[Federal Register Volume 68, Number 81 (Monday, April 28, 2003)]
[Rules and Regulations]
[Pages 22325-22333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10409]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030225045-3096-02; 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: Final rule.

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SUMMARY: NMFS implements measures contained in Framework Adjustment 2 
to the Monkfish Fishery Management Plan (FMP). This final rule modifies 
the monkfish overfishing definition reference points and optimum yield 
(OY) target control rule to be consistent with the best scientific 
information available and the provisions of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). This 
rule also implements an expedited process for setting annual target 
total allowable catch levels (TACs); establishes a method for adjusting 
monkfish trip limits and days-at-sea (DAS) allocations to achieve the 
annual target TACs; and establishes target TACs and corresponding trip 
limits for the 2003 fishing year (FY 2003). As a result, this rule 
eliminates the default measures adopted in the original FMP that would 
have resulted in the elimination of the directed monkfish fishery and 
reduced incidental catch limits. Finally, this final rule clarifies the 
regulations pertaining to the monkfish area declaration requirements by 
specifying that vessels intending to fish under either a monkfish, 
Northeast (NE) 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: Effective May 1, 2003.

ADDRESSES: Copies of Framework Adjustment 2 to the FMP, including the 
Environmental Assessment (EA), Regulatory Impact Review (RIR), and 
Initial Regulatory Flexibility Analysis (IRFA) are available upon 
request from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. 
These documents are also available online at http://www.nefmc.org. A 
copy of the Final Regulatory Flexibility Analysis (FRFA) is available 
from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast 
Region, One Blackburn Drive, Gloucester, MA 01930.

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 New England Fishery Management Council (NEFMC) and the Mid-Atlantic 
Fishery Management Council (MAFMC) (Councils), with the NEFMC having 
the administrative lead. The FMP currently contains default measures 
that would eliminate the directed monkfish fishery by allocating zero 
monkfish days-at-sea (DAS). These measures were scheduled to take 
effect during Year 4 (beginning 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). Recent 
analyses have indicated that these default measures are no longer 
appropriate. Furthermore, recent stock assessments have invalidated the 
fishing mortality (F) reference points contained in the FMP, and have 
suggested alternative reference points to be incorporated into the 
FMP's overfishing definition and control rules. As a result of delays 
in the development of Amendment 2 to the FMP, the NEFMC initiated 
Framework Adjustment 2 at its June 24-26, 2002, meeting in order to 
prevent implementation of the restrictive default measures on May 1, 
2003. The NEFMC approved the framework at its November 5-7, 2002, 
meeting, and the MAFMC approved the framework at its

[[Page 22326]]

December 10-12, 2002, meeting. A proposed rule was published in the 
Federal Register on March 7, 2003 (68 FR 11023), with public comment 
accepted through March 24, 2003. The measures contained in this final 
rule are unchanged from those published in the proposed rule with the 
exception of two minor technical changes that were identified during 
the public comment period, which are described below. A complete 
discussion of the development of these measures appeared in the 
preamble of the proposed rule and is not repeated here.
    Framework 2 implements revisions to the overfishing definition 
contained in the FMP. This action revises the threshold fishing 
mortality rate (Fthreshold), the criterion by which 
overfishing status is determined, to be consistent with the most recent 
scientific advice (SAW 34, January 2002). The Fthreshold 
reference point is revised by setting Fthreshold equal to 
Fmax. Fmax is the proxy for the fishing mortality 
rate that will achieve maximum sustainable yield (MSY) from a rebuilt 
stock. The 34\th\ Stock Assessment Workshop recently estimated 
Fmax to be equivalent to F=0.2. Framework 2 also revises the 
minimum biomass threshold (Bthreshold), the criterion by 
which a stock is determined to be overfished, to be consistent with the 
National Standard Guidelines. Given the poor amount of scientific data 
on the monkfish resource, Framework 2 revises the Bthreshold 
value in the FMP to be equivalent to one-half of the Btarget 
established for each management area. As a result, this action 
establishes a Bthreshold = 1.25 for the NFMA, and 
Bthreshold = 0.93 for the Southern Fishery Management Area 
(SFMA). The Btargets established in the FMP are not revised 
by this action.

