[Federal Register Volume 67, Number 99 (Wednesday, May 22, 2002)]
[Rules and Regulations]
[Pages 35928-35931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12774]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 020329075-2124-03; I.D. 031902E]
RIN 0648-AP11


Fisheries of the Northeastern United States; Monkfish 
Fishery;Framework 1; Emergency Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Disapproval of Framework 1; emergency interim rule; request for 
comments.

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SUMMARY: NMFS notifies the public that it has disapproved proposed 
Framework 1 to the Monkfish Fishery Management Plan (FMP). NMFS is 
issuing this emergency interim rule to amend temporarily the monkfish 
fishing mortality rate (F) criteria in the FMP to be consistent with 
those recommended by the most recent stock assessment (SAW 34; January 
2002). This emergency rule also implements the management measures that 
were proposed in Framework 1 to the FMP because, with the amendment of 
the F criteria in the FMP, these measures are consistent with the best 
available scientific information. The intended effect of this rule is 
to suspend temporarily the restrictive Year 4 default management 
measures that became effective May 1, 2002, and to implement management 
measures for the monkfish fishery based on the best scientific 
information.

DATES: Effective May 17, 2002 through November 18, 2002. Comments on 
this emergency rule must be received no later than 5 p.m. EDT June 14, 
2002.

ADDRESSES: Comments on the emergency rule should be sent to Patricia A. 
Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298. Mark the outside of the envelope 
``Comments on Monkfish Emergency Rule.'' Comments may also be submitted 
via facsimile (fax) to 978-281-9135. Comments will not be accepted if 
submitted via e-mail or the Internet.
    Copies of the emergency rule, including the Environmental 
Assessment (EA) and Regulatory Impact Review (RIR) are available upon 
request from Patricia A. Kurkul at the address listed above. The EA/RIR 
is also accessible via the Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy 
Analyst,

[[Page 35929]]

