[Federal Register: November 25, 2002 (Volume 67, Number 227)]
[Proposed Rules]
[Page 70570-70573]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no02-26]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 020409080-2277-06; I.D. 101802B]
RIN 0648-AP78
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Regulations
Governing Northeast Multispecies and Monkfish Days-at-Sea
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: NMFS proposes a regulatory amendment that would revise the
monkfish days-at-sea (DAS) regulations found at 50 CFR part 648 in
order to provide vessels possessing limited access Category C or D
monkfish permits the opportunity to fish their full allocation of up to
40 monkfish DAS, regardless of the amount of Northeast (NE)
multispecies DAS available to an individual vessel as of August 1,
2002. These regulations were modified as part of a August 1, 2002,
interim final rule implementing the Settlement Agreement Among Certain
Parties (Settlement Agreement), ordered by the U.S. District Court for
the District of Columbia in a Remedial Order issued on May 23, 2002.
However, the August 1, 2002, interim final rule unintentionally
restricted monkfish DAS allocated under the Monkfish Fishery Management
Plan (Monkfish FMP) for limited access Category C or D monkfish vessels
that used NE multispecies DAS not in conjunction with a monkfish DAS,
during May through July, 2002. This regulatory amendment would also
revise ambiguous language to clarify that a vessel fishing under a
Southern New England (SNE) and Mid-Atlantic (MA) Yellowtail Flounder
Possession/Landing Letter of Authorization (LOA) may fish in the Gulf
of Maine (GOM) or Georges Bank (GB) Regulated Mesh Areas (RMAs),
provided the vessel abides by the more restrictive yellowtail flounder
possession limits of the SNE and MA RMAs north of 40[deg]00' N. lat.
DATES: Public comments must be received on or before December 10, 2002.
ADDRESSES: Comments on the proposed rule should be sent to Patricia A.
Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn
Drive, Gloucester, MA 01930-2298. Mark the outside of the envelope
``Comments on regulatory amendment.'' Comments may also be submitted
via facsimile (fax) to 978-281-9135. Comments will not be accepted if
submitted via e-mail or the Internet. Copies of the Regulatory Impact
Review (RIR) prepared for this action are available from the Regional
Administrator. The document is also accessible via the Internet at
http://www.nero.nmfs.gov.
FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy
Analyst, phone: 978-281-9103, fax: 978-281-9135, e-mail:
Allison.Ferreira@noaa.gov.
SUPPLEMENTARY INFORMATION:
[[Page 70571]]
Background
NMFS published an interim final rule on August 1, 2002 (67 FR
50292), to reduce overfishing consistent with and pursuant to section
305(c)(3) of the Magnuson-Stevens Fishery Conservation and Management
Act, while Amendment 13 to the Northeast Multispecies Fishery
Management Plan is being developed. Under the provisions of section
305(c)(3) of the Magnuson-Stevens Act, interim measures shall remain in
effect for not more than 180 days after the date of publication, and
may be extended by publication in the Federal Register for one
additional period of not more than 180 days, provided that the public
has had an opportunity to comment on the interim measures. Because of
the Court's Remedial Order, it is very likely that NMFS will extend the
interim final rule beyond the first 180-day period. NMFS will announce
any extension by publishing a notification in the Federal Register.
Because this proposed rule will amend the August 1, 2002, interim rule,
this proposed rule, if approved and implemented by NMFS, will remain in
effect for the duration of the August 1, 2002, interim final rule,
including any extensions.
The August 1, 2002, interim final rule implemented additional
measures intended to reduce overfishing on species managed under the NE
Multispecies Fishery Management Plan as specified in the Settlement
Agreement, including a freeze on the use of DAS and a 20-percent
reduction in effort from the highest amount of DAS fished during the
fishing years 1996-2000. Under the monkfish DAS regulations implemented
through the Monkfish FMP (64 FR 54732, October 7, 1999), all limited
access monkfish vessels are allocated up to 40 monkfish DAS per fishing
year (May 1 through April 30). Vessels that hold a limited access
monkfish Category C or D permit (i.e., vessels that possess both a
limited access monkfish and limited access NE multispecies DAS permit)
must run both their monkfish DAS clock and their NE multispecies DAS
clock concurrently when fishing under a monkfish DAS. Limited access
monkfish vessels that do not have a limited access NE multispecies
permit (i.e., Category A and B vessels) may fish their monkfish-only
DAS in a fishery exempted under the 5-percent regulated multispecies
bycatch provisions. Implementation of the freeze and reduction in DAS
without regard for monkfish DAS, however, have restricted certain
limited access monkfish vessels to fishing only the number of monkfish
DAS equivalent to the number of NE multispecies DAS allocated under the
August 1, 2002, interim final rule, minus the NE multispecies DAS
fished during May - July, 2002. There was no intent specified in the
Settlement Agreement to further restrict monkfish harvest through DAS
or other measures, when NMFS revised Sec. 648.92(b)(2) in the August
1, 2002, interim final rule. Therefore, NMFS intended to enable limited
access Category C or D monkfish vessels to fish their full allocations
of 40 DAS.
