Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Monkfish Fishery; Amendment 2, 21927-21946 [05-8450]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Rules and Regulations]
[Pages 21927-21946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8450]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 041229366-5088-02; I.D. 122304D]
RIN 0648-AQ25


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

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

ACTION:  Final rule.

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SUMMARY:  NMFS is implementing approved measures contained in Amendment 
2 to the Monkfish Fishery Management Plan (FMP). Amendment 2 was 
developed to address essential fish habitat (EFH) and bycatch issues, 
and to revise the FMP to address several issues raised during the 
public scoping process. This rule implements the

[[Page 21928]]

following measures: a new limited access permit for qualified vessels 
fishing south of 38[deg]20' N. lat.; an offshore monkfish fishery in 
the Southern Fishery Management Area (SFMA); a maximum roller-gear disc 
diameter of 6 inches (15.2 cm) for trawl gear vessels fishing in the 
SFMA; closure of two deep-sea canyon areas to all gears when fishing 
under the monkfish days-at-sea (DAS) program; establishment of a 
research DAS set-aside program and a DAS exemption program; a North 
Atlantic Fisheries Organization (NAFO) Regulated Area Exemption 
Program; adjustments to the monkfish incidental catch limits; a 
decrease in the monkfish minimum size in the SFMA; removal of the 20-
day block requirement; and new additions to the list of actions that 
can be taken under the framework adjustment process contained in the 
FMP. The intent of this action is to provide efficient management of 
the monkfish fishery and to meet conservation objectives. Also, NMFS 
informs the public of the approval by the Office of Management and 
Budget (OMB) of the collection-of-information requirements contained in 
this final rule and publishes the OMB control numbers for these 
collections.

DATES:  Effective May 1, 2005.

ADDRESSES:  Copies of Amendment 2, its Regulatory Impact Review (RIR), 
Initial Regulatory Flexibility Analysis (IRFA), and the Final 
Supplemental Environmental Impact Statement (FSEIS) are available on 
request from Paul J. Howard, Executive Director, New England Fishery 
Management Council (NEFMC), 50 Water Street, Newburyport, MA 01950. The 
document is also available online at https://www.nefmc.org. NMFS 
prepared a Final Regulatory Flexibility Analysis (FRFA), which is 
contained in the classification section of this rule. Copies of the 
Record of Decision (ROD) and the Small Entity Compliance Guide are 
available from the Regional Administrator, Northeast Regional Office, 
NMFS, One Blackburn Drive, Gloucester, MA 01930, and on the Northeast 
Regional Office's website at https://www.nero.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to Patricia A. Kurkul at the above address 
and by e-mail to David--Rostker@omb.eop.gov, or by fax to (202) 395-
7285.

FOR FURTHER INFORMATION CONTACT:  Allison R. Ferreira, Fishery Policy 
Analyst, (978) 281-9103; fax (978) 281-9135; e-mail 
allison.ferreira@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements measures contained in Amendment 2 to the 
FMP, which was partially approved by NMFS on behalf of the Secretary of 
Commerce (Secretary) on March 30, 2005. A proposed rule for this action 
was published on January 14, 2005 (70 FR 2586), with public comments 
accepted through February 14, 2005. The public comment period was 
reopened for 10 days on February 24, 2005 (70 FR 9029), because the 
qualification period for the proposed modification to the monkfish 
limited entry program was incorrectly described in the preamble to the 
proposed rule. The details on the development of Amendment 2 were 
contained in the preamble of the proposed rule and are not repeated 
here. In the proposed rule, NMFS requested public comment on all 
proposed measures, but specifically asked for comment on the measure to 
provide owners of limited access monkfish vessels with a one-time 
opportunity to reset their vessel's monkfish permit baseline 
characteristics to be the characteristics of the vessel first issued a 
Federal limited access permit, rather than the characteristics of the 
vessel at the time it was issued a monkfish limited access permit under 
the initial FMP. After considering public comments on this measure and 
the other measures contained in Amendment 2, NMFS, on behalf of the 
Secretary, has disapproved the monkfish baseline modification measure. 
Furthermore, NMFS is rejecting the Councils' determination and analysis 
with respect to the bycatch reporting methodology contained in 
Amendment 2, and is sending that portion of Amendment 2 back to the 
Councils for further consideration, development, and analysis in light 
of concerns raised in a recent Federal court decision in Oceana v. 
Evans (Civil Action No. 04-0811 (D.D.C. March 9, 2005)), which 
considered and rejected a similar provision in Amendment 13 to the 
Northeast (NE) Multispecies FMP (Amendment 13).
    A process for providing a monkfish limited access vessel owner with 
a one-time opportunity to reset their vessel's monkfish permit baseline 
characteristics to be the characteristics of the vessel first issued a 
Federal limited access permit was proposed in Amendment 2. This 
proposed management measure has been disapproved because it does not 
comply with National Standard 7 of the Magnuson-Stevens Fishery 
Conservation and Management (Magnuson-Stevens Act). National Standard 7 
of the Magnuson-Stevens Act states, ``Conservation and management 
shall, where practicable, minimize costs and avoid unnecessary 
duplication.'' Further, the regulatory guidelines for implementing 
National Standard 7 found at 50 CFR 600.340(d) state, ``The supporting 
analysis for FMPs should demonstrate that the benefits of fishery 
regulations are real and substantial relative to the added research, 
administrative, and enforcement, as well as costs to the industry of 
compliance.'' This proposed measure would only have addressed the 
multiple baseline issue with respect to the monkfish fishery, creating 
the need to address separately similar measures in other FMPs in order 
to fully address the larger issue of multiple baselines across all 
fisheries. Handling the multiple baseline issue in such a piece-meal 
manner would require the Councils and NMFS to develop and implement 
duplicate measures under each FMP, resulting in unnecessary 
administrative burden on the Government and on limited access permit 
holders. Upon implementation of such measures in each FMP, owners of 
vessels with multiple limited access permits would be required to 
modify their vessel's baseline for that particular fishery, potentially 
requiring a vessel owner to change a single vessel's baseline multiple 
times. Further, the potential benefits associated with addressing the 
multiple baseline issue in each individual FMP would not be fully 
realized until measures are implemented in all FMPs having limited 
access permits. Given the uncertainty of whether any fishing vessels 
would actually exercise their right to reset their vessel baseline 
under the baseline modification program proposed in Amendment 2, NMFS 
has determined that, at this time, the speculative benefits of this 
measure are not ``real and substantial'' relative to the added 
administrative and enforcement costs, as well as the costs to the 
industry of compliance. It would be more efficient, comprehensive, and 
less confusing to the public for the Councils to address the vessel 
baseline issue across all FMPs in an omnibus amendment.

Approved Measures

    NMFS has approved 10 measures proposed in Amendment 2. A 
description of the new management measures resulting from the partial 
approval of Amendment 2 and a summary of additional regulatory changes 
being made in this final rule are provided below.

