[Federal Register: September 21, 2007 (Volume 72, Number 183)]
[Rules and Regulations]
[Page 53942-53952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21se07-14]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 648
[Docket No. 0612243159-7456-03; I.D. 020507A]
RIN 0648-AU34
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Monkfish
Fishery; Framework Adjustment 4
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: NMFS implements new management measures for the monkfish
fishery approved in Framework Adjustment 4 to the Monkfish Fishery
Management Plan (FMP). This framework eliminates the control rule for
determining management measures established by Framework Adjustment 2
to the FMP, and establishes target total allowable catch (TAC) levels,
trip limits, and days-at-sea (DAS) allocations for the final 3 years of
the monkfish rebuilding plan. The intent of this action is to replace
the Framework 2 control rule with measures consistent with the stock
rebuilding goals established in the original FMP, and in accordance
with Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act) requirements. NMFS is publishing this action as
an interim final rule in order to provide the opportunity for
additional public comment because the approval of Framework 4 was
based, in part, on the consideration of the integrated monkfish stock
assessment, which was not available during the original public comment
period. This action also contains three changes to address incorrect
cross-references or duplicate regulatory text.
DATES: The interim rule published on April 27, 2007 (72 FR 20952),
which is scheduled to expire on October 28, 2007, is superseded by this
interim final rule and expires at 12:01 a.m. on October 22, 2007. The
amendments in this interim final rule become effective at 12:02 a.m. on
October 22, 2007. Comments on the measures contained in this interim
final rule must be received by 5 p.m. on October 22, 2007.
ADDRESSES: Copies of the Environmental Assessment (EA), including the
Regulatory Impact Review (RIR) and Initial Regulatory Flexibility
Analysis (IRFA), prepared for this action are available upon request
from Paul Howard, Executive Director, New England Fishery Management
Council, 50 Water Street, Newburyport, MA, 01950. The document is also
available online at http://www.nefmc.org. NMFS prepared a Final Regulatory
Flexibility Analysis (FRFA), which is contained in the classification
section of this interim final rule. The small entity compliance guide
is available from Patricia A. Kurkul, Regional Administrator, Northeast
Regional Office, National Marine Fisheries Service, One Blackburn
Drive, Gloucester, MA 01930 2298, and on the Northeast Regional
Office's website at http://www.nero.noaa.gov/nero/nr/.
Written comments on this interim final rule may be submitted by any
of the following methods:
E-mail: E-mail comments may be submitted to
monkfish.FW4interim@noaa.gov. Include in the subject line the following
``Comments on the Interim Final Rule for Framework Adjustment 4.''
Mail: Comments submitted by mail should be sent to
Patricia A. Kurkul, Administrator, Northeast Region, NMFS (Regional
Administrator), One Blackburn Drive, Gloucester, MA 01930-2298. Mark
the outside of the envelope ``Comments on the Interim Final Rule for
Framework Adjustment 4 to the Monkfish FMP.''
Facsimile (fax): Comments submitted by fax should be faxed
to (978) 281-9135.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
interim final rule may be submitted to the Regional Administrator at
the address listed above and by e-mail to David_Rostker@omb.eop.gov,
or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Allison McHale, Fishery Policy
Analyst, e-mail Allison.McHale@noaa.gov, phone (978) 281-9103, fax
(978) 281-9135.
SUPPLEMENTARY INFORMATION:
[[Page 53943]]
Background
The monkfish fishery is jointly managed by the New England and Mid-
Atlantic Fishery Management Councils (Councils), with the New England
Fishery Management Council (NEFMC) having the administrative lead. The
fishery extends from Maine to North Carolina, and is divided into two
management units: The NFMA and the Southern Fishery Management Area
(SFMA). The original Monkfish FMP established a framework adjustment
process that requires an annual review by the Monkfish Monitoring
Committee (MFMC) to evaluate the effectiveness of the FMP in meeting
its conservation objectives. This annual review was a fairly general
process calling for the development of target total allowable catch
levels (TACs) for the upcoming fishing year based on the best
scientific information available and consistent with the goals and
objectives of the FMP. The annual review and target TAC setting process
in the FMP was modified through the implementation of Framework
Adjustment 2 (Framework 2) (68 FR 22325; April 28, 2003) to establish a
more specific and prescribed process for setting annual target TACs.
Specifically, Framework 2 added a target TAC setting control rule based
on the ratio of a 3-year running average of the NMFS fall trawl survey
biomass index to an established annual biomass index target, compared
to landings from the previous year. Based on the experiences of the
last several years, it became apparent that the Framework 2 control
rule could result in measures that were inconsistent with the
rebuilding goals of the FMP because changes to the target TACs are
based, in large part, on prior landings. Thus, under the existing
control rule, target TACs could be increased even when annual biomass
rebuilding targets are not being met.
The Councils initiated Framework 4 during the spring of 2006
because of the above mentioned concerns regarding the Framework 2
control rule and the status of the monkfish resource with respect to
the rebuilding schedule established in the FMP. The intent of Framework
4 is to replace the Framework 2 control rule with measures consistent
with the stock rebuilding goals established in the original FMP. Due to
concerns over the status of the monkfish resource and the fact that
monkfish is in the seventh year of a 10-year rebuilding plan, NMFS
postponed making a decision on Framework 4 and implemented interim
measures for the start of the 2007 fishing year (72 FR 20952, April 27,
2007) until a new monkfish stock assessment could be conducted in July
2007.
The results of the monkfish stock assessment, conducted by the
Northeast Data Poor Stocks Working Group (Northeast Fisheries Science
Center Reference Document 07-13) became available in August 2007. The
summary report for this assessment entitled ``Monkfish assessment
summary for 2007'' is available online at http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0713/.
A new analytic model was developed and
applied to the available scientific information for monkfish. Based on
the existing biomass reference points in the FMP, monkfish is
considered overfished in both the northern and southern stock
management areas. New biological reference points were developed as
part of the 2007 assessment, based on a revised yield-per-recruit
analysis (using a revised value of the natural mortality rate) and
results of a length-tuned model that incorporates multiple survey
indices and catch data. Based on the reference points generated through
this assessment, monkfish in both management regions would be
considered not overfished, and overfishing is not occurring. However,
the median and maximum sizes of monkfish in both the north and south
have declined since the 1980s.
The new assessment results are accompanied by substantial
uncertainty, and therefore need to be viewed with caution. Reservations
highlighted in the assessment report include: (1) input uncertainties
(under-reported landings and unknown discards of monkfish during the
1980s and incomplete understanding of key biological parameters such as
age and growth, longevity, natural mortality, and stock structure); (2)
the shorter assessment time frame of data used (1980-2006) than was
used in previous assessments (1963-2006); and (3) the relatively recent
development of the assessment model. More specifically, the assessment
hinges critically on assumptions regarding growth, longevity, and
natural mortality of monkfish, all of which are poorly known. In
addition, commercial catches prior to 1993 are not well characterized.
Model results are sensitive to the assumed value of natural mortality,
revised in this assessment from 0.2 to 0.3 per year. This decision was
based on the observed longevity of male and female fish in the
resource; however, the actual lifespan of monkfish may be greater than
that which has been observed thus far. Uncertainties in key life
history parameters and historical catches are unlikely to be resolved
in the short term.
The assessment model was also used to evaluate the impacts of
target TACs proposed in Framework 4 (5,000 mt in the north and 5,100 mt
in the south), assuming long-term average recruitment. The results
indicate that total biomass in both regions would increase through 2009
and remain above the newly estimated Btarget. In other
words, if the new biomass reference points were applied, fishing at the
Framework 4 target TAC levels would keep the stocks at levels such that
they would not be considered overfished. However, these results did not
incorporate any uncertainty associated with the stock size estimates
for 2006, and further work is necessary to develop a complete
forecasting approach The report concluded that the data-poor nature of
this species and the significant uncertainty in assessing the stocks
should be considered when developing management measures.
