[Federal Register Volume 76, Number 207 (Wednesday, October 26, 2011)]
[Rules and Regulations]
[Pages 66192-66195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27723]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 101119575-1554-02]
RIN 0648-BA46
Fisheries of the Northeastern United States; Monkfish; Framework
Adjustment 7
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
Framework Adjustment 7 to the Monkfish Fishery Management Plan. The New
England Fishery Management Council and Mid-Atlantic Fishery Management
Council developed Framework Adjustment 7 to adjust the annual catch
target for the Northern Fishery Management Area to be consistent with
the most recent
[[Page 66193]]
scientific advice regarding the acceptable biological catch for
monkfish. The New England Council's Scientific and Statistical
Committee recommended a revision to the acceptable biological catch
based on information from the 50th Northeast Regional Stock Assessment
Review Committee. Framework Adjustment 7 specifies a new days-at-sea
allocation and trip limits for the Northern Fishery Management Area
consistent with the new annual catch target, and establishes revised
biomass reference points for the Northern and Southern Fishery
Management Areas.
DATES: This rule is effective October 26, 2011.
ADDRESSES: An environmental assessment (EA) was prepared for Framework
Adjustment 7 (Framework 7) that describes the proposed action and other
alternatives considered, and provides an analysis of the impacts of the
proposed measures and alternatives. Copies of Framework 7, 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 (Council), 50 Water Street,
Newburyport, MA 01950. These documents are also available online at
http://www.nefmc.org.
FOR FURTHER INFORMATION CONTACT: Jason Berthiaume, Fisheries Management
Specialist, (978) 281-9177; fax: (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
The monkfish fishery is jointly managed by the New England and Mid-
Atlantic Fishery Management Councils (Councils), with the New England
Council having the administrative lead. The fishery extends from Maine
to North Carolina, and is divided into two management units: The
Northern Fishery Management Area (NFMA) and the Southern Fishery
Management Area (SFMA). Details on the background and need for
Amendment 5 and this framework are contained in the amendment and the
preambles for the proposed (76 FR 11737; March 3, 2011) and final rules
(76 FR 30265; May 25, 2011) for Amendment 5, and are not repeated here.
Amendment 5, which was partially approved by NMFS on April 28,
2011, was intended to bring the Monkfish Fishery Management Plan (FMP)
into compliance with the requirements of the reauthorized Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Magnuson-Stevens Act requires that all FMPs contain annual catch
limits (ACL) to prevent overfishing, and measures to ensure
accountability. Among other measures, Amendment 5 implemented
accountability measures (AMs) and ACLs, established biological and
management reference points and control rules, and specified an annual
catch target (ACT), days-at-sea (DAS), and trip limits for the SFMA.
However, NMFS disapproved the proposed ACT for the NFMA in
Amendment 5, and specification of DAS and trip limits to achieve that
ACT. 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 based on the 2007 Data Poor Working Group
(DPWG) Assessment, which was considered to be the best scientific
information available at the time the Amendment 5 document was
finalized by the Councils. Subsequent to the Councils taking final
action on Amendment 5, a 2010 stock assessment (50th Northeast Regional
Stock Assessment Review Committee (SARC 50)) became available, which
revealed new scientific information that, when included in the
Councils' interim acceptable biological catch (ABC) approach, reduced
the monkfish NFMA ABC. 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 new
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 ABC in Amendment 5 to incorporate the
results of SARC 50. Based on the recalculation of the ABCs, the SFMA's
ACT and associated DAS and trip limit measures were found to still be
consistent with the new ABC and ACL, and they were approved by NMFS in
Amendment 5. The recalculated ABC for the NFMA, on the other hand, was
reduced from 10,750 mt to 7,592 mt, creating an inconsistency with the
Amendment 5 recommended ABC, ACT, and associated NFMA DAS and trip
limit measures. Based on this inconsistency, NMFS disapproved the
Amendment 5 proposed specifications for the NFMA.
This disapproval left current measures in effect for the NFMA until
superseded by a revised ACT and specification of DAS and trip limits
which is the purpose of this action. Because it was too late for the
Councils to revise the Amendment 5 NFMA measures in a timely fashion
for fishing year (FY) 2011, the Councils initiated Framework 7 in
September 2010 to revise the ACT for the NFMA to be consistent with the
most recent scientific advice. Leaving the current measures in place
was considered an acceptable interim measure because they are more
conservative than measures being implemented by this framework. This
framework reconfirms the SFMA ABC and associated specifications and
management measures that were approved and implemented through
Amendment 5. This framework also updates the biomass reference points
in the Monkfish FMP to be consistent with the results of SARC 50.
