[Federal Register Volume 64, Number 194 (Thursday, October 7, 1999)]
[Rules and Regulations]
[Pages 54732-54752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26039]
[[Page 54731]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Part 648
Fisheries of the Northeastern United States; Northeast Multispecies and
Monkfish Fisheries; Monkfish Fishery Management Plan; Final Rule
Federal Register / Vol. 64, No. 194 / Thursday, October 7, 1999 /
Rules and Regulations
[[Page 54732]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 648
[Docket No. 981223319-9167-02; I.D. 112598B]
RIN 0648-AJ44
Fisheries of the Northeastern United States; Northeast
Multispecies and Monkfish Fisheries; Monkfish Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement approved measures
contained in the Monkfish Fishery Management Plan (FMP). These
regulations implement the following measures: Establishment of two
monkfish management areas; target total allowable catch levels (TACs);
limited access; effort limits through days-at-sea (DAS) allocations;
trip limits and incidental harvest allowances; minimum size and mesh
limits; gear restrictions; spawning season closures; a framework
adjustment process; permitting and reporting requirements; and other
measures for administration and enforcement. The intended effect of
this rule is to stop overfishing and rebuild the monkfish stock. In
addition, NMFS informs the public of the approval by the Office of
Management and Budget (OMB) of the collection-of-information
requirements contained in this rule and publishes the OMB control
numbers for these collections.
DATES: This rule is effective November 8, 1999.
ADDRESSES: Copies of the FMP, its Regulatory Impact Review (RIR), the
Final Regulatory Flexibility Analysis (FRFA), and the Final
Environmental Impact Statement (FEIS) are available from Paul J.
Howard, Executive Director, New England Fishery Management Council
(NEFMC), Suntaug Office Park, 5 Broadway (US Rte. 1), Saugus, MA 01906-
1036.
Comments regarding the collection-of-information requirements
contained in this final rule should be sent to Patricia Kurkul,
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn
Drive, Gloucester, MA 01930, and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy
Analyst, 978-281-9272.
SUPPLEMENTARY INFORMATION: This final rule implements the measures
contained in the Monkfish FMP, which were approved by NMFS on behalf of
the Secretary of Commerce (Secretary) on March 3, 1999. All of the
measures contained in the Monkfish FMP but one, the ``running clock''
provision, as originally submitted, were approved by NMFS on behalf of
the Secretary. A proposed rule to implement these measures was
published on February 16, 1999 (64 FR 7601). NMFS disapproved the
running clock provision because it believes that the measure fails to
meet national standard 7 of the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act) with regard to minimizing
costs. This provision would have placed an incremental burden on the
administration and enforcement of this measure. Additionally, the
provision could have conflicted with multispecies vessels also on a cod
running clock. Instances could have occurred where a vessel called out
with overages in both fisheries, or in one and not in the other,
thereby creating an administratively burdensome and confusing program.
Details concerning the justification for and development of the
Monkfish FMP and the implementing regulations were provided in the
notice of availability (NOA) of a Monkfish FMP (63 FR 66524, December
2, 1998) and in the preamble to the proposed rule (64 FR 7601, February
16, 1999) and are not repeated here.
Approved Measures
Two Management Areas
The FMP divides the Northeast monkfish fishery into two management
areas separated by a line that roughly runs along Georges Bank from
Cape Cod, MA, to the Hague Line. One is the Northern Fishery Management
Area (NFMA) and the other is the Southern Fishery Management Area
(SFMA).
Total Allowable Catch
The FMP establishes a procedure for setting annual target TAC
levels for monkfish, with the exception of target TACs for the fishing
year beginning May 1, 1999, which are established by this rule. The
target TACs will be based on the best available scientific information
and will provide a measure by which to evaluate the effectiveness of
the management program and to make annual determinations on the need
for adjustments to this program. During the first fishing year
beginning May 1, 1999, the annual target TACs are set at 5,673 mt
(12,506,614 lb) and 6,024 mt (13,280,423 lb) in the NFMA and the SFMA.
The target TAC levels will be set or adjusted so as to attain a fishing
mortality rate of 0.07 in the NFMA and of 0.26 in the SFMA for the
1999, 2000, and 2001 fishing years. Beginning with the 2002 fishing
year, the target TACs will be set so as to halt overfishing in 2002 and
allow rebuilding to the stock biomass targets from fishing years 2002
to 2009.
Qualification Criteria for Limited Access
Vessels qualify for monkfish limited access based on a vessel's, or
a replaced vessel's, historic participation from February 28, 1991, to
February 27, 1995 (the monkfish control date).
Subject to certain restrictions set forth in this rule, a vessel
qualifies for a limited access monkfish permit if the vessel landed
50,000 lb (22,680 kg) tail-weight or 166,000 lb (75,298 kg)
whole-weight during the qualification period. Vessels that do not have
multispecies or scallop limited access permits and qualify according to
this criterion will receive a ``Category A'' monkfish limited access
permit. Vessels that have a multispecies or scallop limited access
permit and qualify according to this criterion will receive a
``Category C'' monkfish limited access permit. (Note: The fisheries for
Atlantic scallops and Northeast multispecies are governed by 50 CFR
part 648--Fisheries of the Northeastern United States, Subparts D and
F, respectively. The limited access fisheries for scallops and
Northeast multispecies are closed to new entrants.) All vessels not
qualifying for a Category A or C permit that are less than 51 gross
registered tons (GRT) and vessels of any size that have a multispecies
DAS permit will qualify for a limited access monkfish permit if the
vessel landed 7,500 lb (3,402 kg) tail-weight or 24,900 lb
(11,295 kg) whole-weight during the qualification period. Vessels
without a multispecies or scallop limited access permit that qualify
according to this criterion will receive a ``Category B'' monkfish
limited access permit. Vessels with a multispecies or scallop limited
access permit that qualify according to this criterion will receive a
``Category D'' monkfish limited access permit. (See Table 2 to the
Preamble.)
Permitting and Reporting Requirements
Vessels that catch monkfish must have either a limited access
monkfish
[[Page 54733]]
permit (category A, B, C, or D) or a monkfish incidental catch permit
to fish for, possess, retain or land monkfish. (See Table 2.) Vessel
owners must also submit Vessel Trip Reports. Vessels with a limited
access monkfish permit must call in and out of the monkfish DAS program
when participating in the monkfish fishery. Dealers that land monkfish
must apply for a Dealer Permit and submit landings reports.
Allocations of Monkfish DAS
The DAS allocations for limited access monkfish permit holders are
shown in the following table. Forty (40) DAS are allocated to limited
access permitted vessels on November 8, 1999 (Year 1) and at the
beginning of Years 2 and 3. In Year 4 monkfish DAS will be set to zero
(0), unless other action is taken by the Councils and implemented by
NMFS. (See Table 1 to the Preamble.)
Table 1. Monkfish Fishing Year and Maximum Annual DAS Allocations
------------------------------------------------------------------------
Fishing Year\1\ Maximum Annual DAS Allocation:
------------------------------------------------------------------------
November 8, 1999 - April 30, 2000... 40
May 1, 2000 - April 30, 2001........ 40
May 1, 2001 - April 30, 2002........ 40
May 1, 2002 - April 30, 2003 and 0
subsequent fishing years...........
------------------------------------------------------------------------
\1\ For the first year of implementation of the FMP, 40 DAS will be
allocated to limited access permitted vessels beginning on November 8,
1999. Beginning in year 2 and subsequent years, DAS will be allocated
for the monkfish fishing year (May 1 - April 30).
\2\ Reserved
Any vessel may carry over a maximum of 10 unused monkfish DAS to
the following fishing year's allocation (including beyond May 1, 2002).
Unused monkfish DAS may not be carried over beyond the year following
the one in which they were unused.
While a multispecies and scallop vessel that qualifies for a
monkfish limited access permit (Categories C or D) receives the same
number of monkfish DAS as allocated to other permit categories, up to a
maximum of 40 DAS, when such a vessel fishes under the monkfish DAS
program, the trip also counts against a multispecies or scallop DAS,
whichever is applicable. A combination vessel that holds both a
multispecies and a scallop permit may fish under a monkfish DAS during
either a multispecies or scallop DAS, provided that unused multispecies
or scallop DAS are available. Such a vessel must declare whether to
count DAS against the multispecies or scallop DAS at the time it calls
into the monkfish DAS program. (See Table 2 to the Preamble.)
Table 2--Monkfish permit categories, qualification criteria for permit
categories, and DAS allocations for vessels on a monkfish DAS
------------------------------------------------------------------------
Qualification
Criteria1 for Permit
Permit Category Categories (landed DAS Allociation2
weight expressed in
pounds)
------------------------------------------------------------------------
A........................... Vessels that do not 40 DAS
possess a
multispecies or
scallop limited
access permit must
have landed 50,000 lb tail-
weight or 166,000 lb
whole weight of
monkfish during the
qualifying period..
B........................... Vessels less than 51 40 DAS
GRT that do not
possess a
multispecies or
scallop limited
access permit and do
not qualify for a
Category A Permit
must have landed
monkfish 7,500 lb tail-
weight or 24,900 lb
whole weight of
monkfish during the
qualifying period..
C........................... Vessels that possess Up to 40 DAS &
a multispecies or vessel must also
scallop limited be on a
access permit must multispecies or
meet landing scallop DAS
criteria as required
for Permit Category
A..
D........................... Vessels that possess Up to 40 DAS &
a multispecies vessel must also
limited access be on a
permit and vessels multispecies or
less than 51 GRT scallop DAS
that possess a
scallop limited
access permit that
do not qualify for a
Category C Permit
must meet landing
criteria as required
for Permit Category
B..
------------------------------------------------------------------------
\1\ Vessel must have landed monkfish during qualifying period, i.e.,
February 28, 1991, through February 27, 1995, in the amounts
indicated.
\2\ DAS allocations indicated are for fishing years 1999, 2000, and
2001. For fishing years 2002 and thereafter, monkfish DAS will be set
to zero (0), unless other action is taken by the NEFMC and MAFMC and
implemented by NMFS.
Trip Limits During a Monkfish DAS
No monkfish trip limits apply to vessels fishing during a monkfish
DAS prior to May 1, 2000. If, based on landings, projected landings,
and other available data, the Regional Administrator determines that
the SFMA monkfish catch (for the period May 1, 1999 - April 30, 2000)
is less than or equal to the Year 1 SFMA target TAC, a notification
will be published in the Federal Register specifying that no monkfish
trip limit applies to a vessel that is fishing under a monkfish DAS in
the SFMA. Otherwise, the following trip limits will apply in the SFMA
beginning May 1, 2000, depending on the type of monkfish permit the
vessel holds and the type of gear the vessel uses: (1) Category A and C
vessels using mobile gear during a monkfish DAS, a landing limit of
1,500 lb (680 kg) tail-weight or 4,980 lb (2,259 kg) whole weight per
DAS; (2) Category B and D vessels using mobile gear during a monkfish
DAS, a landing limit of 1,000 lb (454 kg) tail-weight or 3,320 lb
(1,506 kg) whole weight per DAS; and (3) any vessel using fixed gear
during a monkfish DAS, a landing limit of 300 lb (136 kg) tail-
[[Page 54734]]
weight or 996 lb (452 kg) whole weight per DAS.
Incidental Catch for Vessels Not on a Monkfish DAS
Beginning November 8, 1999, the following measures apply:
1. Vessels lawfully using large mesh (5\1/2\-inch (14-cm) diamond
or 6-inch (15.3-cm) square mesh throughout the body, extension, and
codend) while not on a monkfish, multispecies, or scallop DAS, may
retain and land whole monkfish up to 5 percent of the total weight of
fish on board (or any prorated combination of tail-weight and whole
weight percentage based on the conversion factor in Sec. 648.94 of
subpart F--Management Measures for the Northeast Multispecies and
Monkfish Fisheries).
2. Vessels that are not under any DAS and fishing with small mesh,
rod and reel, or handlines may land up to 50 lb (23 kg) tail-weight or
166 lb (75 kg) whole weight per trip. Small mesh is considered to be
any mesh smaller than the large mesh described in paragraph 1.
Multispecies vessels that are 30 ft (9.1 m) and elect not
to fish under the multispecies DAS program may also land up to 50 lb
(23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish per
trip.
3. Multispecies vessels with a monkfish incidental catch permit
fishing in the NFMA may land up to 300 lb (136 kg) tail-weight or 996
lb (452 kg) whole weight of monkfish per multispecies DAS, or 25
percent of total weight of fish on board, whichever is less. If the
vessel fishes for any portion of the trip in the SFMA, it may land up
to 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish
per multispecies DAS.
Prior to May 1, 2002
1. Vessels with a multispecies permit and a Category C or D limited
access monkfish permit - A multispecies vessel that fishes only in the
NFMA has no trip limit when it is on a multispecies DAS. If the vessel
fishes for any portion of the trip in the SFMA during a multispecies
DAS, it may land up to 300 lb (136 kg) tail-weight or 996 lb (452 kg)
whole weight of monkfish per multispecies DAS while using mobile gear
or 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish
per multispecies DAS while using fixed gear.
2. Vessels with a sea scallop and a Category C or D limited access
monkfish permit - A vessel that has a scallop dredge on board or is on
a scallop DAS may land up to 300 lb (136 kg) tail-weight or 996 lb (452
kg) whole weight of monkfish per scallop DAS.
3. Sea scallop vessels with a monkfish incidental catch permit -
These vessels may land up to 300 lb (136 kg) tail-weight or 996 lb (452
kg) whole weight of monkfish per DAS when on a scallop DAS.
After April 30, 2002
1. Vessels with a multispecies and a Category C or D limited access
monkfish permit - Multispecies vessels may land up to 300 lb (136 kg)
tail-weight or 996 lb (452 kg) whole weight of monkfish per
multispecies DAS, or 25 percent of total weight of fish on board,
whichever is less. Vessels using fixed gear in the SFMA may land up to
50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish
per multispecies DAS.
2. Vessels with a sea scallop and a Category C or D limited access
monkfish permit - Vessels that have a scallop dredge on board or are on
a scallop DAS may land up to 200 lb (91 kg) tail-weight or 664 lb (301
kg) whole weight of monkfish per scallop DAS.
3. Sea scallop vessels with a monkfish incidental catch permit -
These vessels may land up to 200 lb (91 kg) tail-weight or 664 lb (301
kg) whole weight of monkfish per scallop DAS.
Minimum Size Limits
Beginning November 8, 1999, possession or landing of monkfish tails
measuring less than 11 inches (27.9 cm) in length or whole monkfish
less than 17 inches (43.2 cm) total length by any vessel that has a
Federal fisheries permit or any vessel fishing in the exclusive
economic zone is prohibited.
Beginning on May 1, 2000, in Year 2 of the FMP, the minimum
monkfish size limit for vessels fishing or landing in the SFMA, only,
will be 21 inches (53.3 cm) total length or 14 inches (35.6 cm) tail
length. If, based on landings, projected landings, and other available
data, the Regional Administrator determines that the SFMA monkfish
catch for the period May 1, 1999, through April 30, 2000, is less than
or equal to the Year 1 SFMA target TAC, a notification will be
published in the Federal Register specifying the minimum monkfish size
limit of 17 inches (43.2 cm) total length or 11 inches (27.9 cm) tail
length for vessels fishing for, catching, or landing monkfish in the
SFMA.