[[Page 21929]]

1. Modification of the Limited Access Permit Qualification Criteria

    Amendment 2 provides owners of vessels that do not possess a 
monkfish limited access permit with the opportunity to qualify for a 
new monkfish limited access permit through a modified limited entry 
program. In order to qualify for a limited access permit under this 
modified limited entry program, a vessel must demonstrate that it 
landed the qualifying amount of monkfish in the area south of 
38[deg]00' N. lat. (i.e., at a port located south of 38[deg]00' N. 
lat.) during the qualification period of March 15 through June 15, 
during the years 1995 through 1998. Two permits will be available, 
depending on the amount of monkfish the vessel landed during the 
qualification period (the same landings levels that were required for 
the original monkfish limited access permits). To qualify for a 
Category G permit, a vessel must demonstrate monkfish landings of at 
least 50,000 lb (22,680 kg) tail weight during the qualification 
period. To qualify for a Category H permit, a vessel must demonstrate 
monkfish landings of at least 7,500 lb (3,402 kg) tail weight during 
the qualification period. Vessels qualifying for a Category G or H 
permit will be restricted to fishing on a monkfish DAS south of 
38[deg]20' N. lat. (the initial line was established at 38[deg]00' N. 
lat. but revised to 38[deg]20' N. lat. in response to sea turtle 
protection measures).
    This modified limited entry program is being implemented to provide 
a renewed opportunity for vessels operating in the southern range of 
the monkfish fishery to qualify for a limited access monkfish permit 
since some vessel owners claim they were not adequately notified of the 
monkfish control date established on February 27, 1995, because they 
did not possess Federal NE permits. In addition, the southern boundary 
of the monkfish fishery management unit was initially proposed as the 
VA/NC border, rather than the NC/SC border, leading some to believe 
they would not be affected by the FMP.

2. Offshore Fishery Program in the SFMA

    Amendment 2 establishes an offshore monkfish fishery program that 
will allow vessels to elect to fish under a monkfish possession limit 
of 1,600 lb (726 kg) (tail weight) per monkfish DAS when fishing in the 
Offshore Fishery Program Area under specific conditions, regardless of 
the possession limit that would otherwise be applicable to that vessel. 
For a vessel electing to fish in this program, monkfish DAS will be 
prorated based on a possession limit ratio (the standard permit 
category possession limit applicable to non-program vessels fishing in 
the SFMA, divided by 1,600 lb (726 kg) (the possession limit per DAS 
specified for vessels fishing in the program)), multiplied by the 
monkfish DAS available to the vessel when fishing in the SFMA.
    Vessels electing to fish in this program will be required to fish 
under the program rules for the entire fishing year and will receive a 
separate monkfish permit category (Category F). A vessel electing to 
fish in this program will be allowed to fish its monkfish DAS only 
within the Offshore Fishery Program Area from October through April. In 
addition, enrolled vessels will be required to have on board a Vessel 
Monitoring System (VMS) that is operational during the entire October 
through April season, and will be subject to the gear requirements 
applicable to monkfish limited access permit Category A and B vessels.
     The Offshore Fishery Program is being implemented to help restore 
the offshore monkfish fishery that was essentially eliminated by the 
disapproval of the ``running clock'' in the original FMP. The running 
clock provision proposed in the original FMP would have provided 
vessels with the ability to account for any possession limit overages, 
provided that the vessel let its monkfish DAS clock run upon returning 
to port to account for these overages. Without the running clock 
provision, vessels have been discouraged from fishing in offshore areas 
under the current restrictive possession limits. Any vessel not 
electing to fish under this program will still be allowed to fish in 
the Offshore Fishery Program Area under the rules and regulations 
applicable to non-program vessels. This program is intended to provide 
flexibility to the fishing industry without impacting the mortality 
objectives of the FMP.

3. SFMA Roller Gear Restriction

    The roller gear on all trawl vessels fishing under a monkfish DAS 
in the SFMA is restricted to a maximum disc diameter of 6 inches (15.2 
cm). The purpose of this new management measure is to minimize, to the 
extent practicable, the adverse impact of monkfish trawl gear on EFH. 
This measure is specific to the SFMA since it will help ensure that 
trawl vessels, which are known to be able to target monkfish more 
successfully with smaller roller gear in the SFMA than in the Northern 
Fishery Management Area (NFMA), do not fish in areas of more complex 
bottom characteristics, including the offshore canyon areas.

4. Closure of Lydonia and Oceanographer Canyons

    Vessels fishing on a monkfish DAS are prohibited from fishing in 
the Oceanographer and Lydonia Canyon closure areas, as defined in 
Amendment 2, regardless of gear used. The purpose of these closures is 
to minimize, to the extent practicable, the adverse impact of monkfish 
fishing on EFH, especially due to the potential impacts associated with 
the anticipated expansion of the directed offshore monkfish fishery 
under the Offshore Southern Monkfish Program being implemented in this 
final rule.

5. Cooperative Research Initiative Programs

    Amendment 2 establishes two programs aimed at encouraging vessels 
to engage in cooperative monkfish research activities, including, but 
not limited to: Research to minimize bycatch and interactions of the 
monkfish fishery with sea turtles and other protected species; research 
to minimize the impact of the monkfish fishery on EFH; research or 
experimental fisheries for the purpose of establishing a monkfish trawl 
exempted fishery (under the NE Multispecies FMP) in the NFMA; research 
on the biology or population structure and dynamics of monkfish; 
cooperative surveys; and gear efficiency. The purpose of these two 
programs is to expand incentives for fishermen to participate in a 
range of monkfish research and survey activities by reducing the costs 
associated with conducting the research, and by streamlining the 
exempted fishing permit (EFP) process.
    Under the DAS set-aside program, a pool of 500 monkfish DAS will be 
set aside to be distributed to vessels for the purpose of participating 
in cooperative monkfish research projects. These DAS will be obtained 
by removing 500 DAS from the total monkfish DAS available to the 
monkfish fleet prior to distribution to individual vessels. This will 
result in less than one DAS being deducted from each individual vessel 
allocation annually. For fishing year (FY) 2005, this set-aside will 
reduce individual vessel DAS allocations by 0.7 DAS. NMFS will publish 
a Request for Proposals (RFP) and vessels will be required to submit 
competitive bids to participate in specific research or survey 
projects. NMFS will then convene a review panel composed of Council 
members from the Monkfish Oversight

[[Page 21930]]

Committee, the Research Steering Committee, and other technical experts 
to review the proposals. NMFS will consider the recommendations of each 
panel member and award the contracts to successful applicants, 
including a distribution of DAS from the set-aside pool.
    The Regional Administrator (RA) will reallocate any unused research 
DAS as exempted DAS and provide notice of the reallocation in the 
Federal Register. Thus, any of the 500 DAS not distributed through the 
RFP process will be available to vessels through a DAS exemption 
program on a first-come-first-served basis. Under the DAS exemption 
program, vessels applying for an EFP will indicate the number of 
monkfish DAS they will require to complete their research project. NMFS 
will then review the EFP application and, if approved, issue the permit 
exempting the vessel from monkfish DAS usage requirements. The total 
number of monkfish DAS that could be used in the two programs 
(distributed under the RFP process or used in the exemption program) 
could not exceed the originally established 500 DAS annual set-aside 
pool. For any DAS exemption request that exceeds the 500 DAS set-aside 
analyzed in the FSEIS for Amendment 2, the applicant will be required 
to prepare an analysis of the impacts of the additional DAS effort that 
fully complies with the requirements of the National Environmental 
Policy Act. For FY 2005, all of the 500 DAS set aside for research will 
be reallocated as exempted DAS since an RFP cannot be published, 
projects reviewed and approved, and research DAS allocated in 
sufficient time for the research DAS to be utilized during FY 2005.

