Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Monkfish Fishery; Emergency Action Extension, 63892-63899 [2013-25265]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 207 (Friday, October 25, 2013)]
[Rules and Regulations]
[Pages 63892-63899]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-25265]


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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 Extension

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

ACTION: Temporary rule; emergency action extended.

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SUMMARY: Pursuant to its emergency authority, NMFS extends and revises 
an emergency action that temporarily suspended and modified monkfish 
landing limits for vessels issued a Federal limited access monkfish 
Category C or D fishing under a Northeast multispecies day-at-sea, or 
both a Northeast multispecies and monkfish day-at-sea, in the monkfish 
Northern Fishery Management Area.

[[Page 63893]]

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 for vessels affected by recent 
reductions to Northeast multispecies annual catch limits, without 
resulting in overfishing monkfish within the Northern or Southern 
Fishery Management Areas.

DATES: The effective date of the emergency temporary rule published 
April 30, 2013, beginning at 78 FR 25214 is extended through April 30, 
2014. The amendments to Sec.  648.94 (b)(3)(i) and (b)(3)(iv) are 
effective at 0001 hr on October 28, 2013, through April 30, 2014.

ADDRESSES: Copies of the Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), Final Regulatory Flexibility 
Analysis (FRFA), and the Environmental Assessment (EA) prepared for 
this action are available from John K. Bullard, Regional Administrator, 
National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, 
MA 01930-2276, or at the following internet address: https://www.nero.noaa.gov/regs/2013/April/13monkeia.html. Copies of the small 
entity compliance guide are available at the following internet 
address: https://www.nero.noaa.gov/nr/2013/April/13monkcatcdnolimitnfmaphl.pdf.

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

SUPPLEMENTARY INFORMATION:

Background

    The New England Fishery Management Council (NEFMC) substantially 
reduced the 2013 annual catch limit (ACL) for several Northeast (NE) 
multispecies (groundfish) stocks as part of Framework Adjustment 50 to 
the NE Multispecies Fishery Management Plan (FMP) (78 FR 26172; May 3, 
2013). That action was necessary to prevent overfishing and rebuild 
overfished groundfish stocks consistent with rebuilding plans required 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). These reductions are expected to result in 
substantial adverse economic impacts to vessels participating in the 
groundfish fishery, particularly for those vessels enrolled in the 
groundfish sector program, which allocates a share of the available ACL 
of each stock to collectives of vessels known as ``sectors.'' In 
anticipation of such impacts, at its November 2012 meeting the NEFMC 
requested that NMFS implement an emergency action to eliminate monkfish 
trip (landing) limits for vessels issued a limited access permit 
fishing under a groundfish sector on a groundfish day-at-sea (DAS) in 
the monkfish Northern Fishery Management Area (NFMA). This request was 
intended to increase fishing opportunities and associated fishing 
revenue to help mitigate the adverse impacts to vessels and fishing 
communities affected by reductions to groundfish ACLs in fishing year 
(FY) 2013.
    NMFS developed a proposed rule to implement emergency measures in 
the monkfish fishery based on the NEFMC request for emergency action 
and published a proposed rule justifying emergency action according to 
agency guidelines (62 FR 44421; August 21, 1997) in the Federal 
Register on February 25, 2013 (78 FR 12708). The proposed rule would 
have temporarily suspended the monkfish landing limits for any vessel 
issued a Federal limited access monkfish Category C or D permit (i.e., 
a vessel that is also issued a limited access NE multispecies permit) 
that is fishing under a groundfish DAS or both a groundfish and 
monkfish DAS in the NFMA during FY 2013. A full discussion of the 
background and justification for emergency measures was presented in 
the preamble to the February 25, 2013, proposed rule and section 2.1 of 
the EA prepared for that action (see ADDRESSES), and is not repeated 
here. In summary, the combined effect of several issues facing the 
Northeast multispecies (groundfish) fishery in FY 2013, including 
substantial reductions in 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.
    Based on additional analysis and an evaluation of public comment, 
we revised the proposed measures through an emergency interim final 
rule that published in the Federal Register on April 30, 2013 (78 FR 
25214). The interim final rule implemented revised emergency measures 
suspending monkfish landing limits for Category C or D monkfish vessels 
fishing under a monkfish, but not a groundfish, DAS in the NFMA during 
FY 2013. These measures were more restrictive than what we proposed in 
an attempt to address concerns expressed by the Mid-Atlantic Fishery 
Management Council (MAFMC) and industry that the proposed measures may 
unintentionally shift effort into the Southern Fishery Management Area 
(SFMA) and cause unanticipated adverse impacts to the SFMA monkfish 
resource and associated fishing communities. The measures in the 
interim final rule represented a compromise between the interests 
expressed by each Council by providing additional opportunities to land 
monkfish in the NFMA, as advocated by the NEFMC, yet also minimizing 
the potential effort shifts into the SFMA, as advocated by the MAFMC. 
Additional public comments were accepted on the revised measures 
through May 30, 2013, and are addressed later in this preamble. The 
interim final rule indicated that we would monitor the fishery, and 
that we may renew or modify the emergency measures for the remainder of 
FY 2013, consistent with the Magnuson-Stevens Act and the 
Administrative Procedure Act (APA).
    Pursuant to section 305(c)(3)(B) of the Magnuson-Stevens Act, 
management measures implemented by the April 30, 2013, emergency 
interim final rule may be extended for an additional period of up to 
186 days, provided (1) the public has had the opportunity to comment on 
the emergency regulations, and (2) if the emergency is requested by a 
fishery management council, the council is actively preparing an action 
to address the emergency on a permanent basis. As noted above, the 
public has had two opportunities to comment on the emergency management 
measures. Further, the NEFMC is preparing Framework Adjustment 8 to the 
Monkfish FMP that is considering increasing the monkfish landing limits 
applicable to vessels fishing under a groundfish, but not a monkfish, 
DAS in the NFMA starting in FY 2014. This measure would increase 
fishing opportunities and associated revenue for vessels in the 
groundfish fishery. Therefore, both criteria specified in the Magnuson-
Stevens Act necessary to extend the emergency action have been met. 
Based on public comments and a consideration of new information and 
data describing the performance of the monkfish and groundfish 
fisheries during the first 4 months of FY 2013 (May-August), this 
temporary rule extends and revises the measures implemented by the 
April 30, 2013, interim final rule for the remainder of FY 2013 
(through April 30, 2014).

