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Fisheries of the Northeastern United States; Monkfish Fishery;Framework 1; Emergency Measures
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 22, 2002 (Volume 67, Number 99)]
[Rules and Regulations]
[Page 35928-35931]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my02-10]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 020329075-2124-03; I.D. 031902E]
RIN 0648-AP11
Fisheries of the Northeastern United States; Monkfish
Fishery;Framework 1; Emergency Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Disapproval of Framework 1; emergency interim rule; request for
comments.
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SUMMARY: NMFS notifies the public that it has disapproved proposed
Framework 1 to the Monkfish Fishery Management Plan (FMP). NMFS is
issuing this emergency interim rule to amend temporarily the monkfish
fishing mortality rate (F) criteria in the FMP to be consistent with
those recommended by the most recent stock assessment (SAW 34; January
2002). This emergency rule also implements the management measures that
were proposed in Framework 1 to the FMP because, with the amendment of
the F criteria in the FMP, these measures are consistent with the best
available scientific information. The intended effect of this rule is
to suspend temporarily the restrictive Year 4 default management
measures that became effective May 1, 2002, and to implement management
measures for the monkfish fishery based on the best scientific
information.
DATES: Effective May 17, 2002 through November 18, 2002. Comments on
this emergency rule must be received no later than 5 p.m. EDT June 14,
2002.
ADDRESSES: Comments on the emergency rule should be sent to Patricia A.
Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn
Drive, Gloucester, MA 01930-2298. Mark the outside of the envelope
``Comments on Monkfish Emergency Rule.'' Comments may also be submitted
via facsimile (fax) to 978-281-9135. Comments will not be accepted if
submitted via e-mail or the Internet.
Copies of the emergency rule, including the Environmental
Assessment (EA) and Regulatory Impact Review (RIR) are available upon
request from Patricia A. Kurkul at the address listed above. The EA/RIR
is also accessible via the Internet at http://www.nero.nmfs.gov. 
FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy
Analyst,
[[Page 35929]]
(978) 281-9103, fax (978) 281-9135, e-mail Allison.Ferreira@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
The monkfish fishery is jointly managed by the New England and Mid-
Atlantic Fishery Management Councils (Councils), with the New England
Fishery Management Council having the administrative lead. The
objectives of the management program established by the FMP are to
eliminate overfishing by May 2002 and to rebuild the stock by 2009. In
order to ensure the elimination of overfishing by May 2002, the FMP
specified that restrictive measures be implemented for Year 4 of the
management program (May 1, 2002--April 30, 2003), unless a 3-year
review of the stock status indicates that these restrictive measures
are not necessary. The Year 4 default measures, which became effective
on May 1, 2002, eliminated the directed monkfish fishery by allocating
zero monkfish days-at-sea (DAS) and by allowing only incidental
landings of monkfish.
As required by the regulations at 50 CFR 648.96(b), a 3-year review
of the management program was conducted by the Monkfish Monitoring
Committee. Based on the results of this review, the Councils submitted
Framework 1, which presented alternative management measures for Year
4. A proposed rule seeking public comment on Framework 1 was published
in the Federal Register on April 4, 2002 (67 FR 16079). The measures
proposed in Framework 1 were as follows: (1) A 1-year delay in
implementing the restrictive Year 4 default management measures; (2) a
target TAC of 19,595 metric tons (mt), with area-specific TACs of
11,674 mt and 7,921 mt for the Northern Fishery Management Area (NFMA)
and the Southern Fishery Management Area (SFMA), respectively; (3)
allocation of 40 DAS to limited access monkfish vessels for the 2002
fishing year (May 1, 2002 - April 30, 2003); (4) a revision to the
monkfish trip limits in the SFMA to 550 lb (249 kg) (tail weight per
DAS) for vessel permit categories A and C, and 450 lb (204 kg) (tail
weight per DAS) for vessel permit categories B and D while fishing on a
monkfish DAS in the SFMA; and (5) maintenance of all other measures as
established for Year 3 of the FMP, including less restrictive
incidental catch limits.
Based upon the F criteria recommended by SAW 34 and the 2001 NMFS
fall trawl survey, the measures contained in Framework 1 were initially
determined to be consistent with the FMP objectives of ending
overfishing in 2002. However, that determination was based on the F
criteria recommended by SAW 34, not the F criteria in the FMP.
Therefore, during a closer review of the F criteria in the FMP, NMFS
determined that Framework 1 was not consistent with the FMP because the
F criteria in the FMP have not yet been formally amended to reflect the
best available information on the monkfish stock. Therefore, NMFS is
disapproving Framework 1 because it is inconsistent with the FMP.
