[Federal Register Volume 68, Number 45 (Friday, March 7, 2003)]
[Proposed Rules]
[Pages 11023-11030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5172]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030225045-3045-01; I.D. 020603A]
RIN 0648-AQ29


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Monkfish 
Fishery; Framework Adjustment 2

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Framework Adjustment 2 
to the Monkfish Fishery Management Plan (FMP) developed by the New 
England and Mid-Atlantic Fishery Management Councils (Councils). 
Pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the FMP, this proposed rule would modify 
the monkfish overfishing definition reference points and optimum yield 
(OY) target control rule to be consistent with the most recent stock 
assessment and other scientific information. This rule also proposes an 
expedited process for setting annual target total allowable catch (TAC) 
and a method for adjusting monkfish trip limits and days-at-sea (DAS) 
allocations to achieve the annual target TACs. Based on this method, 
this proposed rule would establish a target TAC and corresponding trip 
limits and DAS allocations for fishing year (FY) 2003. In addition, 
this proposed rule would eliminate the default measures adopted in the 
original FMP that would result in elimination of the directed monkfish 
fishery and reduce incidental catch limits. Finally, this proposed rule 
would clarify the regulations pertaining to the monkfish area 
declaration requirements by specifying that vessels intending to fish 
under either a monkfish, multispecies, or scallop DAS, under the less 
restrictive measures of the Northern Fishery Management Area (NFMA), 
declare their intent to fish in the NFMA for a minimum of 30 days.

DATES: Public comments must be received on or before March 24, 2003.

ADDRESSES: Comments on the proposed rule should be sent to Patricia A. 
Kurkul, Regional Administrator (RA), Northeast Region, NMFS, One 
Blackburn Drive, Gloucester, MA 01930-2298. Mark the outside of the 
envelope ``Comments on Monkfish Framework 2.'' 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 Framework Adjustment 2 to the FMP, including the 
Environmental Assessment (EA), Regulatory Impact Review (RIR), and the 
Initial Regulatory Flexibility Analysis (IRFA) are available upon 
request from Paul Howard, Executive Director, New England Fishery 
Management Council (NEFMC), 50 Water Street, Newburyport, MA, 01950. 
Copies of the Framework 2 EA/RIR/IRFA are also available online at 
www.nefmc.org under ``Plans and Reports.''

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

SUPPLEMENTARY INFORMATION: The monkfish fishery is jointly managed by 
the Councils. The FMP contains default measures that would eliminate 
the

[[Page 11024]]

directed monkfish fishery by allocating zero monkfish DAS. These 
measures were scheduled to take effect during Year 4 (May 1, 2002) of 
the FMP's 10-year rebuilding schedule, but were delayed until May 1, 
2003, as a result of the implementation of an emergency interim rule 
(67 FR 35928; May 22, 2002) and its extension (67 FR 67568; November 6, 
2002). The emergency interim rule temporarily amended the fishing 
mortality rate (F) criteria in the FMP to be consistent with the most 
recent stock assessment. The emergency rule also implemented the 
measures contained in Framework Adjustment 1 to the FMP (which was 
disapproved by NMFS in conjunction with the implementation of the 
emergency rule) since these measures were deemed to be consistent with 
the revised F criteria.
    The purpose of the proposed action is to continue the 10-year stock 
rebuilding program started in 1999 under the original FMP, consistent 
with updated scientific information. As noted above, the FMP contains 
default measures that, unless eliminated or delayed, will end the 
directed fishery (no allocation of monkfish DAS) and reduce several of 
the incidental catch limits starting May 1, 2003. The default measures 
were developed in the original FMP based on scientific analysis and 
projections done in 1997. More recent analyses and stock assessments 
have indicated that the scientific basis for the default measures is no 
longer valid, and the measures are not appropriate. Furthermore, the 
most recent stock assessment (SAW 34; January 2002) has invalidated the 
lower F reference points contained in the FMP, and suggested 
alternative reference points for the monkfish overfishing definition 
and control rules. In addition to revising the overfishing definitions 
in the FMP to make them consistent with the best available science and 
the provisions of the Magnuson-Stevens Act, this action proposes to 
establish an expedited process for setting annual target TACs, and the 
necessary trip limits and/or DAS allocations to meet such target TACs. 
Furthermore, this proposed rule would establish target TACs and 
corresponding trip limits for FY 2003 utilizing the proposed method.