[[Page 63894]]

Management Measures Implemented by This Temporary Rule

1. Monkfish Landing Limits in the NFMA

    This temporary rule extends and revises the April 30, 2013, 
emergency action that suspended and modified monkfish landing limits 
for vessels issued a Federal limited access monkfish Category C or D 
permit that are fishing under a groundfish DAS or both a groundfish and 
monkfish DAS in the monkfish NFMA for the remainder of FY 2013. 
Existing monkfish landing limits for vessels issued a Federal limited 
access monkfish Category A or B permit and fishing under a monkfish 
DAS, or vessels issued an open access monkfish Category E permit that 
are not operating under any DAS (i.e., vessels that catch monkfish 
while targeting other fisheries) remain the same, as specified in Table 
1. In addition, the overfishing level (OFL), acceptable biological 
catch level (ABC), ACL, annual catch target (ACT), and total allowable 
landing (TAL) amounts remain 19,557 mt, 7,592 mt, 7,592 mt, 6,567 mt, 
and 5,854 mt, respectively, as implemented in either Amendment 5 (76 FR 
30265; May 25, 2011) or Framework Adjustment 7 to the Monkfish FMP (76 
FR 66192; October 26, 2011).

                       Table 1--Summary of Monkfish Possession Limits in the NFMA for 2013
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   Groundfish sector participation                                  Monkfish permit        Landing limit  (tail
                status                         DAS type                 category                 weight)
----------------------------------------------------------------------------------------------------------------
Non-sector Vessels...................  No DAS.................  A, B, or E.............  Up to 5% of total
(Monkfish-only or Common Pool                                                             weight of fish
 Groundfish Vessels).                                                                     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.................  Unlimited.
                                       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.................  Unlimited.
                                       NE Mults A & Monk DAS..  C or D.................  Unlimited.
----------------------------------------------------------------------------------------------------------------

    New information and data describing the performance of the monkfish 
fishery during May-August 2013 (completed landings data for September 
are not available at this time) indicate that monkfish landings in both 
the NFMA and SFMA remain slightly below the monkfish landing trajectory 
observed in both areas during FY 2012. During May-August 2013, monkfish 
landings in the NFMA have decreased by about 3 percent relative to the 
same months in FY 2012, while SFMA monkfish landings have decreased by 
25 percent. Further, monkfish DAS usage has decreased by 9 percent in 
the NFMA and 12 percent in the SFMA compared to May-August 2012. Forty 
more trips have been taken under both a groundfish and a monkfish DAS 
in the NFMA compared to FY 2012 (a 35-percent increase), while fewer 
monkfish trips were taken in the SFMA (36 percent fewer groundfish/
monkfish DAS trips and 5 percent fewer monkfish-only DAS trips). 
However, it is unclear whether this represents an actual shift in 
behavior caused by the emergency measures, or inter-annual fluctuation 
in vessel operations. If the recently observed trends in monkfish 
landings and operations continue, 2013 monkfish landings will fall well 
short of the 2013 TALs in both the NFMA and SFMA, similar to what has 
been observed since FY 2011 when these TALs were first implemented (see 
Table 2).