The biomass reference points currently contained in the FMP, which
are used to make stock status determinations, remain unchanged at this
time. The Councils will be presented with the new stock assessment
results in the next few months. If, on the basis of this new
information, the Councils determine that the FMP should be amended to
replace the existing biomass reference points with the new biomass
reference point recommendations, the Councils would need to do so
through a future action. A change in determination of overfished status
for both of the monkfish stocks cannot be made unless and until the
biomass reference points contained in the FMP are changed. However, the
new assessment did not recommend a change in the fishing mortality
reference point (Fmax), but did update the value associated
with this reference point for each management area based upon the most
recent information available. Thus, the determination can be made,
based on the existing fishing mortality reference points, that
overfishing is not occurring on either stock. Therefore, NMFS is
approving Framework 4, under the rebuilding plan contained in the FMP,
since the best available scientific information supports a
determination that overfishing is no longer occurring on either stock,
and because the target TACs contained in Framework 4 are appropriate
for the management of the two monkfish stocks, given the considerable
uncertainty that still remains. This action supercedes the interim
rule, and the regulatory text in this interim final rule is written to
[[Page 53944]]
amend the regulations in 50 CFR part 648 as they appeared prior to
implementation of the interim rule. In light of the integrated monkfish
stock assessment results, which were not available during the public
comment period, NMFS is seeking additional public comment on this
action.
Approved Framework Measures
1. Target TACs for the NFMA and SFMA
In addition to changing the annual adjustment process (i.e., the
removal of the Framework 2 control rule), this action would establish
target TACs of 5,000 mt and 5,100 mt for the NFMA and SFMA,
respectively, for the final 3 years of the rebuilding plan (FY 2007-FY
2009), unless otherwise modified by the MFMC during its annual review
process. Essentially, this framework adjustment removes the Framework 2
control rule and replaces it with target TACs that were developed based
upon an analysis conducted by the Monkfish Plan Development Team (PDT).
The target TACs developed by the PDT incorporate a synthesis of nine
different methods for calculating target TACs for the monkfish fishery.
These target TACs represent the PDT's best estimate of target catch
levels that could facilitate stock rebuilding but maintain a limited
directed monkfish fishery, and are the basis for calculating DAS
allocations and trip limits for each management area. The target TAC
for the NFMA is 35 percent lower than the target TAC in effect for FY
2006, and 67 percent lower than the average of target TACs in effect
since FY 2002. The target TAC for the SFMA is 39 percent higher than
the target TAC in effect for FY 2006, but is 33 percent lower than the
average of the target TACs in effect since FY 2002. Therefore, both
target TACs represent a decrease in overall effort since the
implementation of the FMP. A copy of the target TAC analysis conducted
by the PDT is contained in Appendix I of the Framework 4 document (see
ADDRESSES).
2. DAS Requirement for the NFMA
This interim final rule requires limited access monkfish vessels
that are fishing in the NFMA to declare a monkfish DAS if the vessel
exceeds, or is anticipating to exceed, the applicable monkfish
incidental catch limit. Under this provision, if the vessel is equipped
with a vessel monitoring system (VMS) unit and is fishing under a NE
multispecies Category A DAS in the NFMA, it may declare a monkfish DAS
any time prior to crossing the VMS demarcation line upon returning to
port or leaving the NFMA if the applicable monkfish incidental catch
limit is exceeded during the course of the trip. In addition, this
action revises the minimum mesh size applicable to limited access
monkfish gillnet vessels fishing in the NFMA that change their DAS
declaration from a NE multispecies Category A DAS to a monkfish DAS
while at sea. Such vessels will be subject to the smaller NE
multispecies gillnet minimum mesh size associated with the NE
multispecies regulated mesh area in which the vessel is fishing versus
the relatively larger monkfish gillnet minimum mesh size requirement.
The purpose of the at-sea declaration component of this management
measure is to minimize discards and promote safety. For example, if a
vessel fishing for NE multispecies under a Category A DAS in the NFMA
exceeds the monkfish incidental catch limit, this provision enables the
vessel to retain the additional monkfish by declaring a monkfish DAS.
Otherwise, the vessel would be required to discard the additional
monkfish or stay at sea long enough to account for the overage of the
incidental limit, which is based on a NE multispecies DAS. The decision
to apply this at-sea declaration provision only to vessels fishing in
the NFMA is a recognition of the differences in how the monkfish
fishery is prosecuted in each management area, particularly in the
ability to target monkfish with minimal bycatch of NE multispecies. As
such, vessels holding both limited access NE multispecies and limited
access monkfish permits are far more likely to exceed the monkfish
incidental limit while fishing for NE multispecies on a NE multispecies
DAS in the NFMA than they are in the SFMA. For these reasons, the
original FMP applied different gear requirements in the two areas, and
placed no restrictions on the monkfish catch by monkfish limited access
vessels fishing on a NE multispecies DAS in the NFMA. For the same
reasons, the need to provide limited access monkfish vessels fishing in
the NFMA with the flexibility provided by this at-sea declaration
provision outweighs any potential abuse of this provision in that area,
in contrast to the SFMA, where the need for such flexibility is much
less, and does not outweigh the potential for abuse of this provision
in that area.
3. Trip Limits and DAS Allocations for the NFMA
This action establishes an annual monkfish DAS allocation of 31 DAS
for limited access monkfish vessels fishing in the NFMA. This action
also establishes NFMA trip limits of 1,250 lb (567 kg) tail weight per
DAS for limited access monkfish Category A and C vessels, and 470 lb
(213 kg) tail weight per DAS for limited access monkfish Category B and
D vessels. The DAS allocations contained in this interim final rule are
for the entire FY 2007, and, as such, are inclusive of the DAS
allocated under the April 27, 2007, interim rule. Therefore, vessels
previously allocated 31 DAS under the interim rule will not be granted
any additional DAS under this interim final rule.
4. Trip limits and DAS Allocations for the SFMA
This action restricts limited access monkfish vessels fishing in
the SFMA to 23 monkfish DAS annually. Due to the difference between the
proposed DAS allocations for the NFMA and the SFMA contained in
Framework 4, this action establishes an annual allocation of 31
monkfish DAS for all limited access monkfish vessels, but restricts
vessels to using no more than 23 of their allocated 31 monkfish DAS in
the SFMA. The DAS restrictions in this interim final rule are for the
entire FY 2007, and, as such, are inclusive of the DAS restrictions
contained in the April 27, 2007, interim rule. Therefore, vessels
previously restricted to using 12 monkfish DAS in the SFMA under the
interim rule will be authorized to use an additional 11 monkfish DAS,
not counting any available carryover DAS, during FY 2007 through this
interim final rule, for a total of 23 DAS during FY 2007.
This action also establishes SFMA trip limits of 550 lb (249 kg)
tail weight for limited access monkfish Category A, C, and G vessels;
and 450 lb (204 kg) tail weight per DAS for limited access monkfish
Category B, D, and H vessels. These are the same trip limits in effect
during FY 2006 and under the interim rule.