Monkfish Overfishing Definition Reference Points

    The threshold fishing mortality rate (Fthreshold) is the 
criterion by which the overfishing status is determined. Framework 2 
would revise the Fthreshold reference point by setting 
Fthreshold equal to Fmax=0.2, as recommended by 
the 34th Stock Assessment Workshop. Fmax is the proxy for 
the fishing mortality rate that will achieve maximum sustainable yield 
(MSY) from a rebuilt stock.
    The minimum biomass threshold (Bthreshold) is the 
criterion by which a stock is determined to be overfished. The biomass 
target (Btarget) is a proxy for the expected biomass at MSY 
(Bmsy). The National Standard Guidelines prescribe that 
Bthreshold be set at whichever of the following is greater: 
At one-half the Btarget, or the minimum stock size at which 
rebuilding to Btarget would be expected to occur within 10 
years, if the stock were exploited at Fthreshold. The 
existing Bthresholds in the FMP were established based on 
the 33rd percentile of NMFS' fall trawl survey biomass index values for 
the years 1963-1994; Bthreshold = 1.46 kg/tow for the NFMA 
and Bthreshold = 0.75 kg/tow for the Southern Fishery 
Management Area (SFMA). At the time the FMP was implemented, the 
Councils believed that this was an acceptable proxy for a risk adverse 
Bthreshold. Language in the FMP, however, indicates that it 
is unclear how this Bthreshold relates to rebuilding because 
of the inability to model monkfish stock dynamics and predict 
rebuilding potential due to a lack of biological data on the monkfish 
resource. Although a recent cooperative industry survey provided 
valuable biological information on the monkfish resource, there 
continues to be a lack of sufficient information necessary to conduct 
reliable projections for monkfish rebuilding, or to produce a reliable 
estimate of F. As a result, it is currently not possible for NMFS to 
determine the minimum stock size at which rebuilding to Btarget 
would be expected to occur within 10 years if the stock were exploited 
at Fthreshold. Because a Bthreshold of one-half 
the Btarget is consistent with National Standard 1, and 
because there are no other suitable proxies for Bthreshold 
given the data-poor situation, the proposed action would revise the 
Bthreshold values contained in the FMP to be equivalent to 
one-half the Btarget established for each management area. 
This would establish a Bthreshold = 1.25 for the NFMA, and 
Bthreshold = 0.93 for the SFMA. Under the proposed action, 
the Btargets established in the FMP would remain unchanged.
    The results of the 2002 NMFS fall trawl survey indicate that the 3-
year average biomass index is 2.23 kg/tow for the NFMA and 0.813 kg/tow 
for the SFMA. Applying the new Bthreshold criteria that 
would be established by this rule, the stock in the NFMA remains not 
overfished. However, the stock in the SFMA, which is currently 
considered not overfished, would be considered overfished under the 
proposed revision.

Setting Annual Target TACs and Associated Management Measures

    Framework 2 would require the Monkfish Monitoring Committee (MFMC) 
to submit to the Council and Regional Administrator the target TACs for 
the upcoming year by December 1 based on a formulaic index- and 
landings-based method. This method would compare the current 3-year 
average biomass index (observed biomass index) values to annual biomass 
index targets, which are based on 10 equal increments between the 1999 
biomass index (the start of the rebuilding program) and the 2009 
biomass index target (Btarget), a proxy for the monkfish 
biomass level at MSY. Annual target TACs would be set based on the 
ratio of the observed biomass index to the annual index target applied 
to the monkfish landings for the previous fishing year. Once the annual 
target TACs are established and submitted to the RA, the RA would 
adjust trip limits and/or DAS, if necessary, through rulemaking 
consistent with the Administrative Procedures Act (APA) based on the 
methodology established in this framework. If the TAC resulting from 
the application of the TAC setting procedures described herein does not 
require a change to existing management measures, then the RA would not 
required to take any regulatory action under the procedures established 
in Framework 2.
    The MFMC is currently required to meet on or before November 15 
each year to review the status of the monkfish resource and develop 
TACs for the upcoming fishing year. If the results of the most recent 
NMFS fall trawl survey are available at that time, the MFMC would 
incorporate these results into the formulaic method as described in 
this framework to establish target TACs for the upcoming fishing year.
    Under the target TAC setting method contained in Framework 2, if 
the observed biomass index is below the annual index target, the target 
TAC would be set proportionally below the previous year's landings. If 
the observed biomass index is above the annual index target, the target 
TAC would be increased from the previous year's landings by \1/2\ of 
the ratio of the biomass index to the index target, with certain 
limitations as described below. In cases where F can be determined, the 
annual target TAC would always be set at a value that would not exceed 
Fthreshold (F=0.2). For example, if F for the previous 
fishing year exceeded Fthreshold, but a reduction in the 
target TAC is not required under the index-based method,

