[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Rules and Regulations]
[Pages 25214-25225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10023]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 121126649-3347-02]
RIN 0648-BC79
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Monkfish
Fishery; Emergency Action
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency temporary rule; interim measures; request for
comments.
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SUMMARY: NMFS implements a temporary emergency action that suspends
existing monkfish possession limits for vessels issued both a Federal
limited access Northeast multispecies permit and a limited access
monkfish Category C or D permit that are fishing under a monkfish day-
at-sea in the monkfish Northern Fishery Management
[[Page 25215]]
Area. This action is necessary to help mitigate expected adverse
economic and social harm resulting from substantial reductions to the
2013 annual catch limits for several stocks managed under the Northeast
Multispecies Fishery Management Plan. The intent is to provide
additional fishing opportunities to vessels affected by reductions to
groundfish catch limits, without resulting in overfishing monkfish
within the Northern or Southern Fishery Management Areas.
DATES: This rule is effective at 0001 hr on May 1, 2013, through
October 27, 2013. Comments must be received by May 30, 2013.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2012-0240, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0240, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to John K. Bullard, Regional
Administrator, National Marine Fisheries Service, 55 Great Republic
Drive, Gloucester, MA 01930-2276. Mark the outside of the envelope:
``Comments on Monkfish Emergency Action.''
Fax: (978) 281-9135; Attn: Douglas Christel.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which
consists of the Initial Regulatory Flexibility Analysis (IRFA), public
comments and responses, and the summary of impacts and alternatives
contained in the Classification section of the preamble of this final
rule. Copies of the supporting biological, economic, and social impact
analysis for this action are contained in the environmental assessment
(EA) prepared for this rule, and may be found at the following Internet
address: http://www.nero.noaa.gov/regs/2013/February/13monkerea.pdf.
Copies of the small entity compliance guide are available from the
Regional Administrator, NMFS, Northeast Regional Office, at the address
noted above.
FOR FURTHER INFORMATION CONTACT: Douglas Christel, Fishery Policy
Analyst, (978) 281-9141, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
NMFS developed a proposed rule to implement emergency measures in
the monkfish fishery based on a request for emergency action by the New
England Fishery Management Council (NEFMC). The proposed rule published
in the Federal Register on February 25, 2013 (78 FR 12708). Public
comments were accepted through March 12, 2013. A full discussion of the
background and justification for emergency measures was presented in
the preamble to the proposed rule and the EA prepared for this action
(see ADDRESSES), and is not repeated here. In summary, the combined
effect of several issues facing the Northeast multispecies (groundfish)
fishery for fishing year (FY) 2013, including substantial reductions in
annual catch limits (ACLs) for several stocks, present recently
discovered circumstances that would likely cause serious management
problems and result in substantial economic and social harm for the
groundfish and monkfish fisheries and associated communities.
Consistent with section 305(c) of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and NMFS
guidelines for the use of emergency actions, as discussed in the
proposed rule, this interim final rule implements emergency measures
that provide additional fishing opportunities to help mitigate expected
substantial adverse economic and social harm resulting from reduced
groundfish ACLs in FY 2013, without significantly increasing the risk
of overfishing monkfish.
Approved Management Measures
The following describes the measures implemented by this interim
final rule. NMFS may renew, modify, or extend these measures after
October 27, 2013 for up to an additional 185 days (i.e., through the
end of FY 2013 on April 30, 2014) through notice consistent with the
Administrative Procedure Act. If NMFS does not renew or modify these
measures, the Northern Fishery Management Area (NFMA) monkfish
possession limits implemented by Framework Adjustment (FW) 7 to the
Monkfish Fishery Management Plan (FMP) on October 26, 2011 (76 FR
66192), would remain in effect for the rest of FY 2013.
1. Monkfish Possession Limits in the NFMA
This emergency action suspends existing monkfish possession limits
for vessels issued a Federal limited access monkfish Category C or D
permit (i.e., those also issued a Federal limited access NE
multispecies permit) that are fishing under a monkfish day-at-sea (DAS)
in the NFMA during FY 2013. A vessel operator that starts a trip under
a groundfish DAS and then declares that he/she is fishing under a
monkfish DAS prior to returning to port is also exempted from the
monkfish possession limits. Existing monkfish possession limits for
vessels issued a limited access monkfish Category A or B permit and
fishing under only a monkfish DAS; vessels issued a limited access
monkfish Category C or D permit fishing that are not fishing under a
monkfish DAS; or vessels issued an open access monkfish Category E
permit (i.e., vessels that catch monkfish while targeting other
fisheries) remain the same, as specified in Table 1. In addition, the
overfishing level, acceptable biological catch level, ACL, ACT, and TAL
remain 19,557 mt, 7,592 mt, 6,567 mt, and 5,854 mt, respectively, as
implemented in either Amendment 5 (May 25, 2011; 76 FR 30265) or FW 7
to the Monkfish FMP.
[[Page 25216]]
Table 1--Monkfish Possession Limits in the NFMA for 2013
----------------------------------------------------------------------------------------------------------------
Groundfish sector participation Monkfish permit Possession limit (tail
status DAS type category weight)
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Non-sector Vessels (Monkfish-only No DAS................ A, B, or E............ Up to 5% of total weight of
or Common Pool Groundfish Vessels). fish onboard; or 50 lb (23
kg) per day, up to 150 lb
(68 kg) per trip based on
gear used.
Monk.................. A..................... 1,250 lb (567 kg)/DAS.
B..................... 600 lb (272 kg)/DAS.
NE Mults A DAS only... E..................... Up to 25% of total weight
of fish onboard, not to
exceed 300 lb (136 kg).
C or D................ Up to 25% of total weight
of fish onboard, not to
exceed 300 lb (136 kg).
NE Mults A & Monk DAS. C or D................ Unlimited.
Sector............................. Non-DAS............... E, C, or D............ Up to 5% of total weight of
fish onboard; or 50 lb (23
kg) per day, up to 150 lb
(68 kg) per trip based on
gear used.
NE Mults A DAS only... E..................... Up to 25% of total weight
of fish onboard, not to
exceed 300 lb (136 kg).
C or D................ Up to 25% of total weight
of fish onboard, not to
exceed 300 lb (136 kg).
NE Mults A & Monk DAS. C or D................ Unlimited.
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These measures differ from those requested by the NEFMC in two
ways. First, the suspension of existing monkfish possession limits
applies to both groundfish sector and common pool vessels instead of
just sector vessels. Suspending monkfish possession limits for both
groundfish sector and common pool vessels is necessary to ensure that
the emergency measures fairly and equitably allocate fishing privileges
among relevant affected entities (i.e., those affected by substantial
reductions in the FY 2013 groundfish ACLs), consistent with National
Standard 4 of the Magnuson-Stevens Act and the intended purpose and
need for this action. Second, this action exempts only monkfish
Category C or D vessels fishing under a monkfish DAS in the NFMA from
the existing monkfish possession limits. This is different than the
measures originally requested by the NEFMC and proposed for this action
in that it would not exempt monkfish Category C or D vessels fishing
under a groundfish DAS in the NFMA from the existing monkfish
possession limits. We made this latter change in response to public
comments to ensure that potential effort shifts do not result in
unanticipated adverse impacts to the Southern Fishery Management Area
(SFMA) monkfish resource or associated fishing communities.