The FMP authorizes the Councils to revise the F criteria through
framework action. However, the results of SAW 34 were not available
until late January 2002, when the Councils approved Framework 1, which
was too late to incorporate the new scientific information into the
framework action in order to have measures in place before the default
measures became effective on May 1, 2002.
The F thresholds defined in the FMP are F=0.05 for the NFMA and
F=0.14 for the SFMA. The FMP F targets and thresholds were generated
using reference points and estimates of contemporaneous fishing
mortality from SAW 23 (March 1997). Estimates of those reference points
were recalculated during SAW 31 (October 2000) using updated data and
under different hypotheses, which were considered to be more
reasonable, regarding the mean length at full selection.\1\ This
resulted in negative estimates of the F threshold for the NFMA, which
is an unrealistic result, indicating that the F reference points in the
FMP are not reliable as indicators of stock status with respect to
exploitation rates. As a result, the 31\st\ Stock Assessment Review
Committee (SARC) concluded that the fishing mortality reference points
established in the FMP needed to be reevaluated.
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\1\ The mean at which monkfish is retained by the fishing gear.
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The 34\th\ SARC recognized inherent flaws in the method used to
establish the F criteria in the FMP and discussed potential
alternatives for establishing revised F criteria. The SARC stated that
information now exists to estimate current F rates by age, and that
yield per recruit (YPR) analyses could be used to establish revised
reference points. Based on a provisional YPR analysis, the SARC
recommended F thresholds of F=0.2 and F targets of F=0.14 for the stock
units in both the NFMA and the SFMA.
The FMP includes target TAC levels projected to be consistent with
the fishing mortality objectives of the FMP. The FMP's planned
reductions in the target TACs were based on achieving the F threshold
in the fourth year of management. However, when the F thresholds were
found to be invalid, the TACs also became invalid.
The current assessment methodology is adequate to estimate the
level of F in recent fishing years. In Framework 1, the Councils
considered information from SAW 34 that provided a range of F estimates
for calendar year 2000. Within the range of estimates, the SAW attached
the most significance to those derived from the recent cooperative
industry survey, which was conducted in February--April 2001. The most
probable estimates of F derived from the cooperative survey ranged from
about 0.25 to about 0.4. These estimates include only 7 months of
monkfish DAS restrictions and trip limits and, therefore, underestimate
the effect of the management measures in reducing F. Furthermore, the
results of the 2001 NMFS fall trawl survey indicate that the NFMA
component of the stock is no longer overfished and that the SFMA stock
biomass is at its highest level since 1986.
NMFS implements this emergency rule to amend temporarily the F
criteria in the FMP to be consistent with those recommended by SAW 34.
Amendment 2 to the FMP, which is currently under development by the
Councils, will permanently amend these F criteria and establish a
revised stock rebuilding program using the best scientific information
available. Because the measures proposed in Framework 1 were found to
be consistent with the F criteria recommended by SAW 34, this temporary
revision to the F criteria contained in the FMP provides a clear basis
for implementing the management measures proposed in Framework 1.
Therefore, this action also enacts the management measures proposed in
Framework 1, which are described in the preamble to this emergency
rule. These measures achieve the FMP objective of ending overfishing in
2002 since setting the target TACs for the 2002 fishing year based on
2000 landings is consistent with the amended F threshold of F=0.2.
Moreover, with stock survey indices showing increasing biomass, F
should decrease further if monkfish catch remains stable. To achieve
the target TACs recommended for Framework 1, the Councils and NMFS
considered combinations of trip limits and DAS. The combination of
restrictive trip limits and 40 DAS to keep landings at the 2000 level
was selected by the Councils over other (higher) trip limits and a
reduced number of DAS based on industry testimony favoring the
maintenance of the 40 DAS.
[[Page 35930]]
Section 305(c) of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) authorizes the Secretary of
Commerce to implement emergency regulations to address an emergency if
the Secretary finds that an emergency exists. These emergency
regulations may remain in effect for no more than 180 calendar days
after the date of publication in the Federal Register, with a possible
180-day extension, provided the public has an opportunity to comment on
the measures.
The restrictive Year 4 default measures currently required by the
FMP became effective on May 1, 2002. These default measures are
expected to have a significant negative economic impact on monkfish
vessels and monkfish-dependent communities. In addition, because
monkfish are often caught incidentally when vessels target other
species, the default measures are likely to cause wasteful bycatch of
monkfish in other directed fisheries as a result of reduced incidental
trip limits. Furthermore, the results of SAW 34 and the 2001 NMFS fall
trawl survey indicate that the restrictive Year 4 default measures are
not necessary to eliminate overfishing.
