Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Monkfish Fishery; Emergency Action, 25214-25225 [2013-10023]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Rules and Regulations]
[Pages 25214-25225]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10023]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 121126649-3347-02]
RIN 0648-BC79


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

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

ACTION: Emergency temporary rule; interim measures; request for 
comments.

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

SUMMARY: NMFS implements a temporary emergency action that suspends 
existing monkfish possession limits for vessels issued both a Federal 
limited access Northeast multispecies permit and a limited access 
monkfish Category C or D permit that are fishing under a monkfish day-
at-sea in the monkfish Northern Fishery Management

[[Page 25215]]

Area. This action is necessary to help mitigate expected adverse 
economic and social harm resulting from substantial reductions to the 
2013 annual catch limits for several stocks managed under the Northeast 
Multispecies Fishery Management Plan. The intent is to provide 
additional fishing opportunities to vessels affected by reductions to 
groundfish catch limits, without resulting in overfishing monkfish 
within the Northern or Southern Fishery Management Areas.

DATES: This rule is effective at 0001 hr on May 1, 2013, through 
October 27, 2013. Comments must be received by May 30, 2013.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2012-0240, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0240, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to John K. Bullard, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930-2276. Mark the outside of the envelope: 
``Comments on Monkfish Emergency Action.''
     Fax: (978) 281-9135; Attn: Douglas Christel.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which 
consists of the Initial Regulatory Flexibility Analysis (IRFA), public 
comments and responses, and the summary of impacts and alternatives 
contained in the Classification section of the preamble of this final 
rule. Copies of the supporting biological, economic, and social impact 
analysis for this action are contained in the environmental assessment 
(EA) prepared for this rule, and may be found at the following Internet 
address: https://www.nero.noaa.gov/regs/2013/February/13monkerea.pdf. 
Copies of the small entity compliance guide are available from the 
Regional Administrator, NMFS, Northeast Regional Office, at the address 
noted above.

FOR FURTHER INFORMATION CONTACT: Douglas Christel, Fishery Policy 
Analyst, (978) 281-9141, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    NMFS developed a proposed rule to implement emergency measures in 
the monkfish fishery based on a request for emergency action by the New 
England Fishery Management Council (NEFMC). The proposed rule published 
in the Federal Register on February 25, 2013 (78 FR 12708). Public 
comments were accepted through March 12, 2013. A full discussion of the 
background and justification for emergency measures was presented in 
the preamble to the proposed rule and the EA prepared for this action 
(see ADDRESSES), and is not repeated here. In summary, the combined 
effect of several issues facing the Northeast multispecies (groundfish) 
fishery for fishing year (FY) 2013, including substantial reductions in 
annual catch limits (ACLs) for several stocks, present recently 
discovered circumstances that would likely cause serious management 
problems and result in substantial economic and social harm for the 
groundfish and monkfish fisheries and associated communities. 
Consistent with section 305(c) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and NMFS 
guidelines for the use of emergency actions, as discussed in the 
proposed rule, this interim final rule implements emergency measures 
that provide additional fishing opportunities to help mitigate expected 
substantial adverse economic and social harm resulting from reduced 
groundfish ACLs in FY 2013, without significantly increasing the risk 
of overfishing monkfish.

Approved Management Measures

    The following describes the measures implemented by this interim 
final rule. NMFS may renew, modify, or extend these measures after 
October 27, 2013 for up to an additional 185 days (i.e., through the 
end of FY 2013 on April 30, 2014) through notice consistent with the 
Administrative Procedure Act. If NMFS does not renew or modify these 
measures, the Northern Fishery Management Area (NFMA) monkfish 
possession limits implemented by Framework Adjustment (FW) 7 to the 
Monkfish Fishery Management Plan (FMP) on October 26, 2011 (76 FR 
66192), would remain in effect for the rest of FY 2013.

1. Monkfish Possession Limits in the NFMA

    This emergency action suspends existing monkfish possession limits 
for vessels issued a Federal limited access monkfish Category C or D 
permit (i.e., those also issued a Federal limited access NE 
multispecies permit) that are fishing under a monkfish day-at-sea (DAS) 
in the NFMA during FY 2013. A vessel operator that starts a trip under 
a groundfish DAS and then declares that he/she is fishing under a 
monkfish DAS prior to returning to port is also exempted from the 
monkfish possession limits. Existing monkfish possession limits for 
vessels issued a limited access monkfish Category A or B permit and 
fishing under only a monkfish DAS; vessels issued a limited access 
monkfish Category C or D permit fishing that are not fishing under a 
monkfish DAS; or vessels issued an open access monkfish Category E 
permit (i.e., vessels that catch monkfish while targeting other 
fisheries) remain the same, as specified in Table 1. In addition, the 
overfishing level, acceptable biological catch level, ACL, ACT, and TAL 
remain 19,557 mt, 7,592 mt, 6,567 mt, and 5,854 mt, respectively, as 
implemented in either Amendment 5 (May 25, 2011; 76 FR 30265) or FW 7 
to the Monkfish FMP.

[[Page 25216]]



                            Table 1--Monkfish Possession Limits in the NFMA for 2013
----------------------------------------------------------------------------------------------------------------
  Groundfish sector  participation                               Monkfish permit        Possession limit (tail
               status                       DAS type                category                   weight)
----------------------------------------------------------------------------------------------------------------
Non-sector Vessels (Monkfish-only    No DAS................  A, B, or E............  Up to 5% of total weight of
 or Common Pool Groundfish Vessels).                                                  fish onboard; or 50 lb (23
                                                                                      kg) per day, up to 150 lb
                                                                                      (68 kg) per trip based on
                                                                                      gear used.
                                     Monk..................  A.....................  1,250 lb (567 kg)/DAS.
                                                             B.....................  600 lb (272 kg)/DAS.
                                     NE Mults A DAS only...  E.....................  Up to 25% of total weight
                                                                                      of fish onboard, not to
                                                                                      exceed 300 lb (136 kg).
                                                             C or D................  Up to 25% of total weight
                                                                                      of fish onboard, not to
                                                                                      exceed 300 lb (136 kg).
                                     NE Mults A & Monk DAS.  C or D................  Unlimited.
Sector.............................  Non-DAS...............  E, C, or D............  Up to 5% of total weight of
                                                                                      fish onboard; or 50 lb (23
                                                                                      kg) per day, up to 150 lb
                                                                                      (68 kg) per trip based on
                                                                                      gear used.
                                     NE Mults A DAS only...  E.....................  Up to 25% of total weight
                                                                                      of fish onboard, not to
                                                                                      exceed 300 lb (136 kg).
                                                             C or D................  Up to 25% of total weight
                                                                                      of fish onboard, not to
                                                                                      exceed 300 lb (136 kg).
                                     NE Mults A & Monk DAS.  C or D................  Unlimited.
----------------------------------------------------------------------------------------------------------------