Setting Annual Target TACs and Associated Management Measures

    In addition to revising the overfishing definition in the FMP, 
Framework 2 establishes an expedited process for setting target annual 
TACs. This action implements a TAC-setting method that is based on the 
relationship between the 3-year running average of the NMFS fall trawl 
survey biomass index (observed biomass index) and an established annual 
biomass index target. The annual index targets are based on 10 equal 
increments between the 1999 biomass index (the start of the rebuilding 
program) and the Btarget, which is to be achieved by 2009 
according the rebuilding plan established in the FMP. 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, 
trip limits and/or DAS will be adjusted accordingly, using a 
methodology established in this framework.
    The Monkfish Monitoring Committee (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 will incorporate these results into the automatic 
method described in this framework to establish target TACs for the 
upcoming fishing year. Otherwise, the MFMC will be required to provide 
target TACs to the Councils and the Regional Administrator (RA) as soon 
as possible after the availability of the trawl survey indices, but no 
later than January 7 of the following 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 will be set proportionally below the previous year's landings. If 
the observed biomass index is above the annual index target, the target 
TAC will be increased from the previous year's landings by one-half 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 will always be set at a value that does not 
exceed Fthreshold (currently estimated to be 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, 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 will 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 (i.e., the observed 
biomass index is at or above Btarget), the target TAC will 
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 will 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 will 
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 will 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, will recommend a target TAC to the RA 
regarding whether the target TAC should be set at the previous year's 
landings or at the target TAC. If the RA concurs with this 
recommendation, the target TAC and associated trip limits will be 
promulgated through rulemaking, consistent with the requirements of the 
Administrative Procedure Act (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 an expedited method for 
setting annual target TACs outside the Council framework adjustment 
process is to enable the RA to set future target TACs and associated 
management measures in a quicker, but predictable, manner, using the 
most recent information available. This expedited process for setting 
annual TACs will be accomplished consistent with the APA. The Framework 
2 document also 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 any 
time to implement other measures deemed necessary to meet the 
objectives of the FMP.

FY 2003 TACs and Possession Limits

    Framework 2 establishes target TACs for FY 2003 of 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 will 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. The trip limits in the NFMA are 
unchanged by this action. 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. In addition, this action 
increases the incidental trip limit

[[Page 22327]]

for monkfish open-access Category E vessels fishing exclusively in the 
NFMA on a NE multispecies DAS from the lesser of 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 corrects 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

    This action also clarifies the monkfish prohibitions found at 50 
CFR 648.14(y) by providing appropriate cross-references to the monkfish 
regulations specified under 50 CFR part 648 subpart F.

Comments and Responses

    Two public comments were received in support of Framework 2. An 
additional comment, from the NEFMC, raised two technical issues with 
respect to the proposed rule that are addressed in this final rule.
    Comment 1:The first issue raised by the NEFMC concerns the preamble 
and regulatory language pertaining to Fthreshold. In 
Framework 2, the Councils specifically adopted an Fthreshold 
equivalent to Fmax, which is currently estimated to be 
F=0.2. However, the preamble to the proposed rule and the proposed 
regulatory language at 50 CFR 648.96(b)(1)(ii)(B) state that 
Fthreshold would be set equal to Fmax=0.2, 
implying that the Councils adopted a fixed number for 
Fthreshold. The Councils specifically adopted 
Fthreshold=Fmax, with the intent that Fthreshold 
would change accordingly if a future Stock Assessment Workshop 
recalculates the value of Fmax, requiring no action by the 
Councils.
    Response: NMFS acknowledges these oversights in the preamble to the 
proposed rule and the proposed regulatory text. The preamble to this 
final rule correctly references the Councils' intent with respect to 
Fthreshold. In addition, the regulatory language at Sec.  
648.96(b)(1)(ii)(B) has been corrected in this final rule to reference 
that Framework 2 revises the Fthreshold contained in the FMP 
to be equivalent to Fmax, which is currently estimated to be 
F=0.2.
    Comment 2: A second technical issue raised by the NEFMC concerns 
the timing of the MFMC's calculation of annual target TACs. The 
preamble to the proposed rule and the regulatory text at Sec.  
648.96(b)(1)(i) indicated a December 1 deadline for the MFMC to submit 
the target TACs to the Councils and the RA. This issue was not 
specifically discussed by the MFMC or the Councils, being 
administrative in nature. The NEFMC expressed concerns regarding the 
ability of the MFMC to consistently meet this deadline, particularly if 
there are delays in the fall trawl survey due to bad weather. The NEFMC 
suggested that NMFS revise this deadline to ``as soon as possible after 
the availability of the trawl survey indices, but no later than January 
7.'' The NEFMC noted that January 7 is consistent with the current 
deadline for submission of an annual framework adjustment that is 
recommended as a proposed rule.
    Response: Although NMFS has some concerns with moving this deadline 
date to January 7 because it affords less review time by the agency, 
NMFS feels that the NEFMC's justification is reasonable. As a result, 
this final rule changes the deadline date for submission of annual 
target TACs by the MFMC from December 1 to ``as soon as possible after 
the availability of the trawl survey indices, but no later than January 
7.''