5. Monkfish Incidental Catch Limit for the NFMA
This action reduces the monkfish incidental catch limit applicable
to limited access monkfish vessels (Categories A, B, C, D, F, G, and H)
and open access monkfish vessels (Category E) fishing under a NE
multispecies DAS in the NFMA from 400 lb (181 kg) tail weight per NE
multispecies DAS, or 50 percent of the weight of fish on board, to 300
lb (136 kg) tail weight per DAS, or 25 percent of the weight of fish on
board. The revised incidental catch limit for the NFMA is equivalent to
that implemented in the original FMP.
[[Page 53945]]
6. Target TAC Overage Backstop Provision
The target TACs and associated management measures contained in
this interim final rule are intended to remain in effect for the final
3 years of the FMP rebuilding program. The method that has been used to
calculate trip limits and DAS allocations for the SFMA since FY 2002
has proven to be effective at keeping landings at or near the annual
target TACs. However, there is no assurance that the success of this
method will continue, or that similar results will occur for the NFMA,
where there has been no monkfish trip limit since the implementation of
the FMP. As a result, the Councils recommended a target TAC overage
backstop provision in Framework 4 that enables the Regional
Administrator to adjust the DAS available in either or both management
areas for FY 2009 if the target TACs are exceeded by between 10 and 30
percent during FY 2007. If the target TACs are exceeded by more than 30
percent, the directed monkfish fishery would be closed in FY 2009 in
the area in which this overage occurred.
7. Extension of Measures Beyond FY 2009
If a subsequent regulatory action is not in place prior to the end
of FY 2009, Framework 4 contains a provision to extend management
measures into FY 2010 and beyond. Under this interim final rule, the
management measures in place for FY 2009 would remain in effect in FY
2010 and beyond unless the target TAC overage backstop provision (see
item 6) results in the closure of the directed monkfish fishery during
FY 2009. In this case, the management measures in effect for FY 2010
and beyond would be those in effect during FY 2008 in the area where
the directed fishery had been closed.
8. Revision to Boundary Line for Category H Permit Holders
This action revises the northern boundary line applicable to
limited access monkfish Category H permit holders. These vessels were
allowed to enter the fishery through an extension to the monkfish
limited access program established in Amendment 2 to the FMP. A total
of seven vessels qualified for Category H permits under this program.
Under the provisions of the program contained in Amendment 2, these
vessels were restricted to fishing in the area south of 38[deg]20'N
lat. These vessels have a limited season when monkfish are available
during the late spring. In addition, these vessels are constrained by
sea turtle closures that essentially restrict the fishery to an area
that is 20 nautical miles (37 km) wide. As a result, Framework 4 shifts
the northern boundary line applicable to limited access monkfish
Category H vessels northward by 20 nautical miles (37 km) to 38[deg]40'
N lat. in order to increase the opportunity for the affected vessels to
prosecute the monkfish fishery, and provide some additional area to
move into, in the event that sea turtles appear in the area north of
38[deg]00' N lat., which is the northern boundary of the sea turtle
closure area.
9. Scallop Closed Area Access Program Monkfish Incidental Catch Limit
Prior to the final approval of Framework 4 by the Councils,
representatives from the scallop fishing industry requested that the
Councils clarify their intent with respect to the monkfish incidental
catch limits applicable to scallop dredge vessels fishing in the
Scallop Area Access Program, because changes to the program resulting
from Scallop Framework 18 changed the monkfish incidental catch limit
applicable to these areas. The final rule implementing Framework 18 to
the Scallop FMP removed DAS counting for vessels fishing in the Scallop
Area Access Program. As a result, the monkfish possession limit dropped
from 300 lb (136 kg) tail weight per scallop DAS to 50 lb (23 kg) tail
weight per day fished, up to a maximum of 150 lb (68 kg) tail weight in
the access areas. Based on input from the scallop fishing industry,
Framework 4 revises the monkfish possession limit applicable to limited
access scallop vessels fishing in the Scallop Area Access Program to be
300 lb (136 kg) tail weight per day fished within the access area, not
to include steaming time.
10. Re-establishment of Carryover DAS
The April 27, 2007, interim rule prohibited the use of carryover
DAS. By default, since the Councils chose to take no action to change
the DAS carryover provisions through Framework 4, this action re-
establishes the Monkfish FMP provision allowing limited access monkfish
vessels to carryover up to 10 unused monkfish DAS from one fishing year
to the next.
11. Additional Changes
A section of the final rule implementing Joint NE Multispecies
Framework 42/Monkfish Framework 3 (71 FR 62156; October 23, 2006) that
pertained to the NE Multispecies Regular B DAS Program contained an
error in a cross-reference to the monkfish possession limit regulations
under Sec. 648.94. This action revises the incorrect cross-reference
of Sec. 648.94(b)(7) found under Sec. 648.85(b)(6)(iv)(D) to be Sec.
648.94(b)(3). This error was the result of an oversight in carrying
forward regulatory changes from the April 13, 2006, emergency interim
rule to the NE Multispecies FMP (71 FR 19348) that were also contained
in this joint framework (i.e., the cross-reference was not updated in
the final rule implementing this joint framework).
This action also makes two additional changes that appear to be
oversights in the regulatory text implementing Amendment 2 to the
Monkfish FMP (70 FR 21927; April 28, 2005). The first correction
deletes a cross reference to Sec. 648.93(b)(2) in the prohibition
concerning the monkfish management area declaration requirement, found
at Sec. 648.14(y)(21), since it is no longer valid. Amendment 2
eliminated the need for an area declaration requirement associated with
the monkfish minimum fish size provisions under Sec. 648.93 since that
action made the minimum fish size equivalent across both management
areas. In addition, this interim final rule removes some duplicate
regulatory text concerning the impact of the NE multispecies leasing
program on monkfish DAS found at Sec. 648.92(b)(2)(iii) that should
have been deleted when that section was revised during the Amendment 2
rulemaking process.
Comments and Responses
The public comment period on the proposed rule for Framework 4
ended on April 19, 2007, with 24 comments received. All of the public
comments, except one, supported the management measures contained in
Framework 4. Only comments that were applicable to the proposed
measures, including the analyses used to support these measures, are
addressed in this preamble. In implementing inseason framework
adjustment measures such as Framework 4, NMFS may only approve or
disapprove measures, and may not select another alternative considered
(and not rejected) by the Councils or unilaterally modify any measure
in a substantive way pursuant to the monkfish inseason framework
adjustment provisions found under Sec. 648.96(c)(2), unless the
framework action was initiated through the FMP annual review process as
specified under Sec. 648.96(c)(1).
Comment 1: One commenter stated that the monkfish quotas should be
cut by 50 percent this year and by 10 percent each succeeding year.
[[Page 53946]]
Response: The target TACs being implemented in this interim final
rule represent an average decrease of 50 percent in overall fishing
effort (i.e., across both management areas) since FY 2002.
Specifically, the target TAC for the NFMA is 35 percent lower than the
target TAC in effect for FY 2006, and 67 percent lower than the average
of the target TACs in effect since FY 2002. Similarly, although the
target TAC for the SFMA is 39 percent higher than the target TAC in
effect for FY 2006, it is 33 percent lower than the average of the
target TACs in effect since FY 2002. The appropriateness of these
target TACs is further confirmed by a recently completed integrated
monkfish stock assessment.
Comment 2: Twelve of the commenters expressed support for the
``Backstop'' and ``Extension'' provisions contained in Framework 4. In
addition to expressing general support for these provisions, one
commenter noted that the ``Backstop'' provision should be linked to a
clearly defined agency commitment to a dynamic monkfish-specific
survey/assessment process. Otherwise, they noted, decisions affecting
the monkfish fishery over the long term would not be based on relevant
data.
Response: NMFS acknowledges the commenters' support of these
measures and is fully aware of the data needs for this fishery. The
Monkfish Research Set-Aside (RSA) Program is aimed at gathering this
much needed information through cooperative research.