    These measures differ from those requested by the NEFMC in two 
ways. First, the suspension of existing monkfish possession limits 
applies to both groundfish sector and common pool vessels instead of 
just sector vessels. Suspending monkfish possession limits for both 
groundfish sector and common pool vessels is necessary to ensure that 
the emergency measures fairly and equitably allocate fishing privileges 
among relevant affected entities (i.e., those affected by substantial 
reductions in the FY 2013 groundfish ACLs), consistent with National 
Standard 4 of the Magnuson-Stevens Act and the intended purpose and 
need for this action. Second, this action exempts only monkfish 
Category C or D vessels fishing under a monkfish DAS in the NFMA from 
the existing monkfish possession limits. This is different than the 
measures originally requested by the NEFMC and proposed for this action 
in that it would not exempt monkfish Category C or D vessels fishing 
under a groundfish DAS in the NFMA from the existing monkfish 
possession limits. We made this latter change in response to public 
comments to ensure that potential effort shifts do not result in 
unanticipated adverse impacts to the Southern Fishery Management Area 
(SFMA) monkfish resource or associated fishing communities.
    Upon further consideration, we concluded that the originally 
proposed emergency measures could substantially increase the effective 
effort on monkfish by inadvertently and unintentionally creating 
incentives for vessels to fish for monkfish using readily available 
groundfish DAS in the NFMA, and then using their allocated monkfish DAS 
to fish for monkfish in the SFMA. Under current regulations, a vessel 
may land more than the incidental amount of monkfish only if fishing 
under a groundfish or monkfish DAS. Because sectors are not required to 
use a groundfish DAS when fishing for groundfish stocks, groundfish DAS 
are readily available, and can be easily acquired for little cost, 
particularly in the NFMA. In conjunction with the fact that a majority 
of monkfish Category C and D vessels are participating in sectors 
during recent FYs, the proposed measures could create incentives for 
such vessels to acquire and use a large supply of groundfish DAS to 
catch unlimited amounts of monkfish without using a monkfish DAS in the 
NFMA. Such vessels could then save their monkfish DAS to fish in areas 
of the SFMA where groundfish DAS are not required to be used. Thus, 
fishing effort on monkfish could be substantially increased in both the 
NFMA and SFMA under the proposed measures. This is substantially 
different than past fishing practices, and could possibly result in 
monkfish landings that exceed the SFMA monkfish total allowable 
landings (TAL) amount during FY 2013. Because the Monkfish FMP is 
jointly managed by the NEFMC and the Mid-Atlantic Fishery Management 
Council (MAFMC), the final measures implemented by this interim final 
rule reflect a compromise between the interests expressed by each 
Council by providing for greater opportunities to land monkfish in the 
NFMA, as advocated by the NEFMC, and helping minimize the potential 
effort shifts into the SFMA, as suggested by the MAFMC.
    We expect these final measures to more closely achieve, but not 
exceed, the FY 2013 TAL for monkfish in the NFMA, resulting in monkfish 
landings of approximately 5,336 mt during FY 2013, or 91 percent of the 
FY 2013 monkfish TAL in the NFMA. This represents an increase of 
401,873 lb (182,286 kg) of monkfish landings compared to landings 
expected under the current possession limits.

2. Regional Administrator Authority To Reinstate Existing Monkfish 
Possession Limits

    This action authorizes the Regional Administrator to reinstate 
existing monkfish possession limits for limited access monkfish 
Category C and D vessels fishing under a monkfish DAS in the NFMA at 
any time through October 27, 2013 if available data indicate that the 
NFMA monkfish TAL or ACT may be exceeded during FY 2013. If such trip 
limits are reinstated, monkfish Category C and D vessels fishing in the 
NFMA under a monkfish DAS would be subject to monkfish possession 
limits of 1,250 lb (567 kg) tail weight and 600 lb (272 kg) tail weight 
per DAS, respectively, for the remainder of FY 2013. This discretion is 
necessary to ensure that unexpected changes in fishing behavior in 
response to this emergency action do not cause monkfish landings or 
catch, when discards are included, to exceed the FY 2013 NFMA monkfish 
TAL or annual catch target (ACT), respectively, and result in 
overfishing for NFMA monkfish. Any reinstatement of monkfish possession 
limits in the NFMA would be implemented consistent with the 
Administrative Procedure Act.

[[Page 25217]]

Comments and Responses

    Twenty-five comments were received during the comment period on the 
proposed rule for emergency action from 14 individuals, 5 commercial 
fishing organizations, 2 state resource management agencies 
(Massachusetts Division of Marine Fisheries (DMF) and the Maine 
Department of Marine Resources), 1 seafood processor group, 1 
conservation organization, 1 fish dealer, and the MAFMC. One other 
comment was submitted via fax, but was unreadable because much of the 
middle of the comment was obscured by a black streak, leaving only the 
margins of the comment readable. Only comments that were applicable to 
the proposed measures, including the analyses used to support these 
measures, are addressed in this preamble. Overall, 15 commenters 
supported the proposed action, while 8 opposed it (the MAFMC and 2 
vessel owners strongly opposed this action), with 2 other commenters 
not expressing a particular position on the proposed action.
    Comment 1: Four commenters, including the MA DMF and two commercial 
fishing groups, suggest that the proposed action would not adversely 
affect the NFMA monkfish stock. Several other commenters highlighted 
that monkfish landings from the NFMA have been well below the NFMA ACL 
for several years, suggesting that the stock could accommodate 
additional landings without exceeding the FY 2013 TAL. The ME DMR 
agreed with our assertion in the EA that additional effort is 
adequately constrained by existing management measures in either the 
monkfish or groundfish fisheries. One commercial fishing group offered 
that there are fewer groundfish vessels operating in the NFMA following 
several years of severe restrictions of groundfish effort and 
reductions in ACLs, suggesting that this would reduce the likelihood 
that the proposed action would harm the monkfish resource. One dealer 
noted that NFMA monkfish is a robust resource that is not overfished or 
subject to overfishing, while another observed that there are 
sufficient buffers between the ACT and the allowable biological catch 
(ABC) level to prevent the proposed measures from harming the stock.
    Response: We recognize that the most recent monkfish stock 
assessment characterizes NFMA monkfish stock as currently not 
overfished or subject to overfishing, and that the fishery has not 
fully harvested the NFMA monkfish TAL in recent years. We also agree 
that there are sufficient buffers to prevent overfishing even if the FY 
2013 TAL is fully harvested. As analyzed in the EA prepared to support 
this action, neither the proposed action, nor the measures implemented 
by this final rule (identified as Alternative 1 in the EA), would 
likely result in landings exceeding the FY 2013 NFMA monkfish TAL based 
on recent fishing operations and other existing constraints in either 
the groundfish or monkfish fisheries. While fishing behavior during FY 
2013 may be different than that observed in recent years, this interim 
final rule provides the Regional Administrator with the authority to 
reinstate existing monkfish possession limits at any time during FY 
2013 if available data suggest that landings would exceed the FY 2013 
NMFA monkfish TAL before the end of the FY. We will monitor monkfish 
landings throughout FY 2013, and will reinstate existing monkfish 
possession limits if available data suggest that the FY 2013 NFMA 
monkfish TAL would be exceeded before the end of the FY. Thus, although 
we decided it was necessary to not apply the suspension of monkfish 
possession limits to monkfish Category C and D vessels fishing under a 
groundfish DAS in the NFMA during FY 2013, as further explained in the 
next comment, we agree that neither the proposed action, nor the 
measures implemented by this interim final rule, would adversely affect 
the NFMA monkfish stock or result in overfishing throughout the 
duration of this action.
    Comment 2: Several commenters, including the MA DMF and ME DMR, 
were concerned that the proposed action may result in redirected 
effort, or a shift in fishing patterns. Commenters were concerned not 
only about impacts to monkfish within the NFMA, but also about impacts 
to SFMA monkfish. The MAFMC, one commercial fishing group, one seafood 
processing group, and one vessel owner suggested that the proposed 
measures may result in significant directed effort on monkfish in the 
NFMA that could deplete the stock or cause it to become overfished. 
That vessel owner suggested that sector vessels will fish close to the 
NFMA/SFMA boundary to harvest monkfish while minimizing groundfish 
bycatch, but that such activity would result in substantial impacts to 
the monkfish resource in the SFMA based on the likelihood that monkfish 
is only one biological stock instead of two. The MAFMC and two other 
vessel owners agreed, with the MAFMC asserting that overfishing 
monkfish in the NFMA would negatively affect the SFMA stock, while one 
vessel owner stated that the proposed action would destabilize the SFMA 
monkfish fishery. One commercial fishing group and another vessel owner 
stated that the proposed measures should not inadvertently increase 
effort in the SFMA. One individual questioned whether vessels that 
generally fish in the SFMA would move into the NFMA to fish for 
monkfish, and one commercial fishery group asked how NMFS would monitor 
and enforce area declarations, since vessels do not have to permanently 
declare into either area.
    Response: We are also concerned about the potential for this action 
to change fishing patterns during FY 2013 in both the NFMA and the 
SFMA. That is why we proposed to give the Regional Administrator the 
authority to reinstate existing monkfish possession limits if available 
data suggest that the FY 2013 NFMA monkfish TAL may be exceeded. We 
contend that this would limit any overage of the TAL and, thus, 
overfishing, given that the TAL was set based on the best available 
scientific information, and that there is sufficient buffer between the 
TAL and the overfishing level to prevent overfishing from occurring on 
this stock, as specified by the NEFMC's Scientific and Statistical 
Committee (SSC) recommendations in 2010 as part of FW 7 to the Monkfish 
FMP.
    Upon further consideration of public comment, we agree that the 
proposed action could provide incentives for vessels to change fishing 
behavior and shift effort in a manner that could increase the risk of 
overfishing monkfish in the SFMA. In particular, we concluded that the 
proposed action could encourage vessels to use cheap and readily-
available groundfish DAS (particularly for sector vessels) to target 
monkfish in the NMFA, and save their allocated monkfish DAS to later 
target monkfish in the SFMA. To prevent this from occurring, this 
interim final rule exempts only monkfish Category C or D vessels using 
a monkfish DAS in the NFMA from the monkfish possession limits. Thus, 
fewer monkfish DAS are expected to be available to fish for monkfish in 
the SFMA as a result of the change in this final rule, because the 
monkfish DAS would be used to land more monkfish in the NFMA. This 
would reduce the potential for vessels to shift monkfish effort into 
the SFMA compared to the proposed action. Thus, measures implemented by 
this interim final rule provide greater control over resulting monkfish 
landings during FY 2013, and are likely to be more effective than the 
proposed measures at reducing the risk that either the NFMA or SFMA 
monkfish TALs will be exceeded during