Upon further consideration, we concluded that the originally
proposed emergency measures could substantially increase the effective
effort on monkfish by inadvertently and unintentionally creating
incentives for vessels to fish for monkfish using readily available
groundfish DAS in the NFMA, and then using their allocated monkfish DAS
to fish for monkfish in the SFMA. Under current regulations, a vessel
may land more than the incidental amount of monkfish only if fishing
under a groundfish or monkfish DAS. Because sectors are not required to
use a groundfish DAS when fishing for groundfish stocks, groundfish DAS
are readily available, and can be easily acquired for little cost,
particularly in the NFMA. In conjunction with the fact that a majority
of monkfish Category C and D vessels are participating in sectors
during recent FYs, the proposed measures could create incentives for
such vessels to acquire and use a large supply of groundfish DAS to
catch unlimited amounts of monkfish without using a monkfish DAS in the
NFMA. Such vessels could then save their monkfish DAS to fish in areas
of the SFMA where groundfish DAS are not required to be used. Thus,
fishing effort on monkfish could be substantially increased in both the
NFMA and SFMA under the proposed measures. This is substantially
different than past fishing practices, and could possibly result in
monkfish landings that exceed the SFMA monkfish total allowable
landings (TAL) amount during FY 2013. Because the Monkfish FMP is
jointly managed by the NEFMC and the Mid-Atlantic Fishery Management
Council (MAFMC), the final measures implemented by this interim final
rule reflect a compromise between the interests expressed by each
Council by providing for greater opportunities to land monkfish in the
NFMA, as advocated by the NEFMC, and helping minimize the potential
effort shifts into the SFMA, as suggested by the MAFMC.
We expect these final measures to more closely achieve, but not
exceed, the FY 2013 TAL for monkfish in the NFMA, resulting in monkfish
landings of approximately 5,336 mt during FY 2013, or 91 percent of the
FY 2013 monkfish TAL in the NFMA. This represents an increase of
401,873 lb (182,286 kg) of monkfish landings compared to landings
expected under the current possession limits.
2. Regional Administrator Authority To Reinstate Existing Monkfish
Possession Limits
This action authorizes the Regional Administrator to reinstate
existing monkfish possession limits for limited access monkfish
Category C and D vessels fishing under a monkfish DAS in the NFMA at
any time through October 27, 2013 if available data indicate that the
NFMA monkfish TAL or ACT may be exceeded during FY 2013. If such trip
limits are reinstated, monkfish Category C and D vessels fishing in the
NFMA under a monkfish DAS would be subject to monkfish possession
limits of 1,250 lb (567 kg) tail weight and 600 lb (272 kg) tail weight
per DAS, respectively, for the remainder of FY 2013. This discretion is
necessary to ensure that unexpected changes in fishing behavior in
response to this emergency action do not cause monkfish landings or
catch, when discards are included, to exceed the FY 2013 NFMA monkfish
TAL or annual catch target (ACT), respectively, and result in
overfishing for NFMA monkfish. Any reinstatement of monkfish possession
limits in the NFMA would be implemented consistent with the
Administrative Procedure Act.
[[Page 25217]]
Comments and Responses
Twenty-five comments were received during the comment period on the
proposed rule for emergency action from 14 individuals, 5 commercial
fishing organizations, 2 state resource management agencies
(Massachusetts Division of Marine Fisheries (DMF) and the Maine
Department of Marine Resources), 1 seafood processor group, 1
conservation organization, 1 fish dealer, and the MAFMC. One other
comment was submitted via fax, but was unreadable because much of the
middle of the comment was obscured by a black streak, leaving only the
margins of the comment readable. Only comments that were applicable to
the proposed measures, including the analyses used to support these
measures, are addressed in this preamble. Overall, 15 commenters
supported the proposed action, while 8 opposed it (the MAFMC and 2
vessel owners strongly opposed this action), with 2 other commenters
not expressing a particular position on the proposed action.
Comment 1: Four commenters, including the MA DMF and two commercial
fishing groups, suggest that the proposed action would not adversely
affect the NFMA monkfish stock. Several other commenters highlighted
that monkfish landings from the NFMA have been well below the NFMA ACL
for several years, suggesting that the stock could accommodate
additional landings without exceeding the FY 2013 TAL. The ME DMR
agreed with our assertion in the EA that additional effort is
adequately constrained by existing management measures in either the
monkfish or groundfish fisheries. One commercial fishing group offered
that there are fewer groundfish vessels operating in the NFMA following
several years of severe restrictions of groundfish effort and
reductions in ACLs, suggesting that this would reduce the likelihood
that the proposed action would harm the monkfish resource. One dealer
noted that NFMA monkfish is a robust resource that is not overfished or
subject to overfishing, while another observed that there are
sufficient buffers between the ACT and the allowable biological catch
(ABC) level to prevent the proposed measures from harming the stock.
Response: We recognize that the most recent monkfish stock
assessment characterizes NFMA monkfish stock as currently not
overfished or subject to overfishing, and that the fishery has not
fully harvested the NFMA monkfish TAL in recent years. We also agree
that there are sufficient buffers to prevent overfishing even if the FY
2013 TAL is fully harvested. As analyzed in the EA prepared to support
this action, neither the proposed action, nor the measures implemented
by this final rule (identified as Alternative 1 in the EA), would
likely result in landings exceeding the FY 2013 NFMA monkfish TAL based
on recent fishing operations and other existing constraints in either
the groundfish or monkfish fisheries. While fishing behavior during FY
2013 may be different than that observed in recent years, this interim
final rule provides the Regional Administrator with the authority to
reinstate existing monkfish possession limits at any time during FY
2013 if available data suggest that landings would exceed the FY 2013
NMFA monkfish TAL before the end of the FY. We will monitor monkfish
landings throughout FY 2013, and will reinstate existing monkfish
possession limits if available data suggest that the FY 2013 NFMA
monkfish TAL would be exceeded before the end of the FY. Thus, although
we decided it was necessary to not apply the suspension of monkfish
possession limits to monkfish Category C and D vessels fishing under a
groundfish DAS in the NFMA during FY 2013, as further explained in the
next comment, we agree that neither the proposed action, nor the
measures implemented by this interim final rule, would adversely affect
the NFMA monkfish stock or result in overfishing throughout the
duration of this action.
Comment 2: Several commenters, including the MA DMF and ME DMR,
were concerned that the proposed action may result in redirected
effort, or a shift in fishing patterns. Commenters were concerned not
only about impacts to monkfish within the NFMA, but also about impacts
to SFMA monkfish. The MAFMC, one commercial fishing group, one seafood
processing group, and one vessel owner suggested that the proposed
measures may result in significant directed effort on monkfish in the
NFMA that could deplete the stock or cause it to become overfished.
That vessel owner suggested that sector vessels will fish close to the
NFMA/SFMA boundary to harvest monkfish while minimizing groundfish
bycatch, but that such activity would result in substantial impacts to
the monkfish resource in the SFMA based on the likelihood that monkfish
is only one biological stock instead of two. The MAFMC and two other
vessel owners agreed, with the MAFMC asserting that overfishing
monkfish in the NFMA would negatively affect the SFMA stock, while one
vessel owner stated that the proposed action would destabilize the SFMA
monkfish fishery. One commercial fishing group and another vessel owner
stated that the proposed measures should not inadvertently increase
effort in the SFMA. One individual questioned whether vessels that
generally fish in the SFMA would move into the NFMA to fish for
monkfish, and one commercial fishery group asked how NMFS would monitor
and enforce area declarations, since vessels do not have to permanently
declare into either area.
