACT Setting Process
This action establishes a framework for the establishment of ABCs
and ACLs for each management area. As described under Approved Measure
1, this action implements a control rule for establishing the ABC that
is to be based upon information from the most recent stock assessment,
in this case SARC 50. This ABC control rule is based upon the
calculation method recommended and approved by the SSC. If new
information becomes available through a stock assessment, the ABCs will
be recalculated based upon this new information, with subsequent review
and approval by the SSC. If the SSC concurs with this recalculation,
the ABCs for each management area will be automatically updated,
requiring no further action by the Councils. However, if the SSC does
not concur with the recalculation and recommends an alternative
approach to calculating the ABCs, the Councils would be required to
take action through the annual or in-season framework adjustment
process in the FMP to update the ABCs based upon the SSC's recommended
method.
Given that scientific uncertainty is incorporated into the
calculation of the ABCs, as discussed under Approved Measure 3, the
ACLs are set equivalent to the respective ABCs for each management
area. Thus, like the ABCs, the ACLs are self-adjusting, based upon the
best available science. Council
[[Page 30267]]
action would only be required if the SSC recommends an alternative
method for calculating ABCs and/or ACLs for the monkfish fishery that
differs from the control rules established in Amendment 5.
The specification of ACTs for each management area is conducted
independently of the ABC/ACL calculation, but considers the size of the
buffer between the proposed ACT and calculated ACL in the context of
management uncertainty. This action requires that ACTs be established
for each management area at some level below the calculated ABC/ACL.
Although the Councils recommended establishing ACTs for 3 years in
Amendment 5, it does not require that the ACTs be revised every 3
years. The Councils may, at any time, choose to revise the ACTs based
on new information through either the annual review process or the
framework adjustment process in the FMP, or specify ACTs in a future
action for a different time period, that may be more or less than 3
years, as determined to be appropriate based upon the stock assessment
schedule for this species and other relevant information.
3. ACLs
Amendment 5 requires ACLs for the two management areas to be set at
a level equal to the SSC's recommended ABCs. Amendment 5 does not
require a buffer between the ABC and the ACL because scientific
uncertainty has been accounted for within the ABCs. The Councils
determined in Amendment 5 that there was no technical basis for setting
the ACLs for each management area below their respective ABCs. In its
March 30, 2009, report, the SSC supported the Councils' ACL
recommendation and noted that ``the magnitude of recent catch has low
risk of exceeding the OFL or the proposed interim ABC'' since, in 2006,
total catch was only 32 percent of the proposed OFL for the NFMA, and
34 percent of the proposed OFL for the SFMA; and total catch in 2007
was estimated by the Monkfish Plan Development Team (PDT) to be 24
percent of the proposed OFL for the NFMA, and 31 percent of the
proposed OFL for the SFMA. The calculated ABCs/ACLs incorporating the
results of the 2010 stock assessment are 7,592 mt for the NFMA, and
12,316 mt for the SFMA.
4. Proactive AM
This final rule institutes a proactive AM that establishes ACTs for
each management area to account for management uncertainty. In
Amendment 5, the Councils recommended an ACT of 10,750 mt for the NFMA
and 11,513 mt for the SFMA. This final rule implements the ACT
recommended for the SFMA, but disapproves the ACT for the NFMA on the
grounds that it is not consistent with the best scientific information
available, as described under ``Disapproved Measure'' in this preamble.
5. Reactive AM
This final rule also establishes a reactive AM that requires the
Council to deduct, through an in-season or annual framework adjustment,
on a pound-for-pound basis, any overage of the ACL from the ACT in the
year following the FY in which the overage was identified. Management
measures (i.e., DAS and trip limits) must also be adjusted, if
necessary, to ensure the revised ACT is not exceeded. For example, if
overage of the 2011 ACL for the NFMA is determined to have occurred
upon review of final 2011 landings sometime during FY 2012, the
Councils would adjust the ACT and develop revised management measures
for implementation during FY 2013.
Under this reactive AM, the Councils are responsible for assessing
annual landings in relation to the ACL, and adjusting the ACT and
associated management measures as required. However, if the Councils
fail to take action, the Regional Administrator has the authority to
adjust the ACT, and implement revised DAS and/or trip limits.
6. Specification of DAS and Trip Limits
This final rule specifies a DAS allocation and trip limits only for
the SFMA because the ACT for the NFMA was disapproved. As stated
previously in this preamble, the FY 2010 DAS allocation and trip limits
for the NFMA will remain in effect until an updated ACT and associated
DAS and trip limits are established through Framework 7, which is
scheduled for implementation during the summer of 2011. The DAS
allocation and trip limits for the SFMA recommended by the Councils in
Amendment 5 and being implemented in this final rule are 28 DAS, and
trip limits of 550 lb (249 kg) tail wt. per DAS for Category A and C
vessels, and 450 lb (204 kg) tail wt. per DAS for Category B, D, and H
vessels.
7. Automatic DAS Adjustment for Trip Limit Overage
This final rule implements a measure that allows vessels to land up
to the equivalent of one additional daily monkfish trip limit than
would otherwise be authorized based on the vessel's monkfish DAS usage
for that trip, provided the vessel notifies NMFS of the overage via
vessel monitoring system (VMS) prior to crossing the VMS demarcation
line, or via phone using the Agency's interactive voice response (IVR)
system at least 1 hr prior to landing. To account for the trip limit
overage, the vessel's monkfish DAS charge shall be increased to the
next 24-hr period plus 1 minute. For example, if a limited access
monkfish Category C vessel fishing in the SFMA has two monkfish trip
limits (i.e., 1,100 lb (499 kg) tail weight) on board, but has only
been declared into the monkfish DAS program for 15 hrs, the vessel may
land the additional trip limit, if NMFS is properly notified. The
vessel's monkfish DAS charge would then be adjusted from 15 hrs to 24
hrs and 1 minute.
In order to effectively implement this provision, NMFS has added a
form to the VMS system that a vessel operator would complete and send
to NMFS prior to crossing the VMS demarcation line on the vessel's
return to port. With respect to recommendation in Amendment 5 that
vessels not equipped with a VMS unit call-in a trip limit overage when
outside the VMS demarcation line, NMFS recognizes that it may not be
feasible for all vessels to provide a call-in notification via cell
phone when outside the VMS demarcation line. Accordingly, in this final
rule, NMFS, pursuant to its Magnuson-Stevens Act section 305(d)
authority revises the Councils' recommendation by requiring vessels
without VMS to notify NMFS of the trip limit overage by calling into
the IVR system at least 1 hour prior to landing.