The August 1, 2002, interim final rule, as currently written,
specifies that Category C or D monkfish vessels that have been
allocated fewer than 40 NE multispecies DAS may fish, as monkfish-only
DAS, those monkfish DAS equal to the difference between their NE
multispecies DAS allocation and their monkfish DAS allocation for the
fishing year May 1 through April 30. However, this does not account for
those vessels that used NE multispecies DAS prior to August 1, 2002,
and, as a result, had fewer unused NE multispecies than unused monkfish
DAS as of August 1, 2002. This omission was recognized by NMFS shortly
after implementation of the August 1, 2002, interim final rule. Because
such vessels would not be provided the opportunity to fish their full
40 monkfish DAS allocations for the 2002 fishing year, NMFS is
proposing this regulatory amendment to revise Sec. .92(b)(2). This
proposed regulatory amendment would enable Category C or D monkfish
vessels to fish their monkfish DAS that were unused as of August 1,
2002, regardless of how many NE multispecies DAS are available to them.
Therefore, for the 2002 fishing year, this regulatory amendment would
authorize a vessel to fish its monkfish-only DAS (i.e., monkfish DAS
that do not have to be fished concurrently with a NE multispecies DAS)
equal to the difference between the number of its unused monkfish DAS
and its unused NE multispecies DAS as of August 1, 2002, in addition to
the unused monkfish DAS associated with the vessel's unused NE
multispecies DAS as of August 1, 2002. An example of how the monkfish-
only DAS are calculated under the current interim rule versus this
proposed regulatory amendment for the 2002 fishing year follows.
Under the Current Interim Rule - For this example, a vessel was
allocated 20 NE multispecies DAS pursuant to the August 1, 2002,
interim rule. The vessel used 10 NE multispecies DAS from May 1 - July
31, 2002, but did not use any monkfish DAS. Under the August 1, 2002,
interim rule calculation, the vessel can fish, as monkfish-only DAS,
the difference between 40 (monkfish DAS) and the number of NE
multispecies DAS allocated. In this case, the resulting number is 20
monkfish-only DAS (40 monkfish DAS - 20 allocated NE multispecies DAS =
20 monkfish-only DAS). However, because the vessel has only 10 unused
NE multispecies DAS, it can only fish 10 of the remaining 20 monkfish
DAS (which must be linked to NE multispecies DAS), plus the 20
monkfish-only DAS. Therefore, the vessel can use only 30 monkfish DAS
out of its 40 allocated monkfish DAS for the 2002 fishing year under
the August 1, 2002, interim final rule.
Under the Proposed Regulatory Amendment - Under this proposed
regulatory amendment, assuming the same facts as above, the calculation
of monkfish-only DAS would be based on the difference between the
vessel's unused monkfish DAS and its unused NE multispecies DAS as of
August 1, 2002. This would result in 30 monkfish-only DAS (40 unused
monkfish DAS - 10 unused multispecies DAS = 30 monkfish-only DAS). The
vessel could also fish an additional 10 monkfish DAS in combination
with its 10 unused multispecies DAS, for a total of 40 monkfish DAS
available for the 2002 fishing year.
This example, and the calculations of monkfish-only DAS under the
August 1, 2002, interim final rule and this regulatory amendment are
also illustrated in Table 1.
Table 1. Calculation of monkfish-only DAS under interim final rule and proposed regulatory amendment.