Comment 3: Eleven commenters supported the provision to revise the
northern boundary line applicable to limited access monkfish Category H
vessels by moving this boundary northward by 20 nautical miles (37 km).
Response: NMFS acknowledges the need for the boundary line change
as conveyed by members of the fishing industry, as outlined in item 8
of the description of approved measures contained in the preamble to
this interim final rule.
Comment 4: Twelve commenters expressed support for the revision to
the incidental catch limit applicable to limited access scallop vessels
that participate in the Scallop Area Access Program, with one
commenter, a representative for the scallop industry, detailing the
need for this measure.
Response: NMFS recognizes the need for this revision, which was
triggered by a change in the Sea Scallop FMP (Framework Adjustment 18)
that removed the DAS requirements for the Scallop Access Areas. The
rationale for this management measure is provided in item 9 of the
description of approved measures contained in the preamble to this
interim final rule, and is not repeated here.
Comment 5: Eleven commenters expressed support for the reduction in
the incidental catch limit in the NFMA applicable to monkfish vessels
(limited and open access) fishing under a NE multispecies DAS.
Response: NMFS acknowledges the industry's support for this measure
being implemented in this interim final rule. The rationale for this
measure is provided in item 5 of the description of approved measures
contained in the preamble to this interim final rule, and is not
repeated here.
Comment 6: Six commenters expressed support for the management
measure requiring vessels that fish in the NFMA to use a monkfish DAS
if the vessel intends to harvest monkfish in excess of the incidental
catch limit. Five commenters specifically commented on the provision
contained within this measure that would allow vessels fishing in the
NFMA that start a trip under a NE multispecies Category A DAS to change
their DAS declaration to a monkfish DAS through the vessel's VMS unit
while at sea, and prior to crossing the VMS demarcation line its return
to port.
Response: NMFS initially expressed concerns over the DAS change
provision, since it is unclear how this provision will enable vessels
to more efficiently utilize their monkfish DAS, which could lead to an
overage in the target TAC. However, these initial concerns are
outweighed by the benefit of requiring the use of monkfish DAS in the
NFMA, to which this provision is tied in Framework 4. A full discussion
of the rationale for this measure is provided in item 2 of the
description of approved measures contained in the preamble to this
interim final rule.
Comment 7: Twelve individuals commented on the proposed change to
the DAS carryover provision contained in Framework 4. The Councils
voted not to change the DAS carryover provision in Framework 4, and 11
of these commenters supported that decision. However, one individual
expressed concern over the Councils decision, suggesting that a 10 DAS
carryover is too high for a fishery allocated so few DAS.
Response: NMFS is also concerned by the Council's decision not to
revise the DAS carryover provision in Framework 4, although its
concerns are somewhat allayed based on the recently completed
integrated monkfish stock assessment. In FY 2006, the target TAC for
the SFMA was exceeded by over 60 percent, likely due to the use of
carryover DAS. NMFS intends to urge the Council to re-address the DAS
carryover provision in its next action.
Comment 8: Eleven individuals supported maintaining the 40 monkfish
DAS allocation, but reducing current DAS usage.
Response: None of the DAS alternatives considered by the Councils
in Framework 4 included a provision that would maintain the annual
monkfish DAS allocation at 40 DAS but reduce current DAS usage. What
was proposed by the Councils, and is being implemented in this interim
final rule, is the management measure allocating all limited access
monkfish vessels a reduced annual monkfish DAS allocation of 31 DAS,
but restricting DAS usage in the SFMA to 23 DAS.
Changes From the Proposed Rule
NMFS has made eight changes to the proposed rule, all of which are
to ensure consistency with and effective implementation of Framework 4
as it relates to management measures in other FMPs. Two of these have
been made to incorporate changes to the minimum mesh size requirement
applicable to limited access monkfish gillnet vessels fishing in the
NFMA that change their DAS declaration from a NE multispecies Category
A DAS to a monkfish DAS while at sea, as provided in Framework 4, since
these changes were left out of the proposed rule. The third change is a
correction to the final rule implementing Joint NE Multispecies
Framework 42/Monkfish Framework 3 to update an incorrect cross-
reference concerning the NE Multispecies Regular B DAS Program. The
fourth change has been made to update the cross-reference to the
incidental catch restrictions for limited access monkfish vessels when
not fishing under a DAS program to be inclusive of all the applicable
incidental catch limit regulations. The fifth change makes a similar
revision to the monkfish incidental catch restrictions applicable to
general category and limited access scallop vessels to include a
reference to limited access monkfish vessels not fishing under a
scallop DAS. The sixth change deletes a cross-reference in the monkfish
prohibitions that is no longer valid, and the seventh change deletes
some duplicate regulatory text under the monkfish effort control
regulations. The eighth change adds a sentence concerning a prohibition
on the use of NE multispecies B Regular DAS in conjunction with a
monkfish DAS to the monkfish effort control regulations that currently
exist, but was left out of the proposed revision to Sec.
648.92(b)(2)(i) contained in the proposed rule. These
[[Page 53947]]
eight changes are specifically identified as follows.
In Sec. 648.14, paragraph (y)(21) has been revised to delete the
cross-reference to Sec. 648.93(b)(2).
In Sec. 648.85, paragraph (b)(6)(iv)(D) has been revised to
correct the cross-reference to the monkfish possession limits
applicable to limited access monkfish vessels fishing under the NE
Multispecies Regular B DAS Program from Sec. 648.94(b)(7) to Sec.
648.94(b)(3).
In Sec. 648.91, paragraph (c)(1)(iii) has been revised to include
a change to minimum mesh size restrictions applicable to limited access
monkfish vessels fishing with gillnet gear in the NFMA that change
their DAS declaration from a NE multispecies Category A DAS to a
monkfish DAS while at sea. Under the DAS change provision contained in
Framework 4, these vessels are subject to the NE multispecies gillnet
minimum mesh size associated with the NE multispecies regulated mesh
area in which the vessel is fishing, versus the monkfish gillnet
minimum mesh size.
In Sec. 648.92, paragraph (b)(1)(iii) has been revised to include
a reference to the minimum mesh size requirement applicable to limited
access monkfish gillnet vessels fishing in the NFMA that change their
DAS declaration from a NE multispecies Category A DAS to a monkfish DAS
while at sea. As noted above, under the DAS change provision contained
in Framework 4, these vessels are subject to the NE multispecies
minimum mesh size associated with the NE multispecies regulated mesh
area in which the vessel is fishing. In addition, some additional
wording was added to clarify that the NE multispecies DAS provisions
referenced are those requiring the use of a NE multispecies Category A
DAS with a monkfish DAS.
In Sec. 648.92, paragraph (b)(2)(i) has been revised to include a
sentence concerning the prohibition on the use of a NE multispecies B
Regular DAS to satisfy the requirement to use a NE multispecies DAS in
conjunction with a monkfish DAS that is applicable to monkfish limited
access Category C, D, F, G, or H vessels that also possess a limited
access NE multispecies DAS permit.
In Sec. 648.92, paragraph (b)(2)(iii) has been removed.
In Sec. 648.94, paragraph (b)(6) has been revised to update the
cross-reference to the monkfish incidental catch regulations in order
to clarify that all limited access monkfish vessels are subject to the
same incidental catch restrictions as open access Category E vessels
when not fishing under a DAS.
In Sec. 648.94, paragraph (c)(8) has been revised to include the
following phrase under paragraphs (c)(8)(A) and (B) ``or a valid
limited access Category C, D, F, G, or H permit, and also possessing''
to clarify that all limited access monkfish vessels possessing scallop
permits are subject to the same incidental catch restrictions as open
access Category E vessels possessing scallop permits when not fishing
under a DAS.
