[Federal Register Volume 69, Number 67 (Wednesday, April 7, 2004)]
[Rules and Regulations]
[Pages 18291-18293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7891]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.040212056-4101-02; I.D. 020604B]
RIN 0648-AR89


Fisheries of the Northeastern United States; Monkfish Fishery

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

ACTION: Final rule.

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SUMMARY: NMFS implements measures to establish target total allowable 
catch (TAC) levels for the monkfish fishery for the 2004 fishing year 
(FY), and adjust trip limits and days-at-sea (DAS) for limited access 
monkfish vessels fishing in the Southern Fishery Management Area (SFMA) 
based upon the target TAC setting and trip limit and DAS adjustment 
methods established in Framework Adjustment 2 (Framework 2) to the 
Monkfish Fishery Management Plan (FMP). Based on these methods, this 
final rule establishes FY 2004 target TACs of 16,968 mt for the 
Northern Fishery Management Area (NFMA), and 6,772 mt for the SFMA; 
adjusts the trip limits for vessels fishing in the SFMA to 550 lb (250 
kg) tail weight per DAS for limited access Category A and C vessels, 
and 450 lb (204 kg) tail weight per DAS for limited access Category B 
and D vessels; and restricts the FY 2004 DAS available for monkfish 
limited access vessels fishing in the SFMA to 28 DAS.

DATES: Effective May 7, 2004.

ADDRESSES: Copies of the Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), and Final Regulatory 
Flexibility Analysis (FRFA) prepared for this action are available upon 
request from Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298. 
Copies of the Environmental Assessment (EA) prepared for Framework 
Adjustment 2 to the FMP are available upon request from Paul Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, Newburyport, MA 01950.

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

SUPPLEMENTARY INFORMATION:

Background

    The monkfish fishery is jointly managed by the New England Fishery 
Management Council (NEFMC) and the Mid-Atlantic Fishery Management 
Council (MAFMC), with the NEFMC having the administrative lead. 
Framework Adjustment 2, which became effective on May 1, 2003 (68 FR 
22325; April 28, 2003), implemented a target TAC setting method that is 
based upon the relationship between the 3-year running average of the 
NMFS fall trawl survey biomass index (3-year average biomass index) and 
established annual biomass index targets (annual 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 biomass 
target (Btarget), which is to be achieved by 2009 according to the 
rebuilding plan established in the FMP. According to this method, 
annual target TACs are 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.
    A proposed rule was published in the Federal Register on February 
24, 2004 (69 FR 8364), with public comment accepted through March 10, 
2004. The measures contained in this final rule are unchanged from 
those published in the proposed rule. A complete discussion of the 
methods used to establish the target TACs, trip limits, and DAS 
restrictions for FY 2004 appeared in the preamble to the proposed rule 
and is not repeated here.
    This action establishes annual target TACs of 16,968 mt for the 
NFMA, and 6,772 mt for the SFMA for FY 2004. In addition, this action 
adjusts the trip limits for vessels fishing in the SFMA to 550 lb (250 
kg) tail weight per DAS for limited access Category A and C vessels, 
and 450 lb (204 kg) tail weight per DAS for limited access Category B 
and D vessels. In order to prevent exceeding the target TAC for the 
SFMA, this action restricts the FY 2004 DAS available for monkfish 
limited access vessels fishing in the SFMA to 28 DAS, although the 
remaining 12 DAS could be fished in the NFMA under the regulations 
applicable to that area.
    The target TAC setting process, and the trip limit and DAS 
adjustment procedures established in Framework 2 cannot be changed by 
this action. A change to these procedures would require further action 
on behalf of the NEFMC and MAFMC (Councils) in the form of a framework 
adjustment, or an amendment to the FMP, both of which are public 
processes. The regulations governing framework adjustments to the FMP, 
specified at Sec.  648.96(c)(3), require at least one initial meeting 
of the Monkfish Oversight Committee (Committee) or one of the Councils, 
and at least two Council meetings, one at each Council. Because this 
action follows the annual adjustment procedures for the monkfish 
fishery, specified under Sec.  648.96(b), such meetings are not 
required, and, therefore, were not conducted.