(978) 281-9103, fax (978) 281-9135, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The monkfish fishery is jointly managed by the New England and Mid-
Atlantic Fishery Management Councils (Councils), with the New England 
Fishery Management Council having the administrative lead. The 
objectives of the management program established by the FMP are to 
eliminate overfishing by May 2002 and to rebuild the stock by 2009. In 
order to ensure the elimination of overfishing by May 2002, the FMP 
specified that restrictive measures be implemented for Year 4 of the 
management program (May 1, 2002--April 30, 2003), unless a 3-year 
review of the stock status indicates that these restrictive measures 
are not necessary. The Year 4 default measures, which became effective 
on May 1, 2002, eliminated the directed monkfish fishery by allocating 
zero monkfish days-at-sea (DAS) and by allowing only incidental 
landings of monkfish.
    As required by the regulations at 50 CFR 648.96(b), a 3-year review 
of the management program was conducted by the Monkfish Monitoring 
Committee. Based on the results of this review, the Councils submitted 
Framework 1, which presented alternative management measures for Year 
4. A proposed rule seeking public comment on Framework 1 was published 
in the Federal Register on April 4, 2002 (67 FR 16079). The measures 
proposed in Framework 1 were as follows: (1) A 1-year delay in 
implementing the restrictive Year 4 default management measures; (2) a 
target TAC of 19,595 metric tons (mt), with area-specific TACs of 
11,674 mt and 7,921 mt for the Northern Fishery Management Area (NFMA) 
and the Southern Fishery Management Area (SFMA), respectively; (3) 
allocation of 40 DAS to limited access monkfish vessels for the 2002 
fishing year (May 1, 2002 - April 30, 2003); (4) a revision to the 
monkfish trip limits in the SFMA to 550 lb (249 kg) (tail weight per 
DAS) for vessel permit categories A and C, and 450 lb (204 kg) (tail 
weight per DAS) for vessel permit categories B and D while fishing on a 
monkfish DAS in the SFMA; and (5) maintenance of all other measures as 
established for Year 3 of the FMP, including less restrictive 
incidental catch limits.
    Based upon the F criteria recommended by SAW 34 and the 2001 NMFS 
fall trawl survey, the measures contained in Framework 1 were initially 
determined to be consistent with the FMP objectives of ending 
overfishing in 2002. However, that determination was based on the F 
criteria recommended by SAW 34, not the F criteria in the FMP. 
Therefore, during a closer review of the F criteria in the FMP, NMFS 
determined that Framework 1 was not consistent with the FMP because the 
F criteria in the FMP have not yet been formally amended to reflect the 
best available information on the monkfish stock. Therefore, NMFS is 
disapproving Framework 1 because it is inconsistent with the FMP.
    The FMP authorizes the Councils to revise the F criteria through 
framework action. However, the results of SAW 34 were not available 
until late January 2002, when the Councils approved Framework 1, which 
was too late to incorporate the new scientific information into the 
framework action in order to have measures in place before the default 
measures became effective on May 1, 2002.
    The F thresholds defined in the FMP are F=0.05 for the NFMA and 
F=0.14 for the SFMA. The FMP F targets and thresholds were generated 
using reference points and estimates of contemporaneous fishing 
mortality from SAW 23 (March 1997). Estimates of those reference points 
were recalculated during SAW 31 (October 2000) using updated data and 
under different hypotheses, which were considered to be more 
reasonable, regarding the mean length at full selection.\1\ This 
resulted in negative estimates of the F threshold for the NFMA, which 
is an unrealistic result, indicating that the F reference points in the 
FMP are not reliable as indicators of stock status with respect to 
exploitation rates. As a result, the 31\st\ Stock Assessment Review 
Committee (SARC) concluded that the fishing mortality reference points 
established in the FMP needed to be reevaluated.
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    \1\ The mean at which monkfish is retained by the fishing gear.
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    The 34\th\ SARC recognized inherent flaws in the method used to 
establish the F criteria in the FMP and discussed potential 
alternatives for establishing revised F criteria. The SARC stated that 
information now exists to estimate current F rates by age, and that 
yield per recruit (YPR) analyses could be used to establish revised 
reference points. Based on a provisional YPR analysis, the SARC 
recommended F thresholds of F=0.2 and F targets of F=0.14 for the stock 
units in both the NFMA and the SFMA.
    The FMP includes target TAC levels projected to be consistent with 
the fishing mortality objectives of the FMP. The FMP's planned 
reductions in the target TACs were based on achieving the F threshold 
in the fourth year of management. However, when the F thresholds were 
found to be invalid, the TACs also became invalid.
    The current assessment methodology is adequate to estimate the 
level of F in recent fishing years. In Framework 1, the Councils 
considered information from SAW 34 that provided a range of F estimates 
for calendar year 2000. Within the range of estimates, the SAW attached 
the most significance to those derived from the recent cooperative 
industry survey, which was conducted in February--April 2001. The most 
probable estimates of F derived from the cooperative survey ranged from 
about 0.25 to about 0.4. These estimates include only 7 months of 
monkfish DAS restrictions and trip limits and, therefore, underestimate 
the effect of the management measures in reducing F. Furthermore, the 
results of the 2001 NMFS fall trawl survey indicate that the NFMA 
component of the stock is no longer overfished and that the SFMA stock 
biomass is at its highest level since 1986.
    NMFS implements this emergency rule to amend temporarily the F 
criteria in the FMP to be consistent with those recommended by SAW 34. 
Amendment 2 to the FMP, which is currently under development by the 
Councils, will permanently amend these F criteria and establish a 
revised stock rebuilding program using the best scientific information 
available. Because the measures proposed in Framework 1 were found to 
be consistent with the F criteria recommended by SAW 34, this temporary 
revision to the F criteria contained in the FMP provides a clear basis 
for implementing the management measures proposed in Framework 1. 
Therefore, this action also enacts the management measures proposed in 
Framework 1, which are described in the preamble to this emergency 
rule. These measures achieve the FMP objective of ending overfishing in 
2002 since setting the target TACs for the 2002 fishing year based on 
2000 landings is consistent with the amended F threshold of F=0.2. 
Moreover, with stock survey indices showing increasing biomass, F 
should decrease further if monkfish catch remains stable. To achieve 
the target TACs recommended for Framework 1, the Councils and NMFS 
considered combinations of trip limits and DAS. The combination of 
restrictive trip limits and 40 DAS to keep landings at the 2000 level 
was selected by the Councils over other (higher) trip limits and a 
reduced number of DAS based on industry testimony favoring the 
maintenance of the 40 DAS.