Pursuant to the Paperwork Reduction Act (PRA), 15 CFR part 902
lists control numbers assigned to NMFS information collection
requirements by OMB. This part fulfills the requirements of section
3506(c)(1)(B)(i) of the PRA, which requires that agencies display a
current control number, assigned by the Director of OMB, for each
agency information collection requirement. This interim final rule
codifies OMB Control Number 0648-0561 for Sec. 648.92.
Under NOAA Administrative Order 205-11, dated December 17, 1990,
the Under Secretary for Oceans and Atmosphere has delegated authority
to sign material for publication in the Federal Register to the
Assistant Administrator for Fisheries, NOAA.
Classification
The Administrator, Northeast Region, NMFS, determined that
Framework 4 is necessary for the conservation and management of the
monkfish fishery and that it is consistent with the Magnuson-Stevens
Act and other applicable laws.
This interim final rule has been determined to be not significant
for purposes of Executive Order 12866.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), prepared this FRFA in support of the approved measures in
Framework 4. The FRFA incorporates the IRFA, a summary of the
significant issues raised by the public comments in response to the
IRFA, NMFS responses to those comments, and a summary of the analyses
completed to support the action. The preamble to the proposed rule
included a detailed summary of the analyses contained in the IRFA, and
that discussion is not repeated here. A copy of the EA/RIR/IRFA is
available from the NEFMC (see ADDRESSES).
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of why this action was considered, the objectives of,
and the legal basis for this interim final rule are contained in the
preambles to the proposed rule and this interim final rule and are not
repeated here.
Summary of Significant Issues Raised in Public Comments
Twenty-four public comments were submitted on the proposed rule.
However, none of these comments were specific to the IRFA or the
economic effects of the rule. NMFS has responded to these comments in
the Comments and Responses section of the preamble to this interim
final rule. No changes were made to this interim final rule as a result
of the comments received.
Description and Estimate of Number of Small Entities to Which the Rule
will Apply
The Small Business Administration (SBA) defines small businesses in
the commercial fishing sector as firms with receipts (gross revenues)
of up to $4.0 million. All of the entities (fishing vessels) affected
by this action are considered small entities under the SBA size
standards for small fishing businesses. Therefore, there is no
disproportionate impact on small entities compared to large entities.
As of August 16, 2007, there were 724 limited access monkfish permit
holders and 1,981 vessels holding an open access Category E monkfish
permit. This action would affect all active limited access vessels, and
any open access monkfish vessels that land monkfish from the NFMA.
Vessel activity reports for FY 2005 indicate that 627 limited
access monkfish permit holders participated in the monkfish fishery. Of
these vessels, 150 fished exclusively in the NFMA and 226 fished
exclusively in the SFMA, with the remaining 251 fishing in both
management areas. During the same time period, vessel activity reports
indicate that 570 incidental permit holders reported landing monkfish.
Of these vessels, 163 landed monkfish only from the NFMA, 344 landed
monkfish only from the SFMA, and 63 landed monkfish from both
management areas. Based upon this information, the management measures
contained in Framework 4 will affect at least the 627 limited access
monkfish vessels that fished for monkfish and the 226 incidental permit
holders landing monkfish from the NFMA during FY 2005.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
The only approved Framework 4 measure that requires either new or
revised reporting and recordkeeping requirements is the provision that
enables limited access monkfish vessels that are fishing in the NFMA,
that also
[[Page 53948]]
possess a limited access NE multispecies DAS permit, to change their
DAS declaration through the vessel's VMS unit from a Category A NE
multispecies DAS to a monkfish DAS while at sea and prior to crossing
the VMS demarcation line on the vessel's return to port. Additional
information regarding the projected reporting or recordkeeping costs
associated with this action was made available for review in NMFS's PRA
submission to OMB on March 20, 2007. There are no other compliance
requirements associated with this interim final rule implementing
Framework 4.
Description of the Steps Taken to Minimize Economic Impact on Small
Entities
The management measures contained in Framework 4 represent a
reduction in fishing opportunities for vessels fishing in the NFMA, in
comparison to previous fishing years, resulting from implementation of
the requirement that vessels fishing in the NFMA use monkfish DAS if
they exceed, or intend to exceed, the incidental catch limit; a
reduction in the total annual DAS allocations for limited access
monkfish vessels; and establishment of trip limits for vessels fishing
under a monkfish DAS in this management area. To minimize the impacts
of these management measures on vessels fishing in the NFMA, the
Councils included a provision in Framework 4 that allows limited access
monkfish vessels that fish in the NFMA, if equipped with a VMS unit, to
change the DAS declaration from a NE multispecies Category A DAS to a
monkfish DAS while at sea, but prior to crossing the VMS demarcation
line on the return to port. This provision provides these vessels with
the flexibility of declaring a monkfish DAS during the course of a trip
versus wasting a monkfish DAS if the vessel is unable to harvest
monkfish in excess of the incidental catch limit. In addition, this
provision promotes safety and prevents discards because it enables a
vessel that exceeds the incidental catch limit to change its DAS
declaration to a monkfish DAS versus discarding the extra monkfish or
staying at sea long enough to cover the overage, as the incidental
catch limit is based on pounds per NE multispecies DAS.
In addition, the Framework 4 management measure requiring vessels
to declare a monkfish DAS in the NFMA if they exceed the incidental
catch limit also includes a provision that enables gillnet vessels to
fish with a smaller minimum mesh size, the NE multispecies minimum mesh
size applicable to the regulated mesh area in which the vessel is
fishing, if that vessel changes its DAS declaration from a NE
multispecies Category A DAS to a monkfish DAS while at sea. This
provision enables gillnet vessels to fish with both their monkfish
gillnet gear and their NE multispecies gear on the same trip, which
they are currently prohibited from doing under the existing interim
rule, which did not temporarily implement this DAS declaration change
provision contained in Framework 4. This provision is important because
it enables monkfish gillnet vessels that fish in the NFMA to operate in
the same manner as they have historically, thereby minimizing the
economic impacts associated with the reducing fishing opportunities
resulting from the NFMA management measures contained in Framework 4.
The reduction in the incidental catch limit applicable to limited
access and open access monkfish vessels fishing under only a NE
multispecies DAS in the NFMA contained in Framework 4 is expected to
have a minimal impact on monkfish vessels that fish in the NFMA because
the majority of these vessels currently land fewer than the reduced
incidental limit of 300 lb (136 kg) tail weight per NE multispecies
DAS. In FY 2005, 78.2 percent of all trips by monkfish vessels fishing
in the NFMA landed less than the revised 300-lb (136-kg) tail weight
limit, while 82.4 percent of these trips landed less than the previous
400-lb (181-kg) tail weight limit. However, monkfish limited access
Category A and C vessels had a larger percentage of trips in excess of
the previous and revised incidental catch limits. During FY 2005, only
13.2 percent of trips by monkfish limited access Category A vessels
were less than 400 lb (181 kg) tail weight and 5.3 percent of trips
were less than 300 lb (136 kg) tail weight. For limited access Category
C vessels, 48.8 percent of the FY 2005 trips were less than 400 lb (181
kg) tail weight and 42.2 percent of the trips were less than 300 lb
(136 kg) tail weight. However, under Framework 4, these vessels will
have monkfish DAS that they can utilize in the NFMA to land monkfish in
excess of the revised incidental catch limit, minimizing the economic
impact of this measure.