6. NAFO Regulated Area Exemption Program

    This final rule implements an exemption from certain FMP 
regulations for vessels that are fishing for monkfish under a High Seas 
Permit in the NAFO Regulated Area and transiting the Exclusive Economic 
Zone (EEZ) with monkfish on board or landing monkfish in U.S. ports. 
Similar to the NAFO waters exemption in the NE Multispecies FMP, 
monkfish vessels enrolled in the NAFO Regulated Area Exemption Program 
are exempt from the monkfish regulations pertaining to permit 
requirements, minimum mesh size, effort control (DAS), and possession 
limits. Further, monkfish caught from the NAFO Regulated Area will not 
count against the monkfish total allowable catch, provided: The vessel 
has on board a letter of authorization issued by the Regional 
Administrator; except for transiting purposes, the vessel fishes 
exclusively in the NAFO Regulated Area and does not harvest fish in, or 
possess fish harvested from, the EEZ; when transiting the EEZ, all gear 
is properly stowed and not available for immediate use; and the vessel 
complies with all High Seas Fishing Compliance Permit and NAFO 
conservation and enforcement measures while fishing in the NAFO 
Regulated Area. This exemption program provides additional flexibility 
to monkfish vessels without compromising the mortality objectives of 
the FMP.

7. Changes to Incidental Catch Provisions

    Three adjustments to the monkfish incidental catch limits are 
implemented through this final rule. The purpose of these adjustments 
to the incidental catch limits is to minimize regulatory discards 
without affecting the overall stock rebuilding program. The first 
adjustment increases the current 50 lb (23 kg) per trip possession 
limit to be 50 lb (23 kg) per day, or partial day, up to a maximum of 
150 lb (68 kg) per trip, for vessels not fishing under a monkfish DAS, 
NE multispecies, or scallop DAS, and fishing with handgear or small 
mesh (see below). This possession limit also applies to NE multispecies 
limited access vessels that hold a Small Vessel Exemption permit when 
not fishing under a DAS program. Small mesh is defined as mesh smaller 
than the NE multispecies minimum mesh size requirements applicable to 
vessels fishing in the GOM and GB Regulated Mesh Areas (RMAs), and the 
Southern New England (SNE) RMA east of the boundary for the Mid-
Atlantic (MA) Exemption Area. For vessels fishing in the SNE and MA 
RMAs west of the MA Exemption Area boundary, small mesh is defined as 
mesh smaller than the minimum mesh size applicable to limited access 
summer flounder vessels.
    The second adjustment implements the same incidental monkfish catch 
limit of 50 lb (23 kg) per day, or partial day, up to a maximum of 150 
lb (68 kg) per trip, for vessels fishing with surfclam or ocean quahog 
hydraulic dredges, and sea scallop vessels (General Category or limited 
access) not fishing under a scallop DAS with dredge gear. These vessels 
were previously prohibited from retaining monkfish. For the purposes of 
these new possession limits, a day is counted starting with the time 
the vessel leaves port (as recorded in it's Vessel Trip Report), or, if 
the vessel has an operational VMS, when the vessel crosses the VMS 
demarcation line. This incidental catch limit has been modified from 
the proposed rule to include both General Category scallop vessels and 
limited access scallop vessels not fishing under a scallop DAS since 
limited access scallop vessels are authorized to fish under the same 
rules applicable to General Category vessels when not fishing under a 
scallop DAS, as specified under Sec.  648.52(a). The Amendment 2 
document was not clear with respect to whether or not this incidental 
catch provision should include limited access scallop vessels not 
fishing under a scallop DAS. However, because limited access scallop 
vessels must abide by the same provisions as General Category scallop 
vessels when not fishing under a scallop DAS, NMFS has determined that 
it was the Councils' intent to include these vessels under this 
incidental catch limit.
    The third monkfish incidental catch limit adjustment is applicable 
to vessels fishing with large mesh in the SNE or MA RMAs west of the 
boundary for the NE Multispecies MA Exemption Area. In this area, large 
mesh is defined as mesh equal to or greater than the minimum mesh size 
applicable to limited access summer flounder vessels. This adjustment 
increases the possession limit to 5 percent of the total weight of fish 
on board, to a maximum of 450 lb (204 kg), based on tail weight.

8. Decrease in Minimum Fish Size

    Amendment 2 reduces the minimum fish size for monkfish in the SFMA 
to 11 inches (27.9 cm) tail length, 17 inches (43.2 cm) total length, 
from the current minimum size limit of 14 inches (35.6 cm) tail length, 
21 inches (53.3 cm) total length. This change makes the minimum size 
for the SFMA consistent with the minimum fish size for the NFMA, 
simplifying the FMP rules and improving enforceability. Minimum fish 
size regulations have been widely used in FMPs on the basis that they 
discourage the targeting of small fish, and increase yield-per-recruit 
if successfully linked to gear with appropriate size-selectivity. 
Monkfish limited access trawl vessels that are fishing under a combined 
monkfish/multispecies DAS are authorized to use the minimum regulated 
mesh size authorized under the NE Multispecies FMP. As a result, these 
vessels already catch monkfish smaller than the current minimum fish 
size of 14 inches (35.6 cm) tail length. Until there is sufficient 
information linking trawl mesh size to the size of monkfish retained, 
the Councils determined that it is important to minimize the regulatory 
discards associated with vessels targeting monkfish using minimum 
regulated groundfish mesh. A reduction in the minimum fish size for the 
SFMA, while

[[Page 21931]]

keeping the minimum mesh size requirements constant, will have the 
effect of converting some monkfish discards to landings and reducing 
monkfish bycatch (regulatory discards), without changing the yield-per-
recruit or promoting the targeting of small fish. In addition, a 
uniform minimum size limit for both management areas reduces FMP 
complexity, making this management measure more enforceable and less 
confusing to the fishing industry. Further, allowing vessels to land 
monkfish that would otherwise have been discarded, due to a larger 
minimum size limit, will improve the catch data used in the stock 
assessment and management process.

9. Removal of 20-day Block Requirement

    Amendment 2 eliminates the 20-day block requirement for monkfish 
limited access Category A and B vessels. NMFS is removing the 20-day 
block requirement since it imposes an enforcement burden and increases 
the regulatory burden on monkfish limited access vessels with no 
apparent biological or economic benefit. This change does not affect 
the requirement for monkfish limited access vessels that also hold a NE 
multispecies limited access permit (Category C and D vessels) since 
these vessels must abide by the NE multispecies 20-day block 
requirement when fishing under a combined monkfish/multispecies DAS.