Gillnet Limits
A vessel issued a monkfish limited access permit or fishing under a
monkfish DAS may fish with, haul, possess, or deploy up to 160
gillnets. A vessel issued a multispecies limited access permit and a
limited access monkfish permit or fishing under a monkfish DAS may fish
any combination of monkfish, roundfish, and flatfish gillnets, up to
160 nets total, provided that the number of monkfish, roundfish, and
flatfish gillnets is consistent with the limitations of
Sec. 648.82(k)(1)(i) and that the nets are tagged in accordance with
the regulations, as specified in Sec. 648.82. Nets cannot be longer
than 300 ft (91.44 m), or 50 fathoms, in length. Beginning November 8,
1999, all monkfish gillnets fished, hauled, possessed, or deployed by a
vessel fishing for monkfish under a monkfish DAS are allowed one tag
per net, with one tag secured to every other bridle of every net within
a string of nets. Tags are obtained as described in Sec. 648.4.
Time out of the Fishery
Beginning January 1, 2000, Vessels with Category A or B permits
(i.e., ``monkfish-only'') are required to declare out of the monkfish
fishery and may not use a monkfish DAS for a continuous 20-day block
during the months of April, May, and June. Such vessels may engage in
other fisheries in which they may legally participate, but they may not
possess any monkfish during this 20-day block. Specified periods to
protect groundfish spawning (when multispecies vessels are required to
declare out of the fishery) also apply to multispecies DAS used when
targeting monkfish. Multispecies DAS vessels that declare out of the
multispecies fishery for any reason, including the fulfillment of their
20-day out periods, are prohibited from possessing monkfish. Vessels
that target species other than groundfish and monkfish are, however,
allowed to participate in exempted fisheries during the mandatory
groundfish tie-up periods. Multispecies vessels with a category C or D
monkfish permit are not required to comply with the time-out
requirements described here for monkfish-only vessels.
Framework Adjustment Process
The framework adjustment process includes annual reviews by a
Monkfish Monitoring Committee (MFMC), which evaluates the effectiveness
of the FMP to meet the fishing mortality and rebuilding targets. The
MFMC develops management options for consideration and approval by the
Councils, and the Councils are required to recommend changes,
adjustments, or additions to the management measures in effect to the
Regional Administrator, by February 7 of each year, for implementation
at the beginning of the fishing year. The Regional Administrator may
select
[[Page 54735]]
measures recommended by the MFMC that were not rejected by either
Council if the Councils fail to submit a recommendation. Adjustable
management measures include: (1) target TACs, (2) Overfishing
Definition reference points, (3) closed seasons or closed areas, (4)
minimum size limits, (5) liver to monkfish landings ratios, (6) annual
monkfish DAS allocations and monitoring, (7) trip or possession limits,
(8) blocks of time out of the fishery, (9) gear restrictions, (10)
transferability of permits and permit rights, and (11) other
frameworkable measures in 50 CFR 648.90 and 50 CFR 648.55.
Restrictions on Liver Landings to Prevent High-grading
Landings of monkfish livers are restricted to 25 percent of the
total weight of monkfish tails or 10 percent of the weight of whole
monkfish, whichever is applicable.
Minimum Mesh and Gear Restrictions
Vessels that fish while they are called into the monkfish DAS
program must use large mesh, unless the vessel is also fishing during a
multispecies DAS. When called into the monkfish (but not the
multispecies) DAS program, large mesh is defined as 10-inches (25.4-cm)
square or 12-inches (30.5-cm) diamond for trawls and 12-inches (30.5-
cm) diamond for gillnets. Vessels that have a category C or D permit
and a limited access sea scallop permit may not use a dredge during a
monkfish DAS.
Comments and Responses
Four written comments on the Monkfish FMP were received during the
comment period date established by the NOA of the Monkfish FMP, which
ended February 1, 1999. These comments were considered by NMFS before
it approved the Monkfish FMP on March 3, 1999. Those comments received
during the comment period on the FMP are also addressed here.
NMFS received additional comments on the proposed rule, as well as
comments on the FMP, during the comment period specified in the
proposed rule, which ended on March 26, 1999. Because the comment
period for the rule was distinct from, and followed the comment period
for the FMP, comments received during the proposed rule period were not
considered in NMFS's determination to approve the Monkfish FMP.
However, these comments were considered in approval and implementation
of the proposed measures by this final rule. Of the second group of
letters received, only comments on the proposed rule are addressed here
since the comment period on the FMP had closed prior to their
submission.
Comment 1: While one commenter agreed that the FMP ``is likely to
eliminate overfishing and begin stock rebuilding,'' it criticizes what
it perceives as an inequity regarding the DAS allocated to scallop and
multispecies permit holders, relative to the fishing time allocated to
holders of other Northeast region limited access fishing permits.
Specifically, the commenter objects to the provision that prevents
``monkfish-qualifying'' scallop and multispecies permit holders from
receiving an allocation of monkfish directed DAS in excess of their
scallop and multispecies DAS. The commenter, viewing this provision as
discriminatory, requested that it be disapproved and returned to the
Councils for further deliberation.
Three comments stated that New Bedford/Fairhaven fishermen are
being forced to trade an economic viability that would otherwise be
available to them - that is, that there must be a trade-off of days in
the scallop and multispecies fisheries. In addition, scallop and
multispecies fisheries are forced to forfeit an economic opportunity in
their separately regulated, unrelated industry. Other participants in
the monkfish fishery that do not have a multispecies or scallop permit
forfeit nothing to be able to participate in this fishery. At the very
least, for those vessels that can demonstrate that they have
participated, there should be a limited monkfish fishery, exempted from
either their scallop or groundfish DAS.
Response 1: Most multispecies and scallop vessels will qualify for
monkfish limited access based on a vessel's monkfish landings while
targeting a mix of multispecies/monkfish or scallops/monkfish. Most
monkfish are landed as incidental catch from groundfish and scallop
fishing. In the past, this incidental catch accounted for over 80
percent of the catch of monkfish, but increases in directed effort in
the early to mid-1990s helped reduce that incidental catch proportion
to 70 percent. In keeping with the mixed catch nature of these
fisheries and the type of fishing effort that qualifies the vessel, it
is necessary that, when on a monkfish DAS, trips that exceed the
monkfish incidental catch allowances must also count against the
multispecies or scallop DAS. If multispecies and scallop vessels were
able to take their monkfish DAS apart from (and in addition to)
multispecies or scallop DAS, fishing mortality goals could not be met.
In response, the Councils would have to reduce monkfish DAS allocations
to uneconomic levels, possibly to levels that are less than one trip
length in duration.
Comment 2: Many commenters felt that the rule was inconsistent with
national standard 2, which requires use of the best scientific
information available, for several reasons. First, landings data used
in the development of the management measures in the FMP (through 1996)
were from a period prior to the implementation of the exempted area
located primarily off the Continental Shelf. Second, the FMP's
discussion of economic impact is limited to old data and vessel owners
only. Third, the existing data do not support management based on two
stocks, and the northern and southern areas are arbitrarily divided
into management areas without evidence that the areas contain different
stocks. Fourth, the stock assessment does not show a large biomass of
large mature monkfish beyond the continental shelf, as evidenced by
existing landing slips. One group felt that these inadequate data led
to the development of over-restrictive specifications set forth in the
rule.
Several commenters noted that the Northeast Fisheries Science
Center (NEFSC) bottom trawl surveys do not historically land
significant amounts of monkfish. One commenter charged that fishery
dependent data, such as landings, harvesting locations, depth of water
at locations, and size landed, have been ignored or minimized during
FMP development by not including 4 years of mandatory reporting data.
Response 2: NMFS has determined that the management measures were
based on the best scientific information available and upon sound
conclusions based on such information where no direct information or
data were available. The most recent detailed stock assessment was
conducted by SAW 23 (NEFSC-1997) during the fall of 1996. This
assessment used fishery-dependent and survey data through the end of
1995 to evaluate the status of the monkfish resource. Survey data are
the most complete data and, therefore, the best scientific information
available. The estimates of fishing mortality trends from 1963 to 1995
were analyzed in 5-year blocks to smooth the inter-annual variation
that occurs in a randomized survey. The analysis indicated that adding
1997 data would not radically alter the estimates of fishing mortality,
although the proportion of monkfish at larger size may still be
declining.
Admittedly, while the surveys do not encompass the entire range of
the monkfish resource - no samples were taken offshore of the
Continental Shelf
[[Page 54736]]
edge - these surveys do provide a reasonable estimate of stock
abundance for that portion of the population in the coastal and shelf
areas. The surveys are also the only scientific data available on this
subject. The fact that a portion of the monkfish resource lies in
waters seaward of the edge of the continental shelf has been known
since at least the 1950s. It is clear from the severe depletion of the
resource on the shelf (as revealed by NMFS' surveys) that subsidies or
exchanges of fish from deep to shallow waters were insufficient to halt
the decline of the inshore portion of the resource due to fishing. This
implies that the offshore portion of the resource is small and/or the
exchange rate is low. In any regard, the severe depletion of the
shallow portions of the resource in the face of increased fishing is
indicative of the vulnerability of this resource to harvest. Given the
likely greater sensitivity of deep-water resources to exploitation,
there is no reason to believe that an intensive, unregulated fishery in
the offshore waters could be sustained. A prudent use of the
``precautionary management'' principal, as envisioned in the
Sustainable Fisheries Act, would be to assume that the offshore portion
of this resource would be no more productive than the inshore
(depleted) portion of the resource and to develop appropriate
management regulations. This is the basis of the FMP.
The portion of the range of monkfish not included in the NEFSC
surveys is in deep water (>150 fathoms). Based on the continued low
levels of abundance throughout the shelf, as indicated by recent
surveys, there is no evidence that the deep water portion of the
resource is contributing a significant amount of recruitment to the
surveyed region. Whatever recruitment is being provided from deep water
is jeopardized by the current areal expansion of the commercial fishery
into these areas.
Furthermore, in addition to the survey-based estimates, the 21st
SAW included monkfish within its comprehensive assessment of the
northeast demersal finfish complex. Most of the analyses in the
comprehensive assessment were intended to show broad, long-term trends
that were consistent across species. The monkfish indices were not
classified by management area, but showed a decline to low levels of
biomass through 1987. Since that time, biomass has fluctuated without
trend at low levels, while abundance has increased in the NFMA.
More recent information does not contradict the conclusion of SAW
23 that monkfish are at least fully exploited and might be over-
exploited. Given monkfish's wide range and the extent of the surveys,
the FMP's management measures are based on the best scientific
information available and appear to be consistent with national
standard 2. As other data become available, they may be incorporated by
way of management measures altered under the framework provision.
Finally, the division of the monkfish fishery into two management
areas is partly based on the biological characteristics of the resource
and partly based on the differences in fisheries in the Gulf of Maine
versus areas to the south. Although growth rates are similar for
monkfish in both areas, monkfish demonstrate different patterns in
recruitment and stock biomass over the survey time series. There
appears to be little adult migration between the two areas and egg
masses from spawning in the Gulf of Maine probably stay within the Gulf
of Maine and northern Georges Bank.
Catches from each area will be monitored to evaluate the
effectiveness of the management measures to meet the individual
mortality objectives.
Comment 3: One commenter felt that the FMP and its regulations
violate national standard 3, relating to managing fish stocks as a
unit, because the NEFSC survey of the stock does not include the
Continental Shelf (200 m, or 100 fathoms), where a directed fishery is
prosecuted. This comment was echoed by all of the legislators and by
most of the commenters who faulted the overfishing definition for
including no data from offshore of the Continental Shelf edge, where
significant monkfish effort was directed after adoption of the
Northeast Multispecies FMP's Amendment 7. One commenter felt that
monkfish in this area should be managed via establishment of a separate
management area. Most commenters emphasized that NMFS had approved a
monkfish exemption area more than 2 years ago in that area, and most
commenters added that the significant landings from there in the past 2
years are not reflected in the FMP.
Response 3: NMFS has determined that the Monkfish FMP and its
implementing regulations are consistent with national standard 3.
National standard 3 requires that a stock be managed as a unit
throughout its range, and that interrelated stocks be managed as a
unit, or in close coordination. Data available indicate that the
monkfish range from Canadian waters to Cape Lookout, North Carolina,
and possibly further south. Since it is unclear if there are several
stocks within this range, the stock is managed in close coordination
throughout the known area. While the NEFSC survey does not routinely
sample beyond the continental shelf break, NMFS is confident that a
representative sample of the population is accounted for in the survey.
Further information on this use of survey data can be found in Response
2.
Comment 4: Several commenters felt that the proposed regulations
violate national standard 4, relating to fairness and equity of the
measures to fishers. Specifically, several commenters maintained that
the FMP does not accurately depict the socioeconomic impact of the
regulations on New Bedford, does not mention New Bedford's reliance on
fishing in the monkfish exempted area offshore, would increase the
unemployment roles in the Commonwealth of Massachusetts, and
disproportionately impacts New Bedford scallopers, draggermen,
wholesalers, and processors.
Many commenters maintained that no mention was made of fish
processing companies in the discussion of economic impacts and stated
that the economic impact incorporated in the FMP was not subject to
scrutiny by economists. One commenter stressed that denying access to
the deep water fishery in the canyons will have a negative effect on
New Bedford's economy and that there was no consideration of this when
proposing this measure. A fishery supply company said that mesh changes
from 8 inches (20.3 cm) in the codend to 10 inches (25.4 cm) square or
12 inches (30.5 cm) diamond in the codend will devastate its business
in that it will result in its possessing a mesh inventory that will
have no other application.
Response 4: The FMP considers the socioeconomic impact on New
Bedford, as well as all ports that land monkfish. Data in the FMP list
monkfish revenue by port (including New Bedford) from 1994 through
1997. Supplement 1 to the Monkfish FMP, dated October 23, 1998, also
summarizes the consequences of the proposed action for small
businesses, including processors in New Bedford. During the second
round of public hearings, the Councils were given data for New
Bedford's fishing industry, including the New Bedford processing
sector, which were considered when assessing economic and social
impacts.
National standard 4 requires fisheries regulations not to
discriminate against residents of different states and that any
allocation of fishing privileges be fair and equitable to all such that
the allocation be calculated to promote conservation and that no
particular entity acquire an excessive share of such
[[Page 54737]]
privileges. The Councils and NMFS considered these factors, as
incorporated in the FMP and other documents, in developing the Monkfish
FMP and concluded that the measures adopted were the best suited to
provide fair and equitable fishing opportunities to all sectors of the
fishery.
Comment 5: Several commenters felt that the changes to allow North
Carolina industry to qualify for limited access permits were unfair.
Response 5: The 1997 public hearing document erroneously indicated
that the southernmost line of the SFMA would be at the Virginia-North
Carolina (NC) border, which would have exempted NC catches from
management. In fact, the southernmost line is the North Carolina/South
Carolina border. Under the correct provision, NC fishermen are subject
to the same qualification criteria that apply to vessels in other
states and may use state landings data to document their participation
in the monkfish fishery. There is no bias that excludes NC participants
from meeting the limited access criteria, and NC vessels that do not
qualify appear to be indistinguishable from vessels in other states
that do not qualify. This error was corrected in subsequent versions of
the document, which were available to the public. Fishers affected by
these measures were thus provided ample opportunity to comment on them,
and the Councils and NMFS were fully aware of comments concerning NC
participants before the Councils adopted the FMP.
Comment 6: One commenter stated that unreasonable trip or daily
limits cause a great deal of discards at sea, which do not survive.
Response 6: NMFS does not believe that the trip or daily limits
established in the Monkfish FMP are unreasonable or that they will
result in a great deal of discards. In fact, after implementation of
the FMP, there are no trip limits established in the NFMA for the first
3 years nor during the first year in the SFMA for limited access
monkfish vessels fishing during either a monkfish or multispecies DAS.
Comment 7: A processor commented that the preamble to the proposed
rule states that the rebuilding period is 10 years, based on
consideration of the status and biology of the stock and on the needs
of fishing communities. The commenter continued that the data relevant
to the biology and to the status of the stock have not been acquired by
NMFS in the 8 years of looking at the species and that the assessment
of the needs of the communities was grossly inadequate in the FMP.
Thus, it is unrealistic to state credibly to the constituents of this
fishery that their community needs determined the rebuilding period.