                                 Table 2--Recent Performance of the Monkfish Fishery Relative to the NFMA and SFMA TALs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     NFMA                                        SFMA
                                                                 ---------------------------------------------------------------------------------------
                          Fishing year                             May-August landings     Annual landings     May-August landings     Annual landings
                                                                 ---------------------------------------------------------------------------------------
                                                                      mt      % of TAL      mt      % of TAL      mt      % of TAL      mt      % of TAL
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011............................................................        904         15      3,699         63      2,085         23      5,801         65
2012............................................................      1,099         19      3,920         67      2,637         30      5,184         58
2013............................................................      1,065         18  .........  .........      1,965         22  .........  .........
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As discussed more thoroughly in the April 30, 2013, interim final 
rule for this emergency action, the MAFMC and some industry 
participants were concerned 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. This would reflect a substantial change from recent fishing 
practices. At the time, we

[[Page 63895]]

shared their concern that this could result in monkfish landings that 
exceed the SFMA monkfish TAL during FY 2013 and result in harm to the 
SFMA monkfish stock and associated fishery. However, current trends in 
the fishery suggest that the measures implemented by the interim final 
rule did not result in a significant increase in monkfish landings 
relative to 2012, and that it appears that 2013 landings will continue 
to track well below the TALs in the NFMA and SFMA for the rest of the 
year.
    While the potential remains for the measures implemented by this 
temporary rule to increase monkfish landings and cause effort to shift 
into the SFMA, monkfish landings would have to increase substantially 
during the remainder of FY 2013 (i.e., through April 30, 2014) to 
exceed the FY 2013 monkfish TALs. Based on the recent performance of 
the monkfish fishery in both areas, there is a low probability that any 
potential landings increases or effort shifts would be substantial 
enough to increase monkfish catch such that the FY 2013 NFMA or SFMA 
monkfish TAL, ACL, or OFL would be exceeded. Because neither the NFMA 
nor SFMA monkfish stocks are currently overfished, overfishing levels 
are substantially higher than the TALs for each stock, and biomass is 
well above the current biomass thresholds; any shift of effort caused 
by these emergency measures is not likely to result in overfishing 
either stock, or cause any biological harm to these stocks during the 
remainder of FY 2013. We still retain the ability to reinstate monkfish 
landing limits in the NFMA at any time during the remainder of FY 2013, 
thereby preventing the emergency measures from further influencing 
potential shifts in vessel operations.
    Suspending monkfish landing limits for Category C or D monkfish 
vessels fishing on a groundfish DAS or both a groundfish and monkfish 
DAS in the NFMA for the remainder of FY 2013 offers additional 
opportunities to land monkfish and increase the likelihood that 
additional monkfish would be landed from the NFMA. This may help 
mitigate negative impacts to vessels affected by recent reductions in 
groundfish ACLs--the main purpose of this action. Any effort shift that 
may result from this action would be temporary in nature, and may 
actually increase the likelihood that the fishery would more fully 
harvest the available TAL. In doing so, the fishery may better optimize 
yield and maximize economic benefits to the various fishing sectors 
consistent with Objective 2 of the Monkfish FMP.

2. Regional Administrator Authority To Reinstate Existing Monkfish 
Possession Limits

    This action authorizes the Regional Administrator to reinstate 
existing monkfish landing limits for limited access monkfish Category C 
and D vessels fishing under a groundfish DAS or both a groundfish and 
monkfish DAS in the NFMA at any time through April 30, 2014, if 
available data indicate that the NFMA monkfish TAL or ACT may be 
exceeded during FY 2013. If such landing limits are reinstated, 
monkfish Category C and D vessels fishing in the NFMA under a monkfish 
DAS would be subject to monkfish landing 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, while vessels fishing under a groundfish DAS 
would be subject to monkfish landing limits of up to 25 percent of the 
total weight of fish on board, not to exceed 300 lb (136 kg) tail 
weight per DAS. 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 ACT, respectively, and result in 
overfishing for NFMA monkfish. Any reinstatement of monkfish possession 
limits in the NFMA would be implemented consistent with the APA.