8. Authorization To Land Monkfish Heads
This final rule implements a measure that authorizes the landing of
monkfish heads separately from the body by listing monkfish heads as an
authorized product form under Sec. 648.94(a), and establishing an
appropriate head-to-total weight conversion factor to aid enforcement
of the daily trip limits. Vessels may land monkfish heads separate from
the body, provided the total weight of heads does not exceed the
appropriate total weight of tails on board (see ``Technical Amendment''
below for details on the conversion factors).
9. Allow Changes to Monkfish Research Set-Aside (RSA) Program via
Framework Action
This final rule authorizes changes to be made to this RSA program
through a framework adjustment in order to make necessary improvements
to this program in a timelier manner. The Councils are
[[Page 30268]]
still required to conduct the necessary environmental analysis under
the National Environmental Policy Act (NEPA), and to comply with other
applicable laws when developing a framework adjustment for this
purpose.
10. Amendments
This final rule includes, under Magnuson-Stevens Act section 305(d)
authority, an amendment that adjusts the conversion factor for whole
monkfish to reflect how monkfish are actually landed. Previously, whole
monkfish were assumed to be landed in true whole form (i.e., live
weight). However, current industry practice is to ``gut'' the whole
fish (i.e., remove the stomach, liver, and other entrails) at sea, and
land in this form. The current tail-to-whole-weight conversion factor
for monkfish is 3.32. However, a more accurate tail-to-whole-weight
(landed) conversion factor is 2.91, which reflects the conversion to a
monkfish that still has its head attached, but its guts removed. This
technical correction to the conversion factor results in a reduction in
the whole-weight equivalent trip limit, but not to the tail-weight trip
limit, which is the value recommended by the Councils. Additionally,
this changes the monkfish heads conversion factor proposed by the
Councils from 2.32 to 1.91 to be consistent with this corrected
conversion factor.
In addition to the above amendment, this final rule also removes
the letter of authorization (LOA) requirement at Sec.
648.92(b)(1)(iii) for vessels fishing in the NFMA with a VMS unit since
this requirement was removed from the general area declaration
requirements at Sec. 648.94(f) in the final rule implementing
Framework Adjustment 5 to the Monkfish FMP (73 FR 22831; April 28,
2008).
This final rule also clarifies the meeting requirements for
framework adjustments with respect to this joint FMP to reflect that
one framework meeting must be held by each of the two Councils, versus
one framework meeting overall.
Finally, this final rule updates the specification and framework
adjustment processes for the Monkfish FMP to include procedures for
specifying ACLs and AMs.
Comments and Responses
Four comments were received on the proposed rule and the amendment,
from three individuals (one individual commented separately on both the
proposed rule and the amendment). Two commenters did not support the
amendment, while the third commenter did not express specific support
or lack thereof for the amendment, but focused on the need for a
broader approach to fishery management.
This section summarizes the principal comments in the individual
comment letters that pertained to Amendment 5 and the proposed rule,
and NMFS's response to those comments. Any comments received that were
not specific to the management measures in the Amendment 5 proposed
rule, or in the amendment document, are not addressed in this final
rule.
Comment 1: An individual stated that the management measures in
Amendment 5 are not sufficiently restrictive enough to protect the
resource for future generations.
Response: To the extent that the comment addresses the NMFA, NMFS
has concluded that the NMFA measures are not consistent with the most
recent stock assessment (SARC 50) and most recent recommendations by
the SSC of the ABC/ACL for the NFMA. As more fully explained in the
above preamble, NMFS, therefore, has disapproved the specification of
an ACT and associated DAS and trip limits for the NMFA. Proposed
Framework 7 is intended to implement more restrictive specifications to
be consistent with the newest assessment and ABC recommendations. In
the meantime, the current measures will roll over until Framework 7 is
implemented. These measures result in a TAL that is more restrictive
than that recommended by the Councils in Framework 7, and, therefore,
is considered to be consistent with new recommendations for the ABCs/
ACLs for the northern area of this fishery. The other management
measures in Amendment 5 include new provisions and control rules for
establishing biological and management reference points, including ACLs
and AMs aimed at preventing overfishing from occurring in this fishery,
and for the SFMA, the ACT and associated management measures to not
exceed the ACL. These other management measures are based on the best
scientific advice available, which indicates that both monkfish stocks
are not overfished, and overfishing is not occurring. Thus, NMFS
considers the management measures in Amendment 5, including the
specifications for the SFMA, and the rollover measures for NMFA, to be
sufficiently restrictive to prevent overfishing, but retain sufficient
flexibility to help the fishery achieve OY, as required by NS 1 of the
Magnuson-Stevens Act.
Comment 2: The same individual who expressed opposition to the
measures in Amendment 5 also commented on the type of NEPA document
prepared for this amendment, stating that an Environmental Impact
Statement (EIS) should have been prepared versus an EA, given the
negative environmental effect that would result from this action.
Response: NMFS disagrees with the commenter's assertion that an EIS
should have been prepared for this action. Although the commenter made
only a general reference to the need to prepare an EIS for this action,
in light of similar comments received on Framework 45 to the Northeast
Multispecies FMP concerning the impacts of that action on Atlantic
sturgeon, which is proposed for listing under the Endangered Species
Act (ESA), NMFS is proving additional information in its response to
this comment explaining why this action will not have a significant
impact on Atlantic sturgeon; thus obviating the need for an EIS.
Subsequent to the submission of Amendment 5 by the NEFMC on
September 20, 2010, NMFS published two Federal Register notices on
October 6, 2010 (75 FR 61872 and 75 FR 61904) that proposed listing
five distinct population segments (DPS) of Atlantic sturgeon under the
ESA along the U.S. East Coast as either threatened or endangered. As
such, the Amendment 5 EA, as submitted, did not include information on
the proposed listing for this species, relevant information pertaining
to the biology of this species and rationale for the proposed listing.
Additionally, it did not specifically consider the potential impacts of
the management measures in Amendment 5 on Atlantic sturgeon. As a
result, NMFS prepared an Addendum to the Amendment 5 EA that
incorporates pertinent biological information on Atlantic sturgeon, the
proposed listing, and updated bycatch estimates in both otter trawl and
sink gillnet fisheries for the purpose of assessing the impacts of this
action on Atlantic sturgeon. Although NMFS asserts that the measures in
Amendment 5 will not result in a jeopardy determination or any
significant adverse impacts for Atlantic sturgeon between the effective
date of this action and when a final listing determination is expected
to made in October 2011, there is insufficient information to make a
determination of no jeopardy or adverse impact for the entire FY 2011,
and beyond. As such, in conjunction with the partial approval of
Amendment 5, NMFS will initiate a Monitoring and Action Plan that
consists of the steps NMFS will take to mitigate the impacts of the
monkfish fishery on Atlantic sturgeon from October 2011 through FY
[[Page 30269]]
2013 to avoid significant impacts to Atlantic sturgeon from the
monkfish fishery. Thus, based upon the analysis contained in the EA
prepared for Amendment 5 and the addendum prepared by NMFS, this action
will not result in any significant environmental effects, which is the
basis for triggering an EIS under NEPA.