Response 7: Sections 304(e)(4)(A)(i) and (ii) of the Magnuson-
Stevens Act requires that the time period specified for ending
overfishing and rebuilding the fishery shall be as short as possible,
not to exceed 10 years. The FMP takes into consideration the needs of
the communities as justification for establishing the 10-year
rebuilding period and not a shorter rebuilding period. Further, as
stated previously, the management measures in the FMP must be based on
the best scientific information available.
Comment 8: Several commenters commented that the proposed rule is
not consistent with national standard 1 because the FMP cannot achieve
optimum yield as it seeks to return stock to a level that nearly equals
an unfished state, and that the Ftarget and
Fthreshold dates (1970-1979) predate the directed and even
incidental fisheries and, therefore, are not relevant when attempting
to identify a parameter for optimal sustainable yield.
Response 8: Threshold fishing mortality rates are estimates of
Frep, the fishing mortality rate that results in long-term
replacement of the stock. These threshold values are estimated as the
average mortality rate for a period when monkfish in the two management
areas were relatively abundant and stable. Based on biological data
from the research survey, the monkfish technical working group
recommended that this period be 1970-1979.
This is part of the overfishing definition, which describes
overfishing thresholds that should be avoided and management targets to
be achieved. The definition is consistent with NMFS's ``Scientific
Review of Definitions of Overfishing in U.S. Fishery Management Plans''
and complies with the requirements of the Sustainable Fisheries Act and
national standard 1 guidelines. For a further discussion of compliance
with national standard 1, see Section 5.1 of the Monkfish FMP.
Comment 9: One commenter noted that there is no accommodation in
the proposed rule for scallop vessels as pertains to incidental catch
for vessels not on a monkfish DAS.
Response 9: Such accommodation is specified at
Sec. 648.94(c)(2)(i) and (ii).
Comment 10: One commenter stated that the MFMC should have more
than two industry representatives. Conversely, another group stated
that the Magnuson-Stevens Act should not allow industry stakeholders to
be committee members because the resultant plan represents that
member's interests and further questions the validity and
constitutionality of a law ``written for and by a few participants in
the industry.''
Response 10: The various species monitoring committees established
by the Councils in the Northeast Region are balanced in their
representation and usually include one industry representative. Because
the MFMC encompasses two management areas, it will have two
representatives to present the industry perspective in matters before
the MFMC. There is also ample evidence of extensive and wide-ranging
industry involvement at meetings of the Oversight and Industry Advisory
Committees and at Council meetings, in developing this FMP. Further,
the Magnuson-Stevens Act allows for industry stake-holders to
participate in FMP development. All Council and committee meetings are
open to public participation.
Comment 11: One industry processor commented on the dealer
reporting burden estimate specified under the Paperwork Reduction Act
(PRA). The commenter said that the dealer employment report takes
approximately 30 minutes to do, not the 2 minutes per report estimated
by NMFS, and that vessel trip reports take approximately 15 minutes per
report, not the 5 minutes per report estimated by NMFS.
Response 11: The dealer employment data is part of the fishery
products report (NOAA Form 88-13) in the Processed Product Family of
Forms, OMB Control No. 0648-0018. The employment data on that form is
mandatory, while the remainder of the data requested on the form is
voluntary. The employment data is estimated to take 2 minutes per
response, whereas the entire report is estimated at 30 minutes per
response. NMFS estimates of burden for meeting all reporting
requirements, including the vessel trip reports, reflect only the
additional burden placed on respondents for items not normally
collected in the normal course of their business practices.
Comment 12: One commenter stated that there is no provision in the
proposed rule for notifying vessel owners of Monkfish Incidental Catch
Permits. The commenter added that there is no apparent notification of
the entire industry, including all vessels registered as fishing
vessels, that possession of monkfish requires a permit for which they
must apply.
Response 12: Section 648.4(a)(9) of the proposed rule states that
``any vessel of the United States, including a charter or party boat,
must have been issued and have on board a valid monkfish
[[Page 54738]]
permit to fish for, possess, or land any monkfish in or from the EEZ.''
An incidental catch permit for monkfish is an open-access permit - it
is available to any vessel, at any time, wishing to fish for monkfish.
Consistent with other species FMPs, the publication of these
regulations as a final rule in the Federal Register will serve as
notification to vessel owners. Additionally, after the approval of the
FMP, the NMFS Northeast Region mailed a letter explaining the
permitting process to all monkfish permit pre-qualifiers, past and
present, and to all current permit holders of any fishery permit.
Comment 13: A commenter questioned the skin-on requirement for fish
or parts, proposed under the section ``Monkfish minimum fish sizes.''
The commenter maintained that, in practice, monkfish cheeks and livers
are generally not landed with the skin on. The proposed rule should
also make clear that possession of monkfish cheeks is allowed.
Response 13: The skin-on requirement is for purposes of
determining compliance with the minimum tail size requirement.
Specifically, the minimum fish size, as applied to the tail, is
determined by measuring from the fourth dorsal spine, which must,
therefore, be intact. Thus, for enforcement purposes, the skin must
remain on the tails. NMFS presumes that livers and cheeks will be
processed only from the same legal-sized fish from which tails are
obtained. NMFS further recognizes that it is not possible to land a
liver ``skin-on.'' Since the liver and cheeks are not a determining
part of the minimum fish size requirement, the skin-on requirement does
not apply to them.
Comment 14: A commenter said that the proposed rule states that the
procedures for administering the trip limit for cod under the Northeast
Multispecies FMP apply to landings of monkfish during a monkfish DAS
and added that clarification is needed for those not familiar with the
multispecies FMP.
Response 14: Due to NMFS disapproval of the running clock
provision, the particular section referenced by the commenter has been
removed from this final rule. Therefore, no clarification is necessary.
Comment 15: A vessel owner stated that:
the proposed rule violates the Regulatory Flexibility Act (RFA)
because 1) it invokes a policy that has takings implementations as
set out in Executive Order (E.O.) 12630 in Sect. 601 of the Act and
does not compensate for the takings; 2) it does not follow the
regulatory philosophy in E.O. 12866 of the Act, which requires NMFS
to select regulatory approaches to maximize net benefits; 3) NMFS
has not based its decision on the best reasonably obtainable
scientific, technical, economic, and other information concerning
the need for, and consequences of, the intended regulation as set
out in E.O. 12866, Sect. 1(b)(7) in Sect. 601 of the Act; 4) it does
not impose the least burden on society, including individuals,
businesses of different sizes * * * as required in E.O. 1206 c,
Sect. 1(b)(11) and is not simple and easy to understand language as
required in Sect. 1(b)(12) of the Order; 5) it is a significant
regulatory action under E.O. 12866 and requires a regulatory plan
approved by the Agency head, which requirement has not been met as
required in Sect. 4(C)(A) through (F); 6) no RFA has been prepared
describing the impact of the proposed rule on small entities (boat
owners, processors, and related industry support businesses) as
required by Sect. 603 of the Act; 7) there is no final RFA that
describes and estimates the number of small entities and the steps
taken to minimize the significant economic impact on small entities
as required by Sect. 604 of the Act; and 8) NMFS has not carried out
the periodic review of its rules, which have or will have a
significant economic impact upon a substantial number of small
entities as required by Section 610 of the Act - there is no
indication in the FMP and the proposed rule that this will be done
going forward.
Response 15: This particular comment makes reference to several
Executive Orders (E.O.s) as a basis for compliance with the RFA. The
requirements of the mentioned E.O.s are not a pre-requisite to a
determination on an action's compliance with the RFA. The thresholds
for action on each of these requirements differ substantially, and
there is no basis for arguing that an action fails to comply with the
RFA on the grounds of any perceived relationship between it and an E.O.
Further, NMFS has determined that it meets the requirements of all
applicable E.O.s.
That being said, the analysis included in the amendment indicates
that there are non-selected alternatives that would have imposed a more
rigorous reduction schedule. However, these options were rejected on
the basis of the greater economic impact on small entities, and the
current 4-year phase-in was selected to ease economic dislocation while
still achieving rebuilding. This option is consistent with the
regulatory philosophy of E.O. 12866 and the separate requirements of
the RFA. In any event, the RFA does not require that the least
burdensome alternative be chosen. Rather, for an action for which an
IRFA/FRFA was prepared, NMFS must describe the steps taken to minimize
the economic impact on small entities consistent with the stated
objectives of applicable statues, the reasons for selecting the
alternative in the final rule, and the reasons why significant
alternatives to the rule were rejected. An initial regulatory
flexibility analysis was prepared. The analysis is presented in Section
8.3.6 of the FEIS. That analysis illustrates the economic impacts of
and significant alternatives to the proposed action. That document was
open for comment with the rule. NMFS is addressing comments received on
the IRFA in this preamble to the final rule, has made revisions to the
rule, and has prepared a FRFA. This rule contains a summary of the
FRFA, as required by the RFA. Further, the action was found significant
under E.O. 12866, primarily for the controversial and novel legal
issues it raises.
Comment 16: A commenter stated that the measures discussed in the
January 1998 public hearing document, pertaining to trip limits for
scallop and multispecies vessels that also qualified for a monkfish
limited access permit, were more lenient in the SFMA than the measures
that were contained in the proposed rule. Since these later measures
were more restrictive, the commenter feels that the measures should
have been submitted to another public hearing process before
publication of the proposed rule.
Response 16: The Monkfish Committee and the Councils considered the
comments received during the public hearings when further revising the
management measures in the Monkfish FMP. The public had ample
opportunity during these subsequent Monkfish Committee and Council
meetings to voice its concerns. The measures were further open to
public comment for the period established by the NOA for the Monkfish
FMP. These comments were considered prior to the FMP approval/
disapproval process. Finally, the proposed rule also provided an
opportunity for public comment on the measures.
Comment 17: A fishing company stated that the FMP understates
dramatically the economic impact of the FMP, and estimates the impact
to between 150 and 200 million dollars a year, not including the
multiplier effect of the dollars in the community nor the impact on
national trade. The economic statement treats the fishery as primarily
a bycatch fishery and, the commenter stated, this is not the case.
Response 17: Historically, over 80 percent of the monkfish landings
are made as bycatch from groundfish and scallop fishing. Recent
directed effort, particularly by scallop and gillnet vessels and deeper
water trawls, has lowered that percentage to 70 percent bycatch.
However, the bulk of this fishery is still bycatch. The economic
[[Page 54739]]
impact analysis keeps in mind the fact that international markets
determine U.S. domestic prices. Costs to the industry over the long
term will be offset by increased net benefits and gross revenue. These
estimated benefits are considered underestimated because the effect of
the size limit and the rebuilt age structure will increase the
proportion of larger, more valuable monkfish.
Comment 18: Several commenters noted that records were not required
to be kept during the specified qualifying period which may cause many
vessel owners who should be able to qualify to not qualify. They also
stated that this is unfair to vessel owners (generally gillnetters
catching whole monkfish for the Asian market) who entered the fishery
late into the qualifying period or after the qualifying period ended.
Response 18: A notice of a ``control date'' for entry into the
monkfish fishery was published in the Federal Register on February 27,
1995 (60 FR 10574), which described potential eligibility criteria for
future access to that resource should a management regime be
implemented to limit the number of participants in the fishery. The
intent was to discourage new entries into this fishery based on
economic speculation, which was of particular concern at that time due
to the high price of monkfish livers to the Asian market. The
announcement further gave the public notice that they should locate and
preserve records that substantiate and verify their participation in
the monkfish fishery.
Comment 19: A commenter stated that the lower trip limit for fixed,
versus mobile, gear in the proposed rule is discriminatory toward the
fixed gear sector and is in violation of national standard 4 relating
to fairness and equality of the measures to fishers.
Response 19: The purpose of trip limits is to be fair and equitable
to all fishers. They are designed to reflect each gear sector's
historic level of participation in the fishery and approximate the
customary monkfish bycatch of these vessels. Since the limits represent
equivalent reductions for each gear sector to promote conservation, the
limits have been determined to be consistent with national standard 4.
Comment 20: One industry group stated that the biomass-based
overfishing definition is not authorized by the Magnuson-Stevens Act
and that the proposed rule's biomass-based overfishing threshold is
inexplicable in that it is much more restrictive than the already over-
restrictive counterpart threshold in the FMP.
Response 20: In order to comply with the SFA and national standard
1 of the Magnuson-Stevens Act, an overfishing definition must, at a
minimum, have an objective and measurable way to determine the status
of a stock and the amount of fishing that should be specified. There
are two types of determinants to satisfy this need: stock biomass and
fishing mortality. These two should be compared with a maximum fishing
mortality (F) threshold and a minimum biomass (B) threshold, which are
chosen based on a stock's reproductive potential, and a determination
made as to whether a stock is overfished (F is too high) or is in an
overfished condition (B is too low). For some stocks, this threshold
biomass level should be no less than the minimum stock size that could
be rebuilt in 10 years or less to the biomass level that results in the
maximum sustainable yield, if F was reduced to minimal practical
levels. Thus, biomass, in the form of biomass targets, must be
considered when attempting to achieve MSY on a continuing basis. In
fact, it is the crux of the national standard 1 criteria and is,
therefore, a critical component of any overfishing definition.
Comment 21: Two commenters questioned the length of the comment
period on the proposed rule. Specifically, one asked how NMFS can
approve the FMP 24 days before the close of comments on the rule, an
apparent violation of the Magnuson-Stevens Act and the Administrative
Procedure Act (APA). The FMP was approved on March 3, 1999, and the
comment period for the proposed rule closed on March 26, 1999. Another
stated that NMFS did not provide those directly impacted by the FMP
with sufficient time to comment on it, nor the opportunity to comment
on it or to inform the agency and the Secretary of issues prior to the
FMP's approval.
Response 21: The Magnuson-Stevens Act, as amended in 1996,
established independent review schedules for both the FMP and the
implementing regulations. The NOA, published on December 2, 1998, for
the monkfish FMP, established the beginning of the 60-day public review
period for the FMP. The statutory date by which NMFS must approve,
partially approve, or disapprove the FMP is 30 days after the end of
the comment period on the FMP, regardless of when the proposed rule to
implement the FMP is published. The proposed rule to implement the
measures contained in the FMP had its own comment period. Under usual
circumstances, the review of both elements will run more or less
concurrently. In cases of extreme complexity or controversiality, the
review schedules can become disconnected, as with this regulation.
Consequently, the approval/disapproval date as specified under the
Magnuson-Stevens Act arrived during the comment period for the
regulations implementing the FMP. However, the Magnuson-Stevens Act
requires that both the FMP and the regulations implementing it be
consistent with the requirements specified in the Act. Consequently,
the proposed rule is also reviewed for consistency. At the time of the
publication of the proposed rule (February 16, 1999), NMFS had not yet
made the determination that the FMP was consistent with the Magnuson-
Steven Act. It did make that determination during the comment period on
the proposed rule. Thus, the approval of the FMP separate from the
final rule is not inconsistent with the Magnuson-Stevens Act or the
APA.
Comment 22: An industry group requested that the Secretary order
interim management measures consisting of (1) a limited access program
as specified in the rule, (2) permit and reporting requirements as
specified in the rule, (3) minimum fish sizes as specified in the rule,
(4) area specific spawning closures, and (5) total allowable catch
equal to the mean harvest of recent years to be controlled via DAS, or
trip limits, or both.
Response 22: This final rule will implement the first three
elements of the commenter's request in sufficient time to address
conservation needs in this fishery, and, therefore, interim management
measures are not necessary. The final two items are inconsistent with
the approved FMP and are not considered to be necessary at this time.
However, the rule implements a framework provision whereby actions such
as these can be implemented. A framework action will allow for
abbreviated rulemaking, while still allowing for public comment on the
action.
