[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Rules and Regulations]
[Pages 67568-67571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28196]


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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; Magnuson-Stevens 
Fishery Conservation and Management Act Provisions; Monkfish Fishery

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

ACTION: Extension of an emergency interim rule.

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SUMMARY: NMFS informs the public that the emergency interim rule 
published

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on May 22, 2002, that temporarily amended the fishing mortality rate 
(F) criteria in the Monkfish Fishery Management Plan (FMP) to be 
consistent with the best scientific information available, and which 
implemented the management measures proposed in Framework 1 to the FMP, 
is extended through April 30, 2003. The purpose of this emergency 
interim rule extension is to delay further the implementation of 
restrictive Year-4 default management measures that were scheduled to 
become effective on May 1, 2002, in the FMP, and to continue measures 
implemented for the monkfish fishery that are based on the best 
scientific information.

DATES: The expiration date of the emergency interim rule, published May 
22, 2002 (67 FR 35928), and effective on May 17, 2002, is extended from 
November 18, 2002, to April 30, 2003.

ADDRESSES: Copies of the small entity compliance guide prepared for the 
monkfish emergency rule are available from Patricia Kurkul, Regional 
Administrator, Northeast Regional Office, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930-2298. The guide is 
also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy 
Analyst, (978) 281-9103, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The directed monkfish fishery closed on May 1, 2002, due to the 
implementation of default management measures scheduled to take effect 
during Year 4 of the FMP (May 1, 2002 - April 30, 2003). The Year-4 
default measures were included in the FMP to ensure that the FMP 
objectives were attained. These measures eliminate the directed 
monkfish fishery by allocating zero monkfish days-at-sea (DAS), and by 
allowing only incidental landings of monkfish. The New England and Mid-
Atlantic Fishery Management Councils (Councils) developed Framework 1 
to the FMP in order to delay the implementation of the Year-4 default 
management measures for 1 year, until May 1, 2003, and to implement 
alternative measures for Year-4, since a 3-year review of the status of 
the monkfish stock determined that the implementation of these 
restrictive default measures was not necessary. However, following the 
submission of Framework 1 by the Councils to NMFS, and the publication 
of a proposed rule, it was determined that Framework 1 was not 
consistent with the F criteria specified in the FMP. As a result, NMFS 
disapproved Framework 1 and implemented an emergency interim rule that 
temporarily amended the F criteria in the FMP to be consistent with the 
most recent stock assessment (SAW 34; January 2002). In this same 
regulatory action, NMFS implemented the measures proposed in Framework 
1 because, with the amendment of the F criteria in the FMP through the 
emergency interim rule, the measures were found to be consistent with 
the best available scientific information.
    This action extends the emergency interim measures for 163 days, 
effective November 19, 2002, through April 30, 2002. Emergency interim 
measures extended by this action include a target total allowable catch 
(TAC) of 19,595 metric tons (mt) for the 2002 fishing year (May 1, 2002 
- April 30, 2003), 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; allocation of 40 DAS to 
limited access monkfish vessels for the 2002 fishing year (May 1, 2002 
- April 30, 2003); 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 
maintenance of all other measures as established for Year 3 of the FMP, 
including less restrictive incidental catch limits.