The target TAC overage backstop provision will either reduce the
DAS allocation or close the fishery in a management area if the target
TAC for that management area is exceeded by more the 10 percent during
FY 2007. The Councils understood that, given the inability to precisely
predict future fishing behavior, measures should be put in place in
case the target TACs are exceeded. Although this provision could lead
to the closure of the fishery in FY 2009, the provision extending
measures beyond FY 2009, contained in Framework 4, would reopen the
fishery in FY 2010, and reinstate the management measures in effect
during FY 2008. Therefore, the potential negative economic impacts
associated with the target TAC overage provision are minimized by the
provision to extend fishery management measures beyond FY 2009.
The remaining management measures being implemented through this
interim final rule are less restrictive than those previously in
effect, thereby minimizing the economic impacts of this action on small
entities. These less restrictive measures include an increase in the
monkfish DAS available for use in the SFMA (from 12 DAS to 23 DAS); a
revision to the northern boundary line applicable to limited access
Category H monkfish vessels that expands the area in which these
vessels can operate by 20 nautical miles (37 km); and a revision to the
incidental catch limit applicable to limited access scallop vessels
that are participating in the Scallop Area Access Program that
increases the amount of monkfish these vessels can land, which is
roughly equivalent to the amount implemented in the original FMP.
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 small entity compliance guide will be sent
to all holders of Federal permits issued for the monkfish fishery. In
addition, copies of this interim final rule and guide (i.e., permit
holder letter) are available from NMFS (see ADDRESSES) and at the
following website: http://www.nero.noaa.gov/nero/nr/index.html.
This interim final rule contains one new collection-of-information
requirement subject to the PRA and which has been approved by OMB under
control number 0648-0561. Public reporting burden for the DAS
declaration change provision for limited access monkfish vessels
fishing in the NFMA is estimated to average 5 minutes per response,
including the time for reviewing instructions, searching
[[Page 53949]]
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this data
collection, including suggestions for reducing the burden, to NMFS (see
ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to 202-
395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: September 14, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR
part 648 are amended as follows:
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, the table in paragraph (b) under ``50 CFR'' is
amended by adding a new entry to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) Display.
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (all numbers begin with
collection requirement is located 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR ...........................
* * * * *
648.92 -0561
* * * * *
------------------------------------------------------------------------
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
3. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
4. In Sec. 648.4, paragraphs (a)(9)(i)(A)(6) and (7) headings are
revised to read as follows:
Sec. 648.4 Vessel permits.
* * * * *
(a) * * *
(9) * * *
(i) * * *
(A) * * *
(6) Category G permit (vessels restricted to fishing south of
38[deg]40' N. lat. As described in Sec. 648.92(b) that do not qualify
for a monkfish limited access Category A, B, C, or D permit).* * *
(7) Category H permit (vessels restricted to fishing south of
38[deg]40' N. lat. As described in Sec. 648.92(b) that do not qualify
for a monkfish limited access Category A, B, C, D, or G permit).* * *
* * * * *
0
5. In Sec. 648.14, paragraph (y)(21) is revised to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(y) * * *
(21) Fail to comply with the area declaration requirements
specified at Sec. 648.94(f) when fishing under a scallop, NE
multispecies, or monkfish DAS exclusively in the NFMA under the less
restrictive measures of that area.
* * * * *
0
6. In Sec. 648.85, paragraph (b)(6)(iv)(D) is revised to read as
follows:
Sec. 648.85 Special management programs.
* * * * *
(b) * * *
(6) * * *
(iv) * * *
(D) Landing limits. Unless otherwise specified in this paragraph
(b)(6)(iv)(D), a NE multispecies vessel fishing in the Regular B DAS
Program described in this paragraph (b)(6), and fishing under a Regular
B DAS, may not land more than 100 lb (45.5 kg) per DAS, or any part of
a DAS, up to a maximum of 1,000 lb (454 kg) per trip, of any of the
following species/stocks: Cod, American plaice, white hake, witch
flounder, SNE/MA winter flounder, GB winter flounder, GB yellowtail
flounder, southern windowpane flounder, and ocean pout; and may not
land more than 25 lb (11.3 kg) per DAS, or any part of a DAS, up to a
maximum of 250 lb (113 kg) per trip of CC/GOM or SNE/MA yellowtail
flounder. In addition, trawl vessels, which are required to fish with a
haddock separator trawl as specified under paragraph (b)(6)(iv)(J) of
this section, and other gear that may be required in order to reduce
catches of stocks of concern as described under paragraph (b)(6)(iv)(J)
of this section, are restricted to the following trip limits: 500 lb
(227 kg) of all flatfish species (American plaice, witch flounder,
winter flounder, windowpane flounder, and GB yellowtail flounder),
combined; 500 lb (227 kg) of monkfish (whole weight); 500 lb (227 kg)
of skates (whole weight); and zero possession of lobsters, unless
otherwise restricted by Sec. 648.94(b)(3).
* * * * *
0
7. In Sec. 648.91, paragraph (c)(1)(iii) is revised to read as
follows:
Sec. 648.91 Monkfish regulated mesh areas and restrictions on gear
and methods of fishing.
* * * * *
(c) * * *
(1) * * *
(iii) Gillnets while on a monkfish DAS. The minimum mesh size for
any gillnets used by a vessel fishing under a monkfish DAS is 10-inch
(25.4-cm) diamond mesh, unless otherwise provided for under Sec.
648.92(b)(1)(iii)(B).
* * * * *
0
8. In Sec. 648.92, paragraph (b)(2)(iii) is removed, and paragraphs
(b)(1), (b)(2)(i), (b)(2)(ii)(B), and (b)(9)(i) are revised to read as
follows:
Sec. 648.92 Effort-control program for monkfish limited access
vessels.
* * * * *
(b) * * *
(1) Limited access monkfish permit holders--(i) General provision.
Limited access monkfish permit holders shall be allocated 31 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.
[[Page 53950]]
(ii) DAS restrictions for vessels fishing in the SFMA. Limited
access monkfish vessels may only use 23 of their 31 monkfish DAS
allocation in the SFMA. All limited access monkfish vessels fishing in
the SFMA must declare that they are fishing in this area through the
vessel call-in system or VMS prior to the start of every trip. In
addition, if a vessel does not possess a valid letter of authorization
from the Regional Administrator to fish in the NFMA as described in
Sec. 648.94(f), NMFS shall presume that any monkfish DAS used were
fished in the SFMA.
(iii) DAS declaration provision for vessels fishing in the NFMA
with a VMS unit. Any limited access NE multispecies vessel fishing
under a NE multispecies Category A DAS in the NFMA, and issued an LOA
as specified in Sec. 648.94(f), may change its DAS declaration to a
monkfish DAS through the vessel's VMS unit during the course of the
trip, but prior to crossing the VMS demarcation line upon its return to
port or leaving the NFMA, if the vessel exceeds the incidental catch
limit specified under Sec. 648.94(c).
(A) Vessels that change their DAS declaration from a NE
multispecies Category A DAS to a monkfish DAS during the course of a
trip remain subject to the NE multispecies DAS usage requirements
(i.e., use a NE multispecies Category A DAS in conjunction with the
monkfish DAS) described in paragraph (b)(2)(i) of this section.
(B) Gillnet vessels that change their DAS declaration in accordance
with this paragraph (b)(1)(iii) are not subject to the gillnet minimum
mesh size restrictions found at Sec. 648.91(c)(1)(iii), but are
subject to the smaller NE multispecies minimum mesh requirements for
gillnet vessels found under Sec. 648.80 based upon the NE Multispecies
Regulated Mesh Area in which the vessel is fishing.