Comment 23: One commenter noted that the OFDs specified in the
proposed rule differed from that specified in the FMP. Specifically,
the rule indicated a biomass threshold for the NFMA of 2.29 kg/tow and
for the SFMA of 1.82 kg/tow, whereas the FMP specifies 1.45 kg/tow and
0.75 kg/tow, respectively.
Response 23: The proposed rule inadvertently labeled the biomass
targets from the FMP as biomass thresholds. The text of the OFD, as
included in the FMP, is the correct OFD for this FMP. Since the
overfishing definition is not codified, the error is not corrected per
se by this rule.
[[Page 54740]]
Further, future management actions will be based on the overfishing
definition and associated levels as stated in the FMP, not as stated in
the proposed rule.
Comment 24: One commenter remarked on the complexity of the
proposed rule by stating that by incorporating the regulations for
monkfish in the multispecies regulations, the Agency has significantly
increased the complexity of regulations related to monkfish. The
commenter concluded that it is plausible that the industry will be in
violation without being aware that it is in violation.
Response 24: NMFS agrees that regulations are becoming increasingly
complex and encourages people to obtain a copy of the regulations and
become familiar with them. NMFS suggests that industry participants
also contact the New England Fishery Management Council to request to
be placed on its mailing list for news releases, which explain new
regulations.
Comment 25: One of the industry's comment stated that mortality
controls on fishing in other FMPs - closures, state restrictions, DAS,
the buyback program, multispecies and scallop reporting mechanisms -
all protect the harvest of monkfish, and are not reflected in the FMP.
Response 25: The monkfish FMP does consider other measures that may
have had a direct or indirect impact on monkfish mortality, and NMFS
recognizes that these measures contribute to the conservation of
monkfish. Nevertheless, as documented in the FMP, these measures by
themselves have not been sufficient to prevent overfishing and rebuild
monkfish stocks consistent with Magnuson-Stevens Act's requirements.
Changes in the Final Rule From the Proposed Rule
Changes made are primarily related to technical and administrative
needs and concerns and are made to clarify the intent of the
regulations. These changes are listed below in the order that they
appear in the regulations:
In Sec. 648.4, paragraph (a)(9)(i)(H), a reference to
Sec. 648.4(a)(3)(i)(H) is corrected to read Sec. 648.4(a)(1)(i)(H).
In Sec. 648.7, paragraph (b)(1)(i) is revised. This paragraph in
the proposed rule should have only added the requirement for vessel
owners or operators to report monkfish on the daily fishing log
reports. However, this paragraph inadvertently required only moratorium
permitted vessels to maintain daily fishing log reports for all fishing
trips. Under regulations implemented November 1, 1998 (64 FR 52639,
October 1, 1998), the requirement contained in this paragraph applies
to all Federally permitted vessels including party or charter vessels
and is no longer limited to only moratorium permitted vessels. The
change in the above final rule is consistent with current regulations.
In Sec. 648.7, paragraph (b)(1)(iii), which references old
reporting requirements for any party or charter vessel issued a Federal
summer flounder or scup permit, other than a moratorium permit, is
removed. The monkfish proposed rule inadvertently addressed the
reporting requirements for charter and party vessels in (b)(1)(iii),
which are now addressed in paragraph (b)(1)(i) of the above mentioned
final rule.
In Sec. 648.10, paragraph (c), a reference to
Sec. 648.4(a)(1)(i)(H)(3) is corrected to read
Sec. 648.4(a)(1)(i)(M)(3).
In Sec. 648.10, paragraph (c), a reference to
Sec. 648.4(a)(9)(i)(J) is corrected to read Sec. 648.4(a)(9)(i)(N)(3).
In Sec. 648.10, paragraph (c)(5), which references Sec. 648.94(b)
and (c), is corrected to refer to Sec. 648.94(c) only and is revised
for clarity.
In Sec. 648.14, paragraphs (y)(8) and (y)(11), which pertained to
possession and trip limits and included consideration of the
disapproved ``running clock'' provision, are revised and simplified.
In Sec. 648.80, paragraphs (a)(4)(i)(A), (a)(7)(iv)(B), (a)(8)(i),
(a)(9)(i)(D), and (b)(3)(ii), which pertain to the allowable incidental
catch of monkfish and monkfish parts in the various exempted fisheries,
are revised to clarify that the lesser of the allowable incidental
catches heretofore specified and the incidental catches specified under
the monkfish regulations applies.
In Sec. 648.92, paragraph (b)(1) is revised to clarify that
multispecies and scallop permit holders that also qualify for a
monkfish limited access permit shall be allocated up to 40 monkfish
DAS, depending on whether they have enough multispecies and/or scallop
DAS to use concurrently with their monkfish DAS allocation as required
by Sec. 648.92(b)(2).
In Sec. 648.92, paragraph (b)(5) is revised to clarify that
spawning season restrictions will be implemented effective January 1,
2000.
In Sec. 648.92, paragraph (b)(8)(ii) is revised to clarify that
tagging requirements for gillnetters fishing for monkfish under a
monkfish DAS will be implemented effective May 1, 2000.
In Sec. 648.93, paragraph (a)(2) is revised to clarify that
monkfish cheeks and livers are exempt from the requirement of having to
have skin on while possessed on board and at the time of landing.
In Sec. 648.94, paragraphs (b)(2)(vi)(A), (B), and (C), which
pertain to landings in consideration of the disapproved ``running
clock'' provision, are removed.
In Sec. 648.94, paragraph (b)(2)(vi), which references the trip
limit for cod and which reference does not apply because of the
disapproval of the ``running clock'' provision, is revised and
simplified.
In Sec. 648.94, paragraph (b)(7) is added to clarify that a limited
access scallop vessel fishing under a monkfish DAS (Category C and D)
that is not using dredge gear and does not have dredge gear on board
will be subject to the applicable trip limits specified at
Sec. 648.94(b)(1) and (b)(2). A vessel that has a Category C or D
monkfish permit and a limited access sea scallop permit is prohibited
from using dredge gear or possessing it on board during a monkfish DAS.
Paragraph (b)(7) states explicitly what was implied in the proposed
rule and is consistent with Section 4.6.3 of the Monkfish FMP.
In Sec. 648.94, paragraph (e), which referenced transiting when
exceeding the monkfish landing limit, which would have been in
accordance with the disapproved ``running clock'' provision, is
revised.
In Sec. 648.96, paragraphs (a)(2) and (c)(1), which referenced the
``running clock'' provision, which is a disapproved provision, are
revised.
In Sec. 648.96, paragraphs (a)(4) and (c) are corrected, as
requested by the NEFMC, by removing a requirement that documentation
and analyses for a framework adjustment be made available at least two
weeks before the first of the final two meetings, which would have been
inconsistent with the framework adjustment procedures of both the
Northeast Multispecies and Atlantic Scallop FMPs.
NOAA codifies its OMB control numbers for information collection at
15 CFR part 902. Part 902 collects and displays the control numbers
assigned to information collection requirements of NOAA by OMB pursuant
to the Paperwork Reduction Act (PRA). This final rule codifies OMB
control number 0648-0202 for Secs. 648.91 through 648.94, and
Sec. 648.96.
Under NOAA Administrative Order 205-11, dated December 17, 1990,
the Under Secretary for Oceans and Atmosphere has delegated to the
Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
NMFS has determined that the FMP that this rule implements is
necessary for the conservation and management of
[[Page 54741]]
the monkfish fishery and is consistent with the national standards of
the Magnuson-Stevens Act and other applicable law.
This action has been determined to be significant for the purposes
of E.O. 12866.
The Council prepared an FEIS for the Monkfish FMP; an NOA was
published on January 15, 1999 (64 FR 2639). This action is expected to
have a significant impact on the human environment. NMFS determined
upon review of the FMP/FEIS and public comments that approval and
implementation of the Monkfish FMP is environmentally preferable to the
status quo. The FEIS demonstrates that it contains management measures
able to halt overfishing and rebuild the monkfish stock; protect harbor
porpoise; provide economic and social benefits to the fishing industry
in the long term; and contribute to better balance in the ecosystem in
terms of monkfish and groundfish resources.
In compliance with the Regulatory Flexibility Act, the Council
prepared and NMFS adopted an IRFA contained in the FMP that describes
the economic impacts of the proposed rule, if adopted, on small
entities. The FRFA consists of the IRFA, public comments and responses
thereto, the analysis of impacts and alternatives in the Monkfish FMP,
and the summary that follows. The reasons for selecting the measures
are set out in the preamble to this rule and in the Monkfish FMP.
The measures are restrictive, and impacts on the industry are
expected to be considerable. In the early years of the program, some
vessel owners may be unable to cover their operating costs, in part
because of these restrictions and because of the poor condition of the
stocks. Such vessel owners are expected to leave the fishery. Relative
to the status quo, however, implementation of this FMP is expected to
produce significant positive effects on a substantial number of small
entities after stock abundance of monkfish recovers. The majority of
the vessels in the monkfish fishery are considered small entities and,
therefore, all alternatives and measures intended to mitigate adverse
impacts on the fishing industry necessarily mitigate adverse impacts on
small entities. Chief among the measures taken that minimizes the
impacts on small entities, however, is the selection by the Council of
the longest rebuilding period allowed by the Magnuson-Stevens Act. The
Magnuson-Stevens Act requires that overfishing be ended and the fishery
rebuilt in the shortest time period as possible, not to exceed 10
years. The Council selected 10 years to lessen the impact on the
fishing communities and minimize adverse impacts on small entities. For
a discussion of other measures selected to mitigate impacts on small
entities, see the comments on the FMP, proposed rule, and IRFA, which
are summarized and responded to in the preamble.
The monkfish management measures will reduce the overall revenues
of the monkfish fishery by approximately 50 to 54 percent in the first
3 years of the program compared to the status quo. Further reductions
in catch are necessary in Year 4 to stop overfishing and allow
rebuilding. These measures will also reduce overall revenues by 69
percent compared to the status quo.
The impact of these measures will not be uniform for all vessels or
all sectors. Instead, the measures will have different effects on
different gear groups, with vessels using gillnets and vessels fishing
in the Mid-Atlantic being relatively more affected than other vessels.
Due to the requirement and desirability to minimize regulatory
discards, the catch reduction for vessels that qualify for a limited
access monkfish permit are more severe than for vessels that target
other species and land their monkfish incidental catch. Fishery sectors
that rely more heavily on monkfish will, therefore, experience greater
effects than other groups.
Projected revenues from fishing will be positive beginning in the
year 2009, which will create demand for other goods and services in the
area and lead to increased production and employment. The overall
impacts will be positive. These measures are expected to increase net
present value of gross revenues by $20 million over 20 years. Including
the estimated cost savings is expected to produce an increase in net
benefits to the nation of $38 million over a 20-year period. The
negative effects of the non-selected alternatives would be greater than
those of these selected measures.
The recreational sector is not expected to be negatively impacted
by this action.
Alternatives Considered, but Rejected by the Councils
Alternatives 1, 2 and 4 were taken to public hearings in January
1997, as non-preferred alternatives. Due to the preponderance of public
comment for (then) preferred Alternative 3 the Councils chose to
continue development of Alternative 3 for inclusion in the FMP.
Alternative 3, along with non-preferred Alternatives 3a and 3b, were
taken to public hearings in January, 1998. See also Section 8.1.2.2.1.
of the Monkfish FMP/EIS for rationale for the adoption of the preferred
alternative. The alternatives are summarized below.
1. No Action - Status quo
See Volume I, Section 8.1.4.3 of the Monkfish FMP/EIS.
2. Non-preferred Alternative 1 - Bycatch trip limits and quota-
controlled limited access fishery
See Volume I, Section 8.1.4.4.1 of the Monkfish FMP/EIS.
Alternative 1 was rejected because quotas would not work well for many
mixed-species fisheries that include monkfish and the proposed bycatch
trip limits were anticipated to cause unacceptably high discarding. No
positive comments were given at the 1997 public hearings.
3. Non-preferred Alternative 2 - Mixed catch trip limits and quota-
controlled limited access fishery
See Volume I, Section 8.1.4.4.2 of the Monkfish FMP/EIS.
Alternative 2 was an attempt to increase the bycatch trip limits and
accommodate incidental catches of monkfish in fisheries that targeted a
mixed catch where monkfish was a component. The Councils rejected
Alternative 2 because it relied too heavily on trip limits to manage
the fishery and had unacceptably low directed fishery quotas.
4. Non-preferred Alternative 4 - Days-at-sea effort control
See Volume I, Section 8.1.4.4.3 of the Monkfish FMP/EIS.
Alternative 4 is a modification of DAS management proposed by
Alternative 3, but with lower incidental catch allowances to boost the
allocation of monkfish to the limited access fishery. The added
allocation would enable the Councils to allocate some days to all
vessels that qualify for monkfish limited access while meeting the
mortality goals of the FMP. Some favorable comments for Alternative 4
were received at public hearings, but the overwhelming majority of
people supported Alternative 3. The Councils ultimately rejected
Alternative 4 because the DAS allocated to limited access vessels were
too low and the bycatch trip limits would create unacceptable
discarding.
5. Non-preferred Alternative 3a
See Volume I, Section 8.1.4.2.2 of the Monkfish FMP/EIS. This
alternative is evaluated and analyzed in the EIS. Alternative 3a was
expected to achieve similar mortality reductions to the preferred
alternative, but discards were estimated to be higher in the NFMA and
substantially higher in the SFMA.
6. Non-preferred Alternative 3b
See Volume I, Section 8.1.4.2.3 of the Monkfish FMP/EIS. This
alternative is evaluated and analyzed in the EIS. Alternative 3b was
expected to achieve similar mortality reductions to the
[[Page 54742]]
preferred alternative, but discards were estimated to be higher in the
NFMA and substantially higher in the SFMA.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB Control Number.
This rule contains 19 new collection-of-information requirements
subject to the Paperwork Reduction Act. The collection of this
information has been approved by the OMB, and the OMB control numbers
and public reporting burden are listed as follows:
Limited access monkfish permits, including four new permit
categories, OMB# 0648-0202, (30 minutes/response). In subsequent years,
permit renewal, OMB# 0648-0202, (15 minutes/response). Some applicants
need to provide documentation of eligibility, OMB# 0648-0202, (1 hour/
response)
Monkfish incidental catch permits, OMB# 0648-0202, (30 minutes/
response). In subsequent years, permit renewal, OMB# 0648-0202, (15
minutes/response).
Permit appeals, OMB# 0648-0202, (180 minutes/response).
Vessel replacement, OMB# 0648-0202, (180 minutes/response).
Vessel upgrade, OMB# 0648-0202, (180 minutes/response).
Retention of vessel history, OMB# 0648-0202, (30 minutes/response).
Operator permit, OMB# 0648-0202, (60 minutes/response).
Dealer permit, OMB# 0648-0202, (5 minutes/response).
Dealer landing report, OMB# 0648-0202, (5 minutes/response(trip)).
Dealer employment report, OMB# 0648-0202, (2 minutes/response).
Gillnet designation-declaration into the gillnet fishing category,
OMB# 0648-0202, (10 minutes/response).
Call-in, call-out (DAS reporting), OMB# 0648-0202, (2 minutes/
response).
Area declaration for identifying compliance with the differential
size limit beginning May 1, 2000, OMB# 0648-0202, (3 minutes/
response).
Notification of transiting, OMB# 0648-0202, (1 minute/response if
made with hail, 3 minutes/response if separate call).
Vessel trip reports, OMB# 0648-0202, (5 minutes/response).
Hail weight reports, OMB# 0648-0202, (3 minutes/response).
Net tagging requirements, OMB# 0648-0202, (1 minute to attach 1
tag, 2 minutes to notify of lost tags and request replacement).
Good Samaritan credits, OMB# 0648-0202, (30 minutes/response).
Declarations of blocks of time out of the fishery, OMB# 0648-0202,
(3 minutes/response).