Comments and Responses

    Fifteen comments were received during the public comment period on 
the interim final rule from eight individuals, three commercial fishing 
organizations, two fish dealers, the NEFMC, and the MAFMC. Only 
comments that were applicable to the proposed measures, including the 
analyses used to support these measures, are addressed in this 
preamble. Overall, 4 commenters supported the proposed action, while 11 
opposed it.
    Comment 1: One commenter suggested that the interim final rule was 
politically motivated rather than influenced by science, stating that 
there is no proof that there are sufficient economic reasons for taking 
emergency action. This commenter also objected to responses to public 
comments in the interim final rule that seemed to dismiss scientific 
references and input from the general public and independent and non-
governmental sources.
    Response: As noted above, Framework Adjustment 50 to the NE 
Multispecies FMP implemented necessary reductions in the FY 2013 
groundfish ACLs to end overfishing and rebuild overfished stocks based 
on the best available scientific information regarding the status of 
groundfish stocks. The likely economic impacts resulting from such 
reductions are also well documented in the EA prepared for that action, 
and available at the following internet link: https://www.nero.noaa.gov/regs/2013/April/13mulfw50ifrea.pdf. The purpose and need for this 
action--to help mitigate the social and economic impacts associated 
with such drastic reductions to groundfish ACLs in FY 2013--is well 
documented in the February 25, 2013, proposed rule for this action and 
in section 2.1.2 of the associated EA (see ADDRESSES). Thus, this 
emergency action is not politically motivated, but rather based on a 
documented need to help mitigate expected economic impacts resulting 
from scientifically derived reductions to groundfish ACLs.
    The commenter appeared to object to how we responded to Comment 4 
in the April 30, 2013, interim final rule for this action. As noted in 
the response to that comment, 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 
presented by the previous commenter was neither specific to the area 
affected by this action, nor the fishery for which it pertained. It was 
difficult to relate such input to the proposed monkfish emergency 
action, and refute other scientific information that was more germane 
to the proposed emergency action or the review by individuals with an 
intimate knowledge of the monkfish fishery and its impacts on marine 
mammals. Thus, we did not ignore or dismiss input from the public or 
non-governmental entities, but rather relied on what we considered to 
be the best scientific information available to make our determinations 
related to this action, as required by law.
    Comment 2: One vessel owner that operates within the NFMA commented 
that we have ignored Council votes recently by not implementing NEFMC 
recommendations for emergency action. In contrast, an industry group 
representing monkfish vessels operating in the SFMA indicated that the 
measures implemented by the interim final rule responded directly to 
concerns raised by the public about the original NEFMC proposal for 
emergency action.

[[Page 63896]]