Changes From the Proposed Rule

    Three changes to the regulatory text in the proposed rule have been 
made. In Sec.  648.9, paragraph (b)(1)(ii)(B) is revised to clearly 
reflect the intent of the Councils with respect to the adoption of a 
revised Fthreshold, i.e., an Fthreshold that is 
equivalent to Fmax, not a specific F value. In Sec.  648.96, 
paragraph (b)(1)(i) is revised to change the deadline date for 
submission of annual target TACs by the MFMC. This final rule changes 
the deadline date of December 1 contained in the proposed rule to be 
``as soon as possible after the availability of the trawl survey 
indices, but no later than January 7,'' as recommended by the NEFMC. In 
Sec.  648.96, paragraph (b)(2)(ii) is revised to more clearly describe 
the process by which trip limits would be set for the SFMA to achieve 
the proposed annual target TAC. This paragraph also incorporates a 
cross-reference to the analytical procedures outlined in Appendix II to 
Framework 2.

Classification

    The RA, determined that Framework 2 is necessary for the 
conservation and management of the monkfish fishery and that it is 
consistent with the Magnuson-Stevens Act and other applicable law.
    For the reasons stated below, the Assistant Administrator for NOAA 
(AA) is waiving the 30-day delayed effectiveness period for the 
management measures contained in Framework 2 pursuant to 5 U.S.C. 
553(d)(1). Default management measures scheduled to take effect on May 
1, 2003, would eliminate the directed fishery, by allocating zero DAS. 
These default measures would also reduce incidental monkfish catch 
limits in other fisheries. However, the results of the most recent 
stock assessment (SAW 34) indicate that the default management measures 
scheduled to take effect on May 1, 2003, are unnecessary to achieve the 
goals of the FMP. Furthermore, the results of the 2002 NMFS fall trawl 
survey indicate that the monkfish stock in the NFMA is no longer 
overfished, and that monkfish stock biomass in the SFMA continues to 
increase, as it has over the past 2 years. The default measures would 
cause unnecessary, significant negative economic and social impacts to 
vessels and some communities dependent on the monkfish fishery, based 
on the findings of the Final Environmental Impact Statement for the FMP 
and the framework analyses. Moreover, delaying implementation of this 
rule beyond May 1, 2003, would likely result in increased monkfish 
bycatch as a result of the reduced incidental catch limits. Therefore, 
this rule relieves a restriction.
    The Council prepared an environmental assessment (EA) for this 
framework and the AA concluded that there will be no significant impact 
on the human environment as a result of this rule. This action 
establishes an automatic method for setting annual TACs that is 
consistent with the stock rebuilding program in the FMP. As a result of 
increasing biomass in both management areas, this action increases the 
target TACs in both areas, resulting in an increase in the trip limits 
for limited access monkfish vessels fishing

[[Page 22328]]

in the SFMA, and an increase in the incidental trip limit for monkfish 
open-access Category E vessels fishing exclusively in the NFMA on a NE 
multispecies DAS. Because this action eliminates the default measures 
contained in the FMP and increases target TACs and trip limits in a 
manner that is consistent with the stock rebuilding goals of the FMP, 
this action will allow the continued economic viability of the monkfish 
fishery.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    Pursuant to 5 U.S.C. 604(a) of the Regulatory Flexibility Act 
(RFA), NMFS prepared an FRFA for Framework 2, which incorporates the 
IRFA, any comments on the IRFA and the responses to those comments, and 
a summary of the analyses prepared in support of this final rule. A 
copy of the FRFA is available from the RA, and a copy of the IRFA is 
available from the NEFMC (see ADDRESSES). The preamble to the proposed 
rule included a detailed summary of the analyses contained in the IRFA, 
and that discussion is not repeated here in its entirety. A summary of 
the FRFA is provided in the following paragraphs.
    A description of the reasons why action by the agency is being 
taken and the objectives of this action are explained in the preambles 
to the proposed rule and this final rule and are not repeated here. 
This action does not contain any reporting, recordkeeping, or other 
compliance requirements. This action is taken under the authority of 
the Magnuson-Stevens Act and regulations at 50 CFR part 648.