Public comment is sought regarding: whether the collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; the accuracy of the burden estimate; ways to enhance the
quality, utility, and clarity of the information to be collected; and
ways to minimize the burden of the collection of information, including
through the use of automated collection techniques or other forms of
information technology. Send comments regarding these reporting burden
estimates or any other aspect of the collection of information,
including suggestions for reducing the burden, to NMFS and OMB (see
ADDRESSES).
A formal section 7 consultation under the ESA was initiated for the
Monkfish FMP based on information provided in the FEIS; a separate
Biological Assessment that was submitted on September 23, 1998;
Supplement 1 to the Monkfish FMP, which contains a revised RFA
submitted on October 23, 1998; NMFS's proposed rule under the Magnuson-
Stevens Act; NMFS entanglement data; and other relevant sources. In a
biological opinion (BO) dated December 21, 1998, the Assistant
Administrator for Fisheries, NMFS, determined that fishing activities
conducted under the Monkfish FMP and its implementing regulations are
not likely to jeopardize the continued existence of threatened or
endangered species or designated critical habitat. The final rule is
virtually identical to the measures analyzed in the December 21, 1998,
BO and thus the BO is still applicable.
Potential adverse impacts to marine mammals resulting from fishing
activities conducted under this FMP are discussed in the EIS, which
focuses on potential impacts to harbor porpoise, right whales, and
humpback whales. The monkfish sink gillnet fishery is subject to
regulation under the harbor porpoise and large whale take reduction
plans. The measures contained in the Harbor Porpoise and Large Whale
Take Reduction Plans are expected to reduce the take of marine mammals
in this fishery to acceptable levels within six months of plan
implementation and to within levels approaching a zero mortality or
serious injury rate within 5 years.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: September 30, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 15 CFR part 902, chapter
IX, and 50 CFR part 648, chapter VI, are amended as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, the table in paragraph (b) is amended by adding
under 50 CFR the following entries in numerical order:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (all numbers begin with 0648-
collection requirement is located )
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
648.91 -0202
648.92 -0202
648.93 -0202
648.94 -0202
648.96 -0202
* * * * *
------------------------------------------------------------------------
50 CFR Chapter VI
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.1, the first sentence of paragraph (a) is revised to
read as follows:
Sec. 648.1 Purpose and scope.
(a) This part implements the fishery management plans (FMPs) for
the
[[Page 54743]]
Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel,
Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the
Atlantic sea scallop fishery (Atlantic Sea Scallop FMP); the Atlantic
surf clam and ocean quahog fisheries (Atlantic Surf Clam and Ocean
Quahog FMP); the Northeast multispecies and monkfish fisheries ((NE
Multispecies FMP) and (Monkfish FMP)); the summer flounder, scup, and
black sea bass fisheries (Summer Flounder, Scup, and Black Sea Bass
FMP); and the Atlantic bluefish fishery (Atlantic Bluefish FMP). * * *
* * * * *
3. In Sec. 648.2, the definitions for ``Monkfish or anglerfish'',
``Out of the multispecies fishery or DAS program'', and ``Tied up to
the dock'' are removed; the definitions for ``Day(s)-at-Sea (DAS)'',
``Fishing year'', ``Prior to leaving port'', ``Sink gillnet or bottom-
tending gillnet'', ``Upon returning to port'', and ``Vessel Monitoring
System (VMS)'' are revised; and the definitions for ``Councils'',
``Monkfish'', ``Monkfish gillnets'', ``Monkfish Monitoring Committee'',
``Out of the monkfish fishery'', ``Out of the multispecies fishery'',
and ``Tied up to the dock or tying up at a dock'' are added
alphabetically to read as follows:
Sec. 648.2 Definitions.
* * * * *
Councils, with respect to the monkfish fishery, means the New
England Fishery Management Council (NEFMC) and the Mid-Atlantic Fishery
Management Council (MAFMC).
Day(s)-at-Sea (DAS), with respect to the NE multispecies and
monkfish fisheries, and Atlantic sea scallop fishery, except as
described in Sec. 648.82(k)(1)(iv), means the 24-hour period of time or
any part thereof during which a fishing vessel is absent from port to
fish for, possess, or land, or fishes for, possesses, or lands,
regulated species, monkfish, or scallops.
* * * * *
Fishing year means:
(1) For the Atlantic sea scallop fishery, from March 1 through the
last day of February of the following year.
(2) For the NE multispecies and monkfish fisheries, from May 1
through April 30 of the following year.
(3) For all other fisheries in this part, from January 1 through
December 31.
* * * * *
Monkfish, also known as anglerfish or goosefish, means Lophius
americanus.
Monkfish gillnets means gillnet gear with mesh size no smaller than
10-inches (25.4 cm) diamond mesh that is designed and used to fish for
and catch monkfish while fishing under a monkfish DAS.
Monkfish Monitoring Committee means a team of scientific and
technical staff appointed by the NEFMC and MAFMC to review, analyze,
and recommend adjustments to the management measures. The team consists
of staff from the NEFMC and the MAFMC, NMFS Northeast Regional Office,
NEFSC, the USCG, two fishing industry representatives selected by their
respective Council chairman (one from each management area with at
least one of the two representing either the Atlantic sea scallop or
northeast multispecies fishery), and staff from affected coastal
states, appointed by the Atlantic States Marine Fisheries Commission.
The Chair is elected by the Committee from within its ranks, subject to
the approval of the Chairs of the NEFMC and MAFMC.
* * * * *
Out of the monkfish fishery means the period of time during which a
vessel is not fishing for monkfish under the monkfish DAS program.
Out of the multispecies fishery means the period of time during
which a vessel is not fishing for regulated species under the NE
multispecies DAS program.
* * * * *
Prior to leaving port, with respect to the call-in notification
system for the Atlantic sea scallop, NE multispecies, and monkfish
fisheries, means prior to the last dock or mooring in port from which a
vessel departs to engage in fishing, including the transport of fish to
another port.
* * * * *
Sink gillnet or bottom-tending gillnet means any gillnet, anchored
or otherwise, that is designed to be, or is fished on or near, the
bottom in the lower third of the water column.
* * * * *
Tied up to the dock or tying up at a dock means tied up at a dock,
on a mooring, or elsewhere in a harbor.
* * * * *
Upon returning to port, means, for purposes of the call-in
notification system for the NE multispecies and monkfish fisheries,
upon first tying up at a dock at the end of a fishing trip.
* * * * *
Vessel Monitoring System (VMS) means a vessel monitoring system or
VMS unit as set forth in Sec. 648.9 and approved by NMFS for use by
Atlantic sea scallop, NE multispecies, and monkfish vessels, as
required by this part.
* * * * *
4. In Sec. 648.4, paragraph (a)(9) is added to read as follows:
Sec. 648.4 Vessel and individual commercial permits.
(a) * * *
(9) Monkfish vessels. Any vessel of the United States, including a
charter or party boat, must have been issued and have on board a valid
monkfish permit to fish for, possess, or land any monkfish in or from
the EEZ.
(i) Limited access monkfish permits (effective November 8, 1999.
(A) Eligibility. A vessel may be issued a limited access monkfish
permit if it meets any of the following limited access monkfish permits
criteria:
(1) Category A permit (vessels without multispecies or scallop
limited access permits). The vessel landed 50,000 lb (22,680
kg) tail-weight or 166,000 lb (75,297.6 kg) whole weight of monkfish
between February 28, 1991, and February 27, 1995;
(2) Category B permit (vessels less than 51 gross registered
tonnage (GRT) without multispecies or scallop limited access permits
that do not qualify for a Category A permit). The vessel landed
7,500 lb (3,402 kg) tail-weight or 24,900 lb (11,294.6 kg)
whole weight of monkfish between February 28, 1991, and February 27,
1995;
(3) Category C permit (vessels with multispecies or scallop limited
access permits). The vessel landed 50,000 lb (22,680 kg)
tail-weight or 166,000 lb (75,297.6 kg) whole weight of monkfish
between February 28, 1991, and February 27, 1995; or
(4) Category D permit (all vessels with multispecies limited access
permits and vessels less than 51 GRT with scallop limited access
permits that do not qualify for a Category C permit). The vessel landed
7,500 lb (3,402 kg) tail-weight or 24,900 lb (11,294.6 kg)
whole weight of monkfish between February 28, 1991, and February 27,
1995.
(B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restrictions. (1) See paragraph (a)(1)(i)(C) of
this section.
(2) Vessels under agreement for construction or under
reconstruction. A vessel may be issued a limited access monkfish permit
if the vessel was under written agreement for construction or
reconstruction between February 28, 1994, and February 27, 1995, and
such vessel meets any of the qualification criteria regarding amount of
landings as stated in paragraph (a)(9)(i)(A) of this section between
February 28, 1991, and February 27, 1996.
(D) Change in ownership. (1) See paragraph (a)(1)(i)(D) of this
section.
(2) A vessel may be issued a limited access monkfish permit if it
was under
[[Page 54744]]
written agreement for purchase as of February 27, 1995 and meets any of
the qualification criteria regarding amount of landings as stated in
paragraph (a)(9)(i)(A) of this section between February 28, 1991, and
February 27, 1996.
(E) Replacement vessels. (1) See paragraph (a)(1)(i)(E) of this
section.
(2) A vessel 51 GRT that lawfully replaced a vessel <51
GRT between February 27, 1995, and October 7, 1999, that meets the
qualification criteria set forth in paragraph (a)(9)(i)(A) of this
section, but exceeds the 51 GRT vessel size qualification criteria as
stated in paragraph (a)(9)(i)(A)(2) or (4) of this section, may qualify
for and fish under the permit category for which the replaced vessel
qualified.
(3) A vessel that replaced a vessel that fished for and landed
monkfish between February 28, 1991, and February 27, 1995, may use the
replaced vessel's history in lieu of or in addition to such vessel's
fishing history to meet the qualification criteria set forth in
paragraph (a)(9)(i)(A)(1), (2), (3), or (4) of this section, unless the
owner of the replaced vessel retained the vessel's permit or fishing
history, or such vessel no longer exists and was replaced by another
vessel according to the provisions in paragraph (a)(1)(i)(D) of this
section.
(F) Upgraded vessel. (1) See paragraph (a)(1)(i)(F) of this
section.
(2) A vessel 51 GRT that upgraded from a vessel size <51
GRT between February 27, 1995, and October 7, 1999, that meets any of
the qualification criteria set forth in paragraph (a)(9)(i)(A) of this
section, but exceeds the 51 GRT vessel size qualification criteria as
stated in paragraphs (a)(9)(i)(A)(2) and (4) of this section, may
qualify for and fish under the permit category of the smaller vessel.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specification. See paragraph (a)(1)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. A limited access monkfish
permit may not be issued to a vessel or to its replacement, or remain
valid, if the vessel's permit or fishing history has been used to
qualify another vessel for another Federal fishery.
(M) Notification of eligibility for 1999. (1) NMFS will attempt to
notify all owners of vessels for which NMFS has credible evidence
available that they meet the qualification criteria described in
paragraph (a)(9)(i)(A)(1), (2), (3), or (4) of this section and that
they qualify for a limited access monkfish permit. Vessel owners must
still apply within 12 months of the effective date of these regulations
to complete the qualification requirements.
(2) If a vessel owner has not been notified that the vessel is
eligible to be issued a limited access monkfish permit, and the vessel
owner believes that there is credible evidence that the vessel does
qualify under the pertinent criteria, the vessel owner may apply for a
limited access monkfish permit within 12 months of the effective date
of these regulations by submitting evidence that the vessel meets the
requirements described in paragraph (a)(9)(i)(A)(1), (2), (3), or (4)
of this section.
(N) Appeal of denial of permit. (1) Any applicant denied a limited
access monkfish permit may appeal to the Regional Administrator within
30 days of the notice of denial. Any such appeal shall be in writing.
The only ground for appeal is that the Regional Administrator erred in
concluding that the vessel did not meet the criteria in paragraph
(a)(9)(i)(A)(1), (2), (3), or (4) of this section. The appeal shall set
forth the basis for the applicant's belief that the Regional
Administrator's decision was made in error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Administrator.
The hearing officer shall make a recommendation to the Regional
Administrator. The Regional Administrator's decision on the appeal is
the final decision of the Department of Commerce.
(3) Status of vessels pending appeal. (i) A vessel denied a limited
access monkfish permit may fish under the monkfish DAS program,
provided that the denial has been appealed, the appeal is pending, and
the vessel has on board a letter from the Regional Administrator
authorizing the vessel to fish under the monkfish DAS program. The
Regional Administrator will issue such a letter for the pendency of any
appeal, which decision is the final administrative action of the
Department of Commerce pending a final decision on the appeal. The
letter of authorization must be carried on board the vessel. A vessel
with such a letter of authorization shall not exceed the annual
allocation of monkfish DAS as specified in Sec. 648.92(b)(1) and must
report the use of monkfish DAS according to the provisions of
Sec. 648.10(b) or (c), whichever applies. If the appeal is finally
denied, the Regional Administrator shall send a notice of final denial
to the vessel owner; the authorizing letter shall become invalid 5 days
after receipt of the notice of denial. If the appeal is finally
approved, any DAS used during pendency of the appeal shall be deducted
from the vessel's annual allocation of monkfish DAS for that fishing
year.
(ii) Monkfish incidental catch permits effective November 8, 1999.
A vessel of the United States that is subject to these regulations and
that has not been issued a limited access monkfish permit is eligible
for and may be issued a monkfish incidental catch permit to fish for,
possess, or land monkfish subject to the restrictions in
Sec. 648.94(c).
(ii) [Reserved]
* * * * *
5. In Sec. 648.5, the first sentence of paragraph (a) is revised to
read as follows:
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing sea
scallops in excess of 40 lb (18 kg), NE multispecies, monkfish,
mackerel, squid, butterfish, scup, or black sea bass, harvested in or
from the EEZ, or issued a permit for these species under this part,
must have been issued under this section, and carry on board, a valid
operator's permit.* * *
* * * * *
6. In Sec. 648.6, paragraph (a) is revised to read as follows:
Sec. 648.6 Dealer/processor permits.
(a) General. All NE multispecies, monkfish, sea scallop, summer
flounder, surf clam, ocean quahog, mackerel, squid, butterfish, scup,
or black sea bass dealers, and surf clam and ocean quahog processors,
must have been issued under this section, and have in their possession,
a valid dealer and/or processor permit for these species.
* * * * *
7. In Sec. 648.7, the first sentence of paragraph (a)(1)(i), the
first sentence of paragraph (a)(3)(i), and paragraph (b)(1)(i) are
revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
(a) * * *
(1) * * *
(i) All NE multispecies or monkfish, sea scallop, summer flounder,
mackerel, squid, and butterfish, scup, or black sea bass dealers must
provide: Dealer name and mailing address; dealer permit number; name
and permit number or name and hull number (USCG documentation number or
state registration number, whichever is applicable) of vessels from
which fish are landed or received; trip identifier for
[[Page 54745]]
trip from which fish are landed or received; dates of purchases; pounds
by all species purchased (by market category, if applicable); price per
pound by species (by market category, if applicable) or total value by
species (by market category, if applicable); port landed; and any other
information deemed necessary by the Regional Administrator. * * *
* * * * *
(3) * * *
(i) All NE multispecies or monkfish, sea scallop, summer flounder,
mackerel, squid, and butterfish, scup, or black sea bass dealers must
complete the ``Employment Data'' section of the Annual Processed
Products Report; completion of the other sections of that form is
voluntary. * * *
* * * * *
(b) * * *
(1) * * *
(i) The owner or operator of any vessel issued a vessel permit for
summer flounder, mackerel, squid, or butterfish, scup, or black sea
bass, or a permit for sea scallops, or NE multispecies or monkfish,
must maintain on board the vessel and submit an accurate daily fishing
log report for all fishing trips, regardless of species fished for or
taken, on forms supplied by or approved by the Regional Administrator.