[[Page 11025]]

the target TAC would be reduced proportionally from the previous year's 
landings to end overfishing. When F cannot be determined and the 
observed biomass index is above the annual index target, the target TAC 
for the previous year would be increased by the method described above, 
but not by more than 20 percent of the previous year's landings.
    Once the stock in a management area is rebuilt (the observed 
biomass index is at or above Btarget), the target TAC would 
be adjusted based on the ratio of current F to Fthreshold, 
allowing for an increase in the target TAC if F is below 
Fthreshold. This would set the OY target reference point at 
Fthreshold. However, if F cannot be determined and the 
observed biomass index is above Btarget, the target TAC would be set at 
no more than 20 percent above the previous year's landings.
    In the situation where landings decline from the previous fishing 
year and the observed biomass index is above the annual index target, 
the MFMC would review the circumstances surrounding the landings 
decline and recommend to the Councils a target TAC equivalent to either 
the previous year's landings or target TAC. The Councils, after 
considering the MFMC's recommendation, would then recommend a target 
TAC to the RA regarding whether the target TAC should be set at the 
previous year's landings or target TAC. If the RA concurs with this 
recommendation, the target TAC and associated trip limits would be 
promulgated through rulemaking and consistent with the requirements of 
the APA. Otherwise, the RA would notify the Councils in writing of his 
or her reasons for non-concurrence.
    The intent of the Councils in establishing a formulaic method for 
setting annual target TACs, described above, was to enable the RA to 
set future TACs and associated management measures outside of the 
framework adjustment process established in the FMP. In this proposed 
rule, NMFS is clarifying that the expedited process for setting annual 
TACs contained in the Framework 2 document is to be done through the 
rulemaking process specified under the APA.
    The Framework 2 document analyzes a range of target TAC 
alternatives for FY 2004. The intent of this analysis is to facilitate 
the expedited process for annual adjustments and to provide the public 
with ample notice of the possible impacts of such adjustments. The 
expedited annual adjustment process to be established in this framework 
would not preclude the Councils from initiating a framework adjustment 
at anytime to implement other measures deemed necessary to meet the 
objectives of the FMP.

FY 2003 TACs and Possession Limits

    For FY 2003, the TACs under the proposed action would be 10,211 mt 
in the SFMA and 17,708 mt in the NFMA. As a result, trip limits for 
monkfish limited access vessels in the SFMA would be increased from FY 
2002 (May 1, 2002 - April 30, 2003) levels (550 lb (249.5 kg) tail 
weight per DAS for Category A and C vessels, and 450 lb (204.1 kg) tail 
weight per DAS for Category B and D vessels), to 1,250 lb (567 kg) tail 
weight per DAS for Category A and C vessels, and 1,000 lb (453.6 kg) 
tail weight per DAS for Category B and D vessels. In the NFMA, there is 
currently no trip limit for monkfish limited access vessels while 
fishing under either a monkfish or Northeast (NE) multispecies DAS, and 
no change is proposed. However, monkfish open-access Category E vessels 
fishing exclusively in the NFMA on a NE multispecies DAS would have 
their monkfish incidental catch limits increased from 300 lb (136.1 kg) 
tail weight per DAS or 25 percent of the total weight of fish on board 
to the lesser of 400 lb (181.4 kg) tail weight per DAS or 50 percent of 
total weight of fish on board.

Revision to the Area Declaration Regulations

    Regulations implementing the FMP (64 FR 54732; October 7, 1999) 
specify that a vessel intending to fish for or catch monkfish under a 
monkfish DAS only in the NFMA must declare into the NFMA for a minimum 
of 30 days in order to fish under the less restrictive size and trip 
limits of this management area. However, the FMP also requires vessels 
fishing under a multispecies or scallop DAS to declare into the NFMA in 
order to fish under the less restrictive measures of this area. Because 
NMFS inadvertently referenced only limited access monkfish DAS vessels 
in the regulations implementing the FMP, Framework 2 proposes to 
correct the area declaration provision by requiring vessels with 
limited access multispecies and scallop DAS permits, in addition to 
vessels possessing limited access monkfish DAS permits, to declare into 
the NFMA for a minimum of 30 days in order to fish under the less 
restrictive size and trip limits of this management area.

Revisions to Prohibitions

    Since they are ambiguous and do not contain the appropriate cross-
references to the monkfish regulations specified under 50 CFR Part 648 
Subpart F, this action also proposes to clarify the monkfish 
prohibitions found at Sec.  648.14(y).

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866 because it does not have an 
annual effect on the economy of 100 million dollars or more, or 
adversely effect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities. 
The proposed action also does not raise any novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in E.O. 12866.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) that describes the economic impact this proposed rule, if 
adopted, would have on small entities. The IRFA prepared for this 
action by the NEFMC follows NMFS' ``Guidelines for Economic Analysis of 
Fishery Management Actions'' (NMFS' guidelines). A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY. A summary of the analysis follows:
    There are approximately 714 limited access monkfish permit holders, 
of which about 85 percent record some monkfish activity. Of the 
approximately 1,900 open-access Category E permits, only about 25 
percent have recorded landing monkfish. Vessels range in size from less 
than 30 ft (9.14 m) to over 90 ft (27.43 m), with the median being less 
than 50 ft (15.24 m) in overall length. Most of the inactive vessels 
(those not landing monkfish or not landing any species) are in the 
smaller size classes, while 70 percent of the limited access vessels 
over 50 ft (15.24 m) have recorded monkfish landings. In achieving OY 
from the fishery on an annual basis while rebuilding the resource to 
levels that will sustain MSY, the proposed action strikes a reasonable 
balance between biological requirements and uncertainties, and the 
financial requirements of small entities.
    NMFS' guidelines specify two criteria to be used for evaluating 
whether a proposed action is significant: Disproportionality and 
profitability. Disproportionality relates to the effect on small 
entities compared to large entities. Since all entities engaged in the 
fishery fall under the Small Business

