Fisheries of the Northeastern United States; Northeast Multispecies and Monkfish Fisheries; Monkfish Fishery Management Plan

SUMMARY: NMFS issues this final rule to implement approved measures

contained in the Monkfish Fishery Management Plan (FMP). These

regulations implement the following measures: Establishment of two

monkfish management areas; target total allowable catch levels (TACs);

limited access; effort limits through days-at-sea (DAS) allocations;

trip limits and incidental harvest allowances; minimum size and mesh

limits; gear restrictions; spawning season closures; a framework

adjustment process; permitting and reporting requirements; and other

measures for administration and enforcement. The intended effect of

this rule is to stop overfishing and rebuild the monkfish stock. In

addition, NMFS informs the public of the approval by the Office of

Management and Budget (OMB) of the collection-of-information

requirements contained in this rule and publishes the OMB control

numbers for these collections.

DATES: This rule is effective November 8, 1999.

ADDRESSES: Copies of the FMP, its Regulatory Impact Review (RIR), the

Final Regulatory Flexibility Analysis (FRFA), and the Final

Environmental Impact Statement (FEIS) are available from Paul J.

Howard, Executive Director, New England Fishery Management Council

(NEFMC), Suntaug Office Park, 5 Broadway (US Rte. 1), Saugus, MA 01906-

1036.

Comments regarding the collection-of-information requirements

contained in this final rule should be sent to Patricia Kurkul,

Regional Administrator, NMFS, Northeast Regional Office, One Blackburn

Drive, Gloucester, MA 01930, and to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, DC

20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy

Analyst, 978-281-9272.

SUPPLEMENTARY INFORMATION: This final rule implements the measures

contained in the Monkfish FMP, which were approved by NMFS on behalf of

the Secretary of Commerce (Secretary) on March 3, 1999. All of the

measures contained in the Monkfish FMP but one, the ``running clock''

provision, as originally submitted, were approved by NMFS on behalf of

the Secretary. A proposed rule to implement these measures was

published on February 16, 1999 (64 FR 7601). NMFS disapproved the

running clock provision because it believes that the measure fails to

meet national standard 7 of the Magnuson-Stevens Fishery Conservation

and Management Act (Magnuson-Stevens Act) with regard to minimizing

costs. This provision would have placed an incremental burden on the

administration and enforcement of this measure. Additionally, the

provision could have conflicted with multispecies vessels also on a cod

running clock. Instances could have occurred where a vessel called out

with overages in both fisheries, or in one and not in the other,

thereby creating an administratively burdensome and confusing program.

Details concerning the justification for and development of the

Monkfish FMP and the implementing regulations were provided in the

notice of availability (NOA) of a Monkfish FMP (63 FR 66524, December

2, 1998) and in the preamble to the proposed rule (64 FR 7601, February

16, 1999) and are not repeated here.

Approved Measures

Two Management Areas

The FMP divides the Northeast monkfish fishery into two management

areas separated by a line that roughly runs along Georges Bank from

Cape Cod, MA, to the Hague Line. One is the Northern Fishery Management

Area (NFMA) and the other is the Southern Fishery Management Area

(SFMA).

Total Allowable Catch

The FMP establishes a procedure for setting annual target TAC

levels for monkfish, with the exception of target TACs for the fishing

year beginning May 1, 1999, which are established by this rule. The

target TACs will be based on the best available scientific information

and will provide a measure by which to evaluate the effectiveness of

the management program and to make annual determinations on the need

for adjustments to this program. During the first fishing year

beginning May 1, 1999, the annual target TACs are set at 5,673 mt

(12,506,614 lb) and 6,024 mt (13,280,423 lb) in the NFMA and the SFMA.

The target TAC levels will be set or adjusted so as to attain a fishing

mortality rate of 0.07 in the NFMA and of 0.26 in the SFMA for the

1999, 2000, and 2001 fishing years. Beginning with the 2002 fishing

year, the target TACs will be set so as to halt overfishing in 2002 and

allow rebuilding to the stock biomass targets from fishing years 2002

to 2009.

Qualification Criteria for Limited Access

Vessels qualify for monkfish limited access based on a vessel's, or

a replaced vessel's, historic participation from February 28, 1991, to

February 27, 1995 (the monkfish control date).