If authorized in writing by the Regional Administrator, a vessel owner
or operator may submit reports electronically, for example by using a
VMS or other media. At least the following information and any other
information required by the Regional Administrator must be provided:
Vessel name; USCG documentation number (or state registration number,
if undocumented); permit number; date/time sailed; date/time landed;
trip type; number of crew; number of anglers (if a charter or party
boat); gear fished; quantity and size of gear; mesh/ring size; chart
area fished; average depth; latitude/longitude (or loran station and
bearings); total hauls per area fished; average tow time duration;
pounds by species (or count, if a party or charter vessel) of all
species landed or discarded; dealer permit number; dealer name; date
sold; port and state landed; and vessel operator's name, signature, and
operator permit number (if applicable).
* * * * *
8. In Sec. 648.9, paragraph (d) is revised to read as follows:
Sec. 648.9 VMS requirements.
* * * * *
(d) Presumption. If a VMS unit fails to transmit an hourly signal
of a vessel's position, the vessel shall be deemed to have incurred a
DAS, or fraction thereof, for as long as the unit fails to transmit a
signal, unless a preponderance of evidence shows that the failure to
transmit was due to an unavoidable malfunction or disruption of the
transmission that occurred while the vessel was declared out of the
scallop fishery or NE multispecies or monkfish fishery, as applicable,
or was not at sea.
* * * * *
9. In Sec. 648.10, the first sentence of paragraph (b) introductory
text, and paragraphs (b)(1), (c) introductory text, (c)(2), and (c)(5)
are revised to read as follows:
Sec. 648.10 DAS notification requirements.
* * * * *
(b) VMS Notification. A multispecies vessel issued an Individual
DAS or Combination Vessel permit, or scallop vessel issued a full-time
or part-time limited access scallop permit, or scallop vessel fishing
under the small dredge program specified in Sec. 648.51(e), or a vessel
issued a limited access multispecies or monkfish permit, or scallop
permit, whose owner elects to fish under the VMS notification of
paragraph (b) of this section, unless otherwise authorized or required
by the Regional Administrator under paragraph (d) of this section, must
have installed on board an operational VMS unit that meets the minimum
performance criteria specified in Sec. 648.9(b) or as modified in
Sec. 648.9(a). * * *
(1) Vessels that have crossed the VMS Demarcation Line specified
under paragraph (a) of this section are deemed to be fishing under the
DAS program, unless the vessel's owner or an authorized representative
declares the vessel out of the scallop, NE multispecies, or monkfish
fishery, as applicable, for a specific time period by notifying the
Regional Administrator through the VMS prior to the vessel leaving
port.
* * * * *
(c) Call-in notification. Owners of vessels issued limited access
multispecies or monkfish permits who are participating in a DAS program
and who are not required to provide notification using a VMS, scallop
vessels qualifying for a DAS allocation under the occasional category
and who have not elected to fish under the VMS notification
requirements of paragraph (b) of this section, and vessels fishing
pending an appeal as specified in Sec. 648.4(a)(1)(i)(M)(3) and
(a)(9)(i)(N)(3) are subject to the following requirements:
* * * * *
(2) The vessel's confirmation numbers for the current and
immediately prior multispecies or monkfish fishing trip must be
maintained on board the vessel and provided to an authorized officer
upon request.
* * * * *
(5) Any vessel that possesses or lands per trip more than 400 lb
(181 kg) of scallops, and any vessel issued a limited access
multispecies permit subject to the multispecies DAS program and call-in
requirement that possesses or lands regulated species, except as
provided in Secs. 648.17 and 648.89, and any vessel issued a limited
access monkfish permit subject to the monkfish DAS program and call-in
requirement that possesses or lands monkfish above the incidental catch
trip limits specified in Sec. 648.94(c), shall be deemed in its
respective DAS program for purposes of counting DAS, regardless of
whether the vessel's owner or authorized representative provided
adequate notification as required by paragraph (c) of this section.
* * * * *
10. In Sec. 648.11, the first sentence of paragraph (a) and
paragraph (e) introductory text are revised to read as follows:
Sec. 648.11 At-sea sampler/observer coverage.
(a) The Regional Administrator may request any vessel with a permit
for sea scallops, or NE multispecies or monkfish, or mackerel, squid,
or butterfish, or scup, or black sea bass, or a moratorium permit for
summer flounder, to carry a NMFS-approved sea sampler/observer. * * *
* * * * *
(e) The owner or operator of a vessel issued a summer flounder
moratorium permit, or a scup moratorium permit, or a black sea bass
moratorium permit, if requested by the sea sampler/observer also must:
* * * * *
11. In Sec. 648.12, the introductory text is revised to read as
follows:
Sec. 648.12 Experimental fishing.
The Regional Administrator may exempt any person or vessel from the
requirements of subparts A (General Provisions), B (Atlantic Mackerel,
Squid, and Butterfish Fisheries), D (Atlantic Sea Scallop Fishery), E
(Atlantic Surf Clam and Ocean Quahog Fisheries), F (NE Multispecies and
Monkfish Fisheries), G (Summer Flounder Fishery), H (Scup Fishery), or
I (Black Sea Bass Fishery) of this part for the conduct of experimental
fishing beneficial to the management of the resources or fishery
managed under that
[[Page 54746]]
subpart. The Regional Administrator shall consult with the Executive
Director of the MAFMC regarding such exemptions for the Atlantic
mackerel, squid, and butterfish, summer flounder, scup, and black sea
bass fisheries.
* * * * *
12. In Sec. 648.14, paragraphs (a)(49) and (103) are revised, and
paragraphs (x)(8) and (y) are added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(49) Violate any of the possession or landing restrictions on
fishing with scallop dredge gear specified in Secs. 648.80(h) and
648.94.
* * * * *
(103) Sell, barter, trade or transfer, or attempt to sell, barter,
trade or otherwise transfer, other than solely for transport, any
multispecies or monkfish, unless the dealer or transferee has a dealer
permit issued under Sec. 648.6.
* * * * *
(x) * * *
(8) Monkfish. All monkfish retained or possessed on a vessel issued
any permit under Sec. 648.4 are deemed to have been harvested from the
EEZ.
(y) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section,
it is unlawful for any person owning or operating a vessel issued a
limited access monkfish permit to do any of the following:
(1) Fish for, possess, retain or land monkfish, unless:
(i) The monkfish are being fished for or were harvested in or from
the EEZ by a vessel issued a valid monkfish permit under this part and
the operator on board such vessel has been issued an operator permit
that is on board the vessel; or
(ii) The monkfish were harvested by a vessel not issued a monkfish
permit that fishes for monkfish exclusively in state waters; or
(iii) The monkfish were harvested in or from the EEZ by a vessel
engaged in recreational fishing.
(2) Land, offload, or otherwise transfer, or attempt to land,
offload, or otherwise transfer, monkfish from one vessel to another
vessel, unless each vessel has not been issued a monkfish permit and
fishes exclusively in state waters.
(3) Sell, barter, trade, or otherwise transfer, or attempt to sell,
barter, trade, or otherwise transfer for a commercial purpose, any
monkfish, unless the vessel has been issued a monkfish permit, or
unless the monkfish were harvested by a vessel with no monkfish permit
that fishes for monkfish exclusively in state waters.
(4) Fish for, possess, retain, or land monkfish, or operate or act
as an operator of a vessel fishing for or possessing monkfish in or
from the EEZ without having been issued and possessing a valid operator
permit.
(5) Fish with, use, or have on board, while fishing under a
monkfish DAS within the Northern Fishery Management Area or Southern
Fishery Management Area as described in Sec. 648.91(a) and (b), nets
with mesh size smaller than the minimum mesh size specified in
Sec. 648.91(c).
(6) Violate any provision of the incidental catch permit
restrictions as provided in Secs. 648.4(a)(9)(ii) and 648.94(c).
(7) Possess, land, or fish for monkfish while in possession of
dredge gear on a vessel not fishing under the scallop DAS program as
described in Sec. 648.53, or fishing under a general scallop permit,
except for vessels with no monkfish permit that fish for monkfish
exclusively in state waters.
(8) Purchase, possess, or receive as a dealer, or in the capacity
of a dealer, monkfish in excess of the possession or trip limits
specified in Sec. 648.94 as is applicable to a vessel issued a monkfish
limited access or incidental catch permit.
(9) Fail to comply with the monkfish size limit restrictions of
Sec. 648.93.
(10) Fail to comply with the monkfish liver landing restrictions of
Sec. 648.94(d).
(11) Fish for, possess or land monkfish as specified in Sec. 648.94
or when not participating in the monkfish DAS program pursuant to
Sec. 648.92.
(12) If carrying a VMS unit under Sec. 648.10:
(i) Fail to have a certified, operational, and functioning VMS unit
that meets the specifications of Sec. 648.9 on board the vessel at all
times.
(ii) Fail to comply with the notification, replacement, or any
other requirements regarding VMS usage as specified in Sec. 648.10.
(13) Combine, transfer, or consolidate DAS allocations.
(14) Fish for, possess, or land monkfish with or from a vessel that
has had the horsepower of such vessel or its replacement upgraded or
increased in excess of the limitations specified in
Sec. 648.4(a)(9)(i)(E) and (F).
(15) Fish for, possess, or land monkfish with or from a vessel that
has had the length, GRT, or NT of such vessel or its replacement
upgraded or increased in excess of the limitations specified in
Sec. 648.4(a)(9)(i)(E) and (F).
(16) Fail to comply with any provision of the DAS notification
program as specified in Sec. 648.10.
(17) If the vessel has been issued a limited access monkfish permit
and fishes under a monkfish DAS, fail to comply with gillnet
requirements and restrictions specified in Sec. 648.92(b)(8).
(18) If the vessel is fishing under the gillnet category, fail to
comply with the applicable restrictions and requirements specified in
Sec. 648.92(b)(8).
(19) Fail to produce, or cause to be produced, gillnet tags when
requested by an authorized officer.
(20) Tag a gillnet or use a gillnet tag that has been reported
lost, missing, destroyed, or issued to another vessel, or use a false
gillnet tag.
(21) Sell, transfer, or give away gillnet tags that have been
reported lost, missing, destroyed, or issued to another vessel.
13. Revise the heading for subpart F to read as follows:
Subpart F--Management Measures for the NE Multispecies and Monkfish
Fisheries
14. In Sec. 648.80, the section heading, paragraphs (a)(4)(i)(A),
(a)(7)(iv)(B), (a)(8)(i), (a)(9)(i)(D), and (b)(3)(ii) are revised to
read as follows:
Sec. 648.80 Multispecies regulated mesh areas and restrictions on gear
and methods of fishing.
* * * * *
(a) * * *
(4) * * *
(i) * * *
(A) A vessel fishing in the Cultivator Shoal Whiting Fishery
Exemption Area under this exemption must have a letter of authorization
issued by the Regional Administrator on board and may not fish for,
possess on board, or land any species of fish other than whiting,
except for the following, with the restrictions noted, as allowable
incidental species: Herring; longhorn sculpin; squid; butterfish;
mackerel; dogfish, and red hake--up to 10 percent each, by weight, of
all other species on board; monkfish and monkfish parts--up to 10
percent, by weight, of all other species on board or up to 50 lb (23
kg) tail-weight/166 lb (75 kg) whole weight of monkfish per trip, as
specified in Sec. 648.94(c)(4), whichever is less; and American
lobster--up to 10 percent by weight of all other species on board or
200 lobsters, whichever is less.
* * * * *
(7) * * *
(iv) * * *
(B) A limit on the possession of monkfish or monkfish parts of 10
percent, by weight, of all other species
[[Page 54747]]
on board or as specified by Sec. 648.94(c)(3),(4),(5) or (6), as
applicable, whichever is less.
* * * * *
(8) * * *
(i) Vessels subject to the minimum mesh size restrictions specified
in paragraph (a)(2) of this section may fish with or possess nets with
a mesh size smaller than the minimum size, provided the vessel complies
with the requirements of paragraphs (a)(8)(iv) or (a)(3)(ii) of this
section, from July 15 through November 15 when fishing in Small Mesh
Area 1 and from January 1 through June 30 when fishing in Small Mesh
Area 2, except as specified in paragraph (a)(8)(ii) and (a)(8)(iii) of
this section. A vessel may not fish for, possess on board, or land any
species of fish other than: Butterfish, dogfish, herring, mackerel,
ocean pout, scup, squid, silver hake, and red hake, except for the
following allowable incidental species (bycatch as the term is used
elsewhere in this part), with the restrictions noted: Longhorn sculpin;
monkfish and monkfish parts--up to 10 percent, by weight, of all other
species on board or up to 50 lb (23 kg) tail-weight/166 lb (75 kg)
whole weight of monkfish per trip, as specified in Sec. 648.94(c)(4),
whichever is less; and American lobster--up to 10 percent, by weight,
of all other species on board or 200 lobsters, whichever is less. These
areas are defined by straight lines connecting the following points in
the order stated (copies of a chart depicting these areas are available
from the Regional Administrator upon request (see Table 1 to
Sec. 600.502)):
Small Mesh Area 1
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
SM1........................................... 43 deg.03' 70 deg.27'
SM2........................................... 42 deg.57' 70 deg.22'
SM3........................................... 42 deg.47' 70 deg.32'
SM4........................................... 42 deg.45' 70 deg.29'
SM5........................................... 42 deg.43' 70 deg.32'
SM6........................................... 42 deg.44' 70 deg.39'
SM7........................................... 42 deg.49' 70 deg.43'
SM8........................................... 42 deg.50' 70 deg.41'
SM9........................................... 42 deg.53' 70 deg.43'
SM10.......................................... 42 deg.55' 70 deg.40'
SM11.......................................... 42 deg.59' 70 deg.32'
SM1........................................... 43 deg.03' 70 deg.27'
SM13.......................................... 43 69
deg.05.6' deg.55.0'
SM14.......................................... 43 69
deg.10.1' deg.43.3'
SM15.......................................... 42 69
deg.49.5' deg.40.0'
SM16.......................................... 42 69
deg.41.5' deg.40.0'
SM17.......................................... 42 69
deg.36.6' deg.55.0'
SM13.......................................... 43 69
deg.05.6' deg.55.0'
------------------------------------------------------------------------
* * * * *
(9) * * *
(i) * * *
(D) The following species may be retained, with the restrictions
noted, as allowable bycatch species in the Nantucket Shoals Dogfish
Fishery Exemption Area: Longhorn sculpin; silver hake--up to two
standard totes; monkfish and monkfish parts--up to 10 percent, by
weight, of all other species on board or up to 50 lb (23 kg) tail-
weight/166 lb (75 kg) whole weight of monkfish per trip, as specified
in Sec. 648.94(c)(4), whichever is less; American lobster--up to 10
percent, by weight, of all other species on board or 200 lobsters,
whichever is less; and skate or skate parts--up to 10 percent, by
weight, of all other species on board.
* * * * *
(b) * * *
(3) * * *
(ii) Possession and net stowage requirements. Vessels may possess
regulated species while in possession of nets with mesh smaller than
the minimum size specified in paragraph (b)(2)(i) of this section,
provided that such nets are stowed and are not available for immediate
use in accordance with Sec. 648.23(b), and provided that regulated
species were not harvested by nets of mesh size smaller than the
minimum mesh size specified in paragraph (b)(2)(i) of this section.