Response: We are also concerned about the potential for this action
to change fishing patterns during FY 2013 in both the NFMA and the
SFMA. That is why we proposed to give the Regional Administrator the
authority to reinstate existing monkfish possession limits if available
data suggest that the FY 2013 NFMA monkfish TAL may be exceeded. We
contend that this would limit any overage of the TAL and, thus,
overfishing, given that the TAL was set based on the best available
scientific information, and that there is sufficient buffer between the
TAL and the overfishing level to prevent overfishing from occurring on
this stock, as specified by the NEFMC's Scientific and Statistical
Committee (SSC) recommendations in 2010 as part of FW 7 to the Monkfish
FMP.
Upon further consideration of public comment, we agree that the
proposed action could provide incentives for vessels to change fishing
behavior and shift effort in a manner that could increase the risk of
overfishing monkfish in the SFMA. In particular, we concluded that the
proposed action could encourage vessels to use cheap and readily-
available groundfish DAS (particularly for sector vessels) to target
monkfish in the NMFA, and save their allocated monkfish DAS to later
target monkfish in the SFMA. To prevent this from occurring, this
interim final rule exempts only monkfish Category C or D vessels using
a monkfish DAS in the NFMA from the monkfish possession limits. Thus,
fewer monkfish DAS are expected to be available to fish for monkfish in
the SFMA as a result of the change in this final rule, because the
monkfish DAS would be used to land more monkfish in the NFMA. This
would reduce the potential for vessels to shift monkfish effort into
the SFMA compared to the proposed action. Thus, measures implemented by
this interim final rule provide greater control over resulting monkfish
landings during FY 2013, and are likely to be more effective than the
proposed measures at reducing the risk that either the NFMA or SFMA
monkfish TALs will be exceeded during
[[Page 25218]]
FY 2013 due to unanticipated effort shifts.
Existing regulations enable vessels to use monkfish DAS in both the
NFMA and the SFMA during the same fishing year. These interim final
measures provide incentives to use those DAS in the NFMA during FY 2013
by requiring monkfish Category C and D vessels to use monkfish to be
exempt from current monkfish possession limits in the NFMA. In
contrast, the proposed measures provided no incentive to use monkfish
DAS in the NFMA, and as noted above, may actually provide incentives
for vessels to use readily available groundfish DAS to target monkfish
in the NFMA and save all of their monkfish DAS to fish for monkfish in
the SFMA as a means to maximize revenue from monkfish fishing
opportunities during FY 2013. To have granted the Regional
Administrator discretion to revise the monkfish possession limits in
the SFMA in a manner similar to the authority to reinstate existing
monkfish possession limits in the NFMA through this interim final rule
would go beyond the purpose and need specified for this action. The
purpose of this emergency action is to mitigate adverse impacts on
groundfish vessels operating in the NFMA, and not to potentially create
adverse impacts on the SFMA monkfish fishery because of effort shifts
that otherwise would not have occurred. With the changes in measures
implemented by this interim final rule, the risk that such impacts
would occur has been reduced. Accordingly, the final measures reflect a
compromise between the interests expressed by each Council by providing
for greater opportunities to land monkfish in the NFMA, as advocated by
the NEFMC, and helping minimize the potential effort shifts and into
the SFMA and resulting impacts to the SFMA monkfish fishery, advocated
by the MAFMC.
We believe that existing regulations adequately address monitoring
and enforcement concerns raised by the commenters. Any vessel that
fishes any part of a trip in the SFMA will continue to be subject to
the SFMA monkfish possession limits, with any monkfish DAS used on such
a trip counting against the 28 monkfish DAS limit that each vessel may
use in the SFMA during FY 2013. Current monkfish regulations only
require vessel operators to declare whether the vessel will fish any
part of a particular trip in the SFMA via the vessel monitoring system
(VMS) or interactive voice response (IVR) or call-in system.
Alternatively, a vessel can obtain a letter of authorization, stating
that the vessel will fish in the NFMA for a specified period of time.
We will continue to monitor and enforce vessel activity using
existing area-declaration requirements, including VMS and IVR
declarations, landings by areas reported on vessel trip reports (VTRs,
or logbooks) and dealer reports, and other available data. Because all
monkfish Category C and D vessels are also issued limited access NE
multispecies permits, such vessels are required to submit VTRs on a
weekly basis. In addition, because most monkfish Category C and D
vessels are participating in groundfish sectors, we will also have
weekly sector catch reports to document vessel activity and associated
landings. Finally, since all groundfish vessels must use VMS, hourly
positional data and intended vessel activity declarations will be
available on a real-time basis for each trip. Collectively, these data
sources provide the information necessary to characterize vessel
operations and assist in monitoring monkfish landings during FY 2013.
Comment 3: Two vessel owners were concerned that the proposed
measures would put additional pressure on other stocks in both New
England and in the Mid-Atlantic, while one commercial fishing group did
not want the proposed measures to deplete another species.
Response: To the extent possible, we have attempted to minimize the
potential for effort shifts to increase fishing pressure on monkfish or
other stocks throughout the Northeast, as noted in the response to
Comment 2. Vessels will still be subject to existing regulations in
other fisheries, including effort controls such as DAS, possession
limits, minimum mesh size requirements, and hard quotas and area
closures, to ensure that ACLs are not exceeded and that overfishing
does not occur on any species, as required by the Magnuson-Stevens Act.
Therefore, the measures implemented by this interim final rule, in
addition to existing measures in other fisheries, should ensure that
other species are not depleted.
Comment 4: Four commenters, including the MA DMF, an environmental
group, one commercial fishing group, and one vessel owner were
concerned that vessels may use additional gillnet gear and soak their
nets longer, which could increase interactions with protected resources
and trigger additional management measures that could adversely impact
the monkfish fishery, particularly in the SFMA. Although one commercial
fishing group supported the conclusions of the analysis of impacts on
protected species summarized in the EA prepared for this action, the
environmental group disagreed, suggesting that the analysis in the EA
may have minimized the impacts on marine mammals. The environmental
group contends that it is uncertain whether existing groundfish
measures will prevent effort increases in the monkfish fishery. In
addition, it contends that vessels often do not comply with pinger
requirements to deter harbor porpoise bycatch, and that the North
Atlantic right whale biological opinion specifically prohibits any
takes of North Atlantic right whales, even for emergency actions
implemented for only 1 year. This group also notes that humpback whales
are often entangled by gillnet gear, and suggested that the permitted
level of mortality on humpback whales as a result of interactions with
fishing gear may have already been met or exceeded, and may warrant re-
consultation under the Endangered Species Act (ESA).
Response: As highlighted in the EA prepared for this action,
gillnet gear is responsible for only a small amount (16-30 percent
since 2000) of monkfish landings in the NFMA in recent years. Further,
groundfish and monkfish gillnet vessels are still subject to net limits
and DAS allocations, and cannot greatly expand gillnet effort during FY
2013. Although we acknowledge that gillnet use and soak duration may
increase to some degree, because no additional information was provided
to change that perspective, we still contend that it is unlikely that
gillnet gear will become a substantially greater source of monkfish
landings in the NFMA as a result of this action.
Vessels using gillnet gear are subject to existing regulations
developed to minimize interactions with protected species, especially
marine mammals, including time and area closures for gillnets, and
requirements to use pingers and weak links on gillnet gear. Existing
measures attempt to proactively control fishing effort, and implement
reactive measures should take (interactions with fishing gear) or
mortality targets be exceeded. When complied with, these measures can
be effective in reducing interactions with marine mammals. If they are
not complied with, additional management measures may be necessary to
prevent excessive takes of such species, as required by the ESA.