Comment 3: One commenter expressed opposition to the amendment on
the grounds that it would result in reductions to DAS and trip limits.
Response: This comment seems to be based on a misunderstanding of
the management measures in Amendment 5. This action retains the trip
limits currently in effect for the SFMA, but increases the DAS
allocations for vessels fishing in this area from 23 monkfish DAS to 28
monkfish DAS. Although the ACT and associated DAS and trip limits for
the NFMA are disapproved, the current DAS and trip limits remain in
effect for that area until modified by a future action such as
Framework 7. Thus, this action would not result in reductions in DAS or
trip limits for either management area. Additionally, this action
contains two measures aimed at increasing efficiency and reducing waste
(i.e., discards): 1) The automatic DAS adjustment for a trip limit
overage; and 2) the authorization to land monkfish heads.
Comment 4: The third commenter did not comment specifically on
Amendment 5 or its associated management measures, but focused on the
need for a broader approach to fishery management versus focusing
management on a single species like monkfish.
Response: NMFS agrees that a broader approach to fishery management
may have benefits, and has been exploring an ecosystem approach to
fishery management for several years. However, ecosystem models are
still being developed and require data from multiple sources that may
not yet exist in a usable or consistent form. Monkfish is considered a
data poor species because basic information on life history parameters
is minimal or lacking. Thus, incorporating monkfish into larger
ecosystem models that are currently under development is unlikely to
occur in the near future; however, NMFS remains confident that the
management measures implemented in this action are consistent with the
best available scientific information on the monkfish resource.
Changes From the Proposed Rule
1. In Sec. 648.92(b), the proposed changes to paragraphs (1)(i),
(iv) and (v); and (2)(i) are not included in this final rule due to the
disapproval of the NFMA ACT and associated DAS and trip limits.
Additionally, paragraph (b)(1)(ii) is modified to reflect that the
current coastwide DAS allocation of 31 DAS will remain in effect.
2. In Sec. 648.94(a), the introductory sentence has been revised
to clarify that vessels may not possess or land only monkfish heads,
but that any monkfish heads possessed or landed must correspond to an
appropriate amount of tails.
3. In Sec. 648.94(b)(1)(ii), the monkfish possession limit for
Category B and D vessels fishing in the NFMA is changed from 800 lb
(363 kg) tail weight per DAS to 470 lb (213 kg) tail weight per DAS to
reflect the disapproval of the revised trip limits in Amendment 5 in
this final rule.
4. In Sec. 648.96(c), the ABC and ACL setting process has been
revised to more clearly reflect the intent of the Councils in Amendment
5 to establish these reference points based upon an automated
calculation method, approved by the SSC, that utilizes the best
available science.
Classification
The Administrator, Northeast Region, NMFS, determined that
Amendment 5 is necessary for the conservation and management of the
monkfish fishery and that it is consistent with the Magnuson-Stevens
Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866.
The Councils prepared an EA for Amendment 5. In addition, NMFS
prepared an Addendum to Amendment 5 to analyze the potential impacts of
the amendment on Atlantic sturgeon. Based on the analysis contained in
the EA and the Addendum, the Assistant Administrator (AA) concluded
that, based on the monitoring and action plan to mitigate impacts on
Atlantic sturgeon, there will be no significant impact on the human
environment as a result of this rule. A copy of the EA, as prepared by
the Councils, is available from the Councils and a copy of the Addendum
is available from Northeast Regional Office of NMFS (see ADDRESSES).
Pursuant to 5 U.S.C. 553(d), NMFS finds good cause to waive the
delay in effectiveness requirement because such a delay is contrary to
the public interest and unnecessary.
The purpose of this rule is to improve the overall management of
the monkfish fishery by establishing measures in the form of ACLs and
AMs aimed at preventing overfishing. Additionally, this rule
establishes measures intended to promote efficiency and reduce waste in
the monkfish fishery. Specifically, this rule authorizes the landing of
monkfish heads separately from the body, which was previously
prohibited; and allows a limited access monkfish vessel to land one
additional day's worth of monkfish than would otherwise be authorized
based on its DAS usage, and adjust the DAS charged to the vessel to
account for the trip limit overage. Delaying this rule's effectiveness
may result in economic harm to vessels that must currently land their
monkfish in whole form, and process the fish into heads and tails for
separate markets upon landing, or discard the monkfish heads at sea,
both of which are practices that increase waste and reduce the economic
yield from the monkfish resources. Further, delaying the effectiveness
of this rule may result in social and economic harm by continuing to
require vessels to spend enough time at sea to fully account for their
monkfish catch on board. Under this current practice, vessel safety is
compromised by staying at sea in potentially unsafe weather conditions
solely to ensure that their monkfish DAS charge corresponds to the
monkfish catch on board. Thus, delaying the effective date of this
final rule would undermine its intent and result in undue harm to
vessels by delaying the implementation of measures intended to promote
safety and efficiency, and reduce waste in the monkfish fishery.
Moreover, even if this rule is effective immediately, the regulated
entities need not come into immediate compliance. They can continue
their current practices and remain in compliance with the new
regulations. Because the 30-day delay in effectiveness of this rule is
contrary to the public interest, pursuant to 5 U.S.C. 553(d), the AA
finds good cause to waive the 30-day delay in effective date.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has prepared a Final Regulatory Flexibility Analysis (FRFA) in
support of Amendment 5. The FRFA incorporates the IRFA, a summary of
the significant issues raised by the public comments in response to the
IRFA, NMFS's responses to those comments, relevant analyses contained
in the Framework and its EA and a summary of the analyses completed to
support the action in this rule. A copy of the analyses done in the
Framework and EA is available from the Councils (see ADDRESSES). A
summary of the IRFA was published in the proposed rule for this action
and is not repeated here. A description of why this
[[Page 30270]]
action was considered, the objectives of, and the legal basis for this
rule is contained in the preamble to the proposed rule and this final
rule and is not repeated here.
A Summary of the Significant Issues Raised by the Public in Response to
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a
Statement of Any Changes Made in the Proposed Rule as a Result of Such
Comments
Four comments were received on the proposed rule and the amendment.
However, none of these comments were specific to the IRFA or of
Amendment 5 more generally.