10. Modification of Framework Adjustment Procedures

    Amendment 2 includes three additions to the list of actions that 
can be taken under the existing framework adjustment procedure, which 
are as follows: Transferable monkfish DAS programs; measures to 
minimize the impact of the fishery on endangered or protected species; 
and measures to implement bycatch reduction devices. Including these 
additional measures to the list of frameworkable items could reduce the 
time required to implement such regulations, which otherwise would have 
to be done through an FMP amendment process.

11. Regulatory Changes

    This final rule implements several editorial revisions to the 
existing text in 50 CFR 648, subpart F, that are not proposed in 
Amendment 2. These revisions remove obsolete language (references to 
regulations in effect during previous fishing years) and improve the 
organization and clarity of the regulations.
    In addition to the editorial revisions referenced above, this final 
rule corrects an error in the incidental catch limit regulations for 
scallop vessels fishing under a scallop DAS found at 50 CFR 
648.94(c)(2). The original FMP and the preamble to the final rule 
implementing the FMP (64 FR 54732, October 7, 1999) stated that all 
vessels issued an incidental monkfish permit that are fishing under a 
scallop DAS, including both dredge vessels and vessels fishing under 
the trawl net exemption, are subject to an incidental catch limit of 
300 lb (136 kg) tail weight per DAS (see Section 4.6.3.2 of the FMP). 
However, the regulatory text in the final rule implementing the FMP 
inadvertently referenced only scallop dredge vessels fishing under a 
scallop DAS. The final rule will correct the regulations at Sec.  
648.94(c)(2) to apply to all vessels fishing under a scallop DAS, 
consistent with the intent of the original FMP.
    This final rule corrects the monkfish minimum trawl mesh size for 
the SNE Monkfish and Skate Trawl Exemption Area, specified at Sec.  
648.80(b)(5)(i)(B), to be consistent with the minimum trawl mesh size 
for vessels fishing under only a monkfish DAS, specified at Sec.  
648.91(c)(1)(i). The necessary minimum mesh size change to this 
exemption program under the NE Multispecies FMP was inadvertently 
omitted in drafting the regulatory text for the final rule implementing 
the original FMP.
    The final rule also corrects an error in the possession limit 
regulations for limited access Category C and D vessels fishing on a 
multispecies DAS in the SFMA with gear other than trawl gear, specified 
at Sec.  648.94(b)(3)(ii), to reference the fact that the 50-lb (23 kg) 
tail weight possession limit is per multispecies DAS. This error 
occurred in the regulatory text of the final rule implementing the FMP, 
but was correctly described in the preamble to that rule.

Comments and Responses

    A total of 15 individual comment letters were received on the 
proposed rule and on the Amendment. Eleven comments were received 
specific to the proposed rule, two comments addressed the Amendment, 
and two comments did not distinguish between the proposed rule and the 
Amendment. This section summarizes the principle comments contained in 
the individual comment letters that pertained to Amendment 2 and the 
proposed rule, and NMFS's response to those comments. Any comments 
received that were not specific to the management measures contained in 
the Amendment 2 proposed rule, or in the amendment document, are not 
responded to in this final rule.
    Ten commentors expressed either general or specific support for the 
management measures contained in Amendment 2, although two of these 
commentors expressed opposition or lack of support for particular 
management measures. Five comments were received in apparent opposition 
to the Amendment. The opposing comments received on Amendment 2 and its 
proposed rule were specific to the following issues: The research DAS 
set-aside program; essential fish habitat (EFH) measures; the 
modification of monkfish vessel baselines; the reduction in the minimum 
fish size for the SFMA; bycatch minimization; and bycatch reporting 
methodology.
    Comment 1: One commentor opposed the proposed set-aside of 500 DAS 
for monkfish research, questioning the validity of such research 
activities.
    Response: The research set-aside program contained in Amendment 2 
will encourage much needed research on the monkfish resource by 
providing an incentive for vessel owners to participate in monkfish 
research activities while not utilizing their valuable DAS. Information 
collected through these research activities will enable the Councils 
and NMFS to better understand the monkfish resource, enabling more 
effective management of the monkfish fishery.
    Comment 2: Three commentors supported the Lydonia and Oceanographer 
canyon closure areas, while one commentor questioned the legal 
authority and scientific basis for these closures under the EFH 
provisions of the Magnuson-Stevens Act. Specifically, this commentor 
cites a July 28, 2004, letter from NOAA General Counsel to the NEFMC 
regarding the legal basis for protecting deep-water corals in Amendment 
2. This letter advised that if deep-water corals are designated as EFH 
for monkfish, then protection of such corals in Amendment 2 is legal 
and appropriate. The fishing industry representatives claim that 
because Amendment 2 states that corals are not currently included in 
the EFH descriptions for any species in the NE region, the legal basis 
for the closures is tenuous at best. Instead, these individuals urged 
NMFS to work with the Councils to develop a comprehensive approach 
toward the protection of deep-water coral in the NEFMC's upcoming 
Omnibus Habitat Amendment. The three groups which expressed support for 
the canyon closures also recommended that these closures be revisited 
and/or expanded upon in a future management action

[[Page 21932]]