Reduced groundfish ACLs during FY 2013, reductions in the number of
active monkfish and groundfish vessels during recent years, and the
ability of the Regional Administrator to reinstate monkfish possession
limits as part of this action may limit the potential increase in
fishing effort by some
[[Page 25219]]
vessels during FY 2013. These measures, in conjunction with a series of
recent groundfish management actions that have reduced the overall
fishing effort in the NFMA, make it unlikely that gillnet effort or
interactions marine mammals under either the proposed action or
measures implemented by this interim final rule will increase beyond
levels observed in recent years. Thus, we contend that this interim
final rule will have a negligible impact on protected species during FY
2013, and should not trigger any additional restrictions, provided
vessels comply with existing regulations.
The information on humpback whale takes cited by the environmental
group includes news articles, personal communication, and a draft
marine mammal stock assessment report. While the final stock assessment
report was released on April 3, 2013, that report includes takes from
multiple sources in multiple fisheries, including those outside the GOM
and in Canadian waters, and are neither specific to the monkfish
fishery nor the proposed emergency action. No additional scientific
information that would more clearly illustrate the potential impact of
the proposed action on marine mammals in general, or harbor porpoises
or humpback whales specifically, was provided by the group in its
comment. When developing management measures, we must rely on the best
available scientific information, as required by National Standard 2 of
the Magnuson-Stevens Act, and cannot rely upon draft reports, news
articles, personal communications, or information that is not germane
to the proposed action as the basis for such measures. The information
used to analyze the impact of the proposed action represents the best
scientific information available at this time. Staff in the NMFS
Northeast Regional Office and the Northeast Fisheries Science Center
(with expertise on marine mammal interactions) reviewed this analysis,
and supported its conclusions. Therefore, we disagree that the EA
prepared for this action inappropriately minimized the likely impact on
marine mammals, or that re-consultation under the ESA is necessary for
humpback whales at this time. We will continue to monitor the takes of
marine mammals, and will take any action required under the ESA once
available scientific information warrants such action.
Comment 5: Three vessel owners and one environmental group noted
that the current measures do not seem to be constraining current NFMA
vessels, yet the yearly TAL is still not being caught. They suggest
that this is caused by a lack of available monkfish in the NFMA, and
question the need to eliminate existing monkfish possession limits
under this emergency action. The vessel owners also question the
accuracy of the latest monkfish stock assessment, while two owners drew
comparisons to recent groundfish stock assessments that seemed to
reverse the optimistic conclusions of the previous stock assessment.
The MAFMC, the seafood processing group, and one other vessel owner
agreed, highlighting the uncertainty of the latest monkfish stock
assessment as a reason not to implement this emergency action. Two
other vessel owners and one dealer disagreed, stating that the NFMA
monkfish stock is healthy and not overfished or subject to overfishing,
with one commercial fishing group stating that the one-stock hypothesis
is equivocal, with recent recruitment patterns still supporting the
two-stock hypothesis. Two vessel owners recommended that NMFS delay the
implementation of the emergency action until the next monkfish stock
assessment can be completed.
Response: We recognize that most monkfish vessels do not use their
full allocation of monkfish DAS in the NFMA, and that existing monkfish
possession limits are not limiting for a majority of vessels operating
in the NFMA. However, the EA notes that there is evidence that existing
monkfish possession limits are restrictive for some vessels (see
Figures 8, 9, and 12 in the EA supporting this action). Analysis of the
alternatives considered for this action suggests that suspending
existing possession limits would reduce discards, increase landings
without exceeding the FY 2013 NFMA monkfish TAL, and provide additional
fishing revenue to affected vessels consistent with the objectives of
the Monkfish FMP and the Magnuson-Stevens Act. Thus, this action is
expected to help mitigate adverse impacts in the groundfish fishery.
The latest monkfish stock assessment review (Stock Assessment
Workshop (SAW) 50 in 2010) continued to treat monkfish as two separate
stocks, reflecting the distinct monkfish management units. However, the
assessment noted that information on growth, maturity, and genetics
provide some preliminary evidence that the monkfish resource is a unit
stock. Recent tagging studies have shown monkfish movement from the
NFMA to the SFMA, although a lack of return movement to the NFMA may be
an artifact of the timing and location of tag releases. The assessment,
however, highlighted the fact that recruitment patterns remain
different between the two areas (one of the reasons offered for
treating the stocks separately in earlier assessments). Due to
indications that the northern and southern stocks may not be distinct,
a model was run that treated monkfish as one stock. However, that model
was not reviewed or accepted by the Stock Assessment Review Committee
(SARC). The SSC reviewed SAW 50 and accepted it as the best available
scientific information regarding monkfish stocks. Accordingly, we will
continue to assess monkfish as two separate stocks until further
scientific information concludes otherwise.
SAW 50 states that ``catch rates may not reflect patterns of
abundance,'' because catch rates are influenced by changes to
management measures, and that changes in data collections and
uncertainty in defining a targeted versus an incidental monkfish trip
make evaluating trends in catch rates difficult. Thus, catch per unit
effort was not used in the model runs for SAW 50. The report for SAW 50
highlights the fact that catch rates on trips with fishery observers
declined in the NFMA during 2003-2007, as the strong 1999 year class
passed through the fishery. It also acknowledged that there was a lot
of uncertainty with the status of monkfish, including a retrospective
pattern that underestimated fishing mortality and overestimated
biomass. Nonetheless, the SARC concluded that SAW 50 represents the
best available scientific information and that NFMA monkfish was not
overfished nor subject to overfishing as of FY 2009. This conclusion
was confirmed for FY 2013 by the SSC's review of SAW 50 during the
development of NFMA monkfish ACL recommendations as part of FW 7.
The measures implemented by this interim final rule are based on
the best available scientific information from SAW 50, as required by
National Standard 2 of the Magnuson-Stevens Act. The most recent
monkfish stock assessment occurred on April 8-9, 2013, with final
results expected sometime in May. Because the results of this next
stock assessment will be available after the start of the FY, it would
delay any benefits associated with this action, and would prevent
affected vessels from benefitting from additional fishing opportunities
and potential sources of additional revenue necessary to help mitigate
the impacts of reduced groundfish ACLs. Such a delay would be contrary
to the purpose and need for this action. Accordingly, we will review
the results of the next monkfish assessment when determining whether to
reinstate existing monkfish possession limits or continue this
[[Page 25220]]
emergency action for the remainder of FY 2013.
Comment 6: Thirteen commenters indicated that the proposed action
provides alternative fishing opportunities that will help augment
groundfish fishing income for vessels adversely impacted by groundfish
quota reductions during FY 2013. One dealer commented that groundfish
vessels need additional fishing opportunities to remain viable and to
support local processors and associated infrastructure. One industry
group suggested that we must improve the sustainable utilization of
monkfish in the NFMA due to the significant overlap of vessel
participation between the monkfish and groundfish fisheries, while
another group noted that the proposed action provides greater
flexibility in planning trips.
Response: We agree that the proposed action would provide
additional fishing opportunities and potential fishing revenue for
affected groundfish vessels to help mitigate the impacts of recent
effort reductions on the groundfish fishery and associated communities
as much as possible. Although the measures implemented by this interim
final rule would not provide as much operational flexibility or
potential fishing revenue as the proposed action in order to address
potential effort shifts into the SFMA, our analysis confirms that
affected vessels would still benefit from this final action, and would
likely realize upwards of $490,000 in additional fishing revenue from
monkfish landings alone, compared to operating under the current
monkfish possession limits. By allowing the monkfish fishery to fully
harvest, but not exceed the FY 2013 NFMA monkfish TAL, this action
attempts to better provide for the optimum utilization of the monkfish
resource and the continued participation of vessels and associated
fishing communities in the fishery, while minimizing the risks of
adversely affecting the fishery due to unexpected shifts in fishing
effort during FY 2013.