Description and Estimate of Number of Small Entities to Which the Final
Rule Will Apply
The Small Business Administration (SBA) considers commercial
fishing entities (NAICS code 114111) to be small entities if they have
no more than $4 million in annual sales, while the size standard for
charter/party operators (part of NAICS cod 487210) is $7 million in
sales. Based on 2005-2007 average conditions, median gross sales by
commercial fishing vessels were just over $200,000, and no single
fishing entity earned more than $2 million. For regulated charter/party
operators, the median value of gross receipts from passengers was just
over $9,000, and did not exceed $500,000 in any year during 2001 to
2007. The vessels in the Atlantic sea scallop fishery are considered
small business entities because all of them grossed less than $3
million according to the dealer's data for FYs 1994 to 2009, consistent
with analyses under the RFA for recent scallop actions. Although
multiple vessels may be owned by a single owner, available tracking of
ownership is not readily available to reliably ascertain affiliated
entities. Therefore, for the purposes of this analysis, each permitted
vessel is treated as a single small entity and is determined to be a
small entity under the RFA. Accordingly, there are no differential
impacts between large and small entities under this final rule.
The management measures in Amendment 5 have the potential to affect
all federally permitted monkfish vessels that are actively
participating in the fishery. As of September 2009, there were 758
limited access monkfish permit holders and 2,156 open access permit
holders. Of these, 573 limited access permit holders (76 percent)
actively participated in the monkfish fishery during FY 2008, while
only 504 open access permit holders (23 percent) actively participated
in the fishery during this time period. Thus, this action is expected
to impact at least 1,077 currently active monkfish permit holders.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
The only Amendment 5 measure that requires either new or revised
reporting and recordkeeping requirements is the provision enabling
vessels to land up to the equivalent of one additional daily monkfish
trip limit than would otherwise be authorized based on the vessel's
monkfish DAS usage for that trip, provided the vessel notifies NMFS of
the overage via vessel VMS prior to crossing the VMS demarcation line,
or via phone using the Agency's IVR call-in system at least 1-hr prior
to landing. Although this action introduces a new reporting requirement
under OMB Control Number 0648-0202, this new requirement will not
affect the overall reporting burden associated with the existing VMS
and IVR call-in notification requirements authorized under this OMB
Control number. As such, formal Paperwork Reduction Act (PRA) clearance
through OMB is not required. There are no other compliance requirements
associated with this final rule implementing Amendment 5.
This final rule does not duplicate, overlap, or conflict with other
Federal rules.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes
All of the approved management measures in Amendment 5 being
implemented through this final rule either provide for increased
fishing opportunities, increase flexibility and promote efficiency
within the fishery, or reduce waste associated with regulatory
discards. In terms of increased fishing opportunities, this action
increases the annual DAS allocation to vessels operating in the SFMA
from 23 DAS to 28 DAS. With regard to increased flexibility and
efficiency, this action implements a measure that will allow limited
access monkfish vessels to land one additional monkfish trip limit
beyond what their DAS usage for that trip would normally allow, and
have their DAS adjusted to account for the additional trip limit. Not
only does this measure increase flexibility and efficiency by allowing
vessels to return to port sooner than they would otherwise be
authorized, reducing operating costs and time at sea, it helps to
reduce regulatory discards by enabling vessels to land up to another
day's worth of monkfish to account for any additional fish caught in
their nets. Finally, this action will authorize vessels to land
monkfish heads separately from the body, which was previously
prohibited under the FMP. Previously, vessels that intended to sell
their monkfish heads to a separate market than the tails were required
to land their monkfish whole, and separate the heads from the body
after landing. This action amends the Monkfish FMP to allow the landing
of monkfish heads separately from the body, and implements an
appropriate conversion factor to ensure compliance with the landing
limits. Therefore, by implementing management measures that increase
fishing opportunities, increase flexibility and efficiency, and reduce
waste, NMFS has taken the steps necessary to minimize the impacts of
this action on small entities consistent with the stated objectives of
applicable statutes. Further, by disapproving the specification of the
NMA ACT and associated DAS and trip limits, NMFS is preventing
overfishing since the NFMA ACT recommended by the Councils is 42
percent higher than the recalculated ABC that is based upon the most
recent scientific advice. Thus, although disapproving the NFMA leaves
more restrictive management measures in effect than those proposed in
Amendment 5, it prevents long-term economic losses resulting from the
need to implement even more restrictive management measures in the
future if overfishing were to occur as a result of implementing the
Council's proposed action, which is inconsistent with the best
scientific information available.
Small Entity Compliance Guide
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 letter to permit holders that also serves as
small entity compliance guide (the guide) was prepared. Copies of this
final rule are available from the NMFS Northeast Regional Office, and
the guide, i.e., permit holder letter, will be sent to all holders of
permits for the monkfish fishery. The guide and this final rule will be
available upon request, and posted on the Northeast Regional
[[Page 30271]]
Office's Web site at http://www.nero.noaa.gov.
This final rule contains a collection-of-information requirement
subject to the PRA and which has been approved by OMB under control
number 0648-0202. Public reporting burden for monkfish trip limit
overage notification requirement is estimated to average 30 seconds 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. These 30
seconds are included within the total 2-minute estimated response time
for the DAS call-in notification requirement, but will be additional
for vessels using the VMS procedure. Furthermore, this action is
expected to reduce the total number of monkfish trips for vessels that
take advantage of this new measure since they will be using their
monkfish DAS at a higher rate in exchange for being able to land more
monkfish on a given trip. As such, although this action adds a new
reporting requirement, it will not change the overall reporting burden
associated with the existing VMS and call-in notification requirements
authorized under OMB Control Number 0648-0202. Send comments regarding
these burden estimates or any other aspect of this data collection,
including suggestions for reducing the burden, to NMFS (see ADDRESSES)
and by e-mail to [email protected], or fax to 202-395-7285.
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.
An informal consultation under the ESA was concluded for the
measures proposed in Amendment 5 on March 4, 2011. The measures in
Amendment 5 are not expected to modify the fishery in a manner that
would cause impacts to species listed under the ESA that were not
otherwise considered in the last biological opinion conducted for this
fishery on October 29, 2010. As a result of the informal consultation,
NMFS has determined that fishing activities conducted under this rule
do not meet the need to reinitiate formal consultation. The measures in
Amendment 5 fall within the scope of consultations on previous Monkfish
FMP actions. None of these measures are expected to result in the
addition of adverse impacts to current ESA-listed cetaceans, sea
turtles, and fish species which would change the basis for the
conclusion of the 2010 Biological Opinion for the Monkfish FMP.
Additionally, a supplemental analysis was conducted to assess the
impacts of Amendment 5 on Atlantic sturgeon, as presented in the
Addendum to Amendment 5. Based upon bycatch estimates for 2006-2010,
between 8 and 32 percent of the total annual observations of Atlantic
sturgeon in the monkfish fishery occurred during the May to October
timeframe. Given that interactions will most likely occur, NMFS will
work to determine the magnitude of the effects to the species and
whether any measures to mitigate impacts are needed, utilizing the
conferencing procedures of the ESA.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: May 20, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out 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.