Comments and Responses

    Three public comments were received on the proposed rule.
    Comment 1: One commenter requested that NMFS reduce the target TAC 
for the NFMA and SFMA to 8,000 mt and 3,000 mt, respectively, and 
continue to reduce the target TACs for each area by 10 percent in each 
subsequent year.
    Response: Framework 2 specified a target TAC setting method based 
upon a series of annual biomass index targets that gradually increase 
to achieve the Btarget established in the FMP. This process, developed 
by the Council and approved by NMFS, complies with the rebuilding goals 
of the FMP. To reduce the target TACs below those generated through 
this target TAC setting method would not allow for harvesting at 
optimum yield and is not an option authorized under existing 
regulations specifying the annual adjustment process for setting target 
TACs.
    Comment 2: NMFS received two letters expressing lack of support for 
the reduction in DAS available for vessels fishing in the SFMA. These 
letters also contained additional comments relating to the proposed DAS 
reduction. In one letter, the commenter stated that the estimated 
economic impact of 27-percent reduction in vessel revenue for vessels 
from MA and NJ that fish only in the SFMA is unreasonable, given that 
the management measures for the NFMA have gone unchanged each year. In 
the second letter, the commenter requested that NMFS utilize 
information from the 2003 FY, once this information is available, to 
conduct an additional DAS analysis for the purpose of developing and 
implementing a separate action that would readjust DAS in the SFMA 
during the 2004 FY.
    Response: In addition to implementing target TAC setting 
procedures, Framework 2 also

[[Page 18292]]

established a trip limit and DAS adjustment process that utilizes 
information from the most recent complete fishing year at the time the 
target TACs are determined. For this action, FY 2002 is the most recent 
fishing year and, thus, represents the best scientific information 
available. Similar to the target TAC setting procedures, the trip limit 
and DAS adjustment process established in Framework 2 is codified in 
the regulations. This process was established in order to prevent the 
annual target TACs from being exceeded, helping ensure that the stock 
rebuilding objective of the FMP is achieved. A modification to this 
regulation is outside the scope of the current rulemaking.
    As noted in the preamble to the proposed rule, the 3-year average 
biomass index for the NFMA (2.03 kg/tow) is 36 percent above the annual 
index target for 2003 (1.49 kg/tow). Thus, monkfish stock biomass in 
the NFMA is steadily increasing, and is well above the biomass 
threshold (Bthreshold) of 1.25 kg/tow for the NFMA, which is 
used to determine if the stock is overfished. Furthermore, reductions 
in Northeast (NE) multispecies DAS allocations that are expected 
beginning May 1, 2004, under Amendment 13 to the NE Multispecies FMP, 
will impact the ability of limited access monkfish vessels to target 
monkfish in the NFMA. Because stock biomass is increasing, and because 
measures in the NE multispecies fishery restrict the ability of limited 
access monkfish vessels to target monkfish in the NFMA, NMFS has 
determined that the implementation of a trip limit or reductions in DAS 
are unnecessary for the NFMA in order to prevent the target TAC from 
being exceeded.

Classification

    The Administrator, Northeast Region, NMFS (Regional Administrator), 
determined that this action to establish target TACs, trip limits, and 
DAS restrictions for the 2004 monkfish fishery is necessary for the 
conservation and management of the monkfish fishery, and that it is 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and other applicable law.
    The EA for Framework 2 contained a complete analysis of the target 
TAC setting method being utilized in this action to established target 
TACs, trip limits, and DAS restrictions for FY 2004. In addition, the 
EA contained an analysis of the impacts of a range of potential target 
TACs for FY 2004. This action updates the previous Finding of No 
Significant Impact (FONSI) statement contained in the EA for Framework 
2, and signed on April 21, 2003, with a new FONSI that references 
updated information on the monkfish fishery, including the target TACs, 
trip limits, and DAS restrictions for FY 2004. The updated FONSI states 
that this action does not change the circumstances under which the 
previous EA was prepared, and that all of the information and analysis 
contained in the EA for Framework 2 are applicable to this action. 
Furthermore, the updated FONSI states that this action does not change 
the determinations made in the EA for Framework 2.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 604(a) of the Regulatory Flexibility Act 
(RFA), NMFS prepared an FRFA for this action, 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. 
Copies of the FRFA and IRFA are available from the Regional 
Administrator (see ADDRESSES). The preamble of 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 preamble 
of 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

    Three public comments were received on the proposed rule, but only 
one comment referenced the economic impacts of the proposed measures. 
This comment is summarized and responded to under Comment 2 in the 
Comments and Responses section of the preamble of this final rule. No 
changes to the proposed regulations are necessary as a result of this 
comment because the target TAC setting process, and the trip limit and 
DAS adjustment process, are not subject to modification. Thus, the 
economic impacts of this final rule are unavoidable.

Number of Small Entities Impacted

    This action would impact approximately 390 monkfish vessels that 
fish all or part of the fishing year in the SFMA, based on vessel 
activity reports for the 2002 FY. All of the these vessels are 
considered small entities under the Small Business Administration's 
size standards for small fishing businesses ($3.5 million in gross 
sales).