Comment 7: Two dealers asserted that the proposed action would
ensure a steady supply of fresh fish to consumers, helping to preserve
the availability of fresh wild-caught fish to customers given that
reductions in groundfish ACLs will reduce the supply of fresh fish to
markets.
Response: We agree that both the proposed action and the measures
implemented by this interim final rule will increase the fishery's
ability to provide a steady year-round supply of fresh monkfish to the
market that could help compensate for reduced availability of
groundfish in 2013.
Comment 8: Two individuals, the ME DMR, and one commercial fishing
group stated that the proposed action would convert monkfish discards
into landings, and reduce discards overall. One commenter suggested
that the monkfish fishery should consider implementing 100-percent
retention in the future to reduce discards even further.
Response: We agree that the proposed action and the measures
implemented by this interim final rule may reduce discards by
converting them into landings. Both the NEFMC and MAFMC could consider
full retention requirements in a future action.
Comment 9: One commercial fishing group noted that the proposed
action mirrors regulations that were in effect for the NFMA during the
first few years following the implementation of the FMP. The group
noted that, during those years, the monkfish target TAC amounts for the
NFMA were not exceeded.
Response: We agree that the proposed action is similar to previous
measures during FYs 2000-2006 when there were no monkfish possession
limits in the NFMA. However, during that time, NFMA monkfish target
TACs and landings were substantially higher than the FY 2013 NFMA
monkfish TAL (5,854 mt), with landings ranging from 14,853 mt in FY
2001 to 6,677 mt in FY 2006. Therefore, although the target TACs were
not exceeded during FYs 2000-2006, the target TACs were substantially
higher than the FY 2013 TAL, and NFMA monkfish landings were always in
excess of the FY 2013 TAL during this period. This highlights that the
capacity to fully harvest the FY 2013 NFMA monkfish TAL existed in the
fishery during recent years when there were no possession limits in the
NFMA for vessels fishing under a monkfish or groundfish DAS. This also
emphasizes the need for us to carefully monitor NFMA monkfish landings
during FY 2013 to ensure that the FY 2013 NFMA monkfish TAL is not
exceeded, and to reinstate monkfish possession limits if available data
indicate that the TAL could be exceeded before the end of the FY, as
necessary.
Comment 10: One vessel owner stated that the NFMA fishery is mostly
an incidental catch fishery, with another vessel owner noting that the
current monkfish possession limits are insufficient to justify directed
fishing for monkfish in the NFMA. This latter commenter suggested that
the proposed action would allow him the fishing opportunities he needs
to justify building the nets necessary to target monkfish. A commercial
fishing group agreed, asserting that this emergency action would not
address the underlying issue that current monkfish effort controls are
preventing the fishery from achieving optimum yield (OY). That group
suggested that measures necessary to ensure the fishery can regularly
achieve OY must be comprehensively addressed in Amendment 6 to the
Monkfish FMP.
Response: For various reasons, a majority of monkfish landed from
the NFMA are landed as a result of incidental catch in the groundfish
fishery, not as a result of directed fishing for monkfish. We agree
that eliminating the monkfish possession limits as part of this interim
final rule may entice individual vessel operators to more actively
target monkfish, as intended, which will help them to come close to OY
for this fishery. The NEFMC and MAFMC are actively considering
replacing existing effort controls with alternative quota-based
measures in the NFMA as part of Amendment 6 to the FMP.
Comment 11: The MA DMF asked what trigger will be used to reinstate
trip limits in the NFMA, and which trip limits will be reinstated. They
were unsure whether existing possession limits would be reinstated, or
if NMFS would implement something different.
Response: If available data suggest the NFMA monkfish TAL will be
exceeded before the end of FY 2013, we will reinstate existing NFMA
monkfish possession limits (1,250 lb (567 kg) tail weight and 600 lb
(272 kg) tail weight per DAS) for the remainder of FY 2013. We will
project monkfish landings throughout FY 2013 to ensure that the
reinstatement will prevent the FY 2013 TAL from being exceeded.
Comment 12: Several commenters were concerned that the proposed
action would only apply to monkfish Category C and D permit holders,
rather than all limited access monkfish permits, with one commercial
fishing group suggesting that the proposed action was inconsistent with
National Standard 4 of the Magnuson-Stevens Act. Two vessel owners
suggested that NMFS should eliminate monkfish possession limits for all
permit holders, with one owner stating that it is inappropriate to
relax landing limits for those that operate on a groundfish DAS, and
that the proposed action disenfranchises monkfish Category A and B
vessels. One vessel owner was concerned that the proposed action would
increase landings and depress prices for those vessels that are not
exempt from the existing monkfish
[[Page 25221]]
possession limits and cannot benefit from the emergency action.
Response: As noted in the proposed rule for this action, we believe
that an emergency exists in the groundfish fishery, and that emergency
action is necessary to help mitigate adverse economic and social
impacts resulting from substantial reductions in groundfish ACLs in FY
2013. No such emergency exists for vessels issued a monkfish Category A
or B permit. They are not directly affected by reductions in groundfish
ACLs in FY 2013. In contrast, vessels issued a monkfish Category C or D
permit are directly affected by such reductions, and can benefit from
additional opportunity to harvest monkfish. Therefore, it is not
consistent with the intent of this action to increase possession limits
for monkfish Category A or B vessels who are unaffected by the
reductions in FY 2013 groundfish ACLs.
Emergency actions must adhere to the Magnuson-Stevens Act and its
National Standards. The National Standard 4 guidelines at Sec. 600.325
state that allocations of fishing privileges must be fair and
equitable, and reasonably calculated to promote conservation. Regarding
fairness and equity, the guidelines state that such an allocation
should be ``rationally connected to the achievement of OY or with the
furtherance of a legitimate FMP objective.'' The guidelines allow that
an allocation may impose a hardship on one group if it is outweighed by
the total benefits to another group. This emergency action attempts to
achieve OY in the NFMA by increasing the likelihood that the FY 2013
NFMA monkfish TAL will be fully harvested. This action will provide
additional fishing opportunities and associated landings and fishing
revenue for Category C and D monkfish vessels impacted by reductions in
groundfish ACLs. In doing so, this action addresses Objective 2 of the
FMP in that it attempts to optimize yield and maximize economic
benefits to a particular fishing sector. Thus, there is a direct and
rational connection between this action and an objective of the FMP.
Category A and B vessels will continue to be able to participate in
both the directed and incidental monkfish fishery in the NFMA during FY
2013, but will not be able to land monkfish in excess of existing
possession limits, as currently prescribed. While such vessels would
not benefit from the opportunity to land monkfish in excess of existing
possession limits, no predictable hardship is being imposed, as this is
consistent with measures in effect since FY 2011. One commenter
contended that Category A and B vessels could face reduced prices for
monkfish they are able to land if large amounts of monkfish are landed
in a short period of time and demand is insufficient to accommodate the
supply at that time. However, this could occur in any FY. Further, as
discussed more thoroughly in the EA prepared for this action, ex-vessel
prices vary for a number of reasons, including the amount landed, the
size of fish landed, and product type landed (whole, headed, tails,
etc.). Therefore, it is very difficult to estimate the scale of any
potential hardship that may befall Category A and B vessels due to
additional monkfish landings as a result of this action. Overall,
however, it is expected that there will be benefits to Category C and D
vessels, and no predictable adverse impacts to Category A and B vessels
during the duration of the emergency measures. Thus, the measures
implemented by this interim final rule are consistent with National
Standard 4.