0
2. In Sec. 648.4, paragraphs (a)(9)(i)(M) and (N) are removed and
paragraph (a)(9)(ii) is added to read as follows:
Sec. 648.4 Vessel permits.
* * * * *
(a) * * *
(9) * * *
(ii) Monkfish incidental catch vessels (Category E). A vessel of
the United States that is subject to these regulations and that has not
been issued a limited access monkfish permit under paragraph
(a)(9)(i)(A) of this section is eligible for and may be issued a
monkfish incidental catch (Category E) permit to fish for, possess, or
land monkfish subject to the restrictions in Sec. 648.94(c).
* * * * *
0
3. In Sec. 648.92, paragraphs (b)(1)(ii) and (iii) are revised and
paragraph (b)(10) is added to read as follows:
Sec. 648.92 Effort-control program for monkfish limited access
vessels.
* * * * *
(b) * * *
(1) * * *
(ii) DAS restrictions for vessels fishing in the SFMA. Limited
access monkfish vessels may only use 28 of their 31 monkfish DAS
allocation in the SFMA. All limited access monkfish vessels fishing in
the SFMA must declare that they are fishing in this area through the
vessel call-in system or VMS prior to the start of every trip. In
addition, if a vessel does not possess a valid letter of authorization
from the Regional Administrator to fish in the NFMA as described in
Sec. 648.94(f), NMFS shall presume that any monkfish DAS used were
fished in the SFMA.
(iii) DAS declaration provision for vessels fishing in the NFMA
with a VMS unit. Any limited access NE multispecies vessel fishing
under a NE multispecies Category A DAS in the NFMA may change its DAS
declaration to a monkfish DAS through the vessel's VMS unit during the
course of the trip, but prior to crossing the VMS demarcation line upon
its return to port or leaving the NFMA, if the vessel exceeds the
incidental catch limit specified under Sec. 648.94(c).
(A) Vessels that change their DAS declaration from a NE
multispecies Category A DAS to a monkfish DAS during the course of a
trip remain subject to the NE multispecies DAS usage requirements
(i.e., use a NE multispecies Category A DAS in conjunction with the
monkfish DAS) described in paragraph (b)(2)(i) of this section.
(B) Gillnet vessels that change their DAS declaration in accordance
with this paragraph (b)(1)(iii) are not subject to the gillnet minimum
mesh size restrictions found at Sec. 648.91(c)(1)(iii), but are
subject to the smaller NE multispecies minimum mesh requirements for
gillnet vessels found under Sec. 648.80 based upon the NE Multispecies
Regulated Mesh Area in which the vessel is fishing.
* * * * *
(10) DAS Adjustment for Trip Limit Overage. Any limited access
monkfish vessel, required to or voluntarily using a VMS, fishing on a
monkfish DAS may land up to the equivalent of one additional day's
worth of its trip limit (i.e., amount of monkfish authorized per DAS)
than would otherwise be authorized, provided the vessel, vessel owner,
or vessel operator notifies the Regional Administrator of the overage
via VMS prior to crossing the VMS demarcation line. If the vessel is
not required to be, or is not equipped with an operable VMS, the
vessel, vessel operator, or owner must notify the Regional
Administrator via the call-in system at least 1-hr prior to landing.
The
[[Page 30272]]
monkfish DAS charged to the vessel will then be increased to equal a
full 24-hr period plus 1 minute to account for the trip limit overage.
For example, if a vessel has the equivalent of two monkfish DAS trip
limits (based on its permit category) on board, but has only been
declared into the monkfish DAS program for 15 hr, the vessel, vessel
owner, or vessel operator may land fish equal to the two DAS trip
limits only if the Regional Administrator of the overage is notified
via VMS or the call-in system as described above. In this case, the
monkfish DAS charged to the vessel would be adjusted from 15 hr to 24
hr and 1 minute.
* * * * *
0
3. In Sec. 648.94, paragraphs (a), (b)(1), (b)(2)(i) and (ii),
(b)(3)(ii)(A), (b)(4), (c)(1)-(c)(8), and (d)(2) are revised to read as
follows:
Sec. 648.94 Monkfish possession and landing restrictions.
(a) General. Monkfish may be possessed or landed either as tails
only, tails with associated heads possessed separately, or in whole
form (head on and gutted), or any combination of the three provided the
weight of monkfish heads on board does not exceed 1.91 times the weight
of monkfish tails on board. When any combination of tails, and whole
fish are possessed or landed, the possession or landing limit shall be
based on tail weight where all whole monkfish (head on and gutted) are
converted to tail weight using the conversion factor of 2.91. For
example, whole weight is converted to tail weight by dividing the whole
weight by 2.91. Conversely, tail weight is converted to whole weight by
multiplying the tail weight by 2.91. If heads only are possessed in
combination with tails, the possession or landing limit for monkfish
heads may not exceed 1.91 times the tail weight of fish on board,
excluding any whole monkfish. The allowed amount of head weight is
determined by multiplying the tail weight by 1.91. For example a vessel
possessing 100 lb (45 kg) of tail weight may possess an additional 191
lb (87 kg) of monkfish heads (100 x 1.91 = 191). A vessel may not
possess heads only without possessing the equivalent weight of tails
allowed by using the conversion factor.
(b) * * *
(1) Vessels fishing under the monkfish DAS program in the NFMA--(i)
Category A and C vessels. Limited access monkfish Category A and C
vessels that fish under a monkfish DAS exclusively in the NFMA may land
up to 1,250 lb (567 kg) tail weight or 3,638 lb (1,650 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 2.91). For every 1 lb (0.45 kg) of tail only weight landed,
the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as
described in paragraph (a) of this section.
(ii) Category B and D vessels. Limited access monkfish Category B
and D vessels that fish under a monkfish DAS exclusively in the NFMA
may land up to 470 lb (213 kg) tail weight or 1,368 lb (621 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 2.91). For every 1 lb (0.45 kg) of tail only weight
landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads
only, as described in paragraph (a) of this section.
(2) Vessels fishing under the monkfish DAS program in the SFMA--(i)
Category A, C, and G vessels. Limited access monkfish Category A, C,
and G vessels that fish under a monkfish DAS in the SFMA may land up to
550 lb (249 kg) tail weight or 1,601 lb (726 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 2.91). For every 1 lb (0.45 kg) of tail only weight landed, the
vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as
described in paragraph (a) of this section.
(ii) Category B, D, and H vessels. Limited access monkfish Category
B, D, and H vessels that fish under a monkfish DAS in the SFMA may land
up to 450 lb (204 kg) tail weight or 1,310 lb (594 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 2.91). For every 1 lb (0.45 kg)) of tail only weight landed, the
vessel may land up to 1.91 lb (0.87) of monkfish heads only, as
described in paragraph (a) of this section.