such as the Omnibus Habitat Amendment.
    Response: The EFH final rule states that FMPs must minimize the 
adverse effects of fishing on EFH to the extent practicable. Although 
monkfish inhabit deep water, their EFH is not considered to be 
vulnerable to bottom-tending mobile gear (bottom trawls and dredges) 
and bottom gillnets because juvenile and adult monkfish are distributed 
over a wide geographic and depth range, and inhabit a variety of bottom 
substrates. As a result, no action is required to minimize the adverse 
impacts of the monkfish fishery or other fisheries on monkfish EFH. 
However, it has been determined that the monkfish fishery adversely 
affects the EFH for other federally managed species. Overall, there are 
23 federally managed species with at least one life stage having EFH 
that has been determined to be more than minimally vulnerable to bottom 
trawl gear. As a result, management action is required to minimize, to 
the extent practicable, the adverse impacts of the monkfish fishery on 
the EFH of other species (see 50 CFR 600.815(a)(2)(ii)).
    The Councils proposed the closure of Lydonia and Oceanographer 
canyons as a precautionary measure to prevent any potential direct or 
indirect impacts to the EFH of other species that may result as the 
offshore monkfish fishery expands under the Offshore Fishery Program in 
the SFMA that is being implemented in this final rule. Thus, these 
closure areas are not being implemented solely to protect deep-water 
corals. In developing these alternatives, the Councils recognized that 
EFH for some federally managed species extends beyond the continental 
shelf, and includes some of the offshore canyons. The direct benefits 
of these closure areas were assessed in the FSEIS for Amendment 2 in 
terms of the degree to which the closure areas contain EFH for any 
species in depths greater than 200 meters that is classified as 
vulnerable. Twenty-three federally managed species have been observed 
or collected in surveys within the two canyon closure areas, with 10 of 
these species having EFH defined as hard substrates in depths greater 
than 200 meters. Furthermore, the EFH designations for juvenile and/or 
adult life stages for 6 of these 10 species (redfish, tilefish, and 4 
species of skates) overlap with the two canyon closure areas. Since 
some type of hard substrate is included in the EFH description for all 
six species, EFH for all six of these species has been determined to be 
moderately to highly vulnerable to the effects of bottom trawls and 
minimally vulnerable to bottom gillnets. Any reduction in the quantity 
or quality of EFH for these six species within the two canyon closure 
areas would constitute a direct adverse impact. Thus, the direct 
adverse impacts associated with the expansion of the offshore monkfish 
fishery in the SFMA will be minimized through the implementation of the 
Lydonia and Oceanographer canyon closure areas.
    Although corals are not explicitly included in the EFH descriptions 
for any species in the NE region, deep-water corals are known to grow 
on hard substrates, which are included in the EFH descriptions for many 
of the federally managed species that occur within the proposed closure 
areas, and are considered to be potentially important features of EFH 
for such species. Deep-water corals are considered to be especially 
vulnerable to damage by fishing gear due to their often complex 
branching form of growth, and because many species are extremely slow 
growing. Additionally, some coral species are thought to function 
similar to other epibenthic fauna in that they provide relief and 
shelter to juvenile finfish. For example, the EFH for juvenile redfish 
is has been determined to be highly vulnerable to the effects of bottom 
trawling largely due to this species use of bottom structure (including 
corals) for shelter. In addition, several other species found in the 
canyon closure areas utilize deep-water gravel and other hard bottom 
habitat that support the growth of corals and other species of attached 
epifauna. Damage or loss of these organisms caused by monkfish trawl or 
gillnet gear would constitute an indirect adverse impact to the benthic 
habitats. Thus, the indirect adverse impacts associated with the 
expansion of the offshore monkfish fishery in the SFMA will be 
minimized through the implementation of the Lydonia and Oceanographer 
canyon closure areas. Accordingly, the implementation of these closures 
in the EFH context is not justified on the grounds that it is necessary 
to protect deep-water corals per se, but rather on the grounds that it 
is necessary to protect the type of habitat occurring in these areas, 
which incidentally includes deep-water corals among other organisms.
    Comment 3: One commentor questioned the scientific and legal 
authority of the canyon closure areas under the EFH provisions of the 
Magnuson-Stevens Act and questioned the scientific basis for the 
protection of deep-water corals under the bycatch provisions of the 
Magnuson-Stevens Act. This commentor stated that Amendment 2 provides 
no scientific evidence that the monkfish fishery is harvesting coral as 
bycatch.
    Response: National Standard 9 of the Magnuson-Stevens Act requires 
that management plans minimize bycatch to the extent practicable. NMFS 
considers bycatch to include finfish, shellfish, invertebrate species, 
and all other forms of marine animal and plant life. The extent to 
which deep-water corals are a bycatch in the monkfish fishery is 
unknown. In addition, the degree of spatial overlap between monkfish 
fishing effort and known locations of deep-water coral is minimal based 
upon available data. However, due to the potential expansion of the 
offshore monkfish fishery resulting from the implementation of the 
Offshore Fishery Program in the SFMA, these canyon closure areas are 
considered to be a necessary precautionary measure to limit the 
potential interaction between monkfish trawl and gillnet gear and the 
18 species of coral known to inhabit these two canyons. Thus, in 
addition to serving as a measure to minimize the direct and indirect 
adverse impacts of the monkfish fishery on the EFH of other species, 
these closure areas will also serve to minimize the potential bycatch 
of deep-water corals in the monkfish fishery.
    Comment 4: One commentor stated that Amendment 2 fails to minimize 
fishing impacts to gravel habitats and juvenile cod EFH.
    Response: The monkfish fishery can be separated into two 
components: The fishery in the NFMA and the fishery in the SFMA. In 
general, unless fishing in the Gulf of Maine (GOM) and Georges Bank 
(GB) monkfish gillnet fishery exemption area, vessels fishing for 
monkfish in the NFMA can only fish for monkfish while utilizing either 
a NE multispecies DAS or a scallop DAS, and must comply with all 
requirements of these FMPs. Because of this, monkfish fishing effort 
and activities are effectively controlled by management measures 
implemented under the NE Multispecies and Atlantic Sea Scallop FMPs. 
Recent amendments to these FMPs (Amendment 13 to the NE Multispecies 
FMP and Amendment 10 to the Atlantic Sea Scallop FMP) considered and 
analyzed a wide range of measures to minimize, to the extent 
practicable, the effects of fishing on EFH. These amendments also 
implemented several new management measures that had either the direct 
or indirect effect of reducing fishing impacts on EFH. The types of 
management measures considered and/or implemented in these amendments 
include area closures, fishing effort

[[Page 21933]]