Approved Measures
1. ACT
Framework 7 reduces the ACT for the NFMA to be consistent with the
most recent scientific advice regarding the monkfish NFMA ABC. The SSC
recommended a reduction of the NFMA ABC, based on SARC 50, to 7,592 mt.
The ACT being implemented in this final rule is 86.5 percent of the
ABC, or 6,567 mt. The ACT for the NFMA being implemented is slightly
higher than the current total allowable landings (TAL) for the NFMA.
Any landings that occur between when Amendment 5 was implemented on May
25, 2011, and the effective date of this final rule will be counted
against the ACT for the current FY and will be used to determine
whether AMs are triggered.
2. Specification of DAS and Trip Limits
The DAS allocations and trip limits implemented in this action are
calculated to achieve, but not go over, the ACT. The trip limits for
the NFMA for permit categories A and C will be 1,250 lb (567 kg) tail
weight, and 600 lb (272 kg) tail weight for permit categories B and D,
with all categories having an initial DAS allocation of 40 DAS. After
accounting for the Monkfish Research Set-Aside (RSA) program, the final
allocation is 39.3 DAS.
3. Revision to Biological Reference Points
This action revises the biological reference points in the Monkfish
FMP to be consistent with those recommended by the SSC and SARC 50. In
the SARC 50 report, the Southern Demersal Working Group recommended an
approach that would set biomass target reference points based on the
long-term
[[Page 66194]]
projected biomass (B) corresponding to the fishing mortality rate (F)
at maximum sustainable yield, or its proxy, which for monkfish is
Fmax. This recommendation, along with the recommendation to
set B threshold reference points at one-half of the target, is
consistent with National Standard 1. The Btarget under this
recommendation is 52,930 mt for the NFMA and 74,490 mt for the SFMA,
and Bthreshold of 26,465 mt for the NFMA and 37,245 mt for
the SFMA.
Comments and Responses
The public comment period for the proposed rule ended on September
6, 2011. One comment was received.
Comment 1: The commenter suggested that all fishery quotas should
be cut, based on the notion that coastal hypoxia was not considered
when developing Framework 7.
Response: The commenter discussed coastal hypoxia at length, but
did not explain how it relates to this rule and there is no known
scientific basis for the commenter's suggestion. The reasons presented
by the Council and NMFS for recommending the monkfish measures in this
Framework are based on the best scientific information available, and
are discussed in the preambles to both the proposed and final rule.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has made a determination that this final
rule is consistent with the Monkfish FMP, Framework 7, other provisions
of the Magnuson-Stevens Act, and other applicable laws.
Pursuant to the APA, 5 U.S.C. 553(d)(1), NMFS finds good cause to
waive the 30-day delay in effectiveness of this rule. This final rule
implements measures that are less restrictive than current regulations
by increasing monkfish DAS allocations and trip limits for permit
category B and D vessels in the NFMA. The increase in the DAS
allocations and trip limits being implemented by this action are
measures that were intended to be implemented with Amendment 5 on May
1, 2011 (start of the 2011 FY). However, while Amendment 5 was being
finalized, new scientific information became available which resulted
in the disapproval of the measures in Amendment 5 that modify the NFMA
DAS and trip limits. Therefore, this action was adopted to implement
less restrictive DAS and trip limits that were disapproved in Amendment
5.
Moreover, the monkfish fishery is a seasonal fishery, with the
majority of the fishing activity occurring in the spring and fall.
Waiving the 30-day delay in effectiveness of this rule will allow
vessels to immediately utilize the additional DAS and trip limits for a
greater portion of the fall fishery than if the current and more
restrictive regulations were in place for the 30-day delay in
effectiveness period. Specifically, some vessels have already exhausted
their DAS. Waiving the 30-day delayed effectiveness will provide more
opportunities for these vessels to continue fishing in the fall
fishery. A delay in effectiveness could result in unnecessary short-
term adverse economic impacts to monkfish vessels and associated
shoreside facilities and fishing communities. Lastly, in the recent
past, the monkfish fishery has not been able to utilize its full ACT.
It is expected that, with increased DAS allocation and trip limits
being implemented with this action, the monkfish fishery will be able
to more effectively utilize the ACT. Thus, a delay in effectiveness
would be contrary to achieving optimum yield in the monkfish fishery,
thereby undermining the purpose of this rulemaking.
The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
The New England Council prepared an EA for Framework 7 to the
Monkfish FMP that discusses the impact on the environment as a result
of this rule. A copy of the EA is available from the Council (see
ADDRESSES).
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has prepared a Final Regulatory Flexibility Analysis (FRFA) in
support of Framework 7. The FRFA incorporates the IRFA, 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 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
No significant issues were raised by the public comment in response
to the IRFA.