* * * * *
(3) * * *
(ii) * * *
(A) Category C, D, and F vessels. Limited access monkfish Category
C, D, or F vessels that fish any portion of a trip under a NE
multispecies DAS in the SFMA, and not a monkfish DAS, may land up to
300 lb (136 kg) tail weight or 873 lb (396 kg) whole weight of monkfish
per DAS if trawl gear is used exclusively during the trip, or 50 lb (23
kg) tail weight or 146 lb (66 kg) whole weight per DAS if gear other
than trawl gear is used at any time during the trip. Category C, D, and
F vessels participating in the NE Multispecies Regular B DAS program,
as specified under Sec. 648.85(b)(6), are also subject to the
incidental catch limit specified in paragraph (c)(1)(ii) of this
section. For the purpose of converting whole weight to tail weight, the
amount of whole weight possessed or landed is divided by 2.91. For
every 1 lb (0.45 kg) of tail only weight landed, the vessel may land up
to 1.91 lb (0.87 kg) of monkfish heads only, as described in paragraph
(a) of this section.
* * * * *
(4) Category C, D, F, G, or H vessels fishing under the scallop DAS
program. A Category C, D, F, G, or H vessel fishing under a scallop DAS
may land up to 300 lb (136 kg) tail weight or 873 lb (396 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 2.91). For every 1 lb (0.45 kg) of tail only weight
landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads
only, as described in paragraph (a) of this section.
* * * * *
(c) * * *
(1) Vessels fishing under a NE multispecies DAS--(i) NFMA. Vessels
issued a valid monkfish incidental catch (Category E) permit or a valid
limited access Category C, D, F, G, or H permit, fishing under a NE
multispecies DAS exclusively in the NFMA may land up to 300 lb (136 kg)
tail weight or 873 lb (396 kg) whole weight of monkfish per DAS, or 25
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
purpose of converting whole weight to tail weight, the amount of whole
weight possessed or landed is divided by 2.91. For every 1 lb (0.45 kg)
of tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg)
of monkfish heads only, as described in paragraph (a) of this section.
(ii) SFMA. If any portion of the trip by a vessel issued a monkfish
incidental catch (Category E) permit, or issued a valid limited access
Category G or H permit, is fished under a NE multispecies DAS in the
SFMA, the vessel may land up to 50 lb (23 kg) tail weight or 146 lb (66
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 2.91). For every 1 lb (0.45 kg) of tail only
weight landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish
heads only, as described in paragraph (a) of this section.
(2) Scallop vessels fishing under a scallop DAS. A scallop vessel
issued a
[[Page 30273]]
monkfish incidental catch (Category E) permit fishing under a scallop
DAS may land up to 300 lb (136 kg) tail weight or 873 lb (396 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 2.91). For every 1 lb (0.45 kg) of tail only weight
landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads
only, as described in paragraph (a) of this section.
(3) Vessels fishing with large mesh and not fishing under a DAS --
(i) A vessel issued a valid monkfish incidental catch limit (Category
E) permit or a limited access monkfish permit (Category A, B, C, D, F,
G, or H) fishing in the GOM or GB RMAs with mesh no smaller than
specified at Sec. Sec. 648.80(a)(3)(i) and (a)(4)(i), respectively,
while not on a monkfish, NE 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 purpose of converting whole weight to
tail weight, the amount of whole weight possessed or landed is divided
by 2.91. For every 1 lb (0.45 kg) of tail only weight landed, the
vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as
described in paragraph (a) of this section.
(ii) A vessel issued a valid monkfish incidental catch (Category E)
permit or a limited access monkfish permit (Category A, B, C, D, F, G,
or H) fishing in the SNE RMA east of the MA Exemption Area boundary
with mesh no smaller than specified at Sec. 648.80(b)(2)(i), while not
on a monkfish, NE 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, not to exceed 50 lb (23 kg) tail weight or 146 lb (66
kg) whole weight of monkfish per day or partial day, up to a maximum of
150 lb (68 kg) tail weight or 437 lb (198 kg) whole weight per trip.
For the purpose of converting whole weight to tail weight, the amount
of whole weight possessed or landed is divided by 2.91. For every 1 lb
(0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb
(0.87 kg) of monkfish heads only, as described in paragraph (a) of this
section.
(iii) A vessel issued a valid monkfish incidental catch (Category
E) permit or a limited access monkfish permit (Category A, B, C, D, F,
G, or H) fishing in the SNE RMA under a Skate Bait Letter of
Authorization, as authorized under Sec. 648.322(c), while not on a
monkfish, NE 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, not to exceed 50 lb (23 kg) tail weight or 146 lb (66
kg) whole weight of monkfish per day or partial day, up to a maximum of
150 lb (68 kg) tail weight or 437 lb (198 kg) whole weight per trip.
For the purpose of converting whole weight to tail weight, the amount
of whole weight possessed or landed is divided by 2.91. For every 1 lb
(0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb
(0.87 kg) of monkfish heads only, as described in paragraph (a) of this
section.
(iv) A vessel issued a valid monkfish incidental catch (Category E)
permit or a limited access monkfish permit (Category A, B, C, D, F, G,
or H) fishing in the SNE or MA RMAs west of the MA Exemption Area
boundary with mesh no smaller than specified at Sec. 648.104(a)(1)
while not on a monkfish, NE 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, up to a maximum of 450 lb (204 kg) tail weight
or 1,310 lb (594 kg) whole weight of monkfish per trip, unless that
vessel is fishing under a Skate Bait Letter of Authorization in the SNE
RMA. Such a vessel is subject to the incidental catch limit specified
under paragraph (c)(3)(iii) of this section. For the purpose of
converting whole weight to tail weight, the amount of whole weight
possessed or landed is divided by 2.91. For every 1 lb (0.45 kg) of
tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg) of
monkfish heads only, as described in paragraph (a) of this section.
(4) Vessels fishing with small mesh and not fishing under a DAS. A
vessel issued a valid monkfish incidental catch (Category E) permit or
a limited access monkfish permit (Category A, B, C, D, F, G, or H)
fishing with mesh smaller than the mesh size specified by area in
paragraph (c)(3) of this section, while not on a monkfish, NE
multispecies, or scallop DAS, may possess, retain, and land only up to
50 lb (23 kg) tail weight or 146 lb (66 kg) whole weight of monkfish
per day or partial day, up to a maximum of 150 lb (68 kg) tail weight
or 437 lb (198 kg) whole weight per trip. For the purpose of converting
whole weight to tail weight, the amount of whole weight possessed or
landed is divided by 2.91. For every 1 lb (0.45 kg) of tail weight
landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads
only, as described in paragraph (a) of this section.
