[Federal Register Volume 67, Number 227 (Monday, November 25, 2002)]
[Proposed Rules]
[Pages 70570-70573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29895]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 020409080-2277-06; I.D. 101802B]
RIN 0648-AP78


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Regulations 
Governing Northeast Multispecies and Monkfish Days-at-Sea

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

ACTION: Proposed rule; request for comment.

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SUMMARY: NMFS proposes a regulatory amendment that would revise the 
monkfish days-at-sea (DAS) regulations found at 50 CFR part 648 in 
order to provide vessels possessing limited access Category C or D 
monkfish permits the opportunity to fish their full allocation of up to 
40 monkfish DAS, regardless of the amount of Northeast (NE) 
multispecies DAS available to an individual vessel as of August 1, 
2002. These regulations were modified as part of a August 1, 2002, 
interim final rule implementing the Settlement Agreement Among Certain 
Parties (Settlement Agreement), ordered by the U.S. District Court for 
the District of Columbia in a Remedial Order issued on May 23, 2002. 
However, the August 1, 2002, interim final rule unintentionally 
restricted monkfish DAS allocated under the Monkfish Fishery Management 
Plan (Monkfish FMP) for limited access Category C or D monkfish vessels 
that used NE multispecies DAS not in conjunction with a monkfish DAS, 
during May through July, 2002. This regulatory amendment would also 
revise ambiguous language to clarify that a vessel fishing under a 
Southern New England (SNE) and Mid-Atlantic (MA) Yellowtail Flounder 
Possession/Landing Letter of Authorization (LOA) may fish in the Gulf 
of Maine (GOM) or Georges Bank (GB) Regulated Mesh Areas (RMAs), 
provided the vessel abides by the more restrictive yellowtail flounder 
possession limits of the SNE and MA RMAs north of 40[deg]00' N. lat.

DATES: Public comments must be received on or before December 10, 2002.

ADDRESSES: Comments on the proposed rule should be sent to Patricia A. 
Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298. Mark the outside of the envelope 
``Comments on regulatory amendment.'' Comments may also be submitted 
via facsimile (fax) to 978-281-9135. Comments will not be accepted if 
submitted via e-mail or the Internet. Copies of the Regulatory Impact 
Review (RIR) prepared for this action are available from the Regional 
Administrator. The document is also accessible via the Internet at 
http://www.nero.nmfs.gov.

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

SUPPLEMENTARY INFORMATION:

[[Page 70571]]