Implementing this action through section 305(c) emergency authority
is justifiable because the need to disapprove Framework 1 and
immediately amend the FMP to make it consistent with the best
scientific information available became discoverable only after NMFS
had the time to fully evaluate the framework action after the public
comment period had ended. As discussed above, the disapproval of
Framework 1 is based on the fact that the framework measures, which are
based on the best available scientific information on the monkfish
stock, are inconsistent with the F criteria in the FMP. The need for a
formal change to the FMP to incorporate the new F criteria was not
clearly apparent earlier, given the newness of the scientific
information and the extremely compressed timeframe for considering
public comments and implementing the framework before the default
measures became operative. Moreover, it would not have been possible to
incorporate the new scientific information into the FMP through
Framework 1 to avoid the default measures because the scientific
information necessary to justify the change was not available in time.
Disapproval of Framework 1 means that the default measures, which are
no longer considered necessary in light of the best scientific
information available, must remain in place until the newest science is
incorporated into the FMP. To delay the incorporation of the newest
science and implementation of the action necessary to avoid the default
measures would result in substantial, unwarranted and unnecessary
economic harm to the industry and would likely cause wasteful bycatch
of monkfish in other fisheries. Because NMFS is constrained to only
approve or disapprove a framework action, the only available way to
implement this action, without further delay, is through the Magnuson-
Stevens Act section 305(c) emergency authority.
Implementing this action through the section 305(c) emergency
authority of the Magnuson-Stevens Act is fully consistent with NMFS'
Policy Guidelines for the Use of Emergency Rules (Emergency Guidelines)
found at 62 FR 44421, et seq. (August 21, 1997). The Emergency
Guidelines specify ``emergency criteria'' and ``emergency
justification'' for determining the appropriateness of section 305 (c)
rulemaking. Under the ``emergency criteria'' guidelines, an emergency
exists in a situation that: (1) Results from recent, unforeseen events
or recently discovered circumstances; (2) presents serious conservation
or management problems in the fishery; and (3) can be addressed through
emergency regulations for which the immediate benefits outweigh the
value of advance notice, public comment, and deliberative consideration
of the impacts on participants to the same extent as would be expected
under the normal rulemaking process.
As more fully discussed above and in the EA accompanying this
action, this emergency action meets all of these criteria. First, the
need for the action results from a ``recently discovered circumstance''
created by the need to disapprove Framework 1. Second, to allow the
default measures to remain in place creates serious management problems
in that fishers are subject to substantial, unwarranted and unnecessary
economic harm if they are not allowed to retain more than an incidental
catch of monkfish. It also creates serious conservation problems in
that the default measures are likely to cause wasteful bycatch of
monkfish in other fisheries. Third, the immediate benefits of relieving
the substantial economic harm on the fishers outweigh the value of
additional public comment and deliberative consideration, particularly
because there has been prior notice and comment on the measures to be
implemented in the context of receiving comments on a proposed
framework action.
For these same reasons, this emergency action is consistent with
the ``emergency justification'' guidelines which state that an
emergency action is justified:
If the time it would take to complete notice-and-comment
rulemaking would result in substantial damage or loss to a living
marine resource, habitat, fishery, industry participants or
communities, or substantial adverse effect to the public health,
emergency action might be justified under one or more of the
following situations:
(1) Ecological (A) to prevent overfishing as defined in an FMP,
or as defined by the Secretary in the absence of an FMP, or (B) to
prevent other serious damage to the fishery resource or habitat; or,
(2) Economic to prevent significant direct economic loss or to
preserve a significant economic opportunity that otherwise might be
foregone; or,
(3) Social to prevent significant community impacts or conflict
between user groups; or,
(4) Public health to prevent significant adverse effects to
health of participants in a fishery or to the consumers of seafood
products (62 FR 44421).
This emergency action clearly qualifies under the ``Economic''
situation in that it is intended to relieve unnecessary economic loss
to fishers that otherwise would not be able to fish for monkfish under
the default measures. It also preserves a significant economic
opportunity for those fishers that rely on the monkfish fishery for
their livelihood as more fully discussed above and in the EA. In
addition, this emergency action addresses the ``Social'' situation by
lessening impacts on fishers in communities more dependent on monkfish
and the ``Ecological'' situation by minimizing wasteful bycatch of
monkfish in other fisheries.