[[Page 25218]]

FY 2013 due to unanticipated effort shifts.
    Existing regulations enable vessels to use monkfish DAS in both the 
NFMA and the SFMA during the same fishing year. These interim final 
measures provide incentives to use those DAS in the NFMA during FY 2013 
by requiring monkfish Category C and D vessels to use monkfish to be 
exempt from current monkfish possession limits in the NFMA. In 
contrast, the proposed measures provided no incentive to use monkfish 
DAS in the NFMA, and as noted above, may actually provide incentives 
for vessels to use readily available groundfish DAS to target monkfish 
in the NFMA and save all of their monkfish DAS to fish for monkfish in 
the SFMA as a means to maximize revenue from monkfish fishing 
opportunities during FY 2013. To have granted the Regional 
Administrator discretion to revise the monkfish possession limits in 
the SFMA in a manner similar to the authority to reinstate existing 
monkfish possession limits in the NFMA through this interim final rule 
would go beyond the purpose and need specified for this action. The 
purpose of this emergency action is to mitigate adverse impacts on 
groundfish vessels operating in the NFMA, and not to potentially create 
adverse impacts on the SFMA monkfish fishery because of effort shifts 
that otherwise would not have occurred. With the changes in measures 
implemented by this interim final rule, the risk that such impacts 
would occur has been reduced. Accordingly, the final measures reflect a 
compromise between the interests expressed by each Council by providing 
for greater opportunities to land monkfish in the NFMA, as advocated by 
the NEFMC, and helping minimize the potential effort shifts and into 
the SFMA and resulting impacts to the SFMA monkfish fishery, advocated 
by the MAFMC.
    We believe that existing regulations adequately address monitoring 
and enforcement concerns raised by the commenters. Any vessel that 
fishes any part of a trip in the SFMA will continue to be subject to 
the SFMA monkfish possession limits, with any monkfish DAS used on such 
a trip counting against the 28 monkfish DAS limit that each vessel may 
use in the SFMA during FY 2013. Current monkfish regulations only 
require vessel operators to declare whether the vessel will fish any 
part of a particular trip in the SFMA via the vessel monitoring system 
(VMS) or interactive voice response (IVR) or call-in system. 
Alternatively, a vessel can obtain a letter of authorization, stating 
that the vessel will fish in the NFMA for a specified period of time.
    We will continue to monitor and enforce vessel activity using 
existing area-declaration requirements, including VMS and IVR 
declarations, landings by areas reported on vessel trip reports (VTRs, 
or logbooks) and dealer reports, and other available data. Because all 
monkfish Category C and D vessels are also issued limited access NE 
multispecies permits, such vessels are required to submit VTRs on a 
weekly basis. In addition, because most monkfish Category C and D 
vessels are participating in groundfish sectors, we will also have 
weekly sector catch reports to document vessel activity and associated 
landings. Finally, since all groundfish vessels must use VMS, hourly 
positional data and intended vessel activity declarations will be 
available on a real-time basis for each trip. Collectively, these data 
sources provide the information necessary to characterize vessel 
operations and assist in monitoring monkfish landings during FY 2013.
    Comment 3: Two vessel owners were concerned that the proposed 
measures would put additional pressure on other stocks in both New 
England and in the Mid-Atlantic, while one commercial fishing group did 
not want the proposed measures to deplete another species.
    Response: To the extent possible, we have attempted to minimize the 
potential for effort shifts to increase fishing pressure on monkfish or 
other stocks throughout the Northeast, as noted in the response to 
Comment 2. Vessels will still be subject to existing regulations in 
other fisheries, including effort controls such as DAS, possession 
limits, minimum mesh size requirements, and hard quotas and area 
closures, to ensure that ACLs are not exceeded and that overfishing 
does not occur on any species, as required by the Magnuson-Stevens Act. 
Therefore, the measures implemented by this interim final rule, in 
addition to existing measures in other fisheries, should ensure that 
other species are not depleted.
    Comment 4: Four commenters, including the MA DMF, an environmental 
group, one commercial fishing group, and one vessel owner were 
concerned that vessels may use additional gillnet gear and soak their 
nets longer, which could increase interactions with protected resources 
and trigger additional management measures that could adversely impact 
the monkfish fishery, particularly in the SFMA. Although one commercial 
fishing group supported the conclusions of the analysis of impacts on 
protected species summarized in the EA prepared for this action, the 
environmental group disagreed, suggesting that the analysis in the EA 
may have minimized the impacts on marine mammals. The environmental 
group contends that it is uncertain whether existing groundfish 
measures will prevent effort increases in the monkfish fishery. In 
addition, it contends that vessels often do not comply with pinger 
requirements to deter harbor porpoise bycatch, and that the North 
Atlantic right whale biological opinion specifically prohibits any 
takes of North Atlantic right whales, even for emergency actions 
implemented for only 1 year. This group also notes that humpback whales 
are often entangled by gillnet gear, and suggested that the permitted 
level of mortality on humpback whales as a result of interactions with 
fishing gear may have already been met or exceeded, and may warrant re-
consultation under the Endangered Species Act (ESA).
    Response: As highlighted in the EA prepared for this action, 
gillnet gear is responsible for only a small amount (16-30 percent 
since 2000) of monkfish landings in the NFMA in recent years. Further, 
groundfish and monkfish gillnet vessels are still subject to net limits 
and DAS allocations, and cannot greatly expand gillnet effort during FY 
2013. Although we acknowledge that gillnet use and soak duration may 
increase to some degree, because no additional information was provided 
to change that perspective, we still contend that it is unlikely that 
gillnet gear will become a substantially greater source of monkfish 
landings in the NFMA as a result of this action.
    Vessels using gillnet gear are subject to existing regulations 
developed to minimize interactions with protected species, especially 
marine mammals, including time and area closures for gillnets, and 
requirements to use pingers and weak links on gillnet gear. Existing 
measures attempt to proactively control fishing effort, and implement 
reactive measures should take (interactions with fishing gear) or 
mortality targets be exceeded. When complied with, these measures can 
be effective in reducing interactions with marine mammals. If they are 
not complied with, additional management measures may be necessary to 
prevent excessive takes of such species, as required by the ESA. 
Reduced groundfish ACLs during FY 2013, reductions in the number of 
active monkfish and groundfish vessels during recent years, and the 
ability of the Regional Administrator to reinstate monkfish possession 
limits as part of this action may limit the potential increase in 
fishing effort by some

