[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Rules and Regulations]
[Pages 22242-22244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8523]



[[Page 22241]]

-----------------------------------------------------------------------

Part V





Department of Commerce





-----------------------------------------------------------------------



National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



50 CFR Part 648



Fisheries of the Northeastern United States; Monkfish Fishery; Annual 
Adjustments; Final Rule

  Federal Register / Vol. 70, No. 81 / Thursday, April 28, 2005 / Rules 
and Regulations  

[[Page 22242]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050304060-5106-02; I.D. 030105A]
RIN 0648-AS72


Fisheries of the Northeastern United States; Monkfish Fishery; 
Annual Adjustments

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS implements measures to establish target total allowable 
catch (TAC) levels for the monkfish fishery for the 2005 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 on formulas established in Framework Adjustment 2 
(Framework 2) to the Monkfish Fishery Management Plan (FMP), this final 
rule establishes FY 2005 target TACs of 13,160 mt for the Northern 
Fishery Management Area (NFMA), and 9,673 mt for the SFMA; and adjusts 
the trip limits for limited access monkfish vessels fishing in the SFMA 
to 700 lb (318 kg) tail weight per DAS for limited access Category A, 
C, and G vessels, and 600 lb (272 kg) tail weight per DAS for limited 
access Category B, D, and H vessels. This action also announces that 
the FY 2005 DAS available to all monkfish limited access vessels will 
be 39.3 DAS as a result of a DAS set-aside program implemented in 
Amendment 2 to the FMP.

DATES: Effective May 1, 2005.

ADDRESSES: Copies of the Environmental Assessment (EA), including the 
Regulatory Impact Review (RIR) and Initial Regulatory Flexibility 
Analysis (IRFA), prepared for this action are availale upon request 
from Paul Howard, Executive Director, New England Fishery Management 
Council (NEFMC), 50 Water Street, Newburyport, MA, 01950. The document 
is also available online at http://www.nefmc.org. NMFS prepared a Final 
Regulatory Flexibity Analysis (FRFA), which is contained in the 
classification section of this rule. The small entity compliance guide 
is available from Patricia A. Kurkul, Regional Administrator, Northeast 
Regional Office, National Marine Fisheries Service, One Blackburn 
Drive, Gloucester, MA 01930-2298, and on the Northeast Regional 
Office's website at http://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    Regulations implementing the FMP appear at 50 CFR part 648, 
subparts A and F. Regulations that set out the annual adjustment 
process are found at Sec.  648.96. The FMP requires that the Monkfish 
Monitoring Committee (MFMC) recommend to the Mid-Atlantic Fishery 
Management Council (MAFMC) and the NEFMC, on an annual basis, target 
TACs for the NFMA and SFMA, and adjustments in DAS allocations and trip 
limits for limited access vessels fishing in the SFMA.
    The annual target TAC-setting method that was implemented through 
Framework 2 to the FMP (68 FR 22325; April 28, 2003) is based on a 
ratio of the observed biomass index (NMFS 3-year average fall trawl 
survey biomass index) to the annual biomass targets (annual index 
targets) applied to the monkfish landings for the previous fishing 
year. The 2004 3-year average biomass index is below the 2004 biomass 
target (see Table 1). Therefore, according to the process established 
under Framework 2, the FY 2005 target TAC has been set proportionally 
below the 2003 FY landings (the most recent fishing year for which 
complete landing information is available). Once the annual target TACs 
are established, trip limits and/or DAS are adjusted accordingly, using 
the methodology established in Framework 2. 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.
    A proposed rule was published in the Federal Register on March 18, 
2005 (70 FR 13156), with public comment accepted through April 4, 2005. 
The measures contained in this final rule are unchanged from those 
published in the proposed rule with the exception of changes in the 
regulatory text that reflect the addition of two new permit categories 
(Categories G and H), which are explained in the final rule that 
implemented Amendment 2 to the FMP (Amendment 2) published elsewhere in 
this issue of the Federal Register. In addition, the preamble of the 
proposed rule for this action indicated that DAS would be held constant 
in FY 2005 at 40 monkfish DAS. However, Amendment 2 also implements a 
set-aside of 500 DAS for monkfish research, reducing the total DAS 
allocated per vessel to 39.3 DAS for FY 2005. A complete discussion of 
the methods used to establish the target TACs, trip limits, and DAS 
restrictions for FY 2005 appeared in the preamble to the proposed rule 
and is not repeated here.
    This action establishes annual target TACs of 13,160 mt for the 
NFMA, and 9,673 mt for the SFMA for FY 2005. In addition, this action 
adjusts the trip limits for vessels fishing in the SFMA to 700 lb (318 
kg) tail weight per DAS for limited access Category A, C, and G 
vessels, and 600 lb (272 kg) tail weight per DAS for limited access 
Category B, D, and H vessels. In order to prevent exceeding the target 
TAC for the SFMA, this action adjusts the FY 2005 trip limits for 
monkfish limited access vessels fishing in the SFMA, and initially 
allocates 40 DAS to all limited access permit holders. As stated above, 
these DAS are then reduced by less than 1 DAS per vessel to provide for 
the 500 DAS research set-aside approved under Amendment 2 to the FMP, 
leaving a final 2005 FY allocation of 39.3 DAS to all categories of 
monkfish limited access permit holders, with the exception of Category 
F, which is explained below.
    Under Amendment 2 to the FMP, limited access monkfish permit 
holders with Category A, B, C, or D permits may elect, on an annual 
basis, to change to a Category F permit. Under the provisions of 
Amendment 2, Category F permits allow limited access monkfish vessels 
to fish under a 1,600-lb (726-kg) trip limit in the SFMA Offshore 
Fishery Program Area in exchange for a reduced DAS allocation. Category 
F permit DAS are reduced proportionally from the DAS allocated to 
Category A, B, C, and D permits, according to the ratio of the SFMA 
trip limit that would otherwise be in effect for that category permit 
to the 1,600-lb (726-kg) Category F permit trip limit. For example, in 
FY 2005, and assuming no carryover DAS, Category A and C permit holders 
who elect to switch to a Category F permit would be authorized to fish 
17.2 DAS, and Category B and D permit holders would be authorized to 
fish 14.7 DAS. Any carryover DAS available to the permit holder would 
be factored into the proration and would affect the number of DAS 
ultimately authorized.
    The trip limits in the NFMA are unchanged by this action. However, 
if changes to the management measures in the NFMA were required to 
ensure that the TAC would not be exceeded, they would be outside the 
scope of the current rulemaking.