Classification
For these reasons, the Assistant Administrator for Fisheries, NOAA
(AA) finds good cause to waive the requirement to provide prior notice
and the opportunity for public comment on the temporary amendment to F
thresholds and F targets in the FMP, pursuant to authority set forth at
U.S.C. 553(b)(B), as such procedures would be impracticable and
contrary to the public interest. This will prevent unnecessary economic
harm and biological waste by enacting a temporary suspension of the
restrictive Year 4 default management measures and implementing
alternative measures consistent with the measures proposed in Framework
1. These reasons are more fully explained in the justification for
implementing this emergency action pursuant to section 305(c) of the
Magnuson-Stevens Act. It is further noted that the management
[[Page 35931]]
measures contained in this emergency rule received prior notice and
public comment through the Council's framework process and the
publication of a proposed rule for Framework 1. The AA is also waiving
the 30 day delay in effective date under 5 U.S.C. 553(d)(1), as this
rule relieves a restriction.
This emergency rule has been determined to be not significant for
purposes of Executive Order 12866.
This emergency rule is exempt from the procedures of the Regulatory
Flexibility Act because the rule is issued without opportunity for
prior public comment. However, the management measures contained in
this emergency rule received prior notice and public comment through
the Councils' framework process and the publication of a proposed rule,
accompanied by an Initial Regulatory Flexibility Analysis, for
Framework 1. A Final Regulatory Flexibility Analysis was prepared for
the draft final rule for Framework 1.
A formal section 7 consultation under the Endangered Species Act
was initiated for Framework 1. Because the measures contained in this
emergency rule are the same as those proposed in Framework 1, the
Biological Opinion (BO) prepared as part of that consultation is
applicable to this action. In the BO for Framework 1 dated May 14,
2002, the AA determined that fishing activities conducted under the
measures contained in Framework 1 are not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of critical habitat.
The Regional Administrator has determined that fishing activities
conducted under this emergency rule will not have an adverse impact on
marine mammals.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 16, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, 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
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.92, paragraph (b)(1) is suspended and paragraph
(b)(9) is added to read as follows:
Sec. 648.92 Effort-control program for monkfish limited access
vessels.
* * * * *
(b) * * *
(9) Limited access monkfish permit holders. For fishing year 2002,
all limited access monkfish permit holders shall be allocated 40
monkfish DAS. Multispecies and scallop limited access permit holders
who also qualify for a limited access monkfish permit shall be
allocated up to 40 monkfish DAS, depending on whether they have
sufficient multispecies and/or scallop DAS to use concurrently with
their monkfish DAS, as required by paragraph (b)(2) of this section.
3. In Sec. 648.94, paragraphs (b)(1) through (b)(7) and (c)(2) are
suspended, and paragraphs (b)(8) through (b)(11), and (c)(7) are added
to read as follows:
Sec. 648.94 Monkfish possession and landing restrictions.
* * * * *
(b) * * *
(8) 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 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).
(ii) Category B and D vessels. Category B and D vessels fishing
under the monkfish DAS program in the SFMA may land up to 450 lb (204
kg) tail-weight or 1,494 lb (678 kg) whole weight of monkfish per DAS
(or any prorated combination of tail-weight and whole weight based on
the conversion factor).
(iii) Administration of landing limits. A vessel owner or operator
may not exceed the monkfish trip limits as specified in paragraphs
(b)(8)(ii) and (iii) of this section per monkfish DAS fished, or any
part of a monkfish DAS fished.
(9) Category C and D vessels fishing during a multispecies DAS.--
(i) NFMA. There is no monkfish trip limit for a Category C or D vessel
that is fishing under a multispecies DAS exclusively in the NFMA.
(ii) SFMA. If any portion of a trip is fished only under a
multispecies DAS, and not under a monkfish DAS, in the SFMA, the vessel
may land up to 300 lb (136 kg) tail-weight or 996 lb (452 kg) whole
weight of monkfish per DAS if trawl gear is used exclusively during the
trip, or 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight if
gear other than trawl gear is used during the trip.
(10) Category C and D vessels fishing under the scallop DAS
program. A Category C or D vessel fishing under a scallop DAS with a
dredge on board, or under a net exemption provision as specified in
Sec. 648.51(f), 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).
(11) Category C and D scallop vessels declared into the monkfish
DAS program without a dredge on board. Category C and D vessels that
have declared into the monkfish DAS program and that do not fish with
or have on board a dredge are subject to the same landing limits as
specified in paragraph (b)(9) 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.
(c) * * *
(7) Scallop dredge vessels fishing under a scallop DAS. A scallop
dredge vessel issued a monkfish incidental catch permit and 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).
* * * * *
[FR Doc. 02-12774 Filed 5-17-02; 10:37 am]
BILLING CODE 3510-22-S