Vessels fishing for the exempted species identified in paragraph
(b)(3)(i) of this section may also possess and retain the following
species, with the restrictions noted, as incidental take to these
exempted fisheries: Conger eels; sea robins; black sea bass; red hake;
tautog (blackfish); blowfish; cunner; John Dory; mullet; bluefish;
tilefish; longhorn sculpin; fourspot flounder; alewife; hickory shad;
American shad; blueback herring; sea ravens; Atlantic croaker; spot;
swordfish; monkfish and monkfish parts--up to 10 percent, by weight, of
all other species on board or up to 50 lb (23 kg) tail-weight/166 lb
(75 kg) whole weight of monkfish per trip, as specified in
Sec. 648.94(c)(4), whichever is less; American lobster--up to 10
percent, by weight, of all other species on board or 200 lobsters,
whichever is less; and skate and skate parts--up to 10 percent, by
weight, of all other species on board.
* * * * *
15. Revise the heading of Sec. 648.81 to read as follows:
Sec. 648.81 Multispecies closed areas.
16. Revise the heading of Sec. 648.82 to read as follows:
Sec. 648.82 Effort-control program for multispecies limited access
vessels.
17. Revise the heading of Sec. 648.83 to read as follows:
Sec. 648.83 Multispecies minimum fish sizes.
18. In Sec. 648.84, paragraph (a) is revised to read as follows:
Sec. 648.84 Gear-marking requirements and gear restrictions.
(a) Bottom-tending fixed gear, including, but not limited to,
gillnets and longlines designed for, capable of, or fishing for NE
multispecies or monkfish, must have the name of the owner or vessel or
the official number of that vessel permanently affixed to any buoys,
gillnets, longlines, or other appropriate gear so that the name of the
owner or vessel or the official number of the vessel is visible on the
surface of the water.
* * * * *
19. Revise the heading of Sec. 648.86 to read as follows:
Sec. 648.86 Multispecies possession restrictions.
20. Revise the heading of Sec. 648.88 to read as follows:
Sec. 648.88 Multispecies open access permit restrictions.
21. In Sec. 648.90, the section heading and paragraph (c) are
revised to read as follows:
Sec. 648.90 Multispecies framework specifications.
* * * * *
(c) Nothing in this section is meant to derogate from the authority
of the Secretary to take emergency action and interim measures under
section 305(c) of the Magnuson-Stevens Act.
22. Section 648.95 is added and reserved, Secs. 648.91 through
648.94, and Sec. 648.96 are added to subpart F to read as follows:
Sec. 648.91 Monkfish regulated mesh areas and restrictions on gear and
methods of fishing.
All vessels fishing for, possessing or landing monkfish must comply
with the following minimum mesh size, gear, and methods of fishing
requirements, unless otherwise exempted or prohibited:
(a) Northern Fishery Management Area (NFMA)-- Area definition. The
NFMA (copies of a chart depicting the area are available from the
Regional Administrator upon request) is that area defined by a line
beginning at the intersection of 70 deg. W. longitude and the south-
facing shoreline of Cape Cod, MA (point A), then southward along
70 deg. W. longitude to 41 deg. N. latitude, then eastward to the U.S.-
Canada maritime boundary, then in a northerly direction along the U.S.-
Canada maritime boundary until it intersects the Maine shoreline, and
then following the
[[Page 54748]]
coastline in a southerly direction until it intersects with point A.
(b) Southern Fishery Management Area (SFMA)-- Area definition. The
SFMA (copies of a chart depicting the area are available from the
Regional Administrator upon request) is that area defined by a line
beginning at point A, then in a southerly direction to the NC-SC
border, then due east to the 200-mile limit, then in a northerly
direction along the 200-mile limit to the U.S.-Canada maritime
boundary, then in a northwesterly direction along the U.S.-Canada
maritime boundary to 41 deg. N. latitude, and then westward to 70 deg.
W. longitude, and finally north to the shoreline at Cape Cod, MA (point
A).
(c) Gear restrictions--(1) Minimum mesh size--(i) Trawl nets while
on a monkfish DAS. Except as provided in paragraph (c)(1)(ii) of this
section, the minimum mesh size for any trawl net, including beam trawl
nets, used by a vessel fishing under a monkfish DAS is 10-inch (25.4
cm) square or 12-inch (30.5 cm) diamond mesh throughout the codend for
at least 45 continuous meshes forward of the terminus of the net. The
minimum mesh size for the remainder of the trawl net is the regulated
mesh size specified by Sec. 648.80(a)(2)(i), (b)(2)(i), or (c)(2)(i) of
the Northeast multispecies regulations, depending upon and consistent
with the multispecies regulated mesh area being fished.
(ii) Trawl nets while on a monkfish and multispecies DAS. For
vessels issued a Category C or D limited access monkfish permit and
fishing with trawl gear under both a monkfish and multispecies DAS, the
minimum mesh size is that allowed under regulations governing mesh size
for the NE Multispecies FMP at Sec. 648.80(a)(2)(i), (b)(2)(i), or
(c)(2)(i), depending upon and consistent with the multispecies
regulated mesh area being fished.
(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-inches
(25.4 cm) diamond mesh.
(iv) Authorized gear while on a monkfish and scallop DAS. Vessels
issued a Category C or D limited access monkfish permit and fishing
under a monkfish and scallop DAS may only fish with and use a trawl net
with a mesh size no smaller than that specified in paragraph (c)(1)(i)
of this section.
(2) Other gear restrictions. (i) A vessel may not fish with dredges
or have dredges on board while fishing under a monkfish DAS.
(ii) All other non-conforming gear must be stowed as specified in
Sec. 648.81(e).
(iii) The mesh size restrictions in paragraph (c)(1) of this
section do not apply to nets or pieces of nets smaller than 3 ft (0.9
m) x 3 ft (0.9 m), (9 ft2 (0.81 m2)).
Sec. 648.92 Effort-control program for monkfish limited access
vessels.
(a) General. A vessel issued a limited access monkfish permit may
not fish for, possess, retain, or land monkfish, except during a DAS as
allocated under and in accordance with the applicable DAS program
described in this section, except as otherwise provided in this part.
(1) End-of-year carry-over. With the exception of vessels that held
a Confirmation of Permit History as described in Sec. 648.4(a)(1)(i)(J)
for the entire fishing year preceding the carry-over year, limited
access vessels that have unused DAS on the last day of April of any
year may carry over a maximum of 10 unused DAS into the next fishing
year. Any DAS that have been forfeited due to an enforcement proceeding
will be deducted from all other unused DAS in determining how many DAS
may be carried over.
(2) [Reserved]
(b) Monkfish DAS program--permit categories and allocations--(1)
Limited access monkfish permit holders. For fishing years 1999, 2000,
and 2001, all limited access monkfish permit holders shall be allocated
40 monkfish DAS for each fishing year. Multispecies and scallop limited
access permit holders who also qualify for a limited access monkfish
permit shall be allocated up to 40 monkfish DAS for each fishing year,
depending on whether they have sufficient multispecies and/or scallop
DAS to use concurrently with their monkfish DAS, as required by
paragraph (b)(2) of this section. For fishing years 2002 and
thereafter, no monkfish DAS will be allocated to any limited access
monkfish permit holder.
(2) Category C and D limited access monkfish permit holders. 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.
(3) Accrual of DAS. Same as Sec. 648.53(e).
(4) Good Samaritan credit. Same as Sec. 648.53(f).
(5) Spawning season restrictions. Beginning January 1, 2000, a
vessel issued a valid Category A or B limited access monkfish permit
under Sec. 648.4(a)(9)(i)(A)(1) or (a)(9)(i)(A)(2) must declare and be
out of the monkfish DAS program, as described in paragraph (b) of this
section, for a continuous 20-day period between April 1 and June 30 of
each calendar year using the notification requirements specified in
Sec. 648.10. If a vessel owner has not declared and been out for a
continuous 20-day period between April 1 and June 30 of each calendar
year on or before June 11 of each year, the vessel is prohibited from
fishing for possessing or landing any monkfish during the period June
11 through June 30, inclusive.
(6) Declaring monkfish DAS and blocks of time out. A vessel's owner
or authorized representative shall notify the Regional Administrator of
a vessel's participation in the monkfish DAS program and declaration of
its continuous 20-day period out of the monkfish DAS program, using the
notification requirements specified in Sec. 648.10.
(7) Adjustments in annual monkfish DAS allocations. Adjustments in
annual monkfish DAS allocations, if required to meet fishing mortality
goals, may be implemented pursuant to the framework adjustment
procedures of Sec. 648.96.
(8) Gillnet restrictions--(i) Number and size of nets. A vessel
issued a monkfish limited access permit or fishing under a monkfish DAS
may not fish with, haul, possess, or deploy more than 160 gillnets. A
vessel issued a multispecies limited access permit and a limited access
monkfish permit, or fishing under a monkfish DAS, may fish any
combination of monkfish, roundfish, and flatfish gillnets, up to 160
nets total, provided that the number of monkfish, roundfish, and
flatfish gillnets is consistent with the limitations of
Sec. 648.82(k)(1)(i) and that the nets are tagged in accordance with
the regulations, as specified in Sec. 648.82. Nets may not be longer
than 300 ft (91.44 m), or 50 fathoms, in length.
(ii) Tagging requirements. Beginning May 1, 2000, all gillnets
fished, hauled, possessed, or deployed by a vessel fishing for monkfish
under a monkfish DAS must have one monkfish tag per net, with one tag
secured to every other bridle of every net within a string of nets.
Tags must be obtained as described in Sec. 648.4. A vessel operator
must account for all net tags upon request by an authorized officer.
(iii) Lost tags. A vessel owner or operator must report lost,
destroyed, or missing tag numbers by letter or fax to the Regional
Administrator within 24 hours after tags have been discovered lost,
destroyed, or missing.
(iv) Replacement tags. A vessel owner or operator seeking
replacement of lost, destroyed, or missing tags must request
replacement tags by letter or fax to the Regional Administrator. A
check for the
[[Page 54749]]
cost of the replacement tags must be received before the tags will be
re-issued.
(v) Method of counting DAS. A vessel fishing with gillnet gear
under a monkfish DAS will accrue 15 hours monkfish DAS for each trip
greater than 3 hours but less than or equal to 15 hours. Such vessel
will accrue actual monkfish DAS time at sea for trips less than or
equal to 3 hours or greater than 15 hours. A vessel fishing with
gillnet gear under only a monkfish DAS is not required to remove
gillnet gear from the water upon returning to the dock and calling out
of the DAS program, provided that the vessel complies with the
requirements and conditions of paragraphs (b)(8)(i), (ii), (iii), (iv),
and (v) of this section.
Sec. 648.93 Monkfish minimum fish sizes.
(a) Minimum fish sizes. (1) All monkfish caught in or from the EEZ
or by vessels issued a Federal monkfish permit must meet the following
minimum fish size requirements (total length and tail length) unless
such minimum fish sizes are adjusted pursuant to paragraph (b) of this
section:
MINIMUM FISH SIZES
(Total Length/Tail Length)
------------------------------------------------------------------------
Total Length Tail Length
------------------------------------------------------------------------
17 inches (43.2 cm) 11 inches (27.9 cm)
------------------------------------------------------------------------
(2) The minimum fish size applies to the whole fish (total length)
or to the tail of a fish (tail length) at the time of landing. Fish or
parts of fish, with the exception of cheeks and livers, must have skin
on while possessed on board a vessel and at the time of landing in
order to meet minimum size requirements. ``Skin on'' means the entire
portion of the skin normally attached to the portion of the fish or
fish parts possessed. Monkfish tails are measured from the anterior
portion of the fourth cephalic dorsal spine to the end of the caudal
fin. Any tissue anterior to the fourth dorsal spine is ignored. If the
fourth dorsal spine or the tail is not intact, the minimum size is
measured between the most anterior vertebra and the most posterior
portion of the tail.
(b) Adjustments--(1) Vessels fishing in the SFMA. (i) Unless the
Regional Administrator makes the determination specified in paragraph
(b)(1)(ii), beginning on May 1, 2000, the minimum fish size limit for
vessels fishing in the SFMA, or for vessels not declared into the NFMA,
is 21 inches (53.3 cm) total length/14 inches (35.6 cm) tail length.
(ii) If, based on landings, projected landings, and other available
data, the Regional Administrator determines that the SFMA monkfish
catch for the period May 1, 1999, through April 30, 2000, is less than
or equal to the Year 1 SFMA TAC, a notification will be published in
the Federal Register specifying the minimum monkfish size limit of 17
inches (43.2 cm) total length/11 inches (27.9 cm) tail length for
vessels fishing for, catching, or landing monkfish in the SFMA.
(2) Vessels fishing in the NFMA. An adjustment to the minimum size
possession limits for vessels fishing for, catching, or landing fish in
the SFMA under paragraph (b)(1) of this section will not affect the
minimum size possession limits for vessels fishing for or landing
monkfish in the NFMA, which will remain as described in paragraph
(a)(1) of this section. If the size limits specified in paragraph
(b)(1) of this section become effective for the SFMA, a vessel
intending to fish for and catch monkfish under a monkfish DAS only in
the NFMA must declare into that area for a period not less than 30 days
when calling in under the DAS program or as otherwise directed by the
Regional Administrator. A vessel that has not declared into the NFMA
under this paragraph shall be presumed to have fished in the SFMA and
shall be subject to the more restrictive requirements of that area.
Such restrictions shall apply to the entire trip. A vessel that has
declared into the NFMA may transit the SFMA providing that it complies
with the transiting and gear storage provisions described in
Sec. 648.94(e) and provided that it does not fish for or catch
monkfish, or any other fish, in the SFMA.
Sec. 648.94 Monkfish possession and landing restrictions.
(a) General. Monkfish may be possessed or landed either as tails
only, or in whole form, or any combination of the two. When both tails
and whole fish are possessed or landed, the possession or landing limit
for monkfish tails shall be the difference between the whole weight
limit minus the landing of whole monkfish, divided by 3.32. A 996 lb
(452 kg) whole weight trip limit and a 600 lb (272 kg) landing of whole
fish shall, for example, allow for a maximum landing of tails of 119.3
lb (54.1 kg).
(b) Vessels issued limited access monkfish permits--(1) Vessels
fishing under the monkfish DAS program prior to May 1, 2000. For
vessels fishing under the monkfish DAS program prior to May 1, 2000,
there is no monkfish trip limit.
(2) Vessels fishing under the monkfish DAS program May 1, 2000, and
thereafter. (i) Unless the Regional Administrator makes the
determination specified in paragraph (b)(2)(ii), the trip limits
specified in paragraphs (b)(2)(iii), (iv), (v), and (vi) of this
section apply to vessels fishing under the monkfish DAS program in the
SFMA.
(ii) If, based on landings, projected landings, and other available
data, the Regional Administrator determines that the SFMA monkfish
catch for the period May 1, 1999, through April 30, 2000, is less than
or equal to the Year 1 SFMA TAC, no monkfish trip limit shall apply to
a vessel that is fishing under a monkfish DAS. Such determination shall
be published in the Federal Register.
(iii) Category A and C vessels using trawl gear. Category A and C
vessels exclusively using trawl gear during a monkfish DAS may land up
to 1,500 lb (680 kg) tail-weight or 4,980 lb (2,259 kg) whole weight of
monkfish per DAS (or any prorated combination of tail-weight and whole
weight based on the conversion factor).
(iv) Category B and D vessels using trawl gear. Category B and D
vessels using exclusively trawl gear during a monkfish DAS may land up
to 1,000 lb (454 kg) tail-weight or 3,320 lb (1,506 kg) whole weight of
monkfish per DAS (or any prorated combination of tail-weight and whole
weight based on the conversion factor).
(v) Vessels using gear other than trawl gear. Any vessel issued a
limited access monkfish permit and using gear other than trawl gear
during a monkfish DAS may land up to 300 lb (136 kg) tail-weight or 996
lb (452 kg) whole weight of monkfish per DAS (or any prorated
combination of tail-weight and whole weight based on the conversion
factor).