[[Page 22243]]

    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 Councils in the form of a framework adjustment or an 
amendment to the FMP. 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 or one of the 
Councils, and at least two Council meetings, one at each of the MAFMC 
and the NEFMC. Because this action is being taken in accordance with 
the annual adjustment procedures for the monkfish fishery specified at 
Sec.  648.96(b), such meetings are not required, and, therefore, were 
not conducted.

Comments and Responses

    No public comments were received on the proposed rule.

Changes From the Proposed Rule

    In Sec.  648.94, paragraph (b)(2)(i) is revised to include new 
limited access permit category G, and paragraph (b)(2)(ii) is revised 
to include new limited access permit category H, as provided for in the 
final rule implementing Amendment 2 to the FMP.

Classification

    The Administrator, Northeast Region, NMFS (Regional Administrator), 
determined that this action to establish target TACs, trip limits, and 
DAS for the 2005 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.
    As explained below, there is good cause under 5 U.S.C. 553(d)(3) to 
waive the 30-day delay in effectiveness date due to unavoidable time 
constraints required by the Magnuson-Stevens Act in the approval and 
implementation of Amendment 2 to the FMP. This action establishes 
annual measures (TACs, trip limits, DAS) for the monkfish fishery for 
fishing year 2005 (May 1, 2005, to April 30, 2006). However, 
implementation of this action could not occur until after 
implementation of Amendment 2 to the FMP, which contained several more 
substantial changes to the management system for the monkfish fishery. 
Following the transmittal of Amendment 2 from the Councils to NMFS, a 
Notice of Availability on the Amendment was published in the Federal 
Register on January 3, 2005. The Magnuson-Stevens Act requires at least 
a 60-day public comment period on the Amendment. The approval date for 
the Amendment was scheduled for April 2, 2005, 30 days following the 
end of the public comment period. Amendment 2 was partially approved on 
March 30, 2005. According to the requirements of the Magnuson-Stevens 
Act, the final rule to implement Amendment 2 is to be published no 
later than 30 days following the Amendment's approval. The final rule 
to implement Amendment 2 is published elsewhere in this issue of the 
Federal Register. Because publication of this rule is dependent upon 
the publication of the final rule to implement Amendment 2, publication 
of this rule was necessarily delayed while the final rule implementing 
Amendment 2 followed the requirements of the Magnuson-Stevens Act. 
Thus, publication of this rule could not have occurred any earlier than 
this time. In order to implement this final rule before the start of 
the 2005 fishing year, the Assistant Administrator finds good cause to 
waive the 30-day delay in effectiveness.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Final Regulatory Flexibility Analysis