(iv) Offshore Fishery Program DAS allocation. A vessel issued a
Category F permit, as described in Sec. 648.95, shall be allocated a
prorated number of monkfish DAS as specified in Sec. 648.95(g)(2).
(v) Research DAS set-aside. A total of 500 DAS shall be set aside
and made available for cooperative research programs as described in
paragraph (c) of this section. These DAS shall be deducted from the
total number of DAS allocated to all monkfish limited access permit
holders, as specified under paragraph (b)(1)(i) of this section. A per
vessel deduction shall be determined as follows: Allocated DAS minus
the quotient of 500 DAS divided by the total number of limited access
permits issued in the previous fishing year. For example, if the DAS
allocation equals 31 DAS and there were 750 limited access monkfish
permits issued during FY 2006, the number of DAS allocated to each
vessel during FY 2007 would be 31 DAS minus 0.7 (500 DAS divided by 750
permits), or 30.3 DAS.
(2) * * *
(i) Unless otherwise specified in paragraph (b)(2)(ii) of this
section, each monkfish DAS used by a limited access NE multispecies or
scallop DAS vessel holding a Category C, D, F, G, or H limited access
monkfish permit shall also be counted as a NE multispecies or scallop
DAS, as applicable, except when a Category C, D, F, G, or H vessel with
a limited access NE multispecies DAS permit has an allocation of NE
multispecies Category A DAS, specified under Sec. 648.82(d)(1), that
is less than the number of monkfish DAS allocated for the fishing year
May 1 through April 30. Under this circumstance, the vessel may fish
under the monkfish limited access Category A or B provisions, as
applicable, for the number of DAS that equal the difference between the
number of its allocated monkfish DAS and the number of its allocated NE
multispecies Category A DAS. For such vessels, when the total
allocation of NE multispecies Category A DAS has been used, a monkfish
DAS may be used without concurrent use of a NE multispecies DAS,
provided that the vessel fishes under the regulations pertaining to a
Category B vessel and does not retain any regulated NE multispecies.
For example, if a monkfish Category D vessel's NE multispecies Category
A DAS allocation is 20, and the vessel fished 20 of its 31 monkfish
DAS, 20 NE multispecies Category A DAS would also be used. However,
after all 20 NE multispecies Category A DAS are used, the vessel may
utilize its remaining 11 monkfish DAS to fish for monkfish, without a
NE multispecies DAS being used. A vessel holding a Category C, D, F, G,
or H limited access monkfish permit may not use a NE multispecies
Category B Regular DAS under the NE Multispecies Regular B DAS Program,
as specified under Sec. 648.85(b)(6), in order to satisfy the
requirement of this paragraph (b)(2)(i) to use a NE multispecies DAS
concurrently with a monkfish DAS.
(ii) * * *
(A) * * *
(B) A monkfish Category C, D, F, G, or H vessel that leases DAS to
another vessel(s), pursuant to Sec. 648.82(k), must forfeit a monkfish
DAS for each NE multispecies DAS that the vessel leases, equal in
number to the difference between the number of remaining NE
multispecies DAS and the number of unused monkfish DAS at the time of
the lease. For example, if a lessor vessel, which had 31 unused
monkfish DAS and 35 allocated NE multispecies DAS, leased 10 of its NE
multispecies DAS to another vessel, the lessor would forfeit 6 of its
monkfish DAS (10 - (35 NE multispecies DAS - 31 monkfish DAS) = 6).
* * * * *
(9) * * *
(i) Vessels issued monkfish limited access Category G or H permits
may only fish under a monkfish DAS in the area south of 38[deg]40' N.
lat.
* * * * *
0
9. In Sec. 648.94, paragraphs (b)(1), (b)(2)(i), (b)(2)(ii),
(b)(3)(i), (b)(3)(ii), (b)(6), (c)(1)(i), and (c)(8) are revised to
read as follows:
Sec. 648.94 Monkfish possession and landing restrictions.
* * * * *
(b) * * *
(1) Vessels fishing under the monkfish DAS program in the NFMA--(i)
Category A and C vessels. Limited access monkfish Category A and C
vessels that fish under a monkfish DAS exclusively in the NFMA may land
up to 1,250 lb (567 kg) tail weight or 4,150 lb (1,882 kg) whole weight
of monkfish per DAS (or any prorated combination of tail weight and
whole weight based on the conversion factor for tail weight to whole
weight of 3.32).
(ii) Category B and D vessels. Limited access monkfish Category B
and D vessels that fish under a monkfish DAS exclusively in the NFMA
may land up to 470 lb (213 kg) tail weight or 1,560 lb (708 kg) whole
weight of monkfish per DAS (or any prorated combination of tail weight
and whole weight based on the conversion factor for tail weight to
whole weight of 3.32).
(2) Vessels fishing under the monkfish DAS program in the SFMA--(i)
Category A, C, and G vessels. Limited access monkfish Category A, C,
and G vessels that fish under a monkfish DAS in the SFMA may land up to
550 lb (249 kg) tail weight or 1,826 lb (828 kg) whole weight of
monkfish per DAS (or any prorated combination of tail weight and whole
weight based on the conversion factor for tail weight to whole weight
of 3.32).
(ii) Category B, D, and H vessels. Limited access monkfish Category
B, D, and H vessels that fish under a monkfish DAS in the SFMA may land
up to 450 lb (204 kg) tail weight or 1,494 lb (678 kg) whole weight of
monkfish per DAS (or any prorated combination of tail weight and whole
weight based
[[Page 53951]]
on the conversion factor for tail weight to whole weight of 3.32).
* * * * *
(3) * * *
(i) NFMA. Limited access monkfish Category C, D, F, G, or H vessels
that are fishing under a NE multispecies DAS, and not a monkfish DAS,
exclusively in the NFMA are subject to the incidental catch limit
specified in paragraph (c)(1)(i) of this section. Category C, D, F, G,
and H vessels participating in the NE Multispecies Regular B DAS
program, as specified under Sec. 648.85(b)(6), are also subject to the
incidental catch limit specified in paragraph (c)(1)(i) of this
section.
(ii) SFMA--(A) Category C, D, and F vessels. Limited access
monkfish Category C, D, or F vessels that fish any portion of a trip
under a NE multispecies DAS in the SFMA, and not a monkfish DAS, may
land up to 300 lb (136 kg) tail weight or 996 lb (452 kg) whole weight
of monkfish per DAS if trawl gear is used exclusively during the trip,
or 50 lb (23 kg) tail weight or 166 lb (75 kg ) whole weight per DAS if
gear other than trawl gear is used at any time during the trip.
Category C, D, and F vessels participating in the NE Multispecies
Regular B DAS program, as specified under Sec. 648.85(b)(6), are also
subject to the incidental catch limit specified in paragraph (c)(1)(ii)
of this section.
(B) Category G and H vessels. Limited access monkfish Category G
and H vessels that fish any portion of a trip under a NE multispecies
DAS in the SFMA, and not under a monkfish DAS, are subject to the
incidental catch limit specified in paragraph (c)(1)(ii) of this
section. Category G and H vessels participating in the NE Multispecies
Regular B DAS program, as specified under Sec. 648.85(b)(6), are also
subject to the incidental catch limit specified in paragraph (c)(1)(ii)
of this section.
* * * * *
(6) Vessels not fishing under a NE multispecies, scallop, or
monkfish DAS. The possession limits for all limited access monkfish
vessels when not fishing under a NE multispecies, scallop, or monkfish
DAS are the same as those possession limits applicable to a vessel
issued a monkfish incidental catch permit specified under paragraphs
(c)(3) through (c)(8) of this section.