[[Page 35930]]

    Section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) authorizes the Secretary of 
Commerce to implement emergency regulations to address an emergency if 
the Secretary finds that an emergency exists. These emergency 
regulations may remain in effect for no more than 180 calendar days 
after the date of publication in the Federal Register, with a possible 
180-day extension, provided the public has an opportunity to comment on 
the measures.
    The restrictive Year 4 default measures currently required by the 
FMP became effective on May 1, 2002. These default measures are 
expected to have a significant negative economic impact on monkfish 
vessels and monkfish-dependent communities. In addition, because 
monkfish are often caught incidentally when vessels target other 
species, the default measures are likely to cause wasteful bycatch of 
monkfish in other directed fisheries as a result of reduced incidental 
trip limits. Furthermore, the results of SAW 34 and the 2001 NMFS fall 
trawl survey indicate that the restrictive Year 4 default measures are 
not necessary to eliminate overfishing.
    Implementing this action through section 305(c) emergency authority 
is justifiable because the need to disapprove Framework 1 and 
immediately amend the FMP to make it consistent with the best 
scientific information available became discoverable only after NMFS 
had the time to fully evaluate the framework action after the public 
comment period had ended. As discussed above, the disapproval of 
Framework 1 is based on the fact that the framework measures, which are 
based on the best available scientific information on the monkfish 
stock, are inconsistent with the F criteria in the FMP. The need for a 
formal change to the FMP to incorporate the new F criteria was not 
clearly apparent earlier, given the newness of the scientific 
information and the extremely compressed timeframe for considering 
public comments and implementing the framework before the default 
measures became operative. Moreover, it would not have been possible to 
incorporate the new scientific information into the FMP through 
Framework 1 to avoid the default measures because the scientific 
information necessary to justify the change was not available in time. 
Disapproval of Framework 1 means that the default measures, which are 
no longer considered necessary in light of the best scientific 
information available, must remain in place until the newest science is 
incorporated into the FMP. To delay the incorporation of the newest 
science and implementation of the action necessary to avoid the default 
measures would result in substantial, unwarranted and unnecessary 
economic harm to the industry and would likely cause wasteful bycatch 
of monkfish in other fisheries. Because NMFS is constrained to only 
approve or disapprove a framework action, the only available way to 
implement this action, without further delay, is through the Magnuson-
Stevens Act section 305(c) emergency authority.
    Implementing this action through the section 305(c) emergency 
authority of the Magnuson-Stevens Act is fully consistent with NMFS' 
Policy Guidelines for the Use of Emergency Rules (Emergency Guidelines) 
found at 62 FR 44421, et seq. (August 21, 1997). The Emergency 
Guidelines specify ``emergency criteria'' and ``emergency 
justification'' for determining the appropriateness of section 305 (c) 
rulemaking. Under the ``emergency criteria'' guidelines, an emergency 
exists in a situation that: (1) Results from recent, unforeseen events 
or recently discovered circumstances; (2) presents serious conservation 
or management problems in the fishery; and (3) can be addressed through 
emergency regulations for which the immediate benefits outweigh the 
value of advance notice, public comment, and deliberative consideration 
of the impacts on participants to the same extent as would be expected 
under the normal rulemaking process.
    As more fully discussed above and in the EA accompanying this 
action, this emergency action meets all of these criteria. First, the 
need for the action results from a ``recently discovered circumstance'' 
created by the need to disapprove Framework 1. Second, to allow the 
default measures to remain in place creates serious management problems 
in that fishers are subject to substantial, unwarranted and unnecessary 
economic harm if they are not allowed to retain more than an incidental 
catch of monkfish. It also creates serious conservation problems in 
that the default measures are likely to cause wasteful bycatch of 
monkfish in other fisheries. Third, the immediate benefits of relieving 
the substantial economic harm on the fishers outweigh the value of 
additional public comment and deliberative consideration, particularly 
because there has been prior notice and comment on the measures to be 
implemented in the context of receiving comments on a proposed 
framework action.
    For these same reasons, this emergency action is consistent with 
the ``emergency justification'' guidelines which state that an 
emergency action is justified:
    If the time it would take to complete notice-and-comment 
rulemaking would result in substantial damage or loss to a living 
marine resource, habitat, fishery, industry participants or 
communities, or substantial adverse effect to the public health, 
emergency action might be justified under one or more of the 
following situations:
    (1) Ecological (A) to prevent overfishing as defined in an FMP, 
or as defined by the Secretary in the absence of an FMP, or (B) to 
prevent other serious damage to the fishery resource or habitat; or,
    (2) Economic to prevent significant direct economic loss or to 
preserve a significant economic opportunity that otherwise might be 
foregone; or,
    (3) Social to prevent significant community impacts or conflict 
between user groups; or,
    (4) Public health to prevent significant adverse effects to 
health of participants in a fishery or to the consumers of seafood 
products (62 FR 44421).
    This emergency action clearly qualifies under the ``Economic'' 
situation in that it is intended to relieve unnecessary economic loss 
to fishers that otherwise would not be able to fish for monkfish under 
the default measures. It also preserves a significant economic 
opportunity for those fishers that rely on the monkfish fishery for 
their livelihood as more fully discussed above and in the EA. In 
addition, this emergency action addresses the ``Social'' situation by 
lessening impacts on fishers in communities more dependent on monkfish 
and the ``Ecological'' situation by minimizing wasteful bycatch of 
monkfish in other fisheries.