[[Page 25219]]

vessels during FY 2013. These measures, in conjunction with a series of 
recent groundfish management actions that have reduced the overall 
fishing effort in the NFMA, make it unlikely that gillnet effort or 
interactions marine mammals under either the proposed action or 
measures implemented by this interim final rule will increase beyond 
levels observed in recent years. Thus, we contend that this interim 
final rule will have a negligible impact on protected species during FY 
2013, and should not trigger any additional restrictions, provided 
vessels comply with existing regulations.
    The information on humpback whale takes cited by the environmental 
group includes news articles, personal communication, and a draft 
marine mammal stock assessment report. While the final stock assessment 
report was released on April 3, 2013, that report includes takes from 
multiple sources in multiple fisheries, including those outside the GOM 
and in Canadian waters, and are neither specific to the monkfish 
fishery nor the proposed emergency action. No additional scientific 
information that would more clearly illustrate the potential impact of 
the proposed action on marine mammals in general, or harbor porpoises 
or humpback whales specifically, was provided by the group in its 
comment. When developing management measures, we must rely on the best 
available scientific information, as required by National Standard 2 of 
the Magnuson-Stevens Act, and cannot rely upon draft reports, news 
articles, personal communications, or information that is not germane 
to the proposed action as the basis for such measures. The information 
used to analyze the impact of the proposed action represents the best 
scientific information available at this time. Staff in the NMFS 
Northeast Regional Office and the Northeast Fisheries Science Center 
(with expertise on marine mammal interactions) reviewed this analysis, 
and supported its conclusions. Therefore, we disagree that the EA 
prepared for this action inappropriately minimized the likely impact on 
marine mammals, or that re-consultation under the ESA is necessary for 
humpback whales at this time. We will continue to monitor the takes of 
marine mammals, and will take any action required under the ESA once 
available scientific information warrants such action.
    Comment 5: Three vessel owners and one environmental group noted 
that the current measures do not seem to be constraining current NFMA 
vessels, yet the yearly TAL is still not being caught. They suggest 
that this is caused by a lack of available monkfish in the NFMA, and 
question the need to eliminate existing monkfish possession limits 
under this emergency action. The vessel owners also question the 
accuracy of the latest monkfish stock assessment, while two owners drew 
comparisons to recent groundfish stock assessments that seemed to 
reverse the optimistic conclusions of the previous stock assessment. 
The MAFMC, the seafood processing group, and one other vessel owner 
agreed, highlighting the uncertainty of the latest monkfish stock 
assessment as a reason not to implement this emergency action. Two 
other vessel owners and one dealer disagreed, stating that the NFMA 
monkfish stock is healthy and not overfished or subject to overfishing, 
with one commercial fishing group stating that the one-stock hypothesis 
is equivocal, with recent recruitment patterns still supporting the 
two-stock hypothesis. Two vessel owners recommended that NMFS delay the 
implementation of the emergency action until the next monkfish stock 
assessment can be completed.
    Response: We recognize that most monkfish vessels do not use their 
full allocation of monkfish DAS in the NFMA, and that existing monkfish 
possession limits are not limiting for a majority of vessels operating 
in the NFMA. However, the EA notes that there is evidence that existing 
monkfish possession limits are restrictive for some vessels (see 
Figures 8, 9, and 12 in the EA supporting this action). Analysis of the 
alternatives considered for this action suggests that suspending 
existing possession limits would reduce discards, increase landings 
without exceeding the FY 2013 NFMA monkfish TAL, and provide additional 
fishing revenue to affected vessels consistent with the objectives of 
the Monkfish FMP and the Magnuson-Stevens Act. Thus, this action is 
expected to help mitigate adverse impacts in the groundfish fishery.
    The latest monkfish stock assessment review (Stock Assessment 
Workshop (SAW) 50 in 2010) continued to treat monkfish as two separate 
stocks, reflecting the distinct monkfish management units. However, the 
assessment noted that information on growth, maturity, and genetics 
provide some preliminary evidence that the monkfish resource is a unit 
stock. Recent tagging studies have shown monkfish movement from the 
NFMA to the SFMA, although a lack of return movement to the NFMA may be 
an artifact of the timing and location of tag releases. The assessment, 
however, highlighted the fact that recruitment patterns remain 
different between the two areas (one of the reasons offered for 
treating the stocks separately in earlier assessments). Due to 
indications that the northern and southern stocks may not be distinct, 
a model was run that treated monkfish as one stock. However, that model 
was not reviewed or accepted by the Stock Assessment Review Committee 
(SARC). The SSC reviewed SAW 50 and accepted it as the best available 
scientific information regarding monkfish stocks. Accordingly, we will 
continue to assess monkfish as two separate stocks until further 
scientific information concludes otherwise.
    SAW 50 states that ``catch rates may not reflect patterns of 
abundance,'' because catch rates are influenced by changes to 
management measures, and that changes in data collections and 
uncertainty in defining a targeted versus an incidental monkfish trip 
make evaluating trends in catch rates difficult. Thus, catch per unit 
effort was not used in the model runs for SAW 50. The report for SAW 50 
highlights the fact that catch rates on trips with fishery observers 
declined in the NFMA during 2003-2007, as the strong 1999 year class 
passed through the fishery. It also acknowledged that there was a lot 
of uncertainty with the status of monkfish, including a retrospective 
pattern that underestimated fishing mortality and overestimated 
biomass. Nonetheless, the SARC concluded that SAW 50 represents the 
best available scientific information and that NFMA monkfish was not 
overfished nor subject to overfishing as of FY 2009. This conclusion 
was confirmed for FY 2013 by the SSC's review of SAW 50 during the 
development of NFMA monkfish ACL recommendations as part of FW 7.
    The measures implemented by this interim final rule are based on 
the best available scientific information from SAW 50, as required by 
National Standard 2 of the Magnuson-Stevens Act. The most recent 
monkfish stock assessment occurred on April 8-9, 2013, with final 
results expected sometime in May. Because the results of this next 
stock assessment will be available after the start of the FY, it would 
delay any benefits associated with this action, and would prevent 
affected vessels from benefitting from additional fishing opportunities 
and potential sources of additional revenue necessary to help mitigate 
the impacts of reduced groundfish ACLs. Such a delay would be contrary 
to the purpose and need for this action. Accordingly, we will review 
the results of the next monkfish assessment when determining whether to 
reinstate existing monkfish possession limits or continue this

[[Page 25220]]