* * * * *
(c) * * *
(1) * * *
(i) NFMA. Vessels issued a valid monkfish incidental catch
(Category E) permit or a valid limited access Category C, D, F, G, or H
permit, fishing under a NE multispecies DAS exclusively in the NFMA may
land up to 300 lb (136 kg) tail weight or 996 lb (452 kg) whole weight
of monkfish per DAS, or 25 percent (where the weight of all monkfish is
converted to tail weight) of the total weight of fish on board,
whichever is less. For the purpose of converting whole weight to tail
weight, the amount of whole weight possessed or landed is divided by
3.32.
* * * * *
(8) Scallop vessels not fishing under a scallop DAS with dredge
gear--(i) General provisions. A vessel issued a valid monkfish
incidental catch (Category E) permit or a valid limited access Category
C, D, F, G, or H permit, and also possessing a valid General Category
sea scallop permit or a limited access sea scallop vessel not fishing
under a scallop DAS, while fishing exclusively with scallop dredge gear
as specified in Sec. 648.51(b), may possess, retain, and land up to 50
lb (23 kg) tail weight or 166 lb (75 kg) whole weight of monkfish per
day or partial day, not to exceed 150 lb (68 kg) tail weight or 498 lb
(226 kg) whole weight per trip, unless otherwise specified in paragraph
(c)(8)(ii) of this section.
(ii) Limited access scallop vessels fishing in Sea Scallop Access
Areas. A vessel issued a valid monkfish incidental catch (Category E)
permit or a valid limited access Category C, D, F, G, or H permit, and
also possessing a limited access sea scallop permit while fishing
exclusively with scallop dredge gear as specified in Sec. 648.51(b),
and fishing in one of the established Sea Scallop Access Areas
specified under Sec. 648.59, may possess, retain, and land up to 300
lb (136 kg) tail weight or 996 lb (452 kg) whole weight of monkfish per
day or partial day fished within the boundaries of the Sea Scallop
Access Area. Time within the applicable access area, for purposes of
determining the incidental catch limit, will be determined through the
vessel's VMS unit.
* * * * *
0
10. In Sec. 648.96, the section heading is revised, paragraphs (a)
heading, and (b)(1) through (b)(4) are revised, and paragraphs (b)(5)
and (b)(6) are added to read as follows:
Sec. 648.96 Monkfish annual target TACs and framework specifications.
(a) Annual review. * * *
(b) * * *
(1) Annual Target TACs for FY 2007 through FY 2009--(i) NFMA. The
annual target TAC for the NFMA is 5,000 mt for FY 2007 through FY 2009,
unless otherwise recommended by the MFMC through its annual review
procedure specified in paragraph (a) of this section, and adopted
through the procedures outlined in paragraph (b)(4) of this section.
(ii) SFMA. The annual target TAC for the SFMA is 5,100 mt for FY
2007 through FY 2009, unless otherwise recommended by the MFMC through
its annual review procedure specified in paragraph (a) of this section,
and adopted through the procedures outlined in paragraph (b)(4) of this
section.
(2) Annual Target TACS for FY 2010 and beyond. If a regulatory
action is not implemented to establish target TACs for the monkfish
fishery for FY 2010 or subsequent years, either through the annual
review procedure described in paragraph (a) of this section or another
type of regulatory action, the target TACs in effect during FY 2007 -
FY 2009 will remain in effect until new measures are implemented. The
management measures for FY 2010 or subsequent years that would be
associated with these target TACs are described in paragraph (b)(6) of
this section.
(3) Setting DAS allocations--(i) The process of determining the
appropriate DAS allocations for each management area involves first
estimating incidental landings for each management area and then
estimating the proportional catch for permit categories A and C, and
permit categories B, D, and H based upon vessel trip reports for the
most recently completed fishing year for which a complete set of
landings data exists. The landings proportions generated for each
permit category group (A and C versus B, D, and H) are then used to
estimate the landings that would be associated with each permit
category group under a given target TAC, less projected incidental
landings. For example, a target TAC of 5,100 mt equates to 11,243,580
lb (5,100,000 kg). If incidental landings for the SFMA are projected to
be 2,070,000 lb (938,936 kg) the total amount of the target TAC
available to limited access vessels would be 9,173,580 lb (4,161,066
kg). If the proportion of landings for permit category A and C vessels
is 37 percent, and the proportion for permit category B, C, and H
vessels is 63 percent, then the landing levels associated with each
permit category group under this target TAC would be 3,394,225 lb
(1,539,595 kg) and 5,779,355 lb (2,621,471 kg), respectively.
(ii) Landings are assumed to be fixed at a constant rate per day
for each vessel, equivalent to the average daily landings of each
vessel in the reference year, of the last applicable full year of
landings data (a year is applicable if the
[[Page 53952]]
TAC in that year was lower than the TAC in the year to be calculated).
(iii) To adjust for the ability of vessels to carryover up to 10
unused monkfish DAS from the previous fishing year to the current
fishing year, adjustments to DAS usage shall be made by first reducing
the landings for all permit holders who have used more than the annual
DAS allocation specified in Sec. 648.94(b)(1)(i) (e.g., 31 monkfish
DAS) by the proportion of DAS exceeding that annual DAS allocation, and
then resetting the upper limit of DAS usage at the annual DAS
allocation.
(iv) Linear interpolation is then used to determine which DAS level
would closest achieve the estimated landing levels for each permit
category group under a given target TAC.
(4) Council TAC Recommendations. The Councils shall consider any
target TAC(s) recommended by the MFMC as part of its annual review
specified in paragraph (a) of this section, and then forward their
target TAC recommendation to the Regional Administrator. If the
Councils recommend target TAC(s) to the Regional Administrator, and the
Regional Administrator concurs with this recommendation, the Regional
Administrator shall promulgate the target TAC(s) and associated
management measures through rulemaking consistent with the APA. If the
Regional Administrator does not concur with the Councils'
recommendation, then the Councils shall be notified in writing of the
reasons for the non-concurrence.
(5) Target TAC Overages--(i) If monkfish landings exceed the annual
target TAC for either management area by more than 10 percent but less
than or equal to 30 percent during FY 2007, the Regional Administrator
shall adjust the annual monkfish DAS allocation for the management area
in which the overage occurred, through rulemaking consistent with the
APA, for FY 2009 using catch and effort information for FY 2007
according to the procedures outlined in paragraph (b)(3) of this
section.
(ii) If monkfish landings exceed the annual target TAC for either
management area by more than 30 percent during FY 2007, the Regional
Administrator shall reduce the annual monkfish DAS allocation to zero
for FY 2009 for the management area in which the overage occurred,
through rulemaking consistent with the APA.
(6) Management measures for FY 2010 and beyond. If a regulatory
action is not implemented to establish management measures for the
monkfish fishery for FY 2010 or subsequent years, either through the
annual review process or another type of regulatory action, the
management measures in effect during FY 2009 (i.e., trip limits and DAS
allocations) will remain in effect until new measures are implemented,
with the following exception. If the monkfish DAS allocation is reduced
to zero in either management area during FY 2009 as a result of the
target TAC overage provision described in paragraph (b)(3) of this
section, the annual DAS allocation and associated trip limits for that
management area for FY 2010 and beyond will be equivalent to the annual
monkfish DAS allocation and trip limits in effect during FY 2008,
unless otherwise recommended by the MFMC through its annual review
procedure specified in paragraph (a) of this section, or superceded by
a subsequent regulatory action.
* * * * *
[FR Doc. 07-4667 Filed 9-17-07; 3:23 pm]
BILLING CODE 3510-22-S