    Response: We take input by the public, including both Councils, 
very seriously, and consider such input when making decisions about 
management actions. While we may or may not agree with input offered by 
any one individual or group, our decisions must be justified based on 
the best scientific information available at the time of the decision, 
as noted above in the response to Comment 1, and consistent with 
applicable law. As discussed more thoroughly above, new information and 
data regarding the performance of the monkfish fishery during May-
August 2013 suggests that we can suspend monkfish landing limits for 
vessels issued a limited access monkfish Category C or D permit that 
are fishing under a groundfish DAS or both a groundfish and monkfish 
DAS in the NFMA for the rest of FY 2013 with minimal risk of 
overfishing monkfish stocks in either the NFMA or SFMA, or causing any 
biological harm to these stocks. In making this determination, we have 
utilized the best available scientific information to balance the 
concerns and interests of the public, including the NEFMC and vessels 
operating in the NFMA, and the MAFMC and vessels operating in the SFMA. 
Such data suggest that even if the measures implemented by this 
temporary rule provide incentives to shift effort into the SFMA, as 
indicated by the MAFMC and other commenters, monkfish catch would not 
likely increase sufficiently to cause the FY 2013 SFMA monkfish TAL, 
ACL, or OFL to be exceeded. In the development of the interim final 
rule, we exercised caution in considering public comment and analyzing 
available data regarding the potential for effort shifts into the SFMA 
and its impacts on the monkfish resource, because we did not yet know 
how the fishery would react to the substantial reductions in groundfish 
ACLs or the emergency monkfish measures. Now that we have new 
information detailing how the fishery has reacted to date, we can make 
a more informed decision about the potential for such effort shifts to 
adversely affect the monkfish resource for the remainder of FY 2013. 
Thus, we have considered public input and available information to 
justify measures implemented in this temporary rule consistent with 
applicable law.
    Comment 3: Three vessel owners and two fish dealers indicated that 
the measures implemented by the interim final rule will do little to 
increase monkfish landings in the NFMA, leaving the NFMA monkfish ACL 
to be under-harvested during FY 2013.
    Response: When we analyzed the measures implemented by the interim 
final rule, the results of the analysis suggested that monkfish 
landings in the NFMA would increase. However, we also acknowledged that 
there were many factors influencing vessel behavior, and that there was 
a lot of uncertainty inherent in how the fishery would react to the 
reductions in groundfish ACLs and any monkfish emergency measures. The 
new data regarding the current performance of the monkfish fishery so 
far during FY 2013 suggest that the measures implemented by the interim 
final rule did not increase monkfish landings significantly relative to 
FY 2012, and that if recently observed landing rates continue, the 
fishery will once again under-harvest the NFMA monkfish TAL and ACL 
during FY 2013. Accordingly, based upon this new information, we are 
extending, but also revising the emergency action to be consistent with 
the initially proposed emergency action by suspending the monkfish 
landing limits for limited access monkfish Category C or D vessels 
fishing under a groundfish DAS or both a groundfish and monkfish DAS in 
the NFMA for the rest of FY 2013 through this temporary rule. We expect 
this will help further increase monkfish landings and mitigate the 
adverse economic impacts of reduced groundfish ACLs, as intended.
    Comment 4: The NEFMC submitted a revised request for emergency 
action that was adopted at its April 2013 meeting. The revised request 
recommended that NMFS increase the monkfish landing limits for vessels 
fishing on a groundfish DAS in the NFMA to equal the landing limits 
specified for vessels fishing on a monkfish DAS in the NFMA during FY 
2012 (600 lb (272 kg) tail weight per DAS for Category D vessels and 
1,250 lb (567 kg) tail weight per DAS for Category C vessels) instead 
of completely eliminating these landing limits, as they originally 
requested. Nine other commenters supported the NEFMC's revised 
emergency action request, stating that it is necessary to increase 
monkfish landings and help reduce the substantial adverse economic 
impacts resulting from reductions in groundfish ACLs. The NEFMC and two 
other commenters noted that the monkfish incidental landing limit for 
vessels fishing on a groundfish DAS constrains the ability of the 
fishery to fully harvest the available NFMA monkfish TAL, with one 
commercial fishing organization noting that vessels were also 
constrained by an insufficient allocation of monkfish DAS to account 
for monkfish overages while fishing on groundfish DAS. That 
organization also highlighted that the revised emergency action request 
would reduce monkfish discards.
    Response: We appreciate that the NEFMC's revised proposal attempted 
to address our concerns with their original proposal. However, as noted 
in the analysis prepared for this action, the FY 2012 monkfish landing 
limits under a monkfish DAS did not substantively limit the existing 
fishery, and were, therefore, not very different from eliminating 
monkfish landing limits entirely. The analysis prepared for this 
emergency action confirms that vessels are somewhat constrained by 
incidental monkfish landing limits when fishing on a groundfish DAS. 
Therefore, in conjunction with new information regarding the 
performance of the fishery that reduces our concern that the emergency 
measures would result in negative impacts to the monkfish stock, we are 
extending, but also revising the emergency action to be consistent with 
the initially proposed emergency action by suspending monkfish landing 
limits for limited access vessels fishing under a groundfish DAS or 
both a groundfish and monkfish DAS in the NFMA for the rest of FY 2013 
through this temporary rule. This will eliminate monkfish landing limit 
constraints for monkfish Category C or D vessels fishing on a 
groundfish DAS, and should increase the fishery's capacity to land more 
monkfish from the NFMA, and reduce unnecessary monkfish discards. We 
acknowledge that this is not consistent with the NEFMC's revised 
recommendation for emergency action, but note that this is consistent 
with their original emergency action request, and should achieve the 
same or better results than their revised request.
    Recent DAS usage patterns suggest that the fishery in general is 
not restricted by an insufficient number of monkfish DAS. On a yearly 
basis, only about 16 percent of allocated monkfish DAS are used in both 
areas combined, and only about 5 percent of allocated monkfish DAS have 
been used in the NFMA during recent years. While DAS allocations may be 
constraining for individual vessels, it does not appear that monkfish 
DAS allocations are the primary reason for low monkfish landings from 
the NFMA fishery at large. The NEFMC is considering adjustments to both 
monkfish DAS allocations and landing limits as part of Framework 
Adjustment 8 to the Monkfish FMP for implementation during FY 2014.
    Comment 5: Two dealers and one vessel owner observe that both 
stocks of