reductions, gear changes and limitations, and incentives for fishermen 
to use gear having less of an impact on EFH. Both amendments concluded 
that the measures considered and implemented minimized, to the extent 
practicable, the adverse effects of fishing activities on EFH. 
Amendment 2 did not address the effects of fishing activities in the 
NFMA because these activities were fully addressed in Amendment 13 to 
the NE Multispecies FMP and Amendment 10 to the Atlantic Sea Scallop 
FMP.
    As opposed to the NFMA, vessels fishing for monkfish in the SFMA 
may operate outside the requirements and controls of the NE 
Multispecies and the Atlantic Sea Scallop FMPs. Therefore, Amendment 2 
considered a range of management measures to minimize, to the extent 
practicable, the effects of monkfish fishing on EFH in the SFMA. 
Amendment 2 implements two management measures with the specific intent 
of minimizing the effects of monkfish fishing on EFH: The prohibition 
on otter trawl roller gear greater than 6 inches (15.2 cm) in diameter, 
and the closures of Lydonia and Oceanographer canyons. The specifics of 
the canyon closures are addressed in the response to the previous 
comment, and are not repeated here. The roller gear restriction is 
expressly intended to prevent monkfish trawl vessels from fishing in 
areas containing vulnerable complex habitat, such as gravel habitat. 
Therefore, although Amendment 2 does not contain measures to close 
identified areas of gravel habitat and juvenile cod EFH, the roller 
gear restriction being implemented in this amendment will have the 
effect of limiting trawl fishing in all areas where complex habitats 
occur. The NEFMC's upcoming Omnibus Habitat Amendment will continue to 
take a comprehensive approach toward protection of vulnerable habitat, 
such as gravel habitat.
    Comment 5: Two individuals provided specific comments on the 
proposal to allow vessel owners a one-time opportunity to modify their 
monkfish vessel's baseline. One commentor supports the measure, while 
the other feels that the baseline issue would be better handled across 
all FMPs at one time, versus in each individual FMP. The individual 
opposing these measures commented that allowing vessel owners to change 
their vessel's baseline specifications on a piece-meal basis only adds 
confusion to those with more than one limited access permit, does not 
resolve the issue of multiple baselines in other fisheries, and could 
have tremendous ramifications on the fishing capacity of the fleet. 
Further, this individual recommended that the NEFMC's Capacity 
Committee work with the fishing industry, and staff from the Councils 
and NMFS, to develop recommendations on how to address the issue of 
multiple baselines.
    Response: In the proposed rule for Amendment 2, NMFS highlighted 
the monkfish vessel baseline modification measure for public comment 
due to the concern that this measure would not address the larger issue 
of multiple vessel baselines across all limited access fisheries. As 
discussed in the preamble to this final rule, NMFS is disapproving this 
measure on the grounds that it does not comply with National Standard 7 
of the Magnuson-Stevens Act.
    Comment 6: Two commentors expressed concern with the measure to 
reduce the minimum fish size in the SFMA. Both individuals feel that 
this measure is a step backwards in management that would impact the 
sustainability of monkfish stocks, and stated that gear modifications 
such as an increase in the minimum mesh size should be used to prevent 
the harvest of immature fish, and prevent bycatch and discards. One of 
the commentors added that the smaller minimum fish size would also have 
an effect on the market price since the influx of smaller, cheaper fish 
would drive down the price of monkfish.
    Response: Minimum fish size regulations have been widely used in 
FMPs on the basis that they discourage the targeting of small fish, and 
increase yield-per-recruit if successfully linked to gear with 
appropriate size-selectivity. Monkfish limited access trawl vessels 
that are fishing under a combined monkfish/multispecies DAS are 
authorized to use the minimum regulated mesh size authorized under the 
NE Multispecies FMP. As a result, these vessels already catch monkfish 
smaller than the current minimum fish size of 14 inches (35.6 cm) tail 
length. Until there is sufficient information linking trawl mesh size 
to the size of monkfish retained, the Councils determined that it is 
important to minimize the regulatory discards associated with vessels 
targeting monkfish using minimum regulated groundfish mesh. A reduction 
in the minimum fish size for the SFMA, while keeping the minimum mesh 
size requirements constant, will have the effect of converting some 
monkfish discards to landings and reducing monkfish bycatch (regulatory 
discards), without changing the yield-per-recruit or promoting the 
targeting of small fish since vessels likely catch the smaller fish 
under current measures. In addition, a uniform minimum size limit for 
both management areas reduces FMP complexity, making this management 
measure more enforceable and less confusing to the fishing industry. 
Further, allowing vessels to land monkfish that would otherwise have 
been discarded, due to a larger minimum size limit, will improve the 
catch data used in the stock assessment and management process.
    The response to the portion of the comment concerning the effect of 
a smaller minimum fish size on market price is contained in the FRFA 
section of this rule.
    Comment 7: One commentor stated that Amendment 2 fails to consider 
any alternatives to improve bycatch reporting methodology, including 
alternatives to increase mandatory observer coverage.
    Response: Although there is a bycatch reporting methodology in 
place for the Monkfish FMP, NMFS is rejecting the Councils' 
determination and analysis with respect to the bycatch reporting 
methodology contained in Amendment 2, and is sending that portion of 
Amendment 2 back to the Councils for further consideration, 
development, and analysis in light of concerns raised in a recent 
Federal court decision in Oceana v. Evans. In Oceana v. Evans, the 
Court concluded that the bycatch reporting methodology provisions 
contained of Amendment 13 did not satisfy the requirements of the 
Magnuson-Stevens Act because they fail to fully evaluate reporting 
methodologies to assess bycatch, they do not mandate a standardized 
reporting methodology, including minimum levels of observer coverage, 
and they fail to respond to potentially important scientific evidence 
involving accuracy versus precision in determining appropriate levels 
of observer coverage. Because the monkfish fishery largely overlaps 
with the NE multispecies fishery, the Amendment 2 bycatch reporting 
methodology heavily relies on, and is set forth in a manner similar, to 
the bycatch reporting methodology in the NE Multispecies FMP. Thus, in 
light of the concerns raised in the Oceana decision about bycatch 