Comment 13: One commercial fishing group was concerned that
emergency measures were not discussed at the Monkfish Oversight
Committee/Advisory Panel meeting in December 2012, and that the
monkfish industry members attending that meeting were not aware that
the NEFMC had requested emergency action in the NFMA. This group
recommended that the proposed emergency action should be considered by
the Monkfish Oversight Committee and analyzed by both the NEFMC and
MAFMC before any recommendation for emergency action.
Response: Although the Monkfish FMP is jointly managed by both the
NEFMC and MAFMC, neither Council is obligated to consult with the other
regarding requests for emergency action. We briefed the MAFMC on the
NEFMC request for emergency action during the Regional Administrator
report at the MAFMC's December 2012 and February 2013 meetings. In
addition, we provided an opportunity for the public to comment on the
proposed emergency action. In this interim final rule, we have
attempted to address concerns raised by the MAFMC and vessel owners
operating out of Mid-Atlantic states during the public comment period
by revising measures implemented by this interim final rule to reduce
the potential for effort to be redirected into the SFMA. Therefore, the
fishing industry and the public have had ample opportunity to comment
on the proposed rule. In fact, concerns raised by the public have been
addressed by modifying some measures in this interim final rule.
Comment 14: One commercial fishing group suggested that the
proposed action allows Category C and D monkfish vessels to leave a
sector, lease unlimited monkfish DAS, and operate as a common pool
vessel without any constraints.
Response: We disagree. While a vessel can elect to withdraw from a
groundfish sector until April 30 of each year, that vessel would then
become a common pool vessel for the following FY, and would be subject
to the existing groundfish common pool measures, including lower
groundfish DAS allocations than sector vessels, restrictive possession
limits, gear requirements, and trimester TACs and associated area/gear
closures. Thus, such vessels are subject to constraints that are
designed to prevent the groundfish ACLs from being exceeded. Nothing in
the proposed action or this interim final rule allows for the leasing
of monkfish DAS.
Comment 15: One commercial fishing group asked how NMFS could
justify the proposed emergency action when its own analysis suggests
that the current possession limits would result in nearly the entire FY
2013 monkfish NFMA TAL, or at least 88 percent of the TAL, being caught
during FY 2013.
Response: The commenter is correct that monkfish landings could be
expected to reach 88 percent of the FY 2013 NFMA monkfish TAL under
current possession limits based on projections of recent fishing
activity in the EA supporting this action. However, that leaves 702 mt
(1.5 million lb) of NFMA monkfish TAL uncaught during FY 2013. That is
not achieving OY in the fishery. Projections of both the proposed
action and the measures implemented by this interim final rule suggest
that an additional 176-234 mt (388,000-515,000 lb) of monkfish could be
landed during FY 2013. This would help to better achieve OY in the
fishery and help mitigate the expected economic and social impacts of
reduced groundfish ACLs during FY 2013, as intended, consistent with
the Monkfish FMP and the Magnuson-Stevens Act.
Comment 16: One commercial fishing group recommended that NMFS
should keep existing monkfish possession limits the same, but increase
the number of monkfish DAS allocated to vessels from 40 to 60, and
implement a monkfish running clock provision to allow vessels to land
monkfish beyond existing possession limits and increase their monkfish
DAS charge accordingly. This group also recommended that NMFS allow
monkfish Category E vessels to land monkfish up to 50 percent of the
total weight of fish on
[[Page 25222]]
board. One vessel owner suggested that no additional monkfish DAS
should be made available as part of this action. Finally, another
commercial fishing group recommended that NMFS establish a modified
trip limit based on an analysis of past fishery performance that is
designed to reach, but not exceed, the FY 2013 NFMA monkfish TAL.
Response: During the development of Amendment 5 to the Monkfish
FMP, the Councils considered an option that would have retained NFMA
monkfish possession limits at existing levels at the time (1,250 lb
(567 kg) per DAS for Category A and C vessels and 470 lb (213 kg) per
DAS for Category B and D vessels), but would increase allocated DAS to
58 monkfish DAS. That resulted in projected landings of 9,574 mt,
representing an overage of the FY 2013 NFMA monkfish TAL of 3,720 mt
(63 percent). This option, therefore, is likely to result in excessive
monkfish landings during FY 2013. Further, by increasing monkfish DAS,
it is likely that the group's suggestion would increase bycatch of
groundfish stocks, potentially increasing the likelihood that
groundfish ACLs would be exceeded during FY 2013. Accordingly, it was
not considered further. No additional analysis of the group's
suggestion to also increase the amount of monkfish that could be landed
by Category E vessels was conducted, because such a measure would only
increase monkfish landings beyond that projected if vessels were
allocated 58 monkfish DAS in the NFMA. The Councils could consider such
suggestions in the next management action, which is expected to set
monkfish ACLs and TALs for FYs 2014-2016. Therefore, this interim final
rule does not allocate additional monkfish DAS, as recommended by one
commenter. Consistent with the recommendation of another commercial
fishing group, this interim final rule does establish a modified trip
limit (i.e., unlimited for Category C and D vessels) that is based on
an analysis of past fishery performance that is designed to reach, but
not exceed, the FY 2013 NFMA monkfish TAL.
Comment 17: Given the uncertainty in vessel behavior during FY
2013, several commenters, including the ME DMR, one industry group, and
two vessel owners, were concerned about monitoring vessel behavior and
monkfish landings. One commercial fishing group, one dealer, and one
vessel owner recommended that NMFS can monitor monkfish landings in
real time through sector catch reports. One commercial fishing group
suggested that NMFS should post a weekly landings update so that
everyone can know if the fishery is approaching a trigger that would
reinstate existing trip limits. One vessel operator suggested that NMFS
should reinstate trip limits when 70 percent of the NFMA monkfish TAL
is caught. Another vessel owner stated that it is important to review
landings after 180 days to see how close landings are to the TAL before
renewing the emergency action for another 186 days, stating that he did
not want to see TAL exceeded, triggering reactive accountability
measure (AM) in 2015. One commercial fishing group asked how any TAL
overage would be applied, and if any overage would be deducted from the
TAL/ACT for both areas, or just one area.
Response: We agree that sufficient monitoring of fishing operations
is essential during FY 2013 to detect whether fishing patterns and
landing rates have changed as early as possible. If fishing operations
change in a manner that would suggest the FY 2013 NFMA monkfish TAL may
be exceeded before the end of the FY, reinstatement of existing
monkfish possession limits may be warranted. We believe that measures
in place, including weekly VTRs, sector reports, and VMS positional
data and vessel activity declarations, are sufficient to monitor
monkfish landings in a timely manner in order to trigger reinstatement
of existing trip limits. We will use all data available to monitor
monkfish landings and fishing behavior, and have set up a monitoring
plan to respond accordingly. Based on the regulations implemented under
Amendment 5, any overage of the monkfish ACL, not TAL, in a particular
management area would be deducted on a pound-for-pound basis from the
ACT of the area in which the ACL was exceeded 2 years following the
overage. This would enable the Councils to develop appropriate measures
(DAS allocations and trip limits) to ensure that reduced ACT is not
exceeded.