[[Page 63897]]

monkfish are rebuilt and not subject to overfishing. One commercial 
fishing organization and a vessel owner noted that the monkfish ACT is 
set conservatively below the ABC and OFL. Further, the NEFMC and four 
other commenters also recalled that because the monkfish fishery has 
not come close to exceeding TALs in either the NFMA or the SFMA in 
2012, more monkfish could be landed without exceeding the TALs, 
allowing the fishery to more closely achieve optimum yield (OY). One 
dealer stated that we need to keep a steady supply of fish available to 
the markets. One commercial fishing organization supported increasing 
access to monkfish in a manner that provides greater flexibility in 
planning trips, while still retaining quotas that would minimize the 
risk of overfishing.
    Response: We agree that the latest monkfish stock assessment 
information available (Stock Assessment Workshop 50) indicates that 
both monkfish stocks are not overfished or subject to overfishing. We 
also recognize that there are sufficient buffers between the TAL and 
the ACL and OFL for each stock to prevent overfishing even if the FY 
2013 TAL is fully harvested. As analyzed in the EA prepared to support 
this action, neither the measures implemented by the interim final 
rule, nor the measures implemented by this temporary rule (identified 
as Alternatives 1 and 2 in the EA, respectively), are expected to 
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. In fact, based on new evidence that 
the fishery is currently on track to land less than the monkfish TALs 
in each area during FY 2013, there is little risk that excessive 
amounts of monkfish will be landed as a result of measures implemented 
by this temporary rule that could jeopardize the health of either 
stock. Therefore, we agree that more monkfish can be landed from each 
area during the remainder of FY 2013 to better achieve OY in the 
fishery, without resulting in overfishing or biological harm to either 
monkfish stock. This should also help increase the potential for a more 
steady supply of monkfish to the markets. The NFMA and SFMA monkfish 
catch limits are not revised by this temporary rule, and would continue 
to serve to minimize the risk of overfishing, as implemented under 
Framework Adjustment 7 and Amendment 5 to the Monkfish FMP. We will 
continue to monitor monkfish landings throughout FY 2013, and will 
reinstate existing monkfish landing limits if available data suggest 
that the FY 2013 NFMA monkfish TAL would be exceeded before the end of 
the FY to further ensure that overfishing does not occur during FY 
2013.
    Comment 6: One commercial vessel owner completely opposed the 
interim final rule and the NEFMC revised request for emergency action, 
stating that he is opposed to allowing the use of a groundfish DAS to 
target monkfish. The MAFMC reiterated its concerns that the NEFMC 
emergency action requests could potentially shift effort into the SFMA, 
posing a considerable risk to monkfish stocks in both the NFMA and 
SFMA. A commercial fishing organization warned that drastic increases 
in fishing effort on monkfish may have substantial and unintended 
consequences that may lead to depleted stocks, recommending that 
monkfish landings should be closely monitored to ensure catch levels 
are not exceeded. This organization, one vessel owner, and the MAFMC 
indicated that efforts to rebuild groundfish and minimize adverse 
economic impacts to the groundfish fishery should not risk depleting or 
jeopardize the health of another species such as monkfish. The MAFMC 
also recommended allowing the NFMA monkfish fishery to adjust to the 
interim final rule measures and reevaluate their efficacy after 6 
months. The NEFMC and two other commenters noted that the potential 
effort shift into the SFMA is not a substantial concern. They observed 
that, historically, most vessels do not use their full monkfish DAS 
allocations in the NFMA because it is not profitable to do so, and that 
the monkfish landing limits would make it even less profitable to fish 
their monkfish DAS in the SFMA, particularly for trawl vessels.
    Response: As noted in the interim final rule, we agree with the 
MAFMC that the NEFMC emergency action requests increase the potential 
for effort to shift into the SFMA. However, we also agree with the 
NEFMC, and recognize that SFMA monkfish landing limits may make it less 
profitable for monkfish vessels to shift effort into the SFMA. As 
indicated in the interim final rule for this action and recommended by 
the MAFMC, we have reevaluated the impacts of the interim final rule 
measures now that the fishery in the NFMA has had an opportunity to 
adjust to such measures. New data regarding the performance of the 
fishery during May-August 2013 suggest that there is little risk that 
potential effort shifts into the SFMA will adversely affect the 
monkfish resource. Therefore, to provide some economic relief to 
groundfish vessels without harming the monkfish stocks in either the 
NFMA or SFMA, we have implemented the original NEFMC request for 
emergency action through the remainder of FY 2013 through this 
temporary rule. We will continue to closely monitor monkfish landings 
and vessel activity using all available data. If the data suggest that 
the NFMA monkfish TAL will be exceeded, or that effort displacement 
into the SFMA area is occurring that could result in excessive monkfish 
catch, we can reinstate existing monkfish incidental landing limits for 
vessels fishing on a groundfish or both a groundfish and monkfish DAS 
to minimize incentives to shift effort into the SFMA.
    Vessels will still be subject to existing regulations in other 
fisheries, including effort controls such as DAS, possession and 
landing 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 temporary 
rule, in addition to existing measures in other fisheries, should 
ensure that other species are not depleted as a result of this action.
    Comment 7: One vessel owner questioned why groundfish vessels would 
need to catch an unlimited amount of monkfish, when existing NFMA 
monkfish landing limits while operating under a monkfish DAS is a 
substantial amount of fish already. He noted that if the fishery is 
under-harvesting monkfish, then everyone should be allowed to land more 
monkfish, not just groundfish vessels. He implies that groundfish 
vessels expect to have greater access to the resource because they 
operate larger vessels than he does, even though they are also likely 
issued the same monkfish permits.
    Response: The purpose of this emergency action is to help mitigate 
adverse economic impacts to the groundfish fishery as a result of 
substantial and unexpected reductions to FY 2013 groundfish ACLs. In 
contrast, the monkfish catch limits have increased since FY 2007, and 
have been the same since FY 2011. The monkfish fishery has under-
harvested available TALs in both areas for the past several years. Both 
Councils are currently working on measures that would help increase 
monkfish landings in the directed monkfish fishery in both areas. These 
measures may be in place as early as May 2014 as part of Framework 
Adjustment 8 to the Monkfish FMP. Implementing such measures through 
this emergency action is not warranted,