reporting methodology contained in Amendment 13 to the Multispecies 
FMP, NMFS has concluded that Amendment 2 does not adequately comply 
with the required provision in the Magnuson-Stevens Act to establish a 
bycatch reporting methodology.
    Rejecting the bycatch reporting methodology contained in Amendment 
2 does not vitiate the partial approval of other measures. As stated by 
the Court

[[Page 21934]]

in Oceana v. Evans in rejecting an analogous section in Amendment 13, 
the bycatch reporting methodology ``is severable from the balance of 
the Amendment,'' and, `` no purpose would be served by vacating other 
parts of the FMP, and such an approach would be unnecessarily 
disruptive.'' The partially approved measures in Amendment 2 implement 
improvements to the protection of EFH, minimize bycatch, and provide 
additional benefits to the fishing industry. To prevent their 
implementation, while awaiting a revised bycatch reporting methodology, 
would unnecessarily deny the environment and monkfish fishery the 
benefits of Amendment 2. Moreover, the Monkfish FMP does include a 
bycatch reporting methodology, that will be in place during the period 
when the Councils further consider the methodology in light of concerns 
raised in the decision in Oceana v. Evans.
    Comment 8: The same individual that commented on bycatch reporting 
methodology also stated that Amendment 2 fails to provide adequate 
measures to minimize bycatch and the unavoidable mortality of bycatch. 
This includes the bycatch of undersized monkfish and non-target 
species, including marine mammals and sea turtles.
    Response: National Standard 9 requires bycatch and bycatch 
mortality to be minimized to the extent practicable. The National 
Standard Guidelines place special emphasis on the minimization of 
bycatch, and provide specific guidance for evaluating conservation and 
management measures relative to National Standard 9 and other national 
standards, including specific guidance on assessing practicability. The 
National Standard Guidelines suggest that a practicability 
determination consider several factors including, but not limited to, 
population effects for bycatch species; ecological effects resulting 
from changes in the bycatch of that species; changes in the bycatch of 
other species; effects on marine mammals and birds; changes in fishing, 
processing, disposal, and marketing costs; changes in fishing practices 
and behavior; changes in research and other administrative costs; and 
changes in the social and cultural values of the fishing activities. 
However, this type of information is not available for the monkfish 
fishery. In fact, most of the bycatch information currently collected 
reported by NMFS is based on broad gear categories such as otter trawl, 
scallop dredge, gillnet greater than 10 inches (25.4 cm), and gillnet 
less than 10 inches (25.4 cm) (see Section 5.3.5 of the FSEIS). 
Furthermore, there is little information with which to estimate the 
impacts of specific management measures on bycatch outside of a few 
gear studies, most of which have focused on bycatch in the NE 
multispecies fishery. As a result, the discussion of the biological 
impacts associated with the bycatch specific measures contained in 
Amendment 2 is qualitative, but clearly describes how the specific 
measures (reduction in minimum fish size and increase in incidental 
catch limits) will have the effect of converting to landings, fish that 
would otherwise be discarded.
    NMFS supports the bycatch measures contained in Amendment 2, and 
has determined that these incremental measures, in addition to 
conservation and bycatch measures already in place in the Monkfish FMP 
and the NE Multispecies FMP, which largely overlap with the monkfish 
fishery, as well as FMPs for other fisheries that catch monkfish, are 
appropriate to reduce bycatch to the extent practicable given what is 
known about the interaction of the monkfish fishery with both target 
and non-target species, including marine mammals and sea turtles. 
Amendment 2 contains several new measures aimed at reducing bycatch in 
the monkfish fishery including a combined research DAS set-aside and 
DAS exemption program. The purpose of this program is to encourage the 
collection of much needed information on the monkfish fishery, 
including information on bycatch. The information obtained from such 
research activities can then be used to develop scientifically sound 
bycatch reduction measures for the monkfish fishery. Amendment 2 also 
contains measures that will have the effect of further reducing 
regulatory discards, as well as the potential bycatch of deep-water 
corals. These measures consist of modifications to incidental catch 
limits, a reduction in the minimum fish size for the SFMA, and the 
closure of two canyon areas where deep-water corals are known to occur. 
The report of the 34th Stock Assessment Workshop (SAW 34) noted that 
the most frequent reason for discarding monkfish in the trawl and 
scallop fisheries was because the fish were too small, either for the 
market or due to regulations. As discussed in the response to Comment 
6, more information is needed concerning the relationship between mesh 
size and the size of monkfish retained in the fishery. Thus, a 
reduction in the minimum fish size will serve to convert the discard of 
some small monkfish to landings, addressing the bycatch of small 
monkfish to some extent, until much needed information concerning the 
relationship between minimum fish size and minimum mesh size can be 
obtained and utilized in the management process.
    With respect to the bycatch of marine mammals, which are not 
subject to the Magnuson-Stevens Act bycatch reduction mandates, and 
bycatch of sea turtles, sections 2.8 and 6.6.6.2 of the FSEIS describe 
the management measures currently in effect, or that are being 
developed to reduce the bycatch of marine mammals and sea turtles in 
the monkfish fishery. These management measures have been taken under 
the authority of the Marine Mammal Protection Act (MMPA) and/or the 
Endangered Species Act (ESA), and, therefore, take a more comprehensive 
approach to minimizing bycatch of marine mammals and sea turtles than 
can be accomplished under the Monkfish FMP alone. Given the limited 
information about bycatch of protected species, the measures in place 
under the ESA, the MMPA, and the Monkfish and NE Multispecies FMPs have 
been determined to reduce the potential bycatch of protected species to 
the extent practicable. For all of the reasons discussed above, NMFS 
has determined that the measures contained in Amendment 2 minimize 
bycatch and the unavoidable mortality of bycatch in the monkfish 
fishery to the extent practicable, in accordance with the guidelines 
for assessing practicability found at 50 CFR 600.350(d)(3), when viewed 
in combination with existing measures in the Monkfish and NE 
Multispecies FMPs, measures in the FMPs for other fisheries which catch 
monkfish, and specific ESA and MMPA regulations.