Background

    NMFS published an interim final rule on August 1, 2002 (67 FR 
50292), to reduce overfishing consistent with and pursuant to section 
305(c)(3) of the Magnuson-Stevens Fishery Conservation and Management 
Act, while Amendment 13 to the Northeast Multispecies Fishery 
Management Plan is being developed. Under the provisions of section 
305(c)(3) of the Magnuson-Stevens Act, interim measures shall remain in 
effect for not more than 180 days after the date of publication, and 
may be extended by publication in the Federal Register for one 
additional period of not more than 180 days, provided that the public 
has had an opportunity to comment on the interim measures. Because of 
the Court's Remedial Order, it is very likely that NMFS will extend the 
interim final rule beyond the first 180-day period. NMFS will announce 
any extension by publishing a notification in the Federal Register. 
Because this proposed rule will amend the August 1, 2002, interim rule, 
this proposed rule, if approved and implemented by NMFS, will remain in 
effect for the duration of the August 1, 2002, interim final rule, 
including any extensions.
    The August 1, 2002, interim final rule implemented additional 
measures intended to reduce overfishing on species managed under the NE 
Multispecies Fishery Management Plan as specified in the Settlement 
Agreement, including a freeze on the use of DAS and a 20-percent 
reduction in effort from the highest amount of DAS fished during the 
fishing years 1996-2000. Under the monkfish DAS regulations implemented 
through the Monkfish FMP (64 FR 54732, October 7, 1999), all limited 
access monkfish vessels are allocated up to 40 monkfish DAS per fishing 
year (May 1 through April 30). Vessels that hold a limited access 
monkfish Category C or D permit (i.e., vessels that possess both a 
limited access monkfish and limited access NE multispecies DAS permit) 
must run both their monkfish DAS clock and their NE multispecies DAS 
clock concurrently when fishing under a monkfish DAS. Limited access 
monkfish vessels that do not have a limited access NE multispecies 
permit (i.e., Category A and B vessels) may fish their monkfish-only 
DAS in a fishery exempted under the 5-percent regulated multispecies 
bycatch provisions. Implementation of the freeze and reduction in DAS 
without regard for monkfish DAS, however, have restricted certain 
limited access monkfish vessels to fishing only the number of monkfish 
DAS equivalent to the number of NE multispecies DAS allocated under the 
August 1, 2002, interim final rule, minus the NE multispecies DAS 
fished during May - July, 2002. There was no intent specified in the 
Settlement Agreement to further restrict monkfish harvest through DAS 
or other measures, when NMFS revised Sec.  648.92(b)(2) in the August 
1, 2002, interim final rule. Therefore, NMFS intended to enable limited 
access Category C or D monkfish vessels to fish their full allocations 
of 40 DAS.
    The August 1, 2002, interim final rule, as currently written, 
specifies that Category C or D monkfish vessels that have been 
allocated fewer than 40 NE multispecies DAS may fish, as monkfish-only 
DAS, those monkfish DAS equal to the difference between their NE 
multispecies DAS allocation and their monkfish DAS allocation for the 
fishing year May 1 through April 30. However, this does not account for 
those vessels that used NE multispecies DAS prior to August 1, 2002, 
and, as a result, had fewer unused NE multispecies than unused monkfish 
DAS as of August 1, 2002. This omission was recognized by NMFS shortly 
after implementation of the August 1, 2002, interim final rule. Because 
such vessels would not be provided the opportunity to fish their full 
40 monkfish DAS allocations for the 2002 fishing year, NMFS is 
proposing this regulatory amendment to revise Sec.  .92(b)(2). This 
proposed regulatory amendment would enable Category C or D monkfish 
vessels to fish their monkfish DAS that were unused as of August 1, 
2002, regardless of how many NE multispecies DAS are available to them. 
Therefore, for the 2002 fishing year, this regulatory amendment would 
authorize a vessel to fish its monkfish-only DAS (i.e., monkfish DAS 
that do not have to be fished concurrently with a NE multispecies DAS) 
equal to the difference between the number of its unused monkfish DAS 
and its unused NE multispecies DAS as of August 1, 2002, in addition to 
the unused monkfish DAS associated with the vessel's unused NE 
multispecies DAS as of August 1, 2002. An example of how the monkfish-
only DAS are calculated under the current interim rule versus this 
proposed regulatory amendment for the 2002 fishing year follows.
    Under the Current Interim Rule - For this example, a vessel was 
allocated 20 NE multispecies DAS pursuant to the August 1, 2002, 
interim rule. The vessel used 10 NE multispecies DAS from May 1 - July 
31, 2002, but did not use any monkfish DAS. Under the August 1, 2002, 
interim rule calculation, the vessel can fish, as monkfish-only DAS, 
the difference between 40 (monkfish DAS) and the number of NE 
multispecies DAS allocated. In this case, the resulting number is 20 
monkfish-only DAS (40 monkfish DAS - 20 allocated NE multispecies DAS = 
20 monkfish-only DAS). However, because the vessel has only 10 unused 
NE multispecies DAS, it can only fish 10 of the remaining 20 monkfish 
DAS (which must be linked to NE multispecies DAS), plus the 20 
monkfish-only DAS. Therefore, the vessel can use only 30 monkfish DAS 
out of its 40 allocated monkfish DAS for the 2002 fishing year under 
the August 1, 2002, interim final rule.
    Under the Proposed Regulatory Amendment - Under this proposed 
regulatory amendment, assuming the same facts as above, the calculation 
of monkfish-only DAS would be based on the difference between the 
vessel's unused monkfish DAS and its unused NE multispecies DAS as of 
August 1, 2002. This would result in 30 monkfish-only DAS (40 unused 
monkfish DAS - 10 unused multispecies DAS = 30 monkfish-only DAS). The 
vessel could also fish an additional 10 monkfish DAS in combination 
with its 10 unused multispecies DAS, for a total of 40 monkfish DAS 
available for the 2002 fishing year.
    This example, and the calculations of monkfish-only DAS under the 
August 1, 2002, interim final rule and this regulatory amendment are 
also illustrated in Table 1.