(5) Small vessels. A vessel issued a limited access NE multispecies
small vessel category permit and a valid monkfish incidental catch
(Category E) permit that is less than 30 ft (9.1 m) in length and that
elects not to fish under the NE multispecies DAS program, may possess,
retain, and land up to 50 lb (23 kg) tail weight or 146 lb (66 kg)
whole weight of monkfish per day or partial day, up to a maximum of 150
lb (68 kg) tail weight or 437 lb (198 kg) whole weight per trip. For
the purpose of converting whole weight to tail only weight, the amount
of whole weight possessed or landed is divided by 2.91. For every 1 lb
(0.45 kg) of tail weight landed, the vessel may land up to 1.91 lb of
monkfish heads only, as described in paragraph (a) of this section.
(6) Vessels fishing with handgear. A vessel issued a valid monkfish
incidental catch (Category E) permit or a limited access monkfish
permit (Category A, B, C, D, F, G, or H) and fishing exclusively with
rod and reel or handlines with no other fishing gear on board, while
not on a monkfish, NE multispecies, or scallop DAS, may possess,
retain, and land up to 50 lb (23 kg) tail weight or 146 lb (66 kg)
whole weight of monkfish per day or partial day, up to a maximum of 150
lb (68 kg) tail weight or 437 lb (198 kg) whole weight per trip. For
the purpose of converting whole weight to tail weight, the amount of
whole weight possessed or landed is divided by 2.91. For every 1 lb
(0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb
(0.87 kg) of monkfish heads only, as described in paragraph (a) of this
section.
(7) Vessels fishing with surfclam or ocean quahog dredge gear. A
vessel issued a valid monkfish incidental catch (Category E) permit and
a valid surfclam or ocean quahog permit, while fishing exclusively with
a hydraulic clam dredge or mahogany quahog dredge, may possess, retain,
and land up to 50 lb (23 kg) tail weight or 146 lb (66 kg) whole weight
of monkfish per day or partial day, not to exceed 150 lb (68 kg) tail
weight or 437 lb (198 kg) whole weight per trip. For the purpose of
converting whole weight to tail weight, the amount of whole weight
possessed or landed is divided by 2.91. For every 1 lb (0.45 kg) of
tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg) of
monkfish heads only, as described in paragraph (a) of this section.
(8) Scallop vessels not fishing under a scallop DAS with dredge
gear--(i)
[[Page 30274]]
General provisions. A vessel issued a valid monkfish incidental catch
(Category E) permit or a valid limited access Category C, D, F, G, or H
permit, and also possessing a valid General Category sea scallop permit
or a limited access sea scallop vessel not fishing under a scallop DAS,
while fishing exclusively with scallop dredge gear as specified in
Sec. 648.51(b), may possess, retain, and land up to 50 lb (23 kg) tail
weight or 146 lb (66 kg) whole weight of monkfish per day or partial
day, up to a maximum of 150 lb (68 kg) tail weight or 437 lb (198 kg)
whole weight per trip, unless otherwise specified in paragraph
(c)(8)(ii) of this section. For the purpose of converting whole weight
to tail weight, the amount of whole weight possessed or landed is
divided by 2.91. For every 1 lb (0.45 kg) of tail only weight landed,
the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as
described in paragraph (a) of this section.
(ii) Limited access scallop vessels fishing in Sea Scallop Access
Areas. A vessel issued a valid monkfish incidental catch (Category E)
permit or a valid limited access Category C, D, F, G, or H permit, and
also possessing a limited access sea scallop permit while fishing
exclusively with scallop dredge gear as specified in Sec. 648.51(b),
and fishing in one of the established Sea Scallop Access Areas
specified under Sec. 648.59, may possess, retain, and land up to 300
lb (136 kg) tail weight or 873 lb (396 kg) whole weight of monkfish per
day or partial day fished within the boundaries of the Sea Scallop
Access Area. Time within the applicable access area, for purposes of
determining the incidental catch limit, will be determined through the
vessel's VMS unit. For the purpose of converting whole weight to tail
weight, the amount of whole weight possessed or landed is divided by
2.91. For every 1 lb (0.45 kg) of tail only weight landed, the vessel
may land up to 1.91 lb (0.87 kg) of monkfish heads only, as described
in paragraph (a) of this section.
(d) * * *
(2) If a vessel possesses or lands both monkfish tails and whole
monkfish, the vessel may land monkfish livers up to 10 percent of the
whole weight of monkfish per trip using the following weight ratio:
(0.10) x [(tail weight x 2.91) + (whole fish x 1)].
* * * * *
0
4. Section 648.96 is revised to read as follows:
Sec. 648.96 FMP review, specification, and framework adjustment
process.
(a) Annual review and adjustment process. The NEFMC and MAFMC, the
Monkfish Plan Development Team (PDT), and the Monkfish Advisory Panel
shall monitor the status of the monkfish fishery and resource.
(1) Monkfish annual SAFE Report. The PDT shall prepare an annual
Stock Assessment and Fishery Evaluation (SAFE) Report for the monkfish
fishery. The SAFE Report shall be the primary vehicle for the
presentation of updated biological and socio-economic information
regarding the monkfish fishery. The SAFE report shall provide source
data for any adjustments to the management measures that may be needed
for the Councils to meet the goals and objectives of the FMP.
(2) Annual review. The PDT shall meet at least annually to conduct
a review of the monkfish fishery in relation to the goals and
objectives specified in the Monkfish FMP, including a review of catch
relative to the annual catch targets (ACTs) for each management area.
They shall review available data pertaining to discards and landings;
DAS and other measures of fishing effort; stock status and fishing
mortality rate information, if available; enforcement of and compliance
with management measures; and any other relevant information. Based on
this review, the PDT shall provide guidance to the NEFMC and MAFMC
regarding the need to adjust management measures to better achieve the
FMP's goals and objectives. After considering the PDT's guidance, the
Council may submit to NMFS its recommendations for changes to
management measures, as appropriate, through the annual framework
adjustment process specified in paragraph (a)(3) of this section, the
in-season framework adjustment process specified in paragraph (b) of
this section, or through an amendment to the FMP.
(3) Annual framework adjustment procedures. (i) If necessary based
on the annual review, the Councils may develop adjustments to
management measures to achieve the annual catch target (ACT) for the
upcoming fishing year, and may develop other management options to
better achieve the goals and objectives of the Monkfish FMP, which may
include a preferred option. The Councils must demonstrate through
analysis and documentation that any options they develop are expected
to meet the goals and objectives of the Monkfish FMP. Additionally, if
necessary based on the recommendation of the NEFMC's Scientific and
Statistical Committee (SSC), the Councils may recommend measures to
revise the ABCs and ACLs for the upcoming fishing year(s) as described
in paragraph (c) of this section.