emergency action for the remainder of FY 2013.
    Comment 6: Thirteen commenters indicated that the proposed action 
provides alternative fishing opportunities that will help augment 
groundfish fishing income for vessels adversely impacted by groundfish 
quota reductions during FY 2013. One dealer commented that groundfish 
vessels need additional fishing opportunities to remain viable and to 
support local processors and associated infrastructure. One industry 
group suggested that we must improve the sustainable utilization of 
monkfish in the NFMA due to the significant overlap of vessel 
participation between the monkfish and groundfish fisheries, while 
another group noted that the proposed action provides greater 
flexibility in planning trips.
    Response: We agree that the proposed action would provide 
additional fishing opportunities and potential fishing revenue for 
affected groundfish vessels to help mitigate the impacts of recent 
effort reductions on the groundfish fishery and associated communities 
as much as possible. Although the measures implemented by this interim 
final rule would not provide as much operational flexibility or 
potential fishing revenue as the proposed action in order to address 
potential effort shifts into the SFMA, our analysis confirms that 
affected vessels would still benefit from this final action, and would 
likely realize upwards of $490,000 in additional fishing revenue from 
monkfish landings alone, compared to operating under the current 
monkfish possession limits. By allowing the monkfish fishery to fully 
harvest, but not exceed the FY 2013 NFMA monkfish TAL, this action 
attempts to better provide for the optimum utilization of the monkfish 
resource and the continued participation of vessels and associated 
fishing communities in the fishery, while minimizing the risks of 
adversely affecting the fishery due to unexpected shifts in fishing 
effort during FY 2013.
    Comment 7: Two dealers asserted that the proposed action would 
ensure a steady supply of fresh fish to consumers, helping to preserve 
the availability of fresh wild-caught fish to customers given that 
reductions in groundfish ACLs will reduce the supply of fresh fish to 
markets.
    Response: We agree that both the proposed action and the measures 
implemented by this interim final rule will increase the fishery's 
ability to provide a steady year-round supply of fresh monkfish to the 
market that could help compensate for reduced availability of 
groundfish in 2013.
    Comment 8: Two individuals, the ME DMR, and one commercial fishing 
group stated that the proposed action would convert monkfish discards 
into landings, and reduce discards overall. One commenter suggested 
that the monkfish fishery should consider implementing 100-percent 
retention in the future to reduce discards even further.
    Response: We agree that the proposed action and the measures 
implemented by this interim final rule may reduce discards by 
converting them into landings. Both the NEFMC and MAFMC could consider 
full retention requirements in a future action.
    Comment 9: One commercial fishing group noted that the proposed 
action mirrors regulations that were in effect for the NFMA during the 
first few years following the implementation of the FMP. The group 
noted that, during those years, the monkfish target TAC amounts for the 
NFMA were not exceeded.
    Response: We agree that the proposed action is similar to previous 
measures during FYs 2000-2006 when there were no monkfish possession 
limits in the NFMA. However, during that time, NFMA monkfish target 
TACs and landings were substantially higher than the FY 2013 NFMA 
monkfish TAL (5,854 mt), with landings ranging from 14,853 mt in FY 
2001 to 6,677 mt in FY 2006. Therefore, although the target TACs were 
not exceeded during FYs 2000-2006, the target TACs were substantially 
higher than the FY 2013 TAL, and NFMA monkfish landings were always in 
excess of the FY 2013 TAL during this period. This highlights that the 
capacity to fully harvest the FY 2013 NFMA monkfish TAL existed in the 
fishery during recent years when there were no possession limits in the 
NFMA for vessels fishing under a monkfish or groundfish DAS. This also 
emphasizes the need for us to carefully monitor NFMA monkfish landings 
during FY 2013 to ensure that the FY 2013 NFMA monkfish TAL is not 
exceeded, and to reinstate monkfish possession limits if available data 
indicate that the TAL could be exceeded before the end of the FY, as 
necessary.
    Comment 10: One vessel owner stated that the NFMA fishery is mostly 
an incidental catch fishery, with another vessel owner noting that the 
current monkfish possession limits are insufficient to justify directed 
fishing for monkfish in the NFMA. This latter commenter suggested that 
the proposed action would allow him the fishing opportunities he needs 
to justify building the nets necessary to target monkfish. A commercial 
fishing group agreed, asserting that this emergency action would not 
address the underlying issue that current monkfish effort controls are 
preventing the fishery from achieving optimum yield (OY). That group 
suggested that measures necessary to ensure the fishery can regularly 
achieve OY must be comprehensively addressed in Amendment 6 to the 
Monkfish FMP.
    Response: For various reasons, a majority of monkfish landed from 
the NFMA are landed as a result of incidental catch in the groundfish 
fishery, not as a result of directed fishing for monkfish. We agree 
that eliminating the monkfish possession limits as part of this interim 
final rule may entice individual vessel operators to more actively 
target monkfish, as intended, which will help them to come close to OY 
for this fishery. The NEFMC and MAFMC are actively considering 
replacing existing effort controls with alternative quota-based 
measures in the NFMA as part of Amendment 6 to the FMP.
    Comment 11: The MA DMF asked what trigger will be used to reinstate 
trip limits in the NFMA, and which trip limits will be reinstated. They 
were unsure whether existing possession limits would be reinstated, or 
if NMFS would implement something different.
    Response: If available data suggest the NFMA monkfish TAL will be 
exceeded before the end of FY 2013, we will reinstate existing NFMA 
monkfish possession limits (1,250 lb (567 kg) tail weight and 600 lb 
(272 kg) tail weight per DAS) for the remainder of FY 2013. We will 
project monkfish landings throughout FY 2013 to ensure that the 
reinstatement will prevent the FY 2013 TAL from being exceeded.
    Comment 12: Several commenters were concerned that the proposed 
action would only apply to monkfish Category C and D permit holders, 
rather than all limited access monkfish permits, with one commercial 
fishing group suggesting that the proposed action was inconsistent with 
National Standard 4 of the Magnuson-Stevens Act. Two vessel owners 
suggested that NMFS should eliminate monkfish possession limits for all 
permit holders, with one owner stating that it is inappropriate to 
relax landing limits for those that operate on a groundfish DAS, and 
that the proposed action disenfranchises monkfish Category A and B 
vessels. One vessel owner was concerned that the proposed action would 
increase landings and depress prices for those vessels that are not 
exempt from the existing monkfish

[[Page 25221]]