Request for Additional Comments
This final rule implements measures that differ from those
originally proposed for this emergency action. We have determined that
the modifications fall within the scope of possible measures
contemplated by this emergency action in that the modification merely
withdraws the suspension of an existing measure. This possible action
was analyzed as Alternative 1 in the EA developed for this action.
Nevertheless, NMFS is soliciting additional public comment on these
final measures, including the modification. NMFS is especially
interested in receiving comments regarding what effect these measures
may have on fishing behavior. Additional comments will be accepted
through May 30, 2013.
Changes From the Proposed Rule
NMFS has made two changes to the proposed rule, including changes
as a result of public comment. These changes are listed below in the
order that they appear in the regulations.
In Sec. 648.94, the proposed suspension of paragraph (b)(3)(i) has
been withdrawn, and the proposed addition of paragraph (b)(3)(iv) has
been removed because monkfish Category C and D vessels are not exempt
from existing monkfish possession limits when fishing under a
groundfish DAS in the NFMA as part of this action.
Classification
The NMFS Assistant Administrator has determined that the emergency
measures implemented by this interim final rule are consistent with the
Monkfish FMP, provisions of the Magnuson-Stevens Act, agency guidelines
on emergency rules, and other applicable law. NMFS, in making a final
determination, has taken into account the data, views, and comments
received during the public comment period.
Because this rule relieves a restriction by suspending the current
monkfish possession restrictions for vessels fishing under a monkfish
DAS in the NFMA, it is not subject to the 30-day delayed effectiveness
provision of the Administrative Procedure Act pursuant to 5 U.S.C.
553(d)(1). Vessels issued a Federal limited access monkfish Category C
or D permit fishing in the NFMA under a monkfish DAS would otherwise be
subject to a monkfish possession limit of 1,250 lb (567 kg) or 600 lb
(272 kg) tail weight per DAS fished, respectively (see Table 1). If
monkfish catch exceeds these limits, a vessel must either discard
monkfish, or retain legal-sized fish and remain at sea until sufficient
time has elapsed to account for the amount of monkfish retained. This
action suspends those possession limits to encourage greater monkfish
landings and associated fishing revenue as a means to help alleviate
the substantial economic and social impacts expected from substantially
reduced groundfish ACLs in FY 2013. Accordingly, implementing this
action following a 30-day delayed effectiveness would be contrary to
the public interest, because it would unnecessarily delay the public's
ability to take advantage of unlimited monkfish possession limits and
associated economic benefits of higher monkfish
[[Page 25223]]
landings, thereby undermining the intent of the rule. A swift
implementation of this final action minimizes the chances of negative
economic impacts resulting from the reduced groundfish ACLs for some
stocks during FY 2013. Thus, there is also good cause under 5 U.S.C.
553(d)(3) to waive the delay in effectiveness for this action.
This interim final rule has been determined to be not significant
for purposes of Executive Order 12866.
This interim final rule does not contain policies with Federalism
or takings implications as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
Final Regulatory Flexibility Analysis (FRFA)
An EA was prepared for this action that analyzed the environmental
impacts of the measures being implemented, as well as alternatives to
such measures. The measures originally proposed for this action are
described as Alternative 2 in the EA prepared for this action, while
the measures implemented by this action are described as Alternative 1
in the EA. This EA was revised since the publication of the proposed
rule to incorporate updated information regarding the population
estimates for Atlantic sturgeon, and to reclassify the preferred
alternative for this action as Alternative 1. A copy of the Finding of
No Significant Impact for the EA prepared for this action is available
from the Regional Administrator (see ADDRESSES).
Pursuant to section 604 of the Regulatory Flexibility Act (RFA),
NMFS prepared this FRFA in support of the measures implemented by this
interim final rule. The FRFA incorporates the IRFA that was published
in the proposed rule for this action, relevant portions of the EA and
preamble to this rule, a summary of the significant issues raised by
the public comments in response to the IRFA, and NMFS responses to
those comments. A summary of the economic impacts of the measures
implemented by this interim final rule is included below to reflect
that the measures implemented by this final action are those classified
as the impacts of Alternative 1 in the IRFA that were not fully
described in the proposed rule for this action. A description of the
action, why it is being considered, its objectives, and its legal basis
are contained in the preamble to the proposed and this interim final
rule and in the background, purpose, and need discussion (Section 2.0)
of the EA prepared for this action, and are not repeated here. A copy
of this analysis is available from the Regional Administrator (see
ADDRESSES).
Summary of the Issues Raised by Public Comments in Response to the
IRFA, a Summary of the Assessment of the Agency of Such Issues, and a
Statement of Any Changes Made From the Proposed Rule as a Result of
Such Comments
Comment: As noted in Comment 12, several commenters were concerned
that the proposed action would only apply to monkfish Category C and D
permit holders, rather than to all limited access monkfish permits,
while one vessel owner suggested that the proposed action could depress
prices for those vessels not able to land additional monkfish under
this action.
Response: Exempting all monkfish limited access permits from the
existing monkfish possession limits is not consistent with the purpose
and need for this action, as monkfish Category A and B vessels are not
directly affected by reductions in groundfish ACLs in FY 2013. In
contrast, vessels issued a monkfish Category C or D permit are directly
affected by groundfish ACL reductions during FY 2013, and can benefit
from additional opportunity to harvest monkfish to help mitigate
expected substantial economic and social impacts from reduced
groundfish ACLs. Therefore, it is not consistent with the intent of
this action to increase possession limits for monkfish Category A or B.
We agree that it is possible that measures implemented by this
interim final rule could decrease ex-vessel prices if sufficient
volumes are landed in a short period of time and market demand is
insufficient to accommodate the supply of monkfish. However, this is
possible under current regulations as well. This interim final rule
revises the proposed measures by only allowing Category C or D monkfish
vessels fishing under a monkfish DAS to be exempt from existing
monkfish possession limits in the NFMA. While this is expected to
result in increased monkfish landings compared to existing measures, it
is expected that less monkfish would be landed than under the proposed
action. Therefore, this may help assuage concerns that this action
would depress monkfish prices, but would not eliminate the potential
for market prices to decrease during FY 2013.
Description and Estimate of the Number of Small Entities to Which the
Interim Final Rule Would Apply
Similar to the measures included in the proposed rule, the measures
implemented by this interim final rule affect any vessel issued a valid
Federal limited access monkfish Category C or D permit that fishes
under a monkfish DAS in the NFMA. As of December 7, 2012, 2,212 vessels
were issued a Federal monkfish permit, of which 558 were issued limited
access monkfish Category C or D permits during FY 2012. However, not
all of these vessels will likely fish in the NFMA during FY 2013.
During FY 2008, 400 Category C or D vessels fished in the NFMA out of a
total of 690 vessels that were issued a limited access monkfish
Category C or D permit (58 percent). During FY 2011, a total of 189
monkfish Category C or D vessels fished exclusively in the NFMA, or in
both the NFMA and SFMA during the same trip, out of 586 permits issued
(32 percent). Therefore, it is expected that between 200-400 vessels
would be affected by this action. The average size and horsepower of
vessels affected by this action is 60 ft (18 m) and 540 horsepower.
Because over 80 percent of NFMA monkfish landings in recent years were
landed by trawl vessels, trawl vessels would be most affected by this
action. For a more detailed description of the affected entities, refer
to the EA prepared for this action (see ADDRESSES).