(ii) The range of options developed by the Councils may include any
of the management measures in the Monkfish FMP, including, but not
limited to: ACTs; 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; measures to minimize the
impact of the monkfish fishery on protected species; gear requirements
or restrictions that minimize bycatch or bycatch mortality;
transferable DAS programs; changes to the Northeast Region SBRM
(including the CV-based performance standard, fishery stratification,
and/or reports) and/or industry-funded observers or observer set-aside
programs; changes to the Monkfish Research Set-Aside Program; and other
frameworkable measures included in Sec. Sec. 648.55 and 648.90.
(iii) The Councils shall review the options analyzed by the PDT 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
analyzed by the PDT and any other relevant information, consider public
comment, and make a recommendation to the Councils.
(B) If the Councils submit a recommendation that is consistent with
other applicable law but does not meet the Monkfish FMP's goals and
objectives, the Regional Administrator may adopt any option developed
by the Councils and analyzed by the PDT that has not been 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
[[Page 30275]]
Regional Administrator may select any measure that has not been
rejected by both Councils and that meets the Monkfish FMP's goals and
objectives.
(iv) If the Councils submit, on or before December 1, a
recommendation to the Regional Administrator after one meeting with
each Council, and the Regional Administrator concurs with the
recommendation, the recommendation shall be published in the Federal
Register as a proposed rule, or as otherwise authorized under the
Administrative Procedure Act. The Councils may instead submit their
recommendation on or before February 1, if they choose to follow the
framework process outlined in paragraph (b) of this section and request
that the Regional Administrator publish the recommendation as a final
rule. If the Regional Administrator concurs with the Councils'
recommendation the recommended management measures may be published as
a proposed rule or a final rule, in accordance with the Administrative
Procedure Act. If the effective date of a final rule to implement the
recommended measures falls after the start of the fishing year, fishing
may continue under the existing regulations, but any 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 fishing
year.
(v) Following publication of a proposed rule and after receiving
public comment, if the Regional Administrator concurs in the Councils'
recommendation, a final rule, if possible, shall 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 implement through rulemaking in
accordance with the Administrative Procedure Act one of the 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.
(b) Within-season management 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.
(1) In-season Framework adjustment procedures. (i) Framework
adjustments shall require at least one initial meeting of the Joint
Monkfish Oversight Committee or one of the Councils (the agenda must
include notification of the framework adjustment proposal) and at least
two final 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.
(ii) Recommended adjustments to management measures must come from
the categories specified under paragraph (a)(3)(i) of this section,
including specification of ABC and ACLs, if necessary.
(2) 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:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Councils' recommended management measures;
(iii) Whether there is an immediate need to protect the resource or
to impose management measures to resolve gear conflicts; and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) 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(g) and (h).
(4) Action by NMFS. (i) 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.
(ii) 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.
(iii) If the Regional Administrator does not concur, then the
Councils shall be notified in writing of the reasons for the non-
concurrence.
(c) Process for setting ABCs and ACLs. (1) The Councils or the PDT
may develop options for setting ABC, ACL, and OFL for each monkfish
stock, as necessary, as part of the annual review and adjustment
process specified in paragraph (a) of this section, or as otherwise
deemed necessary following the in-season adjustment process specified
in paragraph (b) of this section. These options shall be submitted to
the SSC for consideration. The Councils or the PDT may recommend to the
SSC that ABC, ACL, and OFL are specified for each monkfish stock for
multiple years as determined necessary to best align management with
the stock assessment process for this fishery.
(i) ABC recommendation. The Councils or the PDT shall calculate ABC
values for each monkfish stock based on the ABC control rule
established in the FMP. These calculations shall be reviewed by the
SSC, guided by terms of reference developed by the Councils. The SSC
shall either concur with these ABC calculations, or provide alternative
recommendations for each stock and describe the elements of scientific
uncertainty used to develop its recommendations. If the SSC concurs
with the ABC calculations, the revised ABC values are automatically
updated and no action by the Councils is necessary. If the SSC provides
an alternative recommendation for calculating the ABC than that
currently specified in the FMP, the Councils
[[Page 30276]]
would need to need to take action through the annual or in-season
framework adjustment process specified in paragraphs (a) and (b) of
this section, respectively, to implement the SSC's recommendation. The
SSC may also consider other related issues specified in the terms of
reference developed by the Councils, including, but not limited to,
OFLs, ACLs, and management uncertainty.
(ii) ACL recommendations. The Councils shall establish ACLs for
each management area that are equivalent to the ABCs calculated using
the control rule established in the FMP, and reviewed and recommended
by the SSC.
(iii) Timing. If determined necessary under the annual review
process, the Councils shall develop and approve any recommendations for
ABCs and ACLs prior to December 31, to the extent possible. Once the
Councils have approved the recommended ABCs and ACLs, only if they
require adjustments to the ACTs described in paragraph (d) shall they
be submitted to NMFS as part of an annual framework adjustment or in-
season framework adjustment, as described in paragraphs (a) and (b) of
this section, along with any necessary analysis required by applicable
law. After receipt of the Councils' recommendation for ACLs, NMFS shall
review the Councils' decision and, if consistent with applicable law,
implement the ACLs in accordance with the Administrative Procedure Act.
(d) Accountability Measures (AMs). (1) Specification of ACTs.
Through the annual review process described in paragraph (a) of this
section, or as otherwise determined necessary, the Councils shall
specify ACTs for each management area that are set sufficiently below
the ACL to account for management uncertainty and prevent the ACL from
being exceeded. The ACTs established for each management area shall be
the basis for setting management measures (DAS and trip limits), after
accounting for incidental catch in non-directed fisheries and discards
in all fisheries.
(2) ACL overages and adjustments-- (i) Council action. The Councils
shall revise the ACT for a monkfish stock if it is determined that the
ACL was exceeded in any given year, based upon, but not limited to,
available landings and discard information. The amount of an ACL
overage shall be deducted from the ACT for the corresponding monkfish
stock on a pound-for-pound basis. The revised ACT and corresponding
management measures (DAS and trip limits) shall be implemented through
either the annual or in-season framework adjustment process, specified
in paragraphs (a) and (b) of this section, in the second fishing year
following the fishing year in which the ACL overage occurred.
(ii) NMFS action. If the Councils fail to take appropriate action
to correct an ACL overage consistent with paragraph (d)(1)(i) of this
section, the Regional Administrator shall implement the required
adjustment, as described in paragraph (d)(2)(i) of this section,
including the specification of DAS and trip limits using a formulaic
approach developed by the PDT, in accordance with the Administrative
Procedure Act and other applicable law. Notification of the proposed
ACL revision and DAS and/or trip limit adjustments shall be published
in the Federal Register no later than January 1, if possible, for
implementation on May 1 of the second fishing year following the
fishing year in which the ACL overage occurred.
(e) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(c) of the Magnuson-Stevens Act.
[FR Doc. 2011-12979 Filed 5-24-11; 8:45 am]
BILLING CODE 3510-22-P