[[Page 63898]]

as no emergency situation exists in the monkfish fishery similar to 
that currently being experienced in the groundfish fishery. The 
analysis prepared for this action indicates that monkfish incidental 
landing limits when fishing on a groundfish DAS constrain catch for 
such vessels. Because the measures implemented by the interim final 
rule did not appear to create sufficient incentives for vessels to 
increase monkfish landings by fishing under a monkfish DAS, additional 
action was necessary through this temporary rule to fulfill the purpose 
of this action. Finally, measures implemented by this interim final 
rule apply to all monkfish Category C or D vessels, regardless of size. 
Accordingly, there should be no differential impact to vessels of 
different size classes from such measures.
    Comment 8: One vessel owner indicated that a majority of monkfish 
DAS are not being used now. He states that this is likely as an 
indication that vessels cannot harvest sufficient quantities of 
monkfish because the stock is not as healthy as previously thought.
    Response: According to the latest monkfish stock assessment, 
monkfish, both stocks are neither overfished, nor subject to 
overfishing. According to both SAW 50 and data from the April 2013 
monkfish stock assessment presented to the Council's Scientific and 
Statistical Committee, both stocks are well above their biomass 
thresholds, with NFMA monkfish biomass estimated to be very close to 
the target biomass level (46,074 mt), while the SFMA monkfish biomass 
was estimated to be about double the current target biomass level 
(71,667 mt). In fact, biomass in the NFMA has been increasing since 
2006, suggesting the stock condition is improving. Therefore, although 
monkfish DAS are not being fully used, particularly in the NFMA, that 
does not appear to be directly linked with health of the stock, and may 
be influenced by a number of other factors such as changes to 
management measures, price of fuel, demographic patterns, etc.

Changes From the April 30, 2013, Emergency Interim Final Rule

    In extending the emergency interim final rule, NMFS has made two 
changes to the proposed rule, including changes as a result of public 
comment. In Sec.  648.94, this rule suspends paragraph (b)(3)(i), and 
adds the paragraph (b)(3)(iv) to exempt monkfish Category C and D 
vessels from existing monkfish landing limits when fishing under a 
groundfish DAS in the NFMA as part of this temporary rule. Both of 
these changes are consistent with the initial proposed emergency 
measures.