(vi) Administration of landing limits. A vessel owner or operator
may not exceed the monkfish trip limits as specified in paragraphs
(b)(2)(iii), (iv), and (v) of this section per monkfish DAS fished, or
any part of a monkfish DAS fished.
(3) Category C and D vessels fishing during a multispecies DAS
prior to May 1, 2002--(i) NFMA. There is no monkfish trip limit for a
Category C or D vessel that is fishing under a multispecies DAS
exclusively in the NFMA.
(ii) SFMA. If any portion of a trip is fished only under a
multispecies DAS, and not under a monkfish DAS, in the SFMA, the vessel
may land up to 300 lb (136 kg) tail-weight or 996 lb (452 kg) whole
weight of monkfish per DAS if
[[Page 54750]]
trawl gear is used exclusively during the trip, or 50 lb (23 kg) tail-
weight or 166 lb (75 kg) whole weight if gear other than trawl gear is
used during the trip.
(iii) Transiting. A vessel that harvested monkfish in the NFMA may
transit the SFMA and possess monkfish in excess of the SFMA landing
limit provided such vessel complies with the provisions of
Sec. 648.94(e).
(4) Category C and D vessels fishing during a multispecies DAS from
May 1, 2002, and thereafter--(i) NFMA. Any Category C or D vessel that
is fishing under a multispecies DAS 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 of the total weight of fish on board, whichever is
less.
(ii) SFMA. If any portion of a trip is fished only under a
multispecies DAS and not under a monkfish DAS in the SFMA, a vessel
issued a Category C or D permit may land up to 300 lb (136 kg) tail-
weight or 996 lb (452 kg) whole weight of monkfish per DAS, or 25
percent of the total weight of fish on board, whichever is less, if
trawl gear is used exclusively during the trip, or 50 lb (23 kg) tail-
weight or 166 lb (75 kg) whole weight if gear other than trawl gear is
used during the trip.
(5) Category C and D vessels fishing under the scallop DAS program
prior to May 1, 2002. A category C or D vessel fishing under a scallop
DAS with a dredge on board, or under a net exemption provision as
specified at Sec. 648.51(f), may land up to 300 lb (136 kg) tail-weight
or 996 lb (452 kg) whole weight of monkfish per DAS (or any prorated
combination of tail-weight and whole weight based on the conversion
factor).
(6) Category C and D vessels fishing under the scallop DAS program
from May 1, 2002, and thereafter. A category C or D vessel fishing
under a scallop DAS with a dredge on board may land up to 200 lb (91
kg) tail-weight or 664 lb (301 kg) whole weight of monkfish per DAS (or
any prorated combination of tail-weight and whole weight based on the
conversion factor).
(7) Category C and D Scallop Vessels Declared into the Monkfish DAS
Program without a Dredge on Board. Category C and D vessels that have
declared into the Monkfish DAS Program and that do not fish with or
have on board a dredge are subject to the same possession limits as
specified at (b)(1) and (b)(2). Such vessels are also subject to
provisions applicable to Category A and B vessels fishing only under a
monkfish DAS, consistent with the provisions of this part.
(c) Vessels issued a monkfish incidental catch permit--(1) Vessels
fishing under a multispecies DAS--(i) NFMA. Vessels issued a monkfish
incidental catch permit fishing under a 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 any prorated combination of tail-
weight and whole weight based on the conversion factor), or 25 percent
of the total weight of fish on board, whichever is less.
(ii) SFMA. If any portion of the trip is fished by a vessel issued
a monkfish incidental catch permit under a multispecies DAS in the
SFMA, the vessel may land up to 50 lb (23 kg) tail-weight or 166 lb (75
kg) whole weight of monkfish per DAS (or any prorated combination of
tail-weight and whole weight based on the conversion factor).
(2) Scallop dredge vessels fishing under a scallop DAS--(i) Prior
to May 1, 2002. A scallop dredge vessel issued a monkfish incidental
catch permit fishing under a scallop DAS may land up to 300 lb (136 kg)
tail-weight or 996 lb (452 kg) whole weight of monkfish per DAS (or any
prorated combination of tail-weight and whole weight based on the
conversion factor).
(ii) From May 1, 2002, and thereafter. A scallop dredge vessel
issued a monkfish incidental catch permit fishing under a scallop DAS
may land up to 200 lb (91 kg) tail-weight or 664 lb (301 kg) whole
weight of monkfish per DAS (or any prorated combination of tail-weight
and whole weight based on the conversion factor).
(3) Vessels not fishing under a monkfish, multispecies or scallop
DAS--(i) Vessels fishing in the GOM/GB, SNE and MA Regulated Mesh Areas
with large mesh. A vessel issued a valid monkfish incidental catch
permit and fishing in the GOM/GB or SNE RMAs with large mesh as defined
in Sec. 648.80(a)(2)(i) and (b)(2)(i), respectively, or fishing in the
MA RMA with mesh no smaller than specified at Sec. 648.104(a)(1), while
not on a monkfish, multispecies, or scallop DAS, may possess, retain,
and land monkfish (whole or tails) only up to 5 percent of the total
weight of fish on board.
(ii) [Reserved]
(4) Vessels fishing with small mesh. A vessel issued a valid
monkfish incidental catch permit and fishing with mesh smaller than the
mesh size specified by area in paragraph (c)(3) of this section, while
not on a monkfish, multispecies, or scallop DAS, may possess, retain,
and land only up to 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole
weight of monkfish per trip.
(5) Small vessels. A vessel issued a limited access multispecies
permit and a valid monkfish incidental catch permit that is
30 feet (9.1 m) in length and that elects not to fish under the
multispecies DAS program may possess, retain, and land up to 50 lb (23
kg) tail-weight or 166 lb (75 kg) whole weight of monkfish per trip,
regardless of the weight of other fish on board.
(6) Vessels fishing with handgear. A vessel issued a valid monkfish
incidental catch permit and fishing exclusively with rod and reel or
handlines with no other fishing gear on board, while not on a monkfish,
multispecies, or scallop DAS, may possess, retain, and land up to 50 lb
(23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish per
trip, regardless of the weight of other fish on board.
(d) Monkfish liver landing restrictions. (1) A vessel authorized to
land monkfish under this part may possess or land monkfish livers up to
25 percent of the tail-weight of monkfish, or up to 10 percent of the
whole weight of monkfish, per trip, except as provided under paragraph
(d)(2) of this section.
(2) If a vessel possesses or lands both monkfish tails and whole
monkfish, the vessel may land monkfish livers up to 10 percent of the
whole weight of monkfish per trip using the following weight ratio:
(0.10) x [(tail weight x 3.32) + (whole fish x 1)]
Note to paragraph (d)(2): The value 3.32 is the live weight
conversion for tails and the value of 1 is the live weight
conversion for fish landed in a whole condition.
(e) Transiting. A vessel that has declared into the NFMA for the
purpose of fishing for monkfish, or a vessel that is subject to less
restrictive measures in the NFMA, may transit the SFMA, provided that
the vessel does not harvest or possess monkfish from the SFMA and that
the vessel's fishing gear is properly stowed and not available for
immediate use in accordance with Sec. 648.81(e).
(f) Area declaration. Should the trip limits specified in
paragraphs (b)(2)(iii), (iv), (v), and (vi) of this section be
implemented under paragraph (b)(2) of this section, a vessel, in order
to fish for monkfish under a monkfish DAS in the NFMA, must declare
into that area for a period of not less than 30 days. A vessel that has
not declared into the NFMA under this paragraph will be presumed to
have fished in the SFMA under the more restrictive requirements of that
area. Such restrictions will apply to the entire trip. A vessel that
has declared its intent to fish in the NFMA may transit the SFMA,
provided that it complies with the transiting provisions
[[Page 54751]]
described in paragraph (e) of this section.
(g) Other landing restrictions. Vessels are subject to any other
applicable landing restrictions of this part.
Sec. 648.95 [Reserved]
Sec. 648.96 Monkfish framework specifications.
(a) Annual review. The Monkfish Monitoring Committee (MFMC) shall
meet on or before November 15 of each year to develop target TACs for
the upcoming fishing year and options for NEFMC and MAFMC consideration
on any changes, adjustment, or additions to DAS allocations, trip
limits, size limits, or other measures necessary to achieve the
Monkfish FMP's goals and objectives.
(1) The MFMC shall review available data pertaining to discards and
landings, DAS, and other measures of fishing effort; stock status and
fishing mortality rates; enforcement of and compliance with management
measures; and any other relevant information.
(2) Based on this review, the MFMC shall recommend target TACs and
develop options necessary to achieve the Monkfish FMP's goals and
objectives, which may include a preferred option. The MFMC must
demonstrate through analysis and documentation that the options it
develops are expected to meet the Monkfish FMP goals and objectives.
The MFMC may review the performance of different user groups or fleet
sectors in developing options. The range of options developed by the
MFMC may include any of the management measures in the Monkfish FMP,
including, but not limited to: closed seasons or closed areas; minimum
size limits; mesh size limits; net limits; liver to monkfish landings
ratios; annual monkfish DAS allocations and monitoring; trip or
possession limits; blocks of time out of the fishery; gear
restrictions; transferability of permits and permit rights or
administration of vessel upgrades, vessel replacement, or permit
assignment; and other frameworkable measures included in Secs. 648.55
and 648.90.
(3) The Councils shall review the recommended target TACs and all
of the options developed by the MFMC and other relevant information,
consider public comment, and develop a recommendation to meet the
Monkfish FMP's objectives, consistent with other applicable law. The
Councils may delegate authority to the Joint Monkfish Oversight
Committee to conduct an initial review of the options developed by the
MFMC. The oversight committee would review the options developed by the
MFMC and any other relevant information, consider public comment, and
make a recommendation to the Councils. If the Councils do not submit a
recommendation that meets the Monkfish FMP's objectives and is
consistent with other applicable law, the Regional Administrator may
adopt any option developed by the MFMC unless rejected by either
Council, provided such option meets the Monkfish FMP's objectives and
is consistent with other applicable law. If either the NEFMC or MAFMC
has rejected all options, then the Regional Administrator may select
any measure that has not been rejected by both Councils.
(4) Based on this review, the Councils shall submit a
recommendation to the Regional Administrator of any changes,
adjustments, or additions to management measures necessary to achieve
the Monkfish FMP's goals and objectives. The Councils' recommendation
shall include supporting documents, as appropriate, concerning the
environmental and economic impacts of the proposed action and the other
options considered by the Councils. Management adjustments or
amendments for monkfish require majority approval of each Council for
submission to the Secretary.
(5) If the Councils submit, on or before January 7 of each year, a
recommendation to the Regional Administrator after one framework
meeting, and the Regional Administrator concurs with the
recommendation, the recommendation shall be published in the Federal
Register as a proposed rule. The Federal Register notification of the
proposed action shall provide a 30-day public comment period. The
Councils may instead submit their recommendation on or before February
1 if they choose to follow the framework process outlined in paragraph
(c) of this section and request that the Regional Administrator publish
the recommendation as a final rule. If the Regional Administrator
concurs that the Councils' recommendation meets the Monkfish FMP's
objectives and is consistent with other applicable law, and determines
that the recommended management measures should be published as a final
rule, the action shall be published as a final rule in the Federal
Register. If the Regional Administrator concurs that the recommendation
meets the Monkfish FMP's objectives and is consistent with other
applicable law and determines that a proposed rule is warranted, and,
as a result, the effective date of a final rule falls after the start
of the fishing year, fishing may continue. However, DAS used by a
vessel on or after the start of a fishing year shall be counted against
any DAS allocation the vessel ultimately receives for that year.
(6) If the Regional Administrator concurs in the Councils'
recommendation, a final rule will be published in the Federal Register
prior to each fishing year. If the Councils fail to submit a
recommendation to the Regional Administrator by February 1 that meets
the Monkfish FMP's goals and objectives, the Regional Administrator may
publish as a proposed rule one of the MFMC options reviewed and not
rejected by either Council, provided that the option meets the Monkfish
FMP's objectives and is consistent with other applicable law. If the
Councils fail to submit a recommendation that meets the objectives and
is consistent with other applicable law, the Regional Administrator may
adopt any option developed by the MFMC, unless it was rejected by
either the New England or Mid-Atlantic Council, provided the option
meets the objective and is consistent with other applicable law. If,
after considering public comment, the Regional Administrator decides to
approve the option published as a proposed rule, the action shall be
published as a final rule in the Federal Register.
(b) Three-year review of biological objectives and reference
points. The MFMC shall meet on or before November 15, 2001, to evaluate
threshold and target biological reference points. If adjustments are
required, a framework action shall be initiated to replace the existing
(``default'') measures scheduled to take effect on May 1, 2002 (Year
4). The framework process shall include a comprehensive evaluation,
conducted by the MFMC during 2001, of the effectiveness of the
management measures to reduce mortality below the overfishing threshold
and allow rebuilding within (at that time) 6 years. If a change is
required, the framework process shall follow the procedure described in
paragraph (a) of this section, but may also include an adjustment of
the overfishing definition.
(c) Within season management action. Either Council, or the joint
Monkfish Oversight Committee (subject to the approval of the Councils
chairmen), may at any time initiate action to add or adjust management
measures if it is determined that action is necessary to meet or be
consistent with the goals and objectives of the Monkfish FMP.
[[Page 54752]]
Framework adjustments shall require at least one initial meeting of the
Monkfish Oversight Committee or one of the Councils (the agenda must
include notification of the framework adjustment proposal) and at least
two Council meetings, one at each Council. Management adjustments or
amendments for monkfish shall require majority approval of each Council
for submission to the Secretary.
(1) Adjustment process. After a management action has been
initiated, the Councils must develop and analyze appropriate management
actions over the span of at least two Council meetings, one at each
Council. The Councils shall provide the public with advance notice of
the availability of both the proposals and the analysis, and
opportunity to comment on them prior to the first of the two final
Council meetings. The Councils' recommendation on adjustments or
additions to management measures must come from one or more of the
following categories: closed seasons or closed areas; minimum size
limits; mesh size limits; net limits; liver to monkfish landings
ratios; annual monkfish DAS allocations and monitoring; trip or
possession limits; blocks of time out of the fishery; gear
restrictions; transferability of permits and permit rights or
administration of vessel upgrades, vessel replacement, or permit
assignment; and other frameworkable measures included in Secs. 648.55
and 648.90.
(2) Adjustment process for gear conflicts. The Councils may develop
a recommendation on measures to address gear conflict as defined under
Sec. 600.10 of this chapter, in accordance with the procedure specified
in Sec. 648.55(d) and (e).
(3) Councils' recommendation. After developing management actions
and receiving public testimony, the Councils shall make a
recommendation to the Regional Administrator. The Councils'
recommendation must include supporting rationale and, if management
measures are recommended, an analysis of impacts and a recommendation
to the Regional Administrator on whether to issue the management
measures as a final rule. If the Councils recommend that the management
measures should be issued as a final rule, the Councils must consider
at least the following four factors and provide support and analysis
for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Councils' recommended management measures;
(iii) Whether there is an immediate need to protect the resource or
to impose management measures to resolve gear conflicts; and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(4) Action by NMFS. If the Councils' recommendation to NMFS
includes adjustments or additions to management measures and:
(i) If NMFS concurs with the Councils' recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(c)(3) of this section, then the measures shall be issued as a final
rule in the Federal Register.
(ii) If NMFS concurs with the Councils' recommendation and
determines that the recommended management measures should be published
first as a proposed rule, then the measures shall be published as a
proposed rule in the Federal Register. After additional public comment,
if NMFS concurs with the Councils' recommendation, then the measures
shall be issued as a final rule in the Federal Register.
(iii) If NMFS does not concur, then the Councils shall be notified
in writing of the reasons for the non-concurrence.
(d) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(c) of the Magnuson-Stevens Act.
[FR Doc. 99-26039 Filed 10-6-99; 8:45 am]
BILLING CODE 3510-22-F