Changes from the Proposed Rule

    NMFS has made one substantive change to the proposed rule resulting 
from the disapproval of one of the Councils' preferred alternatives. In 
addition to editorial changes, NMFS has also made some minor changes to 
the proposed rule that are technical or administrative in nature, and 
that clarify or otherwise enhance enforcement and administration of the 
fishery management program. The one substantive change is listed below, 
with the minor technical or administrative changes following in the 
order in which they appear in the regulations.
    In Sec.  648.4, the proposed revision to paragraph (a)(9)(i)(H) has 
been removed to reflect the disapproval of the vessel baseline 
modification measure contained in Amendment 2, as described in the 
preamble of this final rule.

[[Page 21935]]

    In Sec.  648.4(a)(9)(i)(A)(5), the annual declaration requirement 
for vessels participating in the Offshore Fishery Program in the SFMA, 
has been modified to provide owners of limited access monkfish vessels 
with the opportunity to change their vessel's monkfish permit category 
within 45 days of the effective date of the vessel's permit, regardless 
of the fishing year. The preamble and the regulatory text of the 
January 14, 2005, proposed rule (70 FR 2586) stated that vessel owners 
would be given only one opportunity to change their vessel's permit 
category to a Category F permit within 45 days of the effective date of 
Amendment 2. However, upon further consideration, and to be consistent 
with a similar provision for vessels holding limited access NE 
multispecies permits specified at Sec.  648.4(a)(1)(i)(I)(2), NMFS has 
decided to modify the more restrictive permit category change 
requirement contained in the Amendment 2 proposed rule to provide 
vessel owners with the ability to change their vessel's limited access 
monkfish permit category within 45 days of the effective date of the 
vessel's permit in any fishing year, as long as the vessel has not 
fished under a monkfish DAS during that fishing year. This change will 
provide owners of limited access monkfish vessels with the same 
flexibility provided to owners of limited access NE multispecies 
vessels. The first sentence of this paragraph was also modified 
slightly to begin, ``To fish in the Offshore Fishery Program, as 
described under Sec.  648.95, vessels must apply...''.
    In Sec.  648.4(a)(9)(i)(A)(7), the phrase ``vessels fishing only 
south of 38[deg]20' N. lat.'' contained in the introductory text has 
been modified to read ``vessels restricted to fishing south of 
38[deg]20' N. lat.'' in order to be consistent with the introductory 
text of Sec.  648.4(a)(9)(i)(A)(6).
    In Sec.  648.4, paragraph (a)(9)(i)(E)(4) has been added to address 
the issue of replacement vessels involved with qualifying for the new 
limited access Category G and H permits. This paragraph is similar to 
Sec.  648.4(a)(9)(i)(E)(3) which addressed the same issue with respect 
to vessels qualifying for a limited access monkfish permit under the 
original FMP.
    In Sec.  648.4, paragraph (a)(9)(i)(N)(3) has been modified to 
reflect that a vessel's LOA will become invalid 5 days after receipt of 
the notice of denial, but no later than 10 days from the date of the 
denial letter, and that the RA's decision on the appeal is the final 
decision of the Department of Commerce.
    In Sec.  648.9(c)(1), the cross-reference to Sec.  648.58(h) has 
been corrected to read Sec.  648.60(f). The change to this cross-
reference was inadvertently omitted from the final rule implementing 
Amendment 10 to the Atlantic Sea Scallop FMP (69 FR 35194, June 23, 
2004). In addition, a reference to paragraph Sec.  648.95(e)(4) has 
been added to paragraph (c)(1) in order to cross-reference the VMS 
requirements for limited access monkfish Category F vessels, since 
these vessels are only required to have an operational VMS during a 
specified season.
    In Sec.  648.9, the proposed changes to paragraph (c)(2)(i) have 
been eliminated since the exception for monkfish limited access 
Category F vessels (i.e., the VMS requirement is limited to a specific 
season) has been cross-referenced under paragraph (c)(1) of this 
section.
    In Sec.  648.10, the paragraph (b)(v) has been removed since it 
duplicates the preceding paragraph (b)(iv). This paragraph should have 
been deleted in the final rule implementing Amendment 10 to the 
Atlantic Sea Scallop FMP.
    In Sec.  648.10(c)(1), the cross-reference to (c)(6) is corrected 
to read (b)(2)(iii). This cross-reference was incorrectly contained in 
the final rule implementing Amendment 13 to the NE Multispecies FMP (69 
FR 22906, April 27, 2004).
    In Sec.  648.10(c)(3), the cross-reference to (b)(2)(iv) is 
corrected to read (b)(2)(iii). This cross-reference should have been 
updated in the final rule implementing Amendment 10 to the Atlantic Sea 
Scallop FMP.
    In Sec.  648.92(b)(1)(iv), the first sentence has been modified for 
clarity to begin, ``A total of 500 DAS will be set aside and made 
available...''.
    In Sec.  648.92, paragraph (c)(1)(ii)(B) has been clarified to 
reflect the role of the RA in the approval of projects for the DAS set-
aside program.
    In Sec.  648.92, the last sentence of paragraph (c)(1)(v) has been 
modified to reflect that the RA will publish a notice in the Federal 
Register notifying the public of the reallocation of unused research 
DAS as exempted DAS. A sentence was also added to this paragraph 
clarifying that any unused research DAS may not be carried over in to 
the next fishing year.
    In Sec.  648.94, paragraph (b)(4) has been modified to include 
Category F, G, and H, vessels.
    In Sec.  648.94, paragraph (c)(2) has been modified to remove the 
reference to Category G and H vessels, since these vessels have been 
included in the possession limit for scallop vessels fishing under a 
scallop DAS specified at Sec.  648.94(b)(2).
    In Sec.  648.94, paragraphs (c)(3), (c)(4), and (c)(6) were 
clarified to indicate that the incidental catch limits for vessels not 
fishing under a DAS are applicable to vessels holding either a monkfish 
incidental catch permit or a limited access permit.
    In Sec.  648.94, paragraphs (c)(4)-(c)(8), concerning the maximum 
trip limit of 150 lb (68 kg), are clarified to reflect that this 
represents tail weight, and the whole weight equivalent of 498 lb (226 
kg) is added.
    In Sec.  648.94, paragraph (c)(8) has been revised to clarify the 
Councils' intent to include limited access scallop vessels not fishing 
under a scallop DAS since these vessels are authorized to fish under 
the same rules as General Category vessels when not fishing under a 
scallop DAS, as specified under Sec.  648.52(a).
    In Sec.  648.94, paragraph (e) is modified to reflect that monkfish 
vessels declared in to the NFMA may transit the SFMA as long as they do 
not harvest or possess monkfish, or any other fish, from the SFMA. This 
change is being made to make this paragraph consistent with the changes 
made to paragraph (f) of this section in contained in Framework 
Adjustment 2 to the FMP (68 FR 22325, April 28, 2003).
    In Sec.  648.95(b), the annual declaration requirement for vessels 
participating in the Offshore Fishery Program in the SFMA has been 
modified to provide owners of limited access monkfish vessels with the 
opportunity to change their vessel's monkfish permit category within 45 
days of the effective date of the vessel's permit, regardless of the 
fishing year. This modification is being made to reflect similar 
changes made under Sec.  648.4(a)(9)(i)(A)(5). In addition, the first 
sentence of this paragraph has been modified to read, ``To fish in the 
Offshore Fishery Program, a vessel must be issued a monkfish limited 
access Category F permit...''.
    In Sec.  648.95, paragraph (e)(4) has been modified to clarify that 
monkfish limited access Category F vessels are only required to have an 
operational VMS unit during the designated season for the Offshore 
Fishery Program, and that these vessels may turn off their VMS units 
outside of this season unless otherwise required under the VMS 
notification requirements specified at Sec.  648.10(b)(1).
    In Sec.  648.95, paragraph (g)(2) has been modified to more clearly 
reflect how the monkfish DAS allocations for vessels issued a monkfish 
limited access Category F permit will be adjusted.
    In Sec.  648.97(b), the title of the closure area has been modified 
to correctly reference the Lydonia Canyon Closure

[[Page 21936]]

Area. The title of this closure area was incorrectly referenced as the 
Oceanographer Canyon Closure Area in the proposed rule. In addition, 
the reference for the fifth coordinate point for the Lydonia Canyon 
Closure Area is modified to be LC5. The proposed rule incorrectly 
listed this coordinate point reference as LC1.
    Pursuant to the Paperwork Reduction Act (PRA), part 902 of title 15 
CFR displays control numbers assigned to NMFS information collection 
requirements by OMB. This part fulfills the requirements of section 
3506(c)(1)(B)(i) of the PRA, which requires that agencies display a 
current control number, assigned by the Director of OMB, for each 
agency information collection requirement. This final rule codifies OMB 
Control Number 0648-0202 for Sec.  648.95.

Classification

    The Administrator, Northeast Region, NMFS, determined that the FMP 
amendment implemented by this rule is necessary for the conservation 
and management of the monkfish fishery, and that it is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delayed effectiveness of this rule. This final rule has been delayed 
due to that fact that NMFS solicited additional public comment on the 
proposed rule due to an error contained in the preamble concerning the 
qualification period for the modified limited entry program. In order 
to alleviate confusion concerning the qualification period for the 
modified limited entry program, NMFS re-opened the public comment 
period for a period of 10 days on February 24, 2005 (70 FR 9029), with 
the public comment period ending on March 7, 2005.
    It is essential that the Offshore Fishery Program be implemented by 
the start of FY 2005 on May 1, 2005, because this management measure 
impacts the annual monkfish DAS allocations for vessels that 
participate in the program. In fact, the regulations implementing this 
management measure require vessels to participate in the Offshore 
Fishery Program for the entire fishing year due to the impact on a 
vessel's DAS allocation. If the program were implemented after the 
start of the fishing year, vessels intending to participate in the 
program would be unable to fish under a monkfish DAS until the program 
became effective. In addition, vessels intending to participate in the 
program that fish under a monkfish DAS, under their standard limited 
access permit category (i.e., Category A, B, C or D), prior to the 
implementation of the program would be prohibited from participating in 
the Offshore Fishery Program during FY 2005. In both cases, the 
inability to fish would result in revenue loss, to some extent. Vessels 
that do not fish under a monkfish DAS until the Offshore Fishery 
Program is implemented would incur revenue losses resulting from the 
lost fishing time. On the other hand, vessels that are unable to 
participate in the Offshore Fishery Program because they fished under a 
monkfish DAS prior to the implementation of this program, would not be 
able to take advantage of the economic benefits of the program during 
FY 2005, forgoing potential fishing opportunities.
    Because the Offshore Fishery Program must be implemented at the 
start of the fishing year, the Lydonia and Oceanographer Canyon closure 
areas must also be implemented at the start of the fishing year in 
order for their role as EFH protection measures to be effective. The 
purpose of the canyon closure areas is to minimize, to the extent 
practicable, the impacts to EFH resulting from the anticipated 
expansion of an offshore monkfish fishery under the Offshore Fishery 
Program. The closure areas are intended to be pre-emptive due to the 
long time-period it takes the vulnerable habitat contained within these 
areas to recover from the effects of fishing ac