Comments and Responses

    Comment 1: NMFS failed to justify the need for emergency action 
under section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). The argument used by NMFS in 
justifying the emergency interim rule had no merit.
    Response: There was substantial justification for the need for the 
emergency interim rule in the May 22, 2002, Federal Register rule 
implementing this action, and the accompanying environmental assessment 
(EA). These documents discuss in detail how the emergency interim rule 
meets the ``emergency criteria'' and ``emergency justification'' for 
determining the appropriateness of section 305 (c) rulemaking outlined 
in NMFS' Policy Guidelines for the Use of Emergency Rules (Emergency 
Guidelines) found at 62 FR 44421, et seq. (August 21, 1997). In 
summary, these documents stated that implementing the action through 
section 305(c) emergency authority is justifiable because the need to 
disapprove the framework action and immediately amend the FMP to make 
it compatible with the best scientific information available only 
became discoverable after NMFS had the time to fully evaluate the 
framework action after the public comment period had ended, thus 
creating a ``recently discovered circumstance''. In addition, to have 
delayed the incorporation of the newest science into the FMP and 
delayed implementation of the action necessary to avoid the default 
measures would have resulted in substantial, unwarranted and 
unnecessary economic harm to the industry and would have likely caused 
wasteful bycatch of monkfish in other fisheries.
    Comment 2: The emergency action does not contain any analysis 
showing whether or not it will halt monkfish overfishing this year or 
allow rebuilding by 2009.
    Response: NMFS considered all available information regarding the 
stock biomass level and fishing mortality rate in its decision to 
implement the emergency interim rule. The fact that stock biomass has 
increased significantly from 2000 to 2001 in both management areas at 
current landing levels indicates that the level of fishing mortality 
resulting from the measures in this action should allow the stock to 
continue rebuilding. Therefore, there is no evidence that these 
measures will prevent rebuilding by 2009. Furthermore, the emergency 
interim rule and this extension postpone the default measures for only 
1 year; in the absence of any further management action, the default 
measures will become effective on May 1, 2003. Both Councils intend to 
reconsider fully the best available scientific information in the 
development of revised overfishing definitions in Framework 2, which is 
scheduled to be implemented at the start of the 2003 fishing year on 
May 1, 2003.
    Comment 3: The emergency interim rule does not adequately assess 
and minimize the impacts on essential fish habitat (EFH). Of particular 
concern, the EA prepared for the emergency interim rule fails to 
discuss the impacts of fishing gear on deep sea corals in the 
continental slope habitats and on emergent epifauna on hard bottom.
    Response: NMFS disagrees, and notes that the EA prepared for the 
emergency interim rule contains an EFH assessment as required by the 
Magnuson-Stevens Act. A comprehensive assessment of the adverse effects 
of fishing on EFH is not