[[Page 11026]]

Administration approved definition of ``small entity,'' this evaluation 
standard is not relevant to the fishery. According to the analysis of 
the impact on vessels in the SFMA, relative to performance during 
calendar years 1998-2000, net return on monkfish-only trips would 
improve by 23 percent for the median and range from no change to an 
improvement of 78 percent at the proposed FY 2003 quota level. Given 
these levels of expected change in profitability, the proposed trip 
limits may have a significant positive impact on limited access 
monkfish vessels that fish in the SFMA. At other quota levels, median 
vessel performance would be reduced by 63 percent at a 5,000-mt quota, 
but would increase by 29 percent at a 13,000-mt quota. In either of 
these two scenarios, the change in profitability would be significant; 
negative for the former, and positive for the latter.
    In the NFMA, the only change in management measures would be an 
increase in the incidental catch limit for open access Category E 
monkfish vessels. During FY 2001 (May 1, 2001 - April 30, 2002), 255 
Category E vessels caught monkfish in the NFMA. Average monkfish catch 
by these vessels (62 lb (28.1 kg) per NE multispecies DAS) is well 
below the current and proposed incidental catch limits. Therefore, in 
terms of improvements to participating vessels' annual profit, the 
proposed change is not likely to have a significant impact. While the 
current trip limit does not constrain the majority of the 255 Category 
E vessels catching monkfish in the NFMA, the proposed increase could 
allow those vessels that are constrained by the current trip limit to 
increase their monkfish landings by as much as 33 percent without 
jeopardizing the stock rebuilding program.
    NMFS' guidelines state that ``a rule may be determined to affect a 
substantial number of small entities if the rule is controversial, 
impacts more than just a few entities, or affects the structure of the 
regulated industry even though only a small number of entities may be 
impacted.'' The proposed action may affect a substantial number of 
small entities because it will impact approximately 700 limited access 
monkfish permit holders, although not in an adverse way, by means of an 
increase to the trip limits for the SFMA. An analysis of projected 
change in fishing performance under the proposed TACs and trip limits 
for FY 2003, as compared to FY 2002, indicates that the median vessel 
will realize a 23-percent increase in net returns on monkfish-only 
trips. According to this analysis, the change in net returns resulting 
from the proposed trip limit increase ranged from no change to an 
improvement of 78 percent. A vessel would realize no change in net 
revenues under the proposed trip limit increase if the vessel was not 
constrained by the 2002 trip limits; in other words, the vessel did not 
fish at a level exceeding the trip limits established for FY 2002. 
Under future TACs that could range from 5,000 mt to 13,000 mt, the 
median vessel would realize gross revenue impacts ranging from a loss 
of 49 percent to a gain of 17 percent in net income. In the NFMA, 
approximately 255 vessels out of approximately 1,500 limited access 
multispecies permit holders landed monkfish under the open-access 
Category E (incidental catch) permit. These vessels will mostly be 
unaffected by the proposed incidental catch limit increase since they 
land, on average, only about 20 percent of the current limit.
    Combining the two evaluation criteria, the proposed regulations 
would likely have a considerable positive impact on a substantial 
number of vessels that participate in the SFMA on monkfish-only DAS. 
The incidental catch trip limit change in the NFMA would impact a 
substantial number of participating small entities, but the overall 
impact on vessel profitability is not expected to be significant.
    A copy of this analysis is available from the NEFMC (see 
ADDRESSES).
    This proposed rule does not duplicate, overlap or conflict with 
other Federal rules, and does not contain new reporting or 
recordkeeping requirements. However this action makes a correction to 
the regulatory language referencing area declaration procedures. This 
collection-of-information requirement that is subject to the Paperwork 
Reduction Act (PRA) has previously been approved by OMB under control 
number 0648-0202. Public reporting burden for this collection of 
information is estimated to average 3 minutes per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington DC 20503 (Attention: NOAA Desk Officer).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 28, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, 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: 16 U.S.C. 1801 et seq.