Public Comments

    Two public comments were received on the proposed rule; however, 
none of these comments pertained to the IRFA or the economic impacts of 
the proposed rule.

Number of Small Entities Impacted

    This action could affect any commercial vessel holding an active 
Federal monkfish permit. However, the vessels most impacted by this 
action would be limited access monkfish permit holders. Data from the 
NE permit database show that there are approximately 714 limited access 
monkfish permit holders and approximately 1,900 open access monkfish 
permit holders. All of these vessels fall within the Small Business 
Administration's definition of ``small business,'' and the RFA's 
definition of ``small entity.''

Minimizing Economic Impacts on Small Entities

    The FRFA contains an analysis of the measures being implemented in 
comparison to other alternatives that were considered. Framework 2 
contains six alternatives, including the no action and status quo 
alternatives. Each alternative contains a method for setting annual 
target TACs, and five of these alternatives include changes to the 
overfishing definition in the FMP. The measures being implemented in 
this final rule consist of the measures contained in the alternative 
recommended by both Councils.
    Due to limited biological information on the monkfish resource, F 
cannot be reliably estimated at this time. As a result, three of the 
six alternatives contained in Framework 2 were rejected by both 
Councils because that they were contingent on the ability to reliably 
estimate F on an annual basis. The remaining three alternatives consist 
of an automatic means for setting annual target TACs. The alternative 
recommended by both Councils that is being implemented through this 
final rule is less precautionary than the other alternatives, but 
minimizes the overall impacts to small entities to the greatest extent. 
This action provides the Councils with the ability to increase the 
target TAC reflective of an increase in monkfish stock biomass in the 
absence of a reliable estimate of F, but with a cap on that increase. 
As a result, this action maximizes benefits to the fishing industry. 
Given the fact that the stock in the NFMA is no longer overfished, and 
that stock biomass in the SFMA has increased over the past 2 years, 
NMFS believes that it is appropriate to maximize benefits to the 
industry through an increase in the target TAC because the monkfish 
resource can withstand a modest increase in removals under the index-
based target TAC setting method being implemented through this final 
rule.
    The management measures contained in Framework 2 substantially 
increase the trip limits for limited access monkfish vessels fishing in 
the SFMA. Framework 2 increases the SFMA trip limits to 1,250 lb (567 
kg) of tail weight per monkfish DAS for limited access Category A and C 
vessels, and 1,000 lb (453.6 kg) of tail weight per monkfish DAS for 
limited access Category B and D vessels. In addition, Framework 2 
increases the incidental catch limit for open access (Category E) 
monkfish vessels while fishing under a NE multispecies DAS in the NFMA 
to the lesser of 400 lb (181.4 kg) of tail weight per DAS, or 50 
percent of the total weight of fish on board. 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 limited access monkfish vessel would 
realize no change in net revenues under the proposed trip limit 
increase for the SFMA if the vessel did not fish at a level exceeding 
the trip limits established for FY 2002, which are approximately half 
the level of the proposed trip limits. With regard to the increase in 
the incidental catch limit in the NFMA, the analysis indicates that 
open access Category E vessels fishing in the NFMA will be generally 
unaffected by the proposed incidental catch limit increase since they 
land, on average, only about 20 percent of the current limit.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 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 was prepared. 
The guide will be sent to all holders of permits issued for the 
monkfish fishery. In addition, copies of this final rule and guide 
(i.e., permit holder letter) are available from the RA (see ADDRESSES) 
and area also available at the following web site: http://www.nmfs.gov/ro/doc/nero.html.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 22, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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


[[Page 22329]]


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

0
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 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.
* * * * *

0
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.
* * * * *

0
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 Sec.  648.94(f) 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.