Classification

    For these reasons, the Assistant Administrator for Fisheries, NOAA 
(AA) finds good cause to waive the requirement to provide prior notice 
and the opportunity for public comment on the temporary amendment to F 
thresholds and F targets in the FMP, pursuant to authority set forth at 
U.S.C. 553(b)(B), as such procedures would be impracticable and 
contrary to the public interest. This will prevent unnecessary economic 
harm and biological waste by enacting a temporary suspension of the 
restrictive Year 4 default management measures and implementing 
alternative measures consistent with the measures proposed in Framework 
1. These reasons are more fully explained in the justification for 
implementing this emergency action pursuant to section 305(c) of the 
Magnuson-Stevens Act. It is further noted that the management

[[Page 35931]]

measures contained in this emergency rule received prior notice and 
public comment through the Council's framework process and the 
publication of a proposed rule for Framework 1. The AA is also waiving 
the 30 day delay in effective date under 5 U.S.C. 553(d)(1), as this 
rule relieves a restriction.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior public comment. However, the management measures contained in 
this emergency rule received prior notice and public comment through 
the Councils' framework process and the publication of a proposed rule, 
accompanied by an Initial Regulatory Flexibility Analysis, for 
Framework 1. A Final Regulatory Flexibility Analysis was prepared for 
the draft final rule for Framework 1.
    A formal section 7 consultation under the Endangered Species Act 
was initiated for Framework 1. Because the measures contained in this 
emergency rule are the same as those proposed in Framework 1, the 
Biological Opinion (BO) prepared as part of that consultation is 
applicable to this action. In the BO for Framework 1 dated May 14, 
2002, the AA determined that fishing activities conducted under the 
measures contained in Framework 1 are not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of critical habitat.
    The Regional Administrator has determined that fishing activities 
conducted under this emergency rule will not have an adverse impact on 
marine mammals.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 16, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In  648.92, paragraph (b)(1) is suspended and paragraph 
(b)(9) is added to read as follows:


 648.92  Effort-control program for monkfish limited access 
vessels.

* * * * *
    (b) * * *
    (9) Limited access monkfish permit holders. For fishing year 2002, 
all limited access monkfish permit holders shall be allocated 40 
monkfish DAS. Multispecies and scallop limited access permit holders 
who also qualify for a limited access monkfish permit shall be 
allocated up to 40 monkfish DAS, 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.

    3. In  648.94, paragraphs (b)(1) through (b)(7) and (c)(2) 
are suspended, and paragraphs (b)(8) through (b)(11), and (c)(7) are 
added to read as follows:


 648.94  Monkfish possession and landing restrictions.

* * * * *
    (b) * * *
    (8) Vessels fishing under the monkfish DAS program in the SFMA.--
(i) Category A and C vessels. Category A and C vessels fishing under 
the monkfish DAS program in the SFMA may land up to 550 lb (249 kg) 
tail-weight or 1,826 lb (828 kg) whole weight of monkfish per DAS (or 
any prorated combination of tail-weight and whole weight based on the 
conversion factor).
    (ii) Category B and D vessels. Category B and D vessels fishing 
under the monkfish DAS program in the SFMA may land up to 450 lb (204 
kg) tail-weight or 1,494 lb (678 kg) whole weight of monkfish per DAS 
(or any prorated combination of tail-weight and whole weight based on 
the conversion factor).
    (iii) Administration of landing limits. A vessel owner or operator 
may not exceed the monkfish trip limits as specified in paragraphs 
(b)(8)(ii) and (iii) of this section per monkfish DAS fished, or any 
part of a monkfish DAS fished.
    (9) Category C and D vessels fishing during a multispecies DAS.--
(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 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.
    (10) Category C and D vessels fishing under the scallop DAS 
program. A Category C or D vessel fishing under a scallop DAS with a 
dredge on board, or under a net exemption provision as specified in 
 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).
    (11) 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 landing limits as 
specified in paragraph (b)(9) of this section. 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) * * *
    (7) Scallop dredge vessels fishing under a scallop DAS. A scallop 
dredge vessel issued a monkfish incidental catch permit and 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).
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[FR Doc. 02-12774 Filed 5-17-02; 10:37 am]
BILLING CODE 3510-22-S