    2. In Sec.  648.14, paragraphs (y) introductory text, (y)(1), 
(y)(4), (y)(6), (y)(9) through (y)(11), (y)(13), and (y)(17) through 
(y)(21) are revised to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (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 that engages in 
fishing for monkfish 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 Sec.  
648.4(a)(9); or
    (ii) The monkfish were harvested by a vessel not issued a Federal 
monkfish permit that fishes for or possesses monkfish exclusively in 
state waters; or
    (iii) The monkfish were harvested in or from the EEZ by a vessel 
not issued a Federal monkfish permit that engaged in recreational 
fishing.
* * * * *
    (4) Operate or act as an operator of a vessel fishing for, 
possessing, retaining, or landing monkfish in or from the EEZ without 
having been issued and possessing a valid operator permit pursuant to 
Sec.  648.5, and this permit is onboard the vessel.
* * * * *
    (6) Violate any provision of the monkfish incidental catch permit 
restrictions as provided in Sec. Sec.  648.4(a)(9)(ii) or 648.94(c).
* * * * *
    (9) Fail to comply with the monkfish size limit restrictions of 
Sec.  648.93 when

[[Page 11027]]

issued a valid monkfish permit under Sec.  648.4(a)(9).
    (10) Fail to comply with the monkfish possession limits and landing 
restrictions, including liver landing restrictions, specified under 
Sec.  648.94 when issued a valid monkfish permit under Sec.  
648.4(a)(9).
    (11) Fail to comply with the monkfish DAS provisions specified at 
Sec.  648.92 when issued a valid limited access monkfish permit, and 
fishing for, possessing, or landing monkfish in excess of the 
incidental catch limits specified at Sec.  648.94 (c).
* * * * *
    (13) Combine, transfer, or consolidate monkfish DAS allocations.
* * * * *
    (17) If the vessel has been issued a valid 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) Fail to produce gillnet tags when requested by an authorized 
officer.
    (19) Tagging a gillnet with or otherwise using or possessing a 
gillnet tag that has been reported lost, missing, destroyed, or issued 
to another vessel, or using or possessing a false gillnet tag.
    (20) Selling, transferring, or giving away gillnet tags that have 
been reported lost, missing, destroyed, or issued to another vessel.
    (21) Fail to comply with the area declaration requirements 
specified at Sec.  Sec.  648.93(b)(2) and 648.94(f) when fishing under 
a scallop, multispecies or monkfish DAS exclusively in the NFMA under 
the less restrictive monkfish size and possession limits of that area.
* * * * *

    3. In Sec.  648.92, paragraph (b)(1) is revised to read as follows:


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

* * * * *
    (b) * * *
    (1) Limited access monkfish permit holders. All limited access 
monkfish permit holders shall be allocated 40 monkfish DAS for each 
fishing year, unless modified according to the provisions specified at 
Sec.  648.96(b)(3). Limited access multispecies and limited access 
scallop permit holders who also possess a valid limited access monkfish 
permit must use a multispecies or scallop DAS concurrently with their 
monkfish DAS, except as provided in paragraph (b)(2) of this section.
* * * * *

    4. In Sec.  648.93, the introductory heading for paragraph (a), and 
paragraphs (a)(1) and (b) are revised to read as follows:


Sec.  648.93  Monkfish minimum fish sizes.

    (a) General provisions. (1) All monkfish caught by vessels issued a 
valid Federal monkfish permit must meet the minimum fish size 
requirements established in this section.
* * * * *
    (b) Minimum fish sizes. (1) The minimum fish size for vessels 
fishing in the SFMA, or for vessels not declared into the NFMA as 
specified in paragraph (b)(2) of this section, is 21 inches (53.3 cm) 
total length/14 inches (35.6 cm) tail length.
    (2) Vessels fishing exclusively in the NFMA. The minimum fish size 
for vessels fishing exclusively in the NFMA is 17 inches (43.2 cm) 
total length/11 inches (27.9 cm) tail length. In order for this size 
limit to be applicable, a vessel intending to fish for monkfish under a 
scallop, multispecies, or monkfish DAS exclusively in the NFMA must 
declare into the NFMA for a period of not less than 30 days pursuant to 
the provisions specified at Sec.  648.94(f). 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. 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.

    5. In Sec.  648.94, paragraph (b)(7) is removed and reserved; and 
paragraphs (b)(1), (b)(2), introductory heading of paragraph (b)(3), 
(b)(4) through (b)(6), (c)(1)(i), (c)(2), (c)(3)(i) and (f) are revised 
to read as follows:


Sec.  648.94  Monkfish possession and landing restrictions.