                          Table 1. Calculation of monkfish-only DAS under interim final rule and proposed regulatory amendment.
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                           A                                  B            C            D            E            F            G               H
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Monkfish DAS Allocated                                      Monkfish    Mult. DAS    Mult. DAS       Unused       Unused     Monkfish     Total Monkfish
                                                            DAS used    Allocated         Used     Monkfish    Mult. DAS     only DAS  DAS Available for
                                                                                                        DAS                                      2002 FY
 
August 1, 2002, Interim Final Rule
 

[[Page 70572]]

 
40                                                                 0           20           10   40 (A - B)   10 (C - D)   20 (A - C)         30 (F + G)
 
Proposed Regulatory Amendment
 
40                                                                 0           20           10   40 (A - B)   10 (C - D)   30 (E - F)         40 (F + G)
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    As under the current interim rule, vessels would be required to 
fish their monkfish-only DAS under the same provisions as limited 
access monkfish Category A and B vessels under these proposed 
regulations. Limited access monkfish Category A and B vessels are 
required to fish their monkfish DAS in an existing monkfish exempted 
fishery, which are specified under Sec.  648.81. A map of these 
exemption areas is also available from the Northeast Regional Office of 
NMFS (see contact information).
    This regulatory amendment would not apply to the 2003 fishing year. 
For the 2003 fishing year, vessels that have been allocated fewer NE 
multispecies DAS than monkfish DAS would fish the difference in DAS as 
monkfish-only DAS, as stipulated in the August 1, 2002, interim final 
rule.
    This regulatory amendment would also revise ambiguous language at 
Sec.  648.86(h)(2) (ii) to clarify that a vessel fishing under a SNE 
and MA Yellowtail Flounder Possession/Landing LOA may fish in the GOM 
or GB RMAs, provided the vessel abides by the more restrictive 
yellowtail flounder possession limits of the SNE and MA RMAs north of 
40[deg]00' N. lat. Existing regulations authorize vessels that possess 
a SNE and MA Yellowtail Flounder Possession/Landing LOA to transit the 
GOM and GB RMAs, if the gear is stowed properly on board the vessel. 
However, this regulation neither prohibits nor allows such vessels to 
fish in the GOM or GB RMAs under the more restrictive yellowtail 
flounder possession limits of the SNE and MA RMAs. The intent of the 
August 1, 2002, interim final rule was to allow vessels possessing a 
SNE and MA Yellowtail Flounder Possession/Landing LOA to fish any part 
of a trip in the GOM or GB RMAs, provided that they abide by the more 
restrictive yellowtail flounder possession limits of the SNE and MA 
RMAs north of 40[deg]00' N. lat. Therefore, this proposed regulatory 
amendment would revise the language at Sec.  648.86(h)(2)(ii) to 
clarify that vessels possessing a SNE and MA Yellowtail Flounder 
Possession/Landing LOA may fish in the GOM or GB RMAs under the more 
restrictive yellowtail possession limits of the SNE and MA RMAs.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The proposed regulatory amendment would impact those vessels possessing 
a limited access Category C or D monkfish permit that had fewer NE 
multispecies DAS than monkfish DAS as of August 1, 2002. Currently, 
there are 651 vessels that hold a limited access Category C or D 
monkfish permit, all of which are considered to be small entities. 
However, an analysis of NMFS' DAS database shows that only 141 vessels 
had fewer monkfish DAS than NE multispecies DAS remaining as of August 
1, 2002, and therefore would be impacted by this proposed action. These 
141 vessels would be allocated a total of 2,700 monkfish-only DAS; DAS 
that could be fished separate from a NE multispecies DAS, once a 
vessel's NE multispecies DAS have been utilized. The current interim 
rule impacts 121 vessels that have been allocated fewer monkfish DAS 
than NE multispecies DAS for the 2002 fishing year. These 121 vessels 
have been allocated a total of 2,200 monkfish-only DAS. Therefore, this 
proposed rule would provide approximately 20 additional vessels with 
the opportunity to utilize their full allocation of 40 monkfish DAS 
during the 2002 fishing year. The additional number of vessels impacted 
by this action is not considered to be substantial.
    This proposed rule may also impact all vessels that hold a limited 
access NE multispecies permit, since it clarifies existing regulations 
concerning yellowtail flounder possession restrictions. There are 
currently 1,363 vessels that possess a limited access NE multispecies 
permit. These vessels might realize a slight positive impact, since it 
would be clear in the regulations that they could fish in the GOM and 
GB RMAs while in possession of a SNE and MA Yellowtail Flounder 
Possession/Landing LOA, but under the more restrictive yellowtail 
flounder possession limits of the SNE and MA RMAs north of 40[deg]00' 
N. lat.
    The proposed regulatory amendment will result in increased revenues 
to vessels participating in the directed monkfish fishery without 
increasing costs. Therefore, this regulation does not significantly 
reduce profit for a substantial number of small entities. Furthermore, 
the objective of the proposed regulatory amendment is to provide all 
limited access monkfish vessels with equal opportunity to use their 
full annual allocation of 40 monkfish DAS. As a result, this action 
will not affect small entities disproportionally, nor will it lessen 
their long-term profitability. In summary, this proposed regulatory 
amendment makes only minor revisions to the August 1, 2002, interim 
final rule. Therefore, a regulatory flexibility analysis was not 
prepared.
    This proposed rule does not duplicate, overlap or conflict with 
other Federal rules, and does not contain new reporting or 
recordkeeping requirements. This proposed rule also takes into 
consideration the monkfish regulations under Sec.  648.92 in order to 
be consistent with the objectives of the Monkfish FMP.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements

    Dated: November 19, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs,National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec.  648.86, paragraph (h)(2) (ii) is revised to read as 
follows:

[[Page 70573]]

Sec.  648.86  Multispecies possession restrictions.

* * * * *
    (h) * * *
    (2) * * *
    (ii) The vessel does not fish south of 40[deg]00' N. lat. for a 
minimum of 30 consecutive days (when fishing under the NE multispecies 
DAS program, or under the monkfish DAS program if the vessel is fishing 
under the limited access monkfish Category C or D provisions). Vessels 
subject to these restrictions may fish any portion of a trip in the GOM 
and GB Regulated Mesh Areas, provided the vessel complies with the 
possession restrictions specified under this paragraph (h). Vessels 
subject to these restrictions may also transit the SNE and MA Regulated 
Mesh Areas south of 40[deg]00' N. lat., provided the gear is stowed in 
accordance with one of the provisions of Sec.  648.23(b).
* * * * *

    3. In Sec.  648.92, paragraph (b)(2) is revised to read as follows:


Sec.  648.92  Effort-control program for monkfish limited access 
vessels.

* * * * *
    (b) * * *
    (2) Category C and D limited access monkfish permit holders. (i) 
August 1, 2002 - April 30, 2003. Each monkfish DAS used by a limited 
access multispecies or scallop vessel holding a Category C or D limited 
access monkfish permit shall also be counted as a multispecies or 
scallop DAS, as applicable, unless otherwise specified in this 
paragraph (b). A Category C or D vessel that had fewer unused 
multispecies DAS than unused monkfish DAS as of August 1, 2002, may 
fish under the limited access monkfish provisions for Category A or B 
vessels, as applicable, for the number of DAS that equal the difference 
between its unused monkfish DAS and unused multispecies DAS as of 
August 1, 2002. For such vessels, when the total allocation of 
multispecies DAS has been used, a monkfish DAS may be used without 
concurrent use of a multispecies DAS. (For example, if a monkfish 
Category D vessel has 10 NE multispecies DAS and 40 monkfish DAS 
remaining as of August 1, 2002, that vessel may use the remaining 30 
monkfish DAS to fish on monkfish, without a NE multispecies DAS being 
used, once the remaining 10 NE multispecies DAS have been utilized. 
However, the vessel must fish the remaining 30 monkfish DAS under the 
regulations pertaining to a Category B vessel, and must not retain any 
regulated multispecies.)
    (ii) Beginning May 1, 2003. Each monkfish DAS used by a limited 
access multispecies or scallop vessel holding a Category C or D limited 
access monkfish permit shall also be counted as a multispecies or 
scallop DAS, as applicable, except when a Category C or D vessel that 
has an allocation of multispecies DAS under Sec.  648.82(l) that is 
less than the number of monkfish DAS allocated for the fishing year May 
1 through April 30, that vessel may fish under the monkfish limited 
access Category A or B provisions, as applicable, for the number of DAS 
that equal the difference between the number of its allocated monkfish 
DAS and the number of its allocated multispecies DAS. For such vessels, 
when the total allocation of multispecies DAS have been used, a 
monkfish DAS may be used without concurrent use of a multispecies DAS. 
(For example, if a monkfish Category D vessel's multispecies DAS 
allocation is 30, and the vessel fished 30 monkfish DAS, 30 
multispecies DAS would also be used. However, after all 30 multispecies 
DAS are used, the vessel may utilize its remaining 10 monkfish DAS to 
fish on monkfish, without a multispecies DAS being used, provided that 
the vessel fishes under the regulations pertaining to a Category B 
vessel and does not retain any regulated multispecies.)
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[FR Doc. 02-29895 Filed 11-22-02; 8:45 am]
BILLING CODE 3510-22-S