For purposes of the IRFA, all of the entities (fishing vessels)
affected by this action are considered small entities under the Small
Business Administration size standards for small fishing businesses
(less than $4.0 million in annual gross sales). Although multiple
vessels may be owned by a single owner, tracking of ownership is not
readily available to reliably ascertain affiliated entities. Therefore,
for purposes of this analysis, each permitted vessel is treated as a
single small business entity. Consequently, there are no differential
impacts between large and small entities. Information on costs in the
fishery is not readily available and individual vessel profitability
cannot be determined directly; therefore, expected changes in gross
revenues were used as a proxy for profitability.
This action does not introduce any new reporting, recordkeeping, or
other compliance requirements. This final rule does not duplicate,
overlap, or conflict with other Federal rules.
Description and Estimate of Number of Small Entities to Which the Final
Rule Will Apply
The management measures in Framework 7 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 that time period. Thus, this action is expected
to impact at least 1,077 currently active monkfish permit holders, but
have no impact on open access permit holders.
The majority of the measures in this action are specific to the
NFMA, and, thus, will apply to vessels that fish primarily in the NFMA.
Of the 546 vessels that participated in the fishery in FY 2009, 232
reported fishing in the NFMA. Of the 232, 115 reported fishing only in
the NFMA and 171 in both the NFMA and SFMA. Accordingly, this
[[Page 66195]]
action will most likely impact approximately 232 vessels that fish in
the NFMA.
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 management measures contained in Framework 7 and
implemented in this final rule either provide for increased fishing
opportunities or increased efficiency and profitability. This action
increases fishing opportunities by raising the overall annual DAS
allocations for all limited access monkfish vessels from 31 DAS to 40
DAS, prior to adjusting the DAS allocation for the Monkfish RSA
program. Although the DAS usage cap for the SFMA remains at 28 DAS, the
NFMA DAS increase provides additional fishing opportunities for vessels
that fish primarily in the NFMA, vessels that fish in both the NFMA and
SFMA, and vessels that fish primarily in the SFMA that may also wish to
pursue fishing opportunities in the NFMA. Previously, vessels that
fished primarily in the SFMA who utilized the maximum 28 SFMA DAS would
otherwise have 3 DAS remaining that could only be used in the NFMA.
With this action, these vessels will now have 12 DAS available for use
in the NFMA prior to adjusting the DAS allocation for the Monkfish RSA
program, which may provide opportunities for these vessels to also
participate in the NFMA fishery as well as the SFMA fishery.
In regards to increased efficiency and profitability, this action
increases the NFMA ACT. Assuming that prices do not decrease due to
higher landings, a higher ACT would result in higher monkfish revenues
and thus additional benefits to vessels. However, this is only the case
if the higher allocation is actually landed. To achieve the higher ACT,
this action also raises the trip limits for permit Category B and D
vessels from 470 lb (213 kg) to 600 lb (272 kg) tail weight. This
increase allows Category B and D vessels fishing in the NFMA to land
more monkfish than previously authorized, which could increase vessel
efficiency and profitability, as well as reducing any regulatory
discards.
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 Office's
Web site at http://www.nero.noaa.gov.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: October 19, 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. 648.92, revise paragraph (b)(1)(i) to read as follows:
Sec. 648.92 Effort-control program for monkfish limited access
vessels.
* * * * *
(b) * * *
(1) * * *
(i) General provision. Limited access monkfish permit holders shall
be allocated 40 monkfish DAS each fishing year to be used in accordance
with the restrictions of this paragraph (b), unless otherwise
restricted by paragraph (b)(1)(ii) of this section or modified by Sec.
648.96(b)(3), or unless the vessel is enrolled in the Offshore Fishery
Program in the SFMA, as specified in paragraph (b)(1)(iv) of this
section. The annual allocation of monkfish DAS shall be reduced by the
amount calculated in paragraph (b)(1)(v) of this section for the
research DAS set-aside. Limited access NE multispecies and limited
access sea scallop permit holders who also possess a limited access
monkfish permit must use a NE multispecies or sea scallop DAS
concurrently with each monkfish DAS utilized, except as provided in
paragraph (b)(2) of this section, unless otherwise specified under this
subpart F.
* * * * *
0
3. In Sec. 648.94, revise paragraph (b)(1)(ii) to read as follows:
Sec. 648.94 Monkfish possession and landing restrictions.
* * * * *
(b) * * *
(1) * * *
(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 600 lb (272 kg) tail weight or 1,746 lb (792 kg) whole
weight of monkfish (gutted) 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.
* * * * *
[FR Doc. 2011-27723 Filed 10-25-11; 8:45 am]
BILLING CODE 3510-22-P