0
5. In Sec.  648.94, paragraph (b)(7) is removed and reserved; and 
paragraphs (b)(1), (b)(2), introductory heading of paragraph (b)(3), 
and paragraphs (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), unless modified pursuant to Sec.  648.96(b)(2)(ii).
    (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), unless modified pursuant to Sec.  648.96(b)(2)(ii).
    (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

[[Page 22330]]

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 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 (f) 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.
* * * * *

0
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 paragraph (b)(1) of this 
section, 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 as soon as 
possible after the availability of the NMFS fall trawl survey indices, 
but no later than January 7, 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 Procedure 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 shall be required by the 
Regional Administrator. If the action is submitted after January 7, 
then the target TACs and associated management measures for the prior 
fishing year shall remain in place until new target TACs are 
implemented.
    (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 shall be compared to the established annual biomass 
index target, and target annual TACs will be set in accordance with 
paragraphs (b)(1)(ii)(A) - (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 2003  FY 2004  FY 2005  FY 2006  FY 2007  FY 2007  FY 2008  FY 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
----------------------------------------------------------------------------------------------------------------


[[Page 22331]]

    (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 shall 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, 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 results in the greater reduction from the 
previous year's landings shall 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 
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 by the process specified in Appendix II of 
Framework Adjustment 2 to the Monkfish FMP, using information from the 
mandatory fishing vessel trip reports (FVTR). This process is 
summarized in paragraphs (b)(2)(ii) (A) through (C) of this section.
    (A) The 1999 fishing year shall be used as the baseline year for 
this analysis, since it represents monkfish landings under relatively 
unconstrained conditions. The first step shall be to calculate the 
expected distribution of monkfish landings from the SFMA by permit 
category group (A and C, and B and D) under the proposed target TAC for 
the SFMA for the upcoming fishing year. This calculation shall be based 
on the distribution of monkfish landings for the most recent fishing 
year for which there is complete FVTR information (most recent fishing 
year). For example, for each permit category group, the distribution of 
landings under the proposed target SFMA TAC for the 2004 fishing year 
would be based on the distribution of landings from the SFMA for the 
2002 fishing year, the most recent fishing year for which complete FVTR 
would be available.
    (B) The second step shall be to compare the monkfish landings for 
the SFMA from the baseline year, assuming a trip limit was in place 
that is identical to the trip limit in the most recent fishing year, to 
the monkfish landings for the most recent fishing year, and to 
calculate a ratio estimator for each permit category group. This ratio 
shall then be multiplied by the trip level monkfish landings from the 
SFMA for the baseline year for each permit category group to simulate 
the monkfish landings that would have occurred during the most recent 
fishing year under an unconstrained landings-per-DAS limit. For 
example, the ratio calculated by comparing the SFMA monkfish landings 
by permit category group for the1999 fishing year to the most recent 
fishing year, fishing year 2002, would be applied to the SFMA trip 
level monkfish landings for the 1999 fishing year to produce estimated 
trip level monkfish landings for the 2002 fishing year under an 
unconstrained landings-per-DAS limit.
    (C) Using the estimated trip level monkfish landings for the most 
recent fishing year, expected monkfish landings under a range of 
potential trip limits shall be calculated for each permit category 
group for the upcoming fishing year as follows: Trips that landed 
monkfish from the SFMA in excess of a particular potential trip limit 
shall have monkfish landings reduced to that trip limit, and trips that 
landed monkfish from the SFMA in an amount equal to or lower than that 
particular trip limit shall remain at the actual amount of monkfish 
landed. Expected monkfish landings under each potential trip limit 
shall then be calculated for each permit category group by summing the 
adjusted monkfish landings of all trips that exceeded the potential 
trip limit and the monkfish landings of all trips that did not exceed 
the potential trip limit. The resulting data shall then be used to 
determine a functional relationship between potential trip limits and 
expected monkfish landings for each permit category group. These 
empirical functions shall then be used to calculate a landing-per-DAS 
limit for each permit category group for the upcoming fishing year, 
based on the expected distribution of monkfish landings by permit 
category group for the upcoming fishing year, as calculated under 
paragraph (b)(2)(ii)(A) of this section.
    (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

[[Page 22332]]

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) Because limited access monkfish permit holders are allowed to 
carry over up to 10 DAS from the previous fishing year to the current 
fishing year, adjustments to DAS usage shall be 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 shall be 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 shall be 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 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, other 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 that 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.
    (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 public comment period in accordance 
with the Administrative Procedure Act. 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

[[Page 22333]]

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. 03-10409 Filed 4-23-03; 4:27 pm]
BILLING CODE 3510-22-S