* * * * *
    (b) * * *
    (1) Vessels fishing under the monkfish DAS program in the NFMA. 
There is no monkfish trip limit for vessels issued a limited access 
Category A, B, C, or D permit that are fishing under a monkfish DAS 
exclusively in the NFMA.
    (2) 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 1,250 lb (567 kg) tail-
weight or 4,150 lb (1,882 kg) whole weight of monkfish per monkfish DAS 
(or any prorated combination of tail-weight and whole weight based on 
the conversion factor for tail-weight to whole weight of 3.32).
    (ii) Category B and D vessels. Category B and D vessels fishing 
under the monkfish DAS program in the SFMA may land up to 1,000 lb (454 
kg) tail-weight or 3,320 lb (1,506 kg) whole weight of monkfish per 
monkfish DAS (or any prorated combination of tail-weight and whole 
weight based on the conversion factor for tail-weight to whole weight 
of 3.32).
    (iii) Administration of landing limits. A vessel owner or operator 
may not exceed the monkfish trip limits as specified in paragraphs 
(b)(2)(i) and (ii) of this section per monkfish DAS fished, or any part 
of a monkfish DAS fished.
    (3) Category C and D vessels fishing under the multispecies DAS 
program. * * *
* * * * *
    (4) Category C and D vessels fishing under the scallop DAS program. 
A Category C or D vessel 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 for tail-weight to whole weight of 3.32). All 
monkfish permitted vessels are prohibited from fishing for, landing, or 
possessing monkfish while in possession of dredge gear unless fishing 
under a scallop DAS.
    (5) Category C and D scallop vessels declared into the monkfish DAS 
program without a dredge on board, or not under the net exemption 
provision. Category C and D vessels that have declared into the 
monkfish DAS program and that do not fish with or have a dredge on 
board, or are not fishing with a net under the net exemption provision 
specified in Sec.  648.51(f), are subject to the same landing limits as 
specified in paragraphs (b)(1) and (b)(2) 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.
    (6) Vessels not fishing under a multispecies, scallop or monkfish 
DAS. The possession limits for all limited access monkfish vessels when 
not fishing under a multispecies, scallop, or monkfish DAS are the same 
as the possession limits for a vessel issued a monkfish incidental 
catch permit specified under paragraph (c)(3) of this section.
* * * * *
    (c) * * *
    (1) * * *
    (i) NFMA. Vessels issued a monkfish incidental catch permit fishing 
under a multispecies DAS exclusively in the NFMA may land up to 400 lb 
(181 kg) tail weight or 1,328 lb (602 kg) whole

[[Page 11028]]

weight of monkfish per DAS, or 50 percent (where the weight of all 
monkfish is converted to tail weight) of the total weight of fish on 
board, whichever is less. For the purposes of converting whole weight 
to tail weight, the amount of whole weight possessed or landed is 
divided by 3.32.
* * * * *
    (2) Scallop dredge vessels fishing under a scallop DAS. 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).
    (3) * * *
    (i) Vessels fishing with large mesh. A vessel issued a valid 
monkfish incidental catch permit and fishing in the GOM, GB, SNE, or MA 
RMAs with mesh no smaller than specified at Sec.  648.80(a)(3)(i), 
(a)(4)(i), (b)(2)(i), and Sec.  648.104(a)(1), respectively, while not 
on a monkfish, multispecies, or scallop DAS, may possess, retain, and 
land monkfish (whole or tails) only up to 5 percent (where the weight 
of all monkfish is converted to tail weight) of the total weight of 
fish on board. For the purposes of converting whole weight to tail 
weight, the amount of whole weight possessed or landed is divided by 
3.32.
* * * * *
    (f) Area declaration requirement for vessels fishing exclusively in 
the NFMA. Vessels fishing under a multispecies, scallop, or monkfish 
DAS under the less restrictive management measures of the NFMA, must 
fish for monkfish exclusively in the NFMA and declare into the NFMA for 
a period of not less than 30 days by obtaining a letter of 
authorization from 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. 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.
* * * * *

    6. In Sec.  648.96, the section heading and paragraphs (a), (b) and 
(c) are revised to read as follows:


Sec.  648.96  Monkfish annual adjustment process and framework 
specifications.

    (a) General. The Monkfish Monitoring Committee (MFMC) shall meet on 
or before November 15 of each year to develop target TACs for the 
upcoming fishing year in accordance with Sec.  648.96(b)(1), 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. 
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.
    (b) Annual adjustment procedures--(1) Setting annual target TACs. 
(i) The MFMC shall submit to the Councils and Regional Administrator 
the target monkfish TACs for the upcoming fishing year by December 1 
based on the control rule formula described in paragraph (b)(1)(ii) of 
this section. The Regional Administrator shall then promulgate any 
changes to existing management measures, pursuant to the methods 
specified in paragraphs (b)(2) and (3) of this section, resulting from 
the updated target TAC through rulemaking consistent with the 
Administrative Procedures Act. If the annual target TAC generated 
through the control rule formula described in paragraph (b)(1)(ii) of 
this section does not require any changes to existing management 
measures, then no action is required by the Regional Administrator.
    (ii) Control rule method for setting annual targets TACs. The 
current 3-year running average of the NMFS fall trawl survey index of 
monkfish biomass will be compared to the established annual biomass 
index target, and target annual TACs will be set in accordance with 
paragraphs (b)(1)(ii)(A) through (F) of this section. The annual 
biomass index targets established in Framework Adjustment 2 to the FMP 
are provided in the following table (kg/tow).