possession limits and cannot benefit from the emergency action.
    Response: As noted in the proposed rule for this action, we believe 
that an emergency exists in the groundfish fishery, and that emergency 
action is necessary to help mitigate adverse economic and social 
impacts resulting from substantial reductions in groundfish ACLs in FY 
2013. No such emergency exists for vessels issued a monkfish Category A 
or B permit. They are not directly affected by reductions in groundfish 
ACLs in FY 2013. In contrast, vessels issued a monkfish Category C or D 
permit are directly affected by such reductions, and can benefit from 
additional opportunity to harvest monkfish. Therefore, it is not 
consistent with the intent of this action to increase possession limits 
for monkfish Category A or B vessels who are unaffected by the 
reductions in FY 2013 groundfish ACLs.
    Emergency actions must adhere to the Magnuson-Stevens Act and its 
National Standards. The National Standard 4 guidelines at Sec.  600.325 
state that allocations of fishing privileges must be fair and 
equitable, and reasonably calculated to promote conservation. Regarding 
fairness and equity, the guidelines state that such an allocation 
should be ``rationally connected to the achievement of OY or with the 
furtherance of a legitimate FMP objective.'' The guidelines allow that 
an allocation may impose a hardship on one group if it is outweighed by 
the total benefits to another group. This emergency action attempts to 
achieve OY in the NFMA by increasing the likelihood that the FY 2013 
NFMA monkfish TAL will be fully harvested. This action will provide 
additional fishing opportunities and associated landings and fishing 
revenue for Category C and D monkfish vessels impacted by reductions in 
groundfish ACLs. In doing so, this action addresses Objective 2 of the 
FMP in that it attempts to optimize yield and maximize economic 
benefits to a particular fishing sector. Thus, there is a direct and 
rational connection between this action and an objective of the FMP. 
Category A and B vessels will continue to be able to participate in 
both the directed and incidental monkfish fishery in the NFMA during FY 
2013, but will not be able to land monkfish in excess of existing 
possession limits, as currently prescribed. While such vessels would 
not benefit from the opportunity to land monkfish in excess of existing 
possession limits, no predictable hardship is being imposed, as this is 
consistent with measures in effect since FY 2011. One commenter 
contended that Category A and B vessels could face reduced prices for 
monkfish they are able to land if large amounts of monkfish are landed 
in a short period of time and demand is insufficient to accommodate the 
supply at that time. However, this could occur in any FY. Further, as 
discussed more thoroughly in the EA prepared for this action, ex-vessel 
prices vary for a number of reasons, including the amount landed, the 
size of fish landed, and product type landed (whole, headed, tails, 
etc.). Therefore, it is very difficult to estimate the scale of any 
potential hardship that may befall Category A and B vessels due to 
additional monkfish landings as a result of this action. Overall, 
however, it is expected that there will be benefits to Category C and D 
vessels, and no predictable adverse impacts to Category A and B vessels 
during the duration of the emergency measures. Thus, the measures 
implemented by this interim final rule are consistent with National 
Standard 4.
    Comment 13: One commercial fishing group was concerned that 
emergency measures were not discussed at the Monkfish Oversight 
Committee/Advisory Panel meeting in December 2012, and that the 
monkfish industry members attending that meeting were not aware that 
the NEFMC had requested emergency action in the NFMA. This group 
recommended that the proposed emergency action should be considered by 
the Monkfish Oversight Committee and analyzed by both the NEFMC and 
MAFMC before any recommendation for emergency action.
    Response: Although the Monkfish FMP is jointly managed by both the 
NEFMC and MAFMC, neither Council is obligated to consult with the other 
regarding requests for emergency action. We briefed the MAFMC on the 
NEFMC request for emergency action during the Regional Administrator 
report at the MAFMC's December 2012 and February 2013 meetings. In 
addition, we provided an opportunity for the public to comment on the 
proposed emergency action. In this interim final rule, we have 
attempted to address concerns raised by the MAFMC and vessel owners 
operating out of Mid-Atlantic states during the public comment period 
by revising measures implemented by this interim final rule to reduce 
the potential for effort to be redirected into the SFMA. Therefore, the 
fishing industry and the public have had ample opportunity to comment 
on the proposed rule. In fact, concerns raised by the public have been 
addressed by modifying some measures in this interim final rule.
    Comment 14: One commercial fishing group suggested that the 
proposed action allows Category C and D monkfish vessels to leave a 
sector, lease unlimited monkfish DAS, and operate as a common pool 
vessel without any constraints.
    Response: We disagree. While a vessel can elect to withdraw from a 
groundfish sector until April 30 of each year, that vessel would then 
become a common pool vessel for the following FY, and would be subject 
to the existing groundfish common pool measures, including lower 
groundfish DAS allocations than sector vessels, restrictive possession 
limits, gear requirements, and trimester TACs and associated area/gear 
closures. Thus, such vessels are subject to constraints that are 
designed to prevent the groundfish ACLs from being exceeded. Nothing in 
the proposed action or this interim final rule allows for the leasing 
of monkfish DAS.
    Comment 15: One commercial fishing group asked how NMFS could 
justify the proposed emergency action when its own analysis suggests 
that the current possession limits would result in nearly the entire FY 
2013 monkfish NFMA TAL, or at least 88 percent of the TAL, being caught 
during FY 2013.
    Response: The commenter is correct that monkfish landings could be 
expected to reach 88 percent of the FY 2013 NFMA monkfish TAL under 
current possession limits based on projections of recent fishing 
activity in the EA supporting this action. However, that leaves 702 mt 
(1.5 million lb) of NFMA monkfish TAL uncaught during FY 2013. That is 
not achieving OY in the fishery. Projections of both the proposed 
action and the measures implemented by this interim final rule suggest 
that an additional 176-234 mt (388,000-515,000 lb) of monkfish could be 
landed during FY 2013. This would help to better achieve OY in the 
fishery and help mitigate the expected economic and social impacts of 
reduced groundfish ACLs during FY 2013, as intended, consistent with 
the Monkfish FMP and the Magnuson-Stevens Act.
    Comment 16: One commercial fishing group recommended that NMFS 
should keep existing monkfish possession limits the same, but increase 
the number of monkfish DAS allocated to vessels from 40 to 60, and 
implement a monkfish running clock provision to allow vessels to land 
monkfish beyond existing possession limits and increase their monkfish 
DAS charge accordingly. This group also recommended that NMFS allow 
monkfish Category E vessels to land monkfish up to 50 percent of the 
total weight of fish on

[[Page 25222]]

board. One vessel owner suggested that no additional monkfish DAS 
should be made available as part of this action. Finally, another 
commercial fishing group recommended that NMFS establish a modified 
trip limit based on an analysis of past fishery performance that is 
designed to reach, but not exceed, the FY 2013 NFMA monkfish TAL.
    Response: During the development of Amendment 5 to the Monkfish 
FMP, the Councils considered an option that would have retained NFMA 
monkfish possession limits at existing levels at the time (1,250 lb 
(567 kg) per DAS for Category A and C vessels and 470 lb (213 kg) per 
DAS for Category B and D vessels), but would increase allocated DAS to 
58 monkfish DAS. That resulted in projected landings of 9,574 mt, 
representing an overage of the FY 2013 NFMA monkfish TAL of 3,720 mt 
(63 percent). This option, therefore, is likely to result in excessive 
monkfish landings during FY 2013. Further, by increasing monkfish DAS, 
it is likely that the group's suggestion would increase bycatch of 
groundfish stocks, potentially increasing the likelihood that 
groundfish ACLs would be exceeded during FY 2013. Accordingly, it was 
not considered further. No additional analysis of the group's 
suggestion to also increase the amount of monkfish that could be landed 
by Category E vessels was conducted, because such a measure would only 
increase monkfish landings beyond that projected if vessels were 
allocated 58 monkfish DAS in the NFMA. The Councils could consider such 
suggestions in the next management action, which is expected to set 
monkfish ACLs and TALs for FYs 2014-2016. Therefore, this interim final 
rule does not allocate additional monkfish DAS, as recommended by one 
commenter. Consistent with the recommendation of another commercial 
fishing group, this interim final rule does establish a modified trip 
limit (i.e., unlimited for Category C and D vessels) that is based on 
an analysis of past fishery performance that is designed to reach, but 
not exceed, the FY 2013 NFMA monkfish TAL.
    Comment 17: Given the uncertainty in vessel behavior during FY 
2013, several commenters, including the ME DMR, one industry group, and 
two vessel owners, were concerned about monitoring vessel behavior and 
monkfish landings. One commercial fishing group, one dealer, and one 
vessel owner recommended that NMFS can monitor monkfish landings in 
real time through sector catch reports. One commercial fishing group 
suggested that NMFS should post a weekly landings update so that 
everyone can know if the fishery is approaching a trigger that would 
reinstate existing trip limits. One vessel operator suggested that NMFS 
should reinstate trip limits when 70 percent of the NFMA monkfish TAL 
is caught. Another vessel owner stated that it is important to review 
landings after 180 days to see how close landings are to the TAL before 
renewing the emergency action for another 186 days, stating that he did 
not want to see TAL exceeded, triggering reactive accountability 
measure (AM) in 2015. One commercial fishing group asked how any TAL 
overage would be applied, and if any overage would be deducted from the 
TAL/ACT for both areas, or just one area.
    Response: We agree that sufficient monitoring of fishing operations 
is essential during FY 2013 to detect whether fishing patterns and 
landing rates have changed as early as possible. If fishing operations 
change in a manner that would suggest the FY 2013 NFMA monkfish TAL may 
be exceeded before the end of the FY, reinstatement of existing 
monkfish possession limits may be warranted. We believe that measures 
in place, including weekly VTRs, sector reports, and VMS positional 
data and vessel activity declarations, are sufficient to monitor 
monkfish landings in a timely manner in order to trigger reinstatement 
of existing trip limits. We will use all data available to monitor 
monkfish landings and fishing behavior, and have set up a monitoring 
plan to respond accordingly. Based on the regulations implemented under 
Amendment 5, any overage of the monkfish ACL, not TAL, in a particular 
management area would be deducted on a pound-for-pound basis from the 
ACT of the area in which the ACL was exceeded 2 years following the 
overage. This would enable the Councils to develop appropriate measures 
(DAS allocations and trip limits) to ensure that reduced ACT is not 
exceeded.
Request for Additional Comments
    This final rule implements measures that differ from those 
originally proposed for this emergency action. We have determined that 
the modifications fall within the scope of possible measures 
contemplated by this emergency action in that the modification merely 
withdraws the suspension of an existing measure. This possible action 
was analyzed as Alternative 1 in the EA developed for this action. 
Nevertheless, NMFS is soliciting additional public comment on these 
final measures, including the modification. NMFS is especially 
interested in receiving comments regarding what effect these measures 
may have on fishing behavior. Additional comments will be accepted 
through May 30, 2013.