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A B C D E F G H
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Monkfish DAS Allocated Monkfish Mult. DAS Mult. DAS Unused Unused Monkfish Total Monkfish
DAS used Allocated Used Monkfish Mult. DAS only DAS DAS Available for
DAS 2002 FY
August 1, 2002, Interim Final Rule
[[Page 70572]]
40 0 20 10 40 (A - B) 10 (C - D) 20 (A - C) 30 (F + G)
Proposed Regulatory Amendment
40 0 20 10 40 (A - B) 10 (C - D) 30 (E - F) 40 (F + G)
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As under the current interim rule, vessels would be required to
fish their monkfish-only DAS under the same provisions as limited
access monkfish Category A and B vessels under these proposed
regulations. Limited access monkfish Category A and B vessels are
required to fish their monkfish DAS in an existing monkfish exempted
fishery, which are specified under Sec. 648.81. A map of these
exemption areas is also available from the Northeast Regional Office of
NMFS (see contact information).
This regulatory amendment would not apply to the 2003 fishing year.
For the 2003 fishing year, vessels that have been allocated fewer NE
multispecies DAS than monkfish DAS would fish the difference in DAS as
monkfish-only DAS, as stipulated in the August 1, 2002, interim final
rule.
This regulatory amendment would also revise ambiguous language at
Sec. 648.86(h)(2) (ii) to clarify that a vessel fishing under a SNE
and MA Yellowtail Flounder Possession/Landing LOA may fish in the GOM
or GB RMAs, provided the vessel abides by the more restrictive
yellowtail flounder possession limits of the SNE and MA RMAs north of
40[deg]00' N. lat. Existing regulations authorize vessels that possess
a SNE and MA Yellowtail Flounder Possession/Landing LOA to transit the
GOM and GB RMAs, if the gear is stowed properly on board the vessel.
However, this regulation neither prohibits nor allows such vessels to
fish in the GOM or GB RMAs under the more restrictive yellowtail
flounder possession limits of the SNE and MA RMAs. The intent of the
August 1, 2002, interim final rule was to allow vessels possessing a
SNE and MA Yellowtail Flounder Possession/Landing LOA to fish any part
of a trip in the GOM or GB RMAs, provided that they abide by the more
restrictive yellowtail flounder possession limits of the SNE and MA
RMAs north of 40[deg]00' N. lat. Therefore, this proposed regulatory
amendment would revise the language at Sec. 648.86(h)(2)(ii) to
clarify that vessels possessing a SNE and MA Yellowtail Flounder
Possession/Landing LOA may fish in the GOM or GB RMAs under the more
restrictive yellowtail possession limits of the SNE and MA RMAs.
Classification
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The proposed regulatory amendment would impact those vessels possessing
a limited access Category C or D monkfish permit that had fewer NE
multispecies DAS than monkfish DAS as of August 1, 2002. Currently,
there are 651 vessels that hold a limited access Category C or D
monkfish permit, all of which are considered to be small entities.
However, an analysis of NMFS' DAS database shows that only 141 vessels
had fewer monkfish DAS than NE multispecies DAS remaining as of August
1, 2002, and therefore would be impacted by this proposed action. These
141 vessels would be allocated a total of 2,700 monkfish-only DAS; DAS
that could be fished separate from a NE multispecies DAS, once a
vessel's NE multispecies DAS have been utilized. The current interim
rule impacts 121 vessels that have been allocated fewer monkfish DAS
than NE multispecies DAS for the 2002 fishing year. These 121 vessels
have been allocated a total of 2,200 monkfish-only DAS. Therefore, this
proposed rule would provide approximately 20 additional vessels with
the opportunity to utilize their full allocation of 40 monkfish DAS
during the 2002 fishing year. The additional number of vessels impacted
by this action is not considered to be substantial.
This proposed rule may also impact all vessels that hold a limited
access NE multispecies permit, since it clarifies existing regulations
concerning yellowtail flounder possession restrictions. There are
currently 1,363 vessels that possess a limited access NE multispecies
permit. These vessels might realize a slight positive impact, since it
would be clear in the regulations that they could fish in the GOM and
GB RMAs while in possession of a SNE and MA Yellowtail Flounder
Possession/Landing LOA, but under the more restrictive yellowtail
flounder possession limits of the SNE and MA RMAs north of 40[deg]00'
N. lat.
The proposed regulatory amendment will result in increased revenues
to vessels participating in the directed monkfish fishery without
increasing costs. Therefore, this regulation does not significantly
reduce profit for a substantial number of small entities. Furthermore,
the objective of the proposed regulatory amendment is to provide all
limited access monkfish vessels with equal opportunity to use their
full annual allocation of 40 monkfish DAS. As a result, this action
will not affect small entities disproportionally, nor will it lessen
their long-term profitability. In summary, this proposed regulatory
amendment makes only minor revisions to the August 1, 2002, interim
final rule. Therefore, a regulatory flexibility analysis was not
prepared.