----------------------------------------------------------------------------------------------------------------
                                                    FY      FY      FY      FY      FY      FY      FY      FY
                                                   2003    2004    2005    2006    2007    2007    2008    2009
----------------------------------------------------------------------------------------------------------------
NFMA                                                1.33    1.49    1.66    1.83    2.00    2.16    2.33    2.50
SFMA                                                0.88    1.02    1.15    1.29    1.43    1.57    1.71    1.85
----------------------------------------------------------------------------------------------------------------

    (A) Unless the provisions of paragraphs (b)(1)(ii)(C) or (D) of 
this section apply, if the current 3-year running average of the NMFS 
fall trawl survey biomass index is below the annual index target, the 
target TAC for the subsequent fishing year will be set equivalent to 
the monkfish landings for the previous fishing year minus the 
percentage difference between the 3-year average biomass index and the 
annual index target.
    (B) If the 3-year running average of the NMFS fall trawl survey 
biomass index is above the annual index target, and the current 
estimate of F is below Fthreshold=Fmax=0.2, the 
target TAC for the subsequent fishing year shall be set equivalent to 
the previous year's landings plus one-half the percentage difference 
between the 3-year average biomass index and the annual index target, 
but not to exceed an amount calculated to generate an F in excess of 
Fthreshold. If current F cannot be determined, the target 
TAC shall be set at not more than 20 percent above the previous year's 
landings.
    (C) If the current estimate of F exceeds Fthreshold, the 
target TAC shall be reduced proportionally to stop overfishing, even if 
a reduction is not called for based on biomass index status as 
described in paragraph (b)(1)(ii)(A) of this section. For example, if 
F=0.24, and Fthreshold=0.2, then the target TAC shall be 
reduced to 20 percent below the previous year's landings.
    (D) If the 3-year average biomass index is below the annual index 
target, and F is above Fthreshold, the method (F-based or 
biomass index based) that shall result in the greater reduction from 
the previous year's landings will determine the target TAC for the 
subsequent fishing year.
    (E) If the observed index is above the 2009 index targets, the 
target TAC for the subsequent fishing year shall be based on the ratio 
of current F to F=0.2 applied to the previous year's landings. If 
current F cannot be determined, the target TAC shall be set at not more 
than 20 percent above previous year's landings.
    (F) If landings decline from the previous year and the current 3-
year average biomass index is above the annual index target, whether or 
not F can be determined, the MFMC shall include in its report, prepared 
under paragraph (a) of this section, after taking into account 
circumstances surrounding the landings decline, a recommendation to the 
Councils on whether the target TAC should be set at the previous year's

[[Page 11029]]