Changes From the Proposed Rule

    NMFS has made two changes to the proposed rule, including changes 
as a result of public comment. These changes are listed below in the 
order that they appear in the regulations.
    In Sec.  648.94, the proposed suspension of paragraph (b)(3)(i) has 
been withdrawn, and the proposed addition of paragraph (b)(3)(iv) has 
been removed because monkfish Category C and D vessels are not exempt 
from existing monkfish possession limits when fishing under a 
groundfish DAS in the NFMA as part of this action.

Classification

    The NMFS Assistant Administrator has determined that the emergency 
measures implemented by this interim final rule are consistent with the 
Monkfish FMP, provisions of the Magnuson-Stevens Act, agency guidelines 
on emergency rules, and other applicable law. NMFS, in making a final 
determination, has taken into account the data, views, and comments 
received during the public comment period.
    Because this rule relieves a restriction by suspending the current 
monkfish possession restrictions for vessels fishing under a monkfish 
DAS in the NFMA, it is not subject to the 30-day delayed effectiveness 
provision of the Administrative Procedure Act pursuant to 5 U.S.C. 
553(d)(1). Vessels issued a Federal limited access monkfish Category C 
or D permit fishing in the NFMA under a monkfish DAS would otherwise be 
subject to a monkfish possession limit of 1,250 lb (567 kg) or 600 lb 
(272 kg) tail weight per DAS fished, respectively (see Table 1). If 
monkfish catch exceeds these limits, a vessel must either discard 
monkfish, or retain legal-sized fish and remain at sea until sufficient 
time has elapsed to account for the amount of monkfish retained. This 
action suspends those possession limits to encourage greater monkfish 
landings and associated fishing revenue as a means to help alleviate 
the substantial economic and social impacts expected from substantially 
reduced groundfish ACLs in FY 2013. Accordingly, implementing this 
action following a 30-day delayed effectiveness would be contrary to 
the public interest, because it would unnecessarily delay the public's 
ability to take advantage of unlimited monkfish possession limits and 
associated economic benefits of higher monkfish

[[Page 25223]]

landings, thereby undermining the intent of the rule. A swift 
implementation of this final action minimizes the chances of negative 
economic impacts resulting from the reduced groundfish ACLs for some 
stocks during FY 2013. Thus, there is also good cause under 5 U.S.C. 
553(d)(3) to waive the delay in effectiveness for this action.
    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.
    This interim final rule does not contain policies with Federalism 
or takings implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.

Final Regulatory Flexibility Analysis (FRFA)

    An EA was prepared for this action that analyzed the environmental 
impacts of the measures being implemented, as well as alternatives to 
such measures. The measures originally proposed for this action are 
described as Alternative 2 in the EA prepared for this action, while 
the measures implemented by this action are described as Alternative 1 
in the EA. This EA was revised since the publication of the proposed 
rule to incorporate updated information regarding the population 
estimates for Atlantic sturgeon, and to reclassify the preferred 
alternative for this action as Alternative 1. A copy of the Finding of 
No Significant Impact for the EA prepared for this action is available 
from the Regional Administrator (see ADDRESSES).
    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS prepared this FRFA in support of the measures implemented by this 
interim final rule. The FRFA incorporates the IRFA that was published 
in the proposed rule for this action, relevant portions of the EA and 
preamble to this rule, a summary of the significant issues raised by 
the public comments in response to the IRFA, and NMFS responses to 
those comments. A summary of the economic impacts of the measures 
implemented by this interim final rule is included below to reflect 
that the measures implemented by this final action are those classified 
as the impacts of Alternative 1 in the IRFA that were not fully 
described in the proposed rule for this action. A description of the 
action, why it is being considered, its objectives, and its legal basis 
are contained in the preamble to the proposed and this interim final 
rule and in the background, purpose, and need discussion (Section 2.0) 
of the EA prepared for this action, and are not repeated here. A copy 
of this analysis is available from the Regional Administrator (see 
ADDRESSES).
Summary of the Issues Raised by Public Comments in Response to the 
IRFA, a Summary of the Assessment of the Agency of Such Issues, and a 
Statement of Any Changes Made From the Proposed Rule as a Result of 
Such Comments
    Comment: As noted in Comment 12, several commenters were concerned 
that the proposed action would only apply to monkfish Category C and D 
permit holders, rather than to all limited access monkfish permits, 
while one vessel owner suggested that the proposed action could depress 
prices for those vessels not able to land additional monkfish under 
this action.
    Response: Exempting all monkfish limited access permits from the 
existing monkfish possession limits is not consistent with the purpose 
and need for this action, as monkfish Category A and B vessels are not 
directly affected by reductions in groundfish ACLs in FY 2013. In 
contrast, vessels issued a monkfish Category C or D permit are directly 
affected by groundfish ACL reductions during FY 2013, and can benefit 
from additional opportunity to harvest monkfish to help mitigate 
expected substantial economic and social impacts from reduced 
groundfish ACLs. Therefore, it is not consistent with the intent of 
this action to increase possession limits for monkfish Category A or B.
    We agree that it is possible that measures implemented by this 
interim final rule could decrease ex-vessel prices if sufficient 
volumes are landed in a short period of time and market demand is 
insufficient to accommodate the supply of monkfish. However, this is 
possible under current regulations as well. This interim final rule 
revises the proposed measures by only allowing Category C or D monkfish 
vessels fishing under a monkfish DAS to be exempt from existing 
monkfish possession limits in the NFMA. While this is expected to 
result in increased monkfish landings compared to existing measures, it 
is expected that less monkfish would be landed than under the proposed 
action. Therefore, this may help assuage concerns that this action 
would depress monkfish prices, but would not eliminate the potential 
for market prices to decrease during FY 2013.
Description and Estimate of the Number of Small Entities to Which the 
Interim Final Rule Would Apply
    Similar to the measures included in the proposed rule, the measures 
implemented by this interim final rule affect any vessel issued a valid 
Federal limited access monkfish Category C or D permit that fishes 
under a monkfish DAS in the NFMA. As of December 7, 2012, 2,212 vessels 
were issued a Federal monkfish permit, of which 558 were issued limited 
access monkfish Category C or D permits during FY 2012. However, not 
all of these vessels will likely fish in the NFMA during FY 2013. 
During FY 2008, 400 Category C or D vessels fished in the NFMA out of a 
total of 690 vessels that were issued a limited access monkfish 
Category C or D permit (58 percent). During FY 2011, a total of 189 
monkfish Category C or D vessels fished exclusively in the NFMA, or in 
both the NFMA and SFMA during the same trip, out of 586 permits issued 
(32 percent). Therefore, it is expected that between 200-400 vessels 
would be affected by this action. The average size and horsepower of 
vessels affected by this action is 60 ft (18 m) and 540 horsepower. 
Because over 80 percent of NFMA monkfish landings in recent years were 
landed by trawl vessels, trawl vessels would be most affected by this 
action. For a more detailed description of the affected entities, refer 
to the EA prepared for this action (see ADDRESSES).
    The Small Business Administration (SBA) defines a small business as 
one that is: Independently owned and operated; not dominant in its 
field of operation; and has annual receipts not in excess of $4.0 
million in the case of commercial harvesting entities. In the proposed 
rule for this action, the IRFA stated that all vessels affected by this 
action are considered small vessels. Additional analysis prepared in 
support of FW 48 to the NE Multispecies FMP (March 25, 2013; 78 FR 
18188) provided additional information regarding the size and 
affiliation of vessels issued a NE multispecies permit, including 
vessels issued a limited access monkfish Category C and D permit that 
are affected by this action. Calendar year 2011 serves as the baseline 
year for this analysis because calendar year 2012 data are not yet 
available in a fully audited form. There were 396 permited vessels that 
landed monkfish during calendar year 2011. By grouping unique 
combinations of persons who own each permit into distinct ownership 
groups, there were 303 distinct ownership entities identified during 
2011. Mean gross sales by each of these distinct ownership groups were 
then summed for all affiliated permits to determine if the collective 
permits owned by each distinct ownership group exceeded the SBA 
threshold for defining large