Classification

    The NMFS Assistant Administrator has determined that the emergency 
measures implemented by this temporary 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 for the interim final rule.
    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.
    Relevant analyses and determinations required by the Regulatory 
Flexibility Act were summarized in the classification section of both 
the February 25, 2013, proposed rule and the April 30, 2013, emergency 
interim final rule, and are not repeated here. All relevant comments in 
response to the IRFA were summarized and addressed in the 
Classification section of the April 30, 2013, interim final rule for 
this action. No new issues related to the IRFA or FRFA were raised 
during the public comment period for the interim final rule. Economic 
impacts of the measures implemented by this temporary rule are outlined 
as Alternative 2 in section 5.2.3 of the EA prepared for this action 
(see ADDRESSES), and summarized in the IRFA prepared for the February 
25, 2013, proposed rule for this action. Because this temporary rule 
does not impose any costs, and suspends monkfish landing limits for 
certain vessels, no adverse economic impacts are expected from this 
action and that vessel revenue is expected to increase as a result of 
measures implemented by this temporary rule.
    On June 20, 2013, the Small Business Administration (SBA) issued a 
final rule revising the small business size standards for several 
industries effective July 22, 2013 (June 20, 2013; 78 FR 37398). The 
rule increased the size standard for Finfish Fishing from $4.0 to 19.0 
million, Shellfish Fishing from $4.0 to 5.0 million, and Other Marine 
Fishing from $4.0 to 7.0 million. Pursuant to the Regulatory 
Flexibility Act, and prior to SBA's June 20 final rule, a FRFA was 
developed for this action using SBA's former size standards. We have 
reviewed the analyses prepared for this action in light of the new size 
standards. Under the former, lower size standards, 277 entities subject 
to this action were considered small entities, while 26 were considered 
large entities in FY 2011 (the latest year for which complete data are 
available), as described in Section 7.11.2 of the EA prepared for this 
action (see ADDRESSES) and the FRFA prepared for the April 30, 2013, 
interim final rule. Under the new standards, all entities would be 
considered small, as mean gross sales for any one entity never exceeded 
the $19 million standard for finfish operations in FY 2011. Because 
this emergency action does not impose any costs on affected entities, 
there are no disproportionate impacts between small and large entities 
associated with this action, and a no small entities would be placed at 
a significant competitive disadvantage compared to large entities. 
Eliminating monkfish landing limits for affected vessels would 
increase, rather than decrease, profitability during FY 2013, helping 
small entities remain in business. Vessels would be able to capitalize 
on additional catch of monkfish that would have previously been 
discarded if exceeding the existing possession restrictions and gain 
efficiency by retaining such monkfish without incurring additional 
operational expenses. Therefore, NMFS has determined that the new size 
standards do not affect analyses prepared for this action.
    An EA was prepared for this emergency action, with impacts for the 
measures implemented by this temporary rule described under Alternative 
2 throughout the document. Because the EA evaluated impacts of 
alternatives over the duration of FY 2013, and this temporary rule 
implements Alternative 2 considered in that EA, the impacts of 
implementing emergency management measures through this temporary rule 
have already been considered. A copy of the EA and the Finding of No 
Significant Impact prepared for the emergency action are available from 
the Regional Administrator (see ADDRESSES).
    Because this rule relieves a restriction by suspending the current 
monkfish possession restrictions for vessels fishing under a groundfish 
DAS or both a groundfish and monkfish DAS in the NFMA, it is not 
subject to the 30-day delayed effectiveness provision of the APA 
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 landing limit of 1,250 lb 
(567 kg) or 600 lb (272 kg) tail weight per

[[Page 63899]]

DAS fished, respectively. If fishing under just a groundfish DAS, such 
vessels would be subject to a monkfish landing limit of up to 25 
percent of the total weight of fish on board, not to exceed 300 lb (136 
kg) tail weight or its whole weight equivalent per DAS. 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. Alternatively, 
if the vessel was fishing under a groundfish DAS, it could declare a 
monkfish DAS at sea and retain the fish, but only if it had first 
declared the option to potentially use a monkfish DAS via its vessel 
monitoring system prior to leaving the dock. This action suspends those 
landing 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 landing limits and associated economic benefits of 
higher monkfish 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.
    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 
temporary 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 
temporary 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: October 22, 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.


0
2. In Sec.  648.94, suspend paragraph (b)(3)(i), and add paragraph 
(b)(3)(iv) to read as follows:


Sec.  648.94  Monkfish possession and landing restrictions.

* * * * *
    (b) * * *
    (3) * * *
    (iv) NFMA--(A) Category C and D vessels. Unless otherwise specified 
pursuant to paragraph (h) of this section, there is no monkfish landing 
limit for limited access monkfish Category C or D vessels that are 
fishing under a NE multispecies DAS exclusively in the NFMA.
    (B) Category F vessels. A limited access monkfish Category F vessel 
that is fishing under a NE multispecies DAS, and not a monkfish DAS, 
exclusively in the NFMA is subject to the incidental catch limit 
specified in paragraph (c)(1)(i) of this section.
    (C) Vessels participating in the NE Multispecies Regular B DAS 
Program. Category C, D, F, G, and H vessels participating in the NE 
Multispecies Regular B DAS Program, as specified under Sec.  
648.85(b)(6), are subject to the incidental catch limit specified in 
paragraph (c)(1)(i) of this section.
* * * * *

[FR Doc. 2013-25265 Filed 10-24-13; 8:45 am]
BILLING CODE 3510-22-P