The Small Business Administration (SBA) defines a small business as
one that is: Independently owned and operated; not dominant in its
field of operation; and has annual receipts not in excess of $4.0
million in the case of commercial harvesting entities. In the proposed
rule for this action, the IRFA stated that all vessels affected by this
action are considered small vessels. Additional analysis prepared in
support of FW 48 to the NE Multispecies FMP (March 25, 2013; 78 FR
18188) provided additional information regarding the size and
affiliation of vessels issued a NE multispecies permit, including
vessels issued a limited access monkfish Category C and D permit that
are affected by this action. Calendar year 2011 serves as the baseline
year for this analysis because calendar year 2012 data are not yet
available in a fully audited form. There were 396 permited vessels that
landed monkfish during calendar year 2011. By grouping unique
combinations of persons who own each permit into distinct ownership
groups, there were 303 distinct ownership entities identified during
2011. Mean gross sales by each of these distinct ownership groups were
then summed for all affiliated permits to determine if the collective
permits owned by each distinct ownership group exceeded the SBA
threshold for defining large
[[Page 25224]]
entities. This results in 277 small entities, and 26 large entities
during 2011, using SBA guidelines. Because this interim final rule does
not impose any costs on affected entities, there are no
disproportionate impacts between small and large entities associated
with this action.
Economic Impacts of the Final Action
Realized revenues from the final action are estimated to be
approximately $14.4 million from monkfish landings alone by all vessels
during FY 2013 based on a projection of monkfish landings and using the
average monkfish price observed to date during FY 2012 ($1.22 per lb
($2.69 per kg) live weight equivalent). That projection estimated that
monkfish landings would reach 11,764,639 lb (5,336 mt) under the final
action (Alternative 1 in the EA). Compared to the No Action
Alternative, the final action would increase monkfish landings by
nearly 402,000 lb (182,000 kg), but would result in nearly 140,000 lb
(63,500 kg) less monkfish landings than the proposed measures
(Alternative 2 in the EA). The final action would increase monkfish
fishing revenue by $490,000 compared to the No Action Alternative, but
would result in nearly $170,000 less monkfish fishing revenue compared
to the original proposed measures. Additional fishing revenue would
also be expected based on landings of other species.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of This Interim Final Rule
This action does not contain any new recordkeeping or reporting
requirements, and does not impose any additional costs to affected
vessels.
Description of Steps the Agency Has Taken To Minimize the Significant
Economic Impact on Small Entities Consistent With the Stated Objectives
of Applicable Statutes
During the development of this emergency action, NMFS considered
and fully analyzed three principal alternatives, including the No
Action Alternative, the measures implemented by this interim final rule
(Alternative 1), and measures specified in the proposed rule for this
action (Alternative 2). The No Action Alternative would have retained
the existing monkfish possession limits, while Alternative 2 would have
suspended monkfish possession limits for vessels issued a Federal
limited access monkfish Category C or D permit when fishing under
either a monkfish or a groundfish DAS in the NFMA. NMFS also
considered, but did not fully analyze, several additional alternatives
that were rejected because they were beyond the scope of the purpose
and need for this action. The No Action Alternative was not selected
because the existing possession limits would not increase monkfish
landings and help mitigate the adverse social and economic impacts of
the reduced 2013 groundfish ACLs consistent with the purpose and need
for this action. For a more complete description of the alternatives
considered, refer to the EA prepared for this action (see ADDRESSES).
Both Alternatives 1 and 2 would likely result in increased fishing
revenue compared to the existing monkfish possession limits, but
different potential impacts on the monkfish resource. Based on public
comments and further consideration by NMFS, Alternative 2 would likely
create incentives to substantially increase monkfish effort by allowing
vessels to use available groundfish DAS to fish for groundfish and
monkfish in the NFMA, and save their monkfish DAS to fish for monkfish
in the SFMA during FY 2013. Because current monkfish effort controls
are based on recently observed fishing practices, such a shift in
behavior would likely increase monkfish landings beyond those
anticipated, particularly in the SFMA, thereby undermining the
effectiveness of effort controls adopted in Amendment 5. This could
lead to monkfish landings that exceed the SFMA TAL during FY 2013, as
existing regulations do not allow the Regional Administrator to revise
monkfish possession limits for vessels operating in the SFMA. Further,
such measures are beyond the purpose and intent of this emergency
action, and were not included in the proposed rule for this action.
Therefore, it would not have been possible to slow or curtail excessive
monkfish landings in the SFMA if monkfish fishing effort would shift
into the SFMA under the proposed emergency action, as suggested in
public comments. To minimize the potential increase and shift of effort
into the SFMA, the measures implemented by this interim final rule
require vessels to use their monkfish DAS to be exempt from current
monkfish possession limits in the NFMA. This reduces the likelihood
that monkfish fishing effort would substantially increase outside of
the NFMA during FY 2013 and potentially cause the FY 2013 SFMA monkfish
TAL to be exceeded.
Although this interim final rule would likely result in less
monkfish fishing revenue than would be expected from the original
proposed measures (Alternative 2), this final action would likely still
result in economic benefits to affected entities. Further, unlike the
original proposed measures, the final action would likely increase
monkfish fishing opportunities and associated revenue in the NFMA
without increasing the likelihood of exceeding the monkfish TAL in the
SFMA. If excessive effort in the SFMA results in landings that exceed
the SFMA monkfish TAL, overfishing could occur, leading to more
restrictive measures and negative impacts in the future. This would
necessitate reductions in future monkfish fishing opportunities in the
SFMA, as suggested in public comments received for this action. Thus,
this final action (Alternative 1) would likely provide the highest
overall benefit to affected entities, while reducing the risk of long-
term negative impacts to the monkfish resource and associated fishing
vessels and communities.
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 Northeast Regional Office, and the
guide, i.e., permit holder letter, will be sent to all holders of
permits for the groundfish and monkfish fisheries. The guide and this
final rule will be available upon request from the Regional
Administrator (see ADDRESSES).
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: April 16, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
[[Page 25225]]
0
2. In Sec. 648.94, suspend paragraphs (b)(1)(i) and (b)(1)(ii), and
add paragraphs (b)(1)(iii) through (v), and paragraph (h) to read as
follows:
Sec. 648.94 Monkfish possession and landing restrictions.
* * * * *
(b) * * *
(1) * * *
(iii) Category A vessels. A limited access monkfish Category A
vessel that fishes 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.
(iv) Category B vessels. A limited access monkfish Category B
vessel that fishes 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.
(v) Category C and D vessels. Unless otherwise specified pursuant
to paragraph (h) of this section, there is no monkfish trip limit for
limited access monkfish Category C or D vessels that are fishing under
a monkfish DAS exclusively in the NFMA.
* * * * *
(h) Regional Administrator authority to reinstate monkfish
possession limits. Based upon available information, if the Regional
Administrator projects that monkfish landings on trips that fished in
the NFMA may exceed the fishing year 2013 target total allowable
landing limit of 5,854 mt or, when combined with an estimate of
discards, the 6,567 mt annual catch target, before the end of fishing
year 2013 on April 30, 2014, the Regional Administrator shall reinstate
monkfish possession limits for Category C and D vessels in a manner
consistent with the Administrative Procedure Act. If monkfish
possession limits are reinstated pursuant to this paragraph (h),
Category C vessels shall be subject to the possession limits specified
in paragraphs (b)(1)(iii) and (c)(1)(i) of this section, while Category
D vessels shall be subject to the possession limits specified in
paragraphs (b)(1)(iv) and (c)(1)(i) of this section.
[FR Doc. 2013-10023 Filed 4-29-13; 8:45 am]
BILLING CODE 3510-22-P