This proposed rule does not duplicate, overlap or conflict with
other Federal rules, and does not contain new reporting or
recordkeeping requirements. This proposed rule also takes into
consideration the monkfish regulations under Sec. 648.92 in order to
be consistent with the objectives of the Monkfish FMP.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements
Dated: November 19, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs,National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.86, paragraph (h)(2) (ii) is revised to read as
follows:
[[Page 70573]]
Sec. 648.86 Multispecies possession restrictions.
* * * * *
(h) * * *
(2) * * *
(ii) The vessel does not fish south of 40[deg]00' N. lat. for a
minimum of 30 consecutive days (when fishing under the NE multispecies
DAS program, or under the monkfish DAS program if the vessel is fishing
under the limited access monkfish Category C or D provisions). Vessels
subject to these restrictions may fish any portion of a trip in the GOM
and GB Regulated Mesh Areas, provided the vessel complies with the
possession restrictions specified under this paragraph (h). Vessels
subject to these restrictions may also transit the SNE and MA Regulated
Mesh Areas south of 40[deg]00' N. lat., provided the gear is stowed in
accordance with one of the provisions of Sec. 648.23(b).
* * * * *
3. In Sec. 648.92, paragraph (b)(2) is revised to read as follows:
Sec. 648.92 Effort-control program for monkfish limited access
vessels.
* * * * *
(b) * * *
(2) Category C and D limited access monkfish permit holders. (i)
August 1, 2002 - April 30, 2003. Each monkfish DAS used by a limited
access multispecies or scallop vessel holding a Category C or D limited
access monkfish permit shall also be counted as a multispecies or
scallop DAS, as applicable, unless otherwise specified in this
paragraph (b). A Category C or D vessel that had fewer unused
multispecies DAS than unused monkfish DAS as of August 1, 2002, may
fish under the limited access monkfish provisions for Category A or B
vessels, as applicable, for the number of DAS that equal the difference
between its unused monkfish DAS and unused multispecies DAS as of
August 1, 2002. For such vessels, when the total allocation of
multispecies DAS has been used, a monkfish DAS may be used without
concurrent use of a multispecies DAS. (For example, if a monkfish
Category D vessel has 10 NE multispecies DAS and 40 monkfish DAS
remaining as of August 1, 2002, that vessel may use the remaining 30
monkfish DAS to fish on monkfish, without a NE multispecies DAS being
used, once the remaining 10 NE multispecies DAS have been utilized.
However, the vessel must fish the remaining 30 monkfish DAS under the
regulations pertaining to a Category B vessel, and must not retain any
regulated multispecies.)
(ii) Beginning May 1, 2003. Each monkfish DAS used by a limited
access multispecies or scallop vessel holding a Category C or D limited
access monkfish permit shall also be counted as a multispecies or
scallop DAS, as applicable, except when a Category C or D vessel that
has an allocation of multispecies DAS under Sec. 648.82(l) that is
less than the number of monkfish DAS allocated for the fishing year May
1 through April 30, that 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 multispecies DAS. For such vessels,
when the total allocation of multispecies DAS have been used, a
monkfish DAS may be used without concurrent use of a multispecies DAS.
(For example, if a monkfish Category D vessel's multispecies DAS
allocation is 30, and the vessel fished 30 monkfish DAS, 30
multispecies DAS would also be used. However, after all 30 multispecies
DAS are used, the vessel may utilize its remaining 10 monkfish DAS to
fish on monkfish, without a multispecies DAS being used, provided that
the vessel fishes under the regulations pertaining to a Category B
vessel and does not retain any regulated multispecies.)
* * * * *
[FR Doc. 02-29895 Filed 11-22-02; 8:45 am]
BILLING CODE 3510-22-S