Minimizing Economic Impacts on Small Entities

    The target TAC setting alternative adopted in Framework 2 to the 
FMP, and utilized in this action, is less precautionary than the other 
alternatives considered in Framework 2, but minimizes impacts to small 
entities to the greatest extent. This target TAC setting method 
minimizes impacts to small entities because it maximizes benefits to 
the fishing industry by providing the NEFMC and MAFMC (Councils) with 
the ability to increase the target TAC in response to an increase in 
monkfish stock biomass, in the absence of a reliable estimate of 
fishing mortality (F), but with a cap on that increase.
    The target TAC setting method is narrowly prescribed and provides 
little legal latitude in considering other alternatives or associated 
management measures. The annual target TAC setting method established 
in Framework 2 is based on a formula that integrates an annual biomass 
index target with the 3-year running average of the NMFS fall trawl 
survey and the monkfish landings for the previous fishing year. 
Therefore, the setting of target TACs using this method is non-
discretionary. Another option, considered but rejected by the Councils 
in Framework 2, for establishing 2004 target TACs would use current F 
in relation to the fishing mortality threshold (Fthreshold). 
This option was determined to be unreasonable because current estimates 
of F are too imprecise to set target TACs and make a status 
determination regarding overfishing. Framework 2 also established a 
formulaic method for adjusting trip limits and DAS for the SFMA based 
on the target TACs. Thus, there are no alternatives to the trip limits 
and DAS restrictions that can be legally implemented for the SFMA in 
this action.
    Based upon available data, NMFS estimated the average economic 
impact on vessels that fish only in the NFMA, those that fish in both 
management areas, and those that fish exclusively in the SFMA. 
According to this analysis, under this final rule, vessels fishing

[[Page 18293]]

exclusively in the NFMA will not be affected by reduced trip limits and 
DAS restrictions proposed for the SFMA. The average impact of this 
action on vessels that fish in both the NFMA and SFMA was estimated to 
be less than a 1-percent reduction in net pay to crew or net return to 
the vessel. This low level of impact suggests that vessels that fish in 
both management areas predominantly fished in the NFMA, at least during 
FY 2002. The average impact on vessels that fish exclusively in the 
SFMA was about an 18-percent reduction in returns to the vessel owner 
and a 22-percent reduction in net pay to crew. Average impacts by state 
exhibit substantial variability from no impact on vessels from NC to a 
reduction in average vessel net return of 27 percent for vessels in MA 
and NJ. Furthermore, the per-trip average return on monkfish trips is 
estimated to be reduced by 25 percent as a result of this action. This 
means that, on average, a monkfish trip fished in the SFMA would 
produce 25 percent less income toward fixed costs, debt, and owner 
profit under the FY 2004 trip limits. Similarly, net pay per crew 
member would be reduced by an average of 22 percent. The economic 
impacts of this final rule are necessary to ensure the continued 
rebuilding of the monkfish stock in the SFMA. Based on the most recent 
3-year running average biomass index from the NMFS fall trawl survey, 
the monkfish stock in the SFMA is no longer overfished. However, the 
current biomass index is 8.9-percent below the annual biomass index 
target for 2003 established in Framework 2. Therefore, a reduction in 
the target TAC for the SFMA is required. In addition, a reduction in 
monkfish trip limits and implementation of DAS restrictions for vessels 
fishing in the SFMA are required in order to ensure that the reduced 
target TAC for this area is not exceeded.

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 vessels issued a limited access monkfish 
permit, and to all Federal dealers issued a monkfish permit. In 
addition, copies of this final rule and guide (i.e., permit holder 
letter) are available from the Regional Administrator (see ADDRESSES) 
and are 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 1, 2004.
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

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. 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.--(i) General 
provisions. All limited access monkfish permit holders shall be 
allocated 40 monkfish DAS each fishing year to be used in accordance 
with the restrictions of this paragraph (b), unless modified by 
paragraph (b)(1)(ii) of this section according to the provisions 
specified at Sec.  648.96(b)(3). Limited access NE multispecies and 
limited access sea scallop permit holders who also possess a valid 
limited access monkfish permit must use a NE multispecies or sea 
scallop DAS concurrently with their monkfish DAS, except as provided in 
paragraph (b)(2) of this section, unless otherwise specified under this 
subpart F.
    (ii) FY 2004 DAS restrictions for vessels fishing in the SFMA. For 
the 2004 fishing year, limited access monkfish vessels may fish only 28 
of their 40 monkfish DAS allocation in the SFMA. If a vessel does not 
possess a valid letter of authorization from the Regional Administrator 
to fish in the NFMA as described in Sec.  648.94(f), NMFS will presume 
that any monkfish DAS used was fished in the SFMA.
* * * * *

0
3. In Sec.  648.94, paragraphs (b)(2) (i) and (ii) are revised to read 
as follows:


Sec.  648.94  Monkfish possession and landing restrictions.

* * * * *
    (b) * * *
    (2) * * *
    (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 (250 
kg) tail-weight or 1,826 lb (828 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 450 lb (204 
kg) tail-weight or 1,494 lb (678 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).
* * * * *
[FR Doc. 04-7891 Filed 4-2-04; 2:28 pm]
BILLING CODE 3510-22-S