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within the scope and context of this emergency action. Furthermore, the 
commenter is a party to the litigation that challenged the 
consideration of EFH in the FMP (American Oceans Campaign v. Daley 
(D.D.C. 2000)). NMFS and the litigants have signed a settlement 
agreement in that case, and have agreed that EFH will be fully 
reconsidered in Amendment 2 to the FMP, which is scheduled to be 
implemented during the fall of 2003. In the meantime, the settlement 
agreement contemplates that the comprehensive assessment of the adverse 
effects of fishing on EFH that was included in the New England 
Council's EFH amendment to the FMP (Amendment 1) may be relied upon. 
Further, since this action makes no change in effort from the prior 
year, there should be no change in habitat impacts from those described 
for the first 3 years of the FMP.
    The commenter expressed specific concern about gillnet impacts on 
deep-sea corals. Such corals are not designated as EFH for any species 
in waters off of the northeastern United States, so it is not necessary 
to address impacts to deep-sea corals in order to comply with EFH 
requirements. Further, according to the NMFS Report on Fishing Gear 
Effects on Marine Habitats off the Northeastern United States (February 
2002), there is very little sink gillnet fishing gear used in waters 
deeper than 100 m or in submarine canyons, which is where most of such 
corals exist.
    Comment 4: The emergency interim rule fails to establish a 
standardized bycatch reporting methodology, or to minimize bycatch and 
bycatch mortality as required by the Sustainable Fisheries Act and 
recent case law. Of particular concern are the capture of deep-sea 
species such as deep-sea jelly fish, octopi, and sharks as the monkfish 
fishery extends its range further offshore.
    Response: The existing data collection system requires vessel 
operators to provide bycatch data on mandatory Vessel Trip Reports that 
must be submitted for each fishing trip. In addition, detailed 
information is collected through the NMFS Observer Program, which 
deploys trained independent observers on commercial vessels. NMFS is 
currently increasing the amount of observer coverage on vessels fishing 
for Northeast multispecies, and this action will likely result in 
further information concerning monkfish, as well. NMFS agrees that, in 
the long term, it must improve the collection of bycatch information, 
but disagrees that the emergency interim rule should be suspended 
because it does not address this issue. As stated in the EA for the 
emergency interim rule, to effectively address bycatch assessment 
concerns would require a global set of measures applicable to all of 
the Northeast region's fisheries, since most vessels in the region are 
involved in a variety of fisheries, even during one fishing trip. NMFS 
is committed to improving bycatch assessment, as evidenced by the 
settlement agreement entered into with the other litigatory parties in 
Conservation Law Foundation, et al. v. Evans, et al. It is beyond the 
scope and context of the emergency interim rule process to require a 
global system of measures to be established to improve bycatch 
monitoring, assessment and reduction in only one fishery.
    With respect to minimizing bycatch, NMFS notes that national 
standard 9 requires minimization of bycatch to the extent practicable. 
The EA prepared for the emergency interim rule notes that, with the 
stock biomass increasing, there is an increased likelihood that vessels 
targeting other species will incidentally harvest monkfish. Therefore, 
if the emergency interim rule were not extended and Year-4 default 
management measures became effective, the directed fishery would be 
completely eliminated and vessels that previously participated in that 
fishery would be expected to target other species. As such, the default 
measures would be expected to increase bycatch and bycatch mortality, 
providing no improved conservation to the stock.
    With respect to the commenter's specific concern about bycatch of 
deep-sea animals, NMFS notes that the 2001 cooperative survey, upon 
which this comment is based, provided new information that will be 
fully considered by the Councils as they develop Amendment 2 to the 
FMP. NMFS also notes that the trip limits established for the SFMA 
fishery under the emergency interim rule and this emergency rule 
extension are restrictive and unlikely to support a directed fishery 
offshore.
    Comment 5: The environmental analysis accompanying the emergency 
action is deficient, and the magnitude of the impacts require the 
preparation of an environmental impact statement (EIS) rather than an 
EA.
    Response: Although NMFS agrees with the commenter that this action 
makes a modification from the measures contemplated for Year-4 in the 
FMP, NMFS has determined that this action does not have significant 
impacts that would require the preparation of an EIS, as discussed in 
the EA and its Finding of No Significant Impact (FONSI) statement. In 
support of their comment that an EIS should have been prepared for this 
action, the commenters mostly rely on comments already addressed herein 
concerning consistency of the action with FMP overfishing and 
rebuilding objectives, bycatch methodologies and minimization, and EFH 
concerns. These concerns are addressed under Responses to Comments 2, 3 
and 4. As explained in the responses to these comments, because this 
action is for 1 year only, because an EIS is being prepared for 
Amendment 2, and for other reasons stated in the EA and its FONSI, NMFS 
concludes that an EA is appropriate for this emergency action.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this extension is needed to prevent the restrictive 
Year-4 default management measures from taking effect on November 19, 
2002. Extending the current management measures established by the 
emergency interim rule (67 FR 35928, May 22, 2002) through 
implementation of Framework 2 on May 1, 2003, is necessary to prevent 
substantial, unwarranted and unnecessary economic harm to the industry 
and a likely increase in monkfish bycatch in other fisheries as a 
result of terminating the directed monkfish fishery. Accordingly, the 
AA is extending the expiration date of this emergency interim rule 
until the effective date of the 2003 management measures, not to exceed 
180 days.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) for 
this action. A summary of the FRFA follows.
    A description of the objectives of the emergency interim rule and 
the need for this extension are explained in the preamble for this 
action and are not repeated here. This action does not contain any 
collection-of-information, reporting, record-keeping, or other 
compliance requirements. It does not duplicate, overlap, or conflict 
with any other Federal rules.
    One public comment was received on the emergency interim rule. 
However this comment did not address any of the economic impacts 
associated with the implementation of this rule.
    The measures contained in the emergency interim rule and its 
proposed extension potentially affect the approximately 704 vessels 
that currently hold a limited access monkfish permit. According to the 
analysis presented in

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the environmental assessment (EA) prepared for the emergency interim 
rule, the preferred alternative (implementation of the emergency 
interim rule) was expected to result in loss of income from fishing 
year 2000 levels for several vessel types. However, these projected 
losses in income were lower than the losses that would result from 
implementation of either the non-preferred or no action alternatives. 
Therefore, because the analysis showed that the emergency interim rule 
would have the least effect on small entities compared to the non-
preferred and no action alternatives, this preferred alternative was 
selected.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) states that for each rule or group of related 
rules for which an agency is required to prepare a FRFA, the agency 
shall publish one or more guides to assist small entities in complying 
with the rule, and shall designate such publications as ``small entity 
compliance guides''. The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. As 
part of this rulemaking process, a small entity compliance guide (the 
guide) was prepared. Copies of the guide will be sent to all holders of 
permits issued for the monkfish fishery. The guide will be available on 
the Internet at http://www.nero.noaa.gov. Copies of the guide can also 
be obtained from the Regional Administrator (see ADDRESSES).

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

    Dated: October 31, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 02-28196 Filed 11-1-02; 2:10 pm]
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