    This section constitutes the FRFA, which NMFS, pursuant to section 
604 of the Regulatory Flexibility Act (RFA), has prepared in support of 
this action. The FRFA describes the economic impact that this final 
rule will have on small entities. This FRFA incorporates the IRFA, any 
comments received on the proposed rule, NMFS's responses to those 
comments, and the analyses completed to support the action. There are 
no Federal rules that may duplicate, overlap, or conflict with this 
final rule. A copy of the IRFA is available from the NEFMC (see 
ADDRESSES).

Statement of Objective and Need

    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 is taken under the authority of the Magnuson-Stevens Act 
and regulations at 50 CFR part 648.

Summary of Significant Issues Raised in Public Comments

    No public comments were received on the proposed rule or on the 
economic analyses summarized in the IRFA.

Description and Estimate of Number of Small Entities to Which this Rule 
Will Apply

    This action will impact approximately 393 limited access monkfish 
permit holders that fish all or part of the fishing year in the SFMA, 
based on vessel landings for the 2003 FY. Of these 393 permit holders, 
158 fished exclusively in the SFMA, and are likely to be most affected 
by this action. All of the these vessels are considered small entities 
under the Small Business Administration's size standards for small 
fishing businesses (less than $3.5 million in gross annual sales) and, 
therefore, there is no disproportionate impact of the regulations 
between large and small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements.

Description of the Steps Taken to Minimize 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 enables the NEFMC and 
MAFMC 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. This potential for 
increased fishing opportunities maximizes the overall benefits to the 
fishing industry.
    Framework 2 considered other alternatives to the formulaic method 
that was chosen to establish annual TACs for monkfish. Therefore, there 
is no discretion through this annual adjustment process for considering 
other alternatives or associated management measures. The annual target 
TAC setting method established in Framework 2 compares annual biomass 
targets with a 3-year running average of the NMFS fall trawl survey. If 
the trawl survey biomass index is less than the annual target, as is 
the case for FY 2004, the target TAC in the subsequent year (FY 2005) 
is set to equal the monkfish landings for the previous fishing year (FY 
2003), minus the percentage difference between the 3 year average 
biomass index and the annual index target (see Table 1).

[[Page 22244]]

 Another option in Framework 2 was considered that would have compared 
the current F in relation to the fishing mortality threshold 
(Fthreshold) for establishing 2004 target TACs. 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 limited access monkfish vessels 
fishing in the SFMA which is based on a threshold target TAC. 
Therefore, there are no alternatives to the trip limits that are to be 
implemented for FY 2005 under this annual adjustment process.

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.nero.noaa.gov.

                                                        Table 1. Calculation of 2005 Target TACs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   FY 2003 Landings   2004 3-year Average (kg/ 2004 Biomass Target (kg/  Percent Below Biomass
         Management Area                 (mt)                   tow)                     tow)                    Target            2005 Target TAC (mt)
--------------------------------------------------------------------------------------------------------------------------------------------------------
NFMA                                          14,004                     1.56                     1.66                   6.02 %                   13,160
SFMA                                          11,834                     0.94                     1.15                  18.26 %                    9,673
--------------------------------------------------------------------------------------------------------------------------------------------------------

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 22, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 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.


Sec.  648.92  [Amended]

0
2. In Sec.  648.92, paragraph (b)(1)(ii) is removed and reserved.

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, C, and G vessels. Category A, C, and G vessels 
fishing under the monkfish DAS program in the SFMA may land up to 700 
lb (318 kg) tail weight or 2,324 lb (1,054 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, D, and H vessels. Category B, D, and H vessels 
fishing under the monkfish DAS program in the SFMA may land up to 600 
lb (272 kg) tail weight or 1,992 lb (904 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. 05-8523 Filed 4-25-05; 3:51 pm]
BILLING CODE 3510-22-S