landings or previous year's target TAC. The Councils shall consider the 
MFMC recommendation, and then recommend to the Regional Administrator 
whether the target TAC should be set at the previous year's landings or 
previous year's target TAC. If such a recommendation is made, the 
Regional Administrator must decide whether to promulgate measures 
consistent with the recommendation as provided for in paragraph (b)(4) 
of this section.
    (2) Setting trip limits for the SFMA. (i) Under the method 
described in paragraph (b)(1)(ii) of this section, if the SFMA target 
TAC is set at 8,000 mt or higher, the Regional Administrator shall 
adjust the trip limits according to the method described in paragraph 
(b)(2)(ii) of this section.
    (ii) Trip limit analysis procedures. Trip limits shall be 
determined annually using information from the mandatory fishing vessel 
trip reports (FVTR). The 1999 fishing year shall be used as the 
baseline year for this analysis. The most recent fishing year for which 
there is complete FVTR information shall be utilized to establish the 
level of landings and fishing effort under current regulations. For 
example, the determination of trip limits for the 2004 fishing year 
would be based on the ratio of landings and effort obtained from the 
FVTRs for the 2002 fishing year, the most recent fishing year for which 
complete FVTR information would be available. Using the relationship 
between the fishing patterns for these two years, ratios shall be 
calculated for each permit category. These ratios shall be used to 
determine landings goals for each permit category based on the proposed 
TAC for the SFMA. A simulation process will then be used to estimate 
the landings per DAS for each permit category that would achieve the 
established landings goals.
    (3) Setting DAS allocations for the SFMA. Under the method 
described in paragraph (b)(1)(ii) of this section, if the SFMA target 
TAC is set below 8,000 mt, the Regional Administrator shall set the 
trip limits as specified in paragraphs (b)(3)(i) and (ii) of this 
section, and adjust the DAS allocations according to the method 
described in paragraph (b)(3)(iii) of this section.
    (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 for tail-weight to whole weight of 3.32).
    (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 for tail-weight to whole weight of 3.32).
    (iii) DAS analysis. This procedure involves setting a maximum DAS 
usage for all permit holders of 40 DAS; proportionally adjusting the 
landings to a given DAS value based on the trip limits specified under 
paragraphs (b)(3)(i) and (ii) of this section; and adjusting the 
landings according to the same methodology used in the trip limit 
analysis described in paragraph (b)(2)(ii) of this section.
    (A) Limited access monkfish permit holders are allowed to carry 
over up to 10 DAS from the previous fishing year to the current fishing 
year. For this procedure, adjustments to DAS usage are made by first 
reducing the landings for all permit holders who used more than 40 DAS 
by the proportion of DAS exceeding 40, and then resetting the 
upperlimit of DAS usage to 40.
    (B) The expected landings at the adjusted DAS are calculated by 
adding the landings of all permit holders who used less than the 
proposed DAS limit to the landings of those who used more than the 
proposed DAS limit, where landings are reduced by the proportion of the 
proposed DAS limit to the actual DAS used by vessels during the 
baseline fishing year, 1999.
    (C) Landings are prorated between permit categories in the same 
manner used in the trip limit analysis procedures described under 
paragraph (b)(2)(iii) of this section.
    (4) Council TAC recommendations. As described in paragraph 
(b)(1)(ii)(F) of this section, if the Councils recommend a target TAC 
to the Regional Administrator, and the Regional Administrator concurs 
with this recommendation, the Regional Administrator shall then 
promulgate the target TAC and associated management measures through 
rulemaking consistent with the APA. If the Regional Administrator does 
not concur with the Councils' recommendation, then the Councils shall 
be notified in writing of the reasons for the non-concurrence.
    (c)Annual and in-season framework adjustments to management 
measures--(1) Annual framework process. (i) Based on their annual 
review, the MFMC may develop and recommend, in addition to the target 
TACs and management measures established under paragraph (b) of this 
section, 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 Sec.  Sec.  
648.55 and 648.90.
    (ii) The Councils shall review the options developed by the MFMC 
and other relevant information, consider public comment, and submit a 
recommendation to the Regional Administrator that meets the Monkfish 
FMP's objectives, consistent with other applicable law. The Councils' 
recommendation to the Regional Administrator 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 made to the Monkfish FMP require 
majority approval of each Council for submission to the Secretary.
    (A) 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.
    (B) If the Councils do not submit a recommendation that meets the 
Monkfish FMP's goals and 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 goals and 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.

[[Page 11030]]

    (iii) 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)(3) 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 goals and 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 goals and 
objectives, 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.
    (iv) Following publication of a proposed rule and after receiving 
public comment, if the Regional Administrator concurs in the Councils' 
recommendation, a final rule will be published in the Federal Register 
prior to the start of the next fishing year. If the Councils fail to 
submit a recommendation to the Regional Administrator by February 1 
that meets the goals and objectives of the Monkfish FMP, the Regional 
Administrator may publish as a proposed rule one of the MFMC options 
reviewed and not rejected by either Council, provided the option meets 
the goals and objectives of the Monkfish FMP, and is consistent with 
other applicable law.
    (2) In-season action. At any time, the Councils or the Joint 
Monkfish Oversight Committee (subject to the approval of the Councils' 
chairmen) may 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. Recommended adjustments 
to management measures must come from the categories specified under 
paragraph (c)(1)(i) of this section. In addition, the procedures for 
framework adjustments specified under paragraph (c)(3) of this section 
must be followed.
    (3) Framework adjustment procedures. 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. 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. Framework adjustments and amendments to the 
Monkfish FMP require majority approval of each Council for submission 
to the Secretary.
    (i) 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:
    (A) 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;
    (B) 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;
    (C) Whether there is an immediate need to protect the resource or 
to impose management measures to resolve gear conflicts; and
    (D) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (ii) Action by NMFS. (A) If the Regional Administrator approves 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)(i) of this section, the 
Secretary may, for good cause found under the standard of the 
Administrative Procedure Act, waive the requirement for a proposed rule 
and opportunity for public comment in the Federal Register. The 
Secretary, in so doing, shall publish only the final rule. Submission 
of the recommendations does not preclude the Secretary from deciding to 
provide additional opportunity for prior notice and comment in the 
Federal Register.
    (B) If the Regional Administrator 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.
    (C) If the Regional Administrator does not concur, then the 
Councils shall be notified in writing of the reasons for the non-
concurrence.
    (iii) Adjustments 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).
* * * * *
[FR Doc. 03-5172 Filed 3-3-03; 3:17 pm]
BILLING CODE 3510-22-S