[[Page 25224]]

entities. This results in 277 small entities, and 26 large entities 
during 2011, using SBA guidelines. Because this interim final rule does 
not impose any costs on affected entities, there are no 
disproportionate impacts between small and large entities associated 
with this action.
Economic Impacts of the Final Action
    Realized revenues from the final action are estimated to be 
approximately $14.4 million from monkfish landings alone by all vessels 
during FY 2013 based on a projection of monkfish landings and using the 
average monkfish price observed to date during FY 2012 ($1.22 per lb 
($2.69 per kg) live weight equivalent). That projection estimated that 
monkfish landings would reach 11,764,639 lb (5,336 mt) under the final 
action (Alternative 1 in the EA). Compared to the No Action 
Alternative, the final action would increase monkfish landings by 
nearly 402,000 lb (182,000 kg), but would result in nearly 140,000 lb 
(63,500 kg) less monkfish landings than the proposed measures 
(Alternative 2 in the EA). The final action would increase monkfish 
fishing revenue by $490,000 compared to the No Action Alternative, but 
would result in nearly $170,000 less monkfish fishing revenue compared 
to the original proposed measures. Additional fishing revenue would 
also be expected based on landings of other species.
Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of This Interim Final Rule
    This action does not contain any new recordkeeping or reporting 
requirements, and does not impose any additional costs to affected 
vessels.
Description of Steps the Agency Has Taken To Minimize the Significant 
Economic Impact on Small Entities Consistent With the Stated Objectives 
of Applicable Statutes
    During the development of this emergency action, NMFS considered 
and fully analyzed three principal alternatives, including the No 
Action Alternative, the measures implemented by this interim final rule 
(Alternative 1), and measures specified in the proposed rule for this 
action (Alternative 2). The No Action Alternative would have retained 
the existing monkfish possession limits, while Alternative 2 would have 
suspended monkfish possession limits for vessels issued a Federal 
limited access monkfish Category C or D permit when fishing under 
either a monkfish or a groundfish DAS in the NFMA. NMFS also 
considered, but did not fully analyze, several additional alternatives 
that were rejected because they were beyond the scope of the purpose 
and need for this action. The No Action Alternative was not selected 
because the existing possession limits would not increase monkfish 
landings and help mitigate the adverse social and economic impacts of 
the reduced 2013 groundfish ACLs consistent with the purpose and need 
for this action. For a more complete description of the alternatives 
considered, refer to the EA prepared for this action (see ADDRESSES).
    Both Alternatives 1 and 2 would likely result in increased fishing 
revenue compared to the existing monkfish possession limits, but 
different potential impacts on the monkfish resource. Based on public 
comments and further consideration by NMFS, Alternative 2 would likely 
create incentives to substantially increase monkfish effort by allowing 
vessels to use available groundfish DAS to fish for groundfish and 
monkfish in the NFMA, and save their monkfish DAS to fish for monkfish 
in the SFMA during FY 2013. Because current monkfish effort controls 
are based on recently observed fishing practices, such a shift in 
behavior would likely increase monkfish landings beyond those 
anticipated, particularly in the SFMA, thereby undermining the 
effectiveness of effort controls adopted in Amendment 5. This could 
lead to monkfish landings that exceed the SFMA TAL during FY 2013, as 
existing regulations do not allow the Regional Administrator to revise 
monkfish possession limits for vessels operating in the SFMA. Further, 
such measures are beyond the purpose and intent of this emergency 
action, and were not included in the proposed rule for this action. 
Therefore, it would not have been possible to slow or curtail excessive 
monkfish landings in the SFMA if monkfish fishing effort would shift 
into the SFMA under the proposed emergency action, as suggested in 
public comments. To minimize the potential increase and shift of effort 
into the SFMA, the measures implemented by this interim final rule 
require vessels to use their monkfish DAS to be exempt from current 
monkfish possession limits in the NFMA. This reduces the likelihood 
that monkfish fishing effort would substantially increase outside of 
the NFMA during FY 2013 and potentially cause the FY 2013 SFMA monkfish 
TAL to be exceeded.
    Although this interim final rule would likely result in less 
monkfish fishing revenue than would be expected from the original 
proposed measures (Alternative 2), this final action would likely still 
result in economic benefits to affected entities. Further, unlike the 
original proposed measures, the final action would likely increase 
monkfish fishing opportunities and associated revenue in the NFMA 
without increasing the likelihood of exceeding the monkfish TAL in the 
SFMA. If excessive effort in the SFMA results in landings that exceed 
the SFMA monkfish TAL, overfishing could occur, leading to more 
restrictive measures and negative impacts in the future. This would 
necessitate reductions in future monkfish fishing opportunities in the 
SFMA, as suggested in public comments received for this action. Thus, 
this final action (Alternative 1) would likely provide the highest 
overall benefit to affected entities, while reducing the risk of long-
term negative impacts to the monkfish resource and associated fishing 
vessels and communities.
    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 letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Northeast Regional Office, and the 
guide, i.e., permit holder letter, will be sent to all holders of 
permits for the groundfish and monkfish fisheries. The guide and this 
final rule will be available upon request from the Regional 
Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 16, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated 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.


[[Page 25225]]



0
2. In Sec.  648.94, suspend paragraphs (b)(1)(i) and (b)(1)(ii), and 
add paragraphs (b)(1)(iii) through (v), and paragraph (h) to read as 
follows:


Sec.  648.94  Monkfish possession and landing restrictions.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Category A vessels. A limited access monkfish Category A 
vessel that fishes under a monkfish DAS exclusively in the NFMA may 
land up to 1,250 lb (567 kg) tail weight or 3,638 lb (1,650 kg) whole 
weight of monkfish per DAS (or any prorated combination of tail weight 
and whole weight based on the conversion factor for tail weight to 
whole weight of 2.91). For every 1 lb (0.45 kg) of tail only weight 
landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads 
only, as described in paragraph (a) of this section.
    (iv) Category B vessels. A limited access monkfish Category B 
vessel that fishes under a monkfish DAS exclusively in the NFMA may 
land up to 600 lb (272 kg) tail weight or 1,746 lb (792 kg) whole 
weight of monkfish (gutted) per DAS (or any prorated combination of 
tail weight and whole weight based on the conversion factor for tail 
weight to whole weight of 2.91). For every 1 lb (0.45 kg) of tail only 
weight landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish 
heads only, as described in paragraph (a) of this section.
    (v) Category C and D vessels. Unless otherwise specified pursuant 
to paragraph (h) of this section, there is no monkfish trip limit for 
limited access monkfish Category C or D vessels that are fishing under 
a monkfish DAS exclusively in the NFMA.
* * * * *
    (h) Regional Administrator authority to reinstate monkfish 
possession limits. Based upon available information, if the Regional 
Administrator projects that monkfish landings on trips that fished in 
the NFMA may exceed the fishing year 2013 target total allowable 
landing limit of 5,854 mt or, when combined with an estimate of 
discards, the 6,567 mt annual catch target, before the end of fishing 
year 2013 on April 30, 2014, the Regional Administrator shall reinstate 
monkfish possession limits for Category C and D vessels in a manner 
consistent with the Administrative Procedure Act. If monkfish 
possession limits are reinstated pursuant to this paragraph (h), 
Category C vessels shall be subject to the possession limits specified 
in paragraphs (b)(1)(iii) and (c)(1)(i) of this section, while Category 
D vessels shall be subject to the possession limits specified in 
paragraphs (b)(1)(iv) and (c)(1)(i) of this section.

[FR Doc. 2013-10023 Filed 4-29-13; 8:45 am]
BILLING CODE 3510-22-P