Subject to certain restrictions set forth in this rule, a vessel

qualifies for a limited access monkfish permit if the vessel landed

50,000 lb (22,680 kg) tail-weight or 166,000 lb (75,298 kg)

whole-weight during the qualification period. Vessels that do not have

multispecies or scallop limited access permits and qualify according to

this criterion will receive a ``Category A'' monkfish limited access

permit. Vessels that have a multispecies or scallop limited access

permit and qualify according to this criterion will receive a

``Category C'' monkfish limited access permit. (Note: The fisheries for

Atlantic scallops and Northeast multispecies are governed by 50 CFR

part 648--Fisheries of the Northeastern United States, Subparts D and

F, respectively. The limited access fisheries for scallops and

Northeast multispecies are closed to new entrants.) All vessels not

qualifying for a Category A or C permit that are less than 51 gross

registered tons (GRT) and vessels of any size that have a multispecies

DAS permit will qualify for a limited access monkfish permit if the

vessel landed 7,500 lb (3,402 kg) tail-weight or 24,900 lb

(11,295 kg) whole-weight during the qualification period. Vessels

without a multispecies or scallop limited access permit that qualify

according to this criterion will receive a ``Category B'' monkfish

limited access permit. Vessels with a multispecies or scallop limited

access permit that qualify according to this criterion will receive a

``Category D'' monkfish limited access permit. (See Table 2 to the

Preamble.)

Permitting and Reporting Requirements

Vessels that catch monkfish must have either a limited access

monkfish

[[Page 54733]]

permit (category A, B, C, or D) or a monkfish incidental catch permit

to fish for, possess, retain or land monkfish. (See Table 2.) Vessel

owners must also submit Vessel Trip Reports. Vessels with a limited

access monkfish permit must call in and out of the monkfish DAS program

when participating in the monkfish fishery. Dealers that land monkfish

must apply for a Dealer Permit and submit landings reports.

Allocations of Monkfish DAS

The DAS allocations for limited access monkfish permit holders are

shown in the following table. Forty (40) DAS are allocated to limited

access permitted vessels on November 8, 1999 (Year 1) and at the

beginning of Years 2 and 3. In Year 4 monkfish DAS will be set to zero

(0), unless other action is taken by the Councils and implemented by

NMFS. (See Table 1 to the Preamble.)

Table 1. Monkfish Fishing Year and Maximum Annual DAS Allocations

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

Fishing Year\1\ Maximum Annual DAS Allocation:

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

November 8, 1999 - April 30, 2000... 40

May 1, 2000 - April 30, 2001........ 40

May 1, 2001 - April 30, 2002........ 40

May 1, 2002 - April 30, 2003 and 0

subsequent fishing years...........

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

\1\ For the first year of implementation of the FMP, 40 DAS will be

allocated to limited access permitted vessels beginning on November 8,

1999. Beginning in year 2 and subsequent years, DAS will be allocated

for the monkfish fishing year (May 1 - April 30).

\2\ Reserved

Any vessel may carry over a maximum of 10 unused monkfish DAS to

the following fishing year's allocation (including beyond May 1, 2002).

Unused monkfish DAS may not be carried over beyond the year following

the one in which they were unused.

While a multispecies and scallop vessel that qualifies for a

monkfish limited access permit (Categories C or D) receives the same

number of monkfish DAS as allocated to other permit categories, up to a

maximum of 40 DAS, when such a vessel fishes under the monkfish DAS

program, the trip also counts against a multispecies or scallop DAS,

whichever is applicable. A combination vessel that holds both a

multispecies and a scallop permit may fish under a monkfish DAS during

either a multispecies or scallop DAS, provided that unused multispecies

or scallop DAS are available. Such a vessel must declare whether to

count DAS against the multispecies or scallop DAS at the time it calls

into the monkfish DAS program. (See Table 2 to the Preamble.)

Table 2--Monkfish permit categories, qualification criteria for permit

categories, and DAS allocations for vessels on a monkfish DAS

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

Qualification

Criteria1 for Permit

Permit Category Categories (landed DAS Allociation2

weight expressed in

pounds)

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

A........................... Vessels that do not 40 DAS

possess a

multispecies or

scallop limited

access permit must

have landed 50,000 lb tail-

weight or 166,000 lb

whole weight of

monkfish during the

qualifying period..

B........................... Vessels less than 51 40 DAS

GRT that do not

possess a

multispecies or

scallop limited

access permit and do

not qualify for a

Category A Permit

must have landed

monkfish 7,500 lb tail-

weight or 24,900 lb

whole weight of

monkfish during the

qualifying period..

C........................... Vessels that possess Up to 40 DAS &

a multispecies or vessel must also

scallop limited be on a

access permit must multispecies or

meet landing scallop DAS

criteria as required

for Permit Category

A..

D........................... Vessels that possess Up to 40 DAS &

a multispecies vessel must also

limited access be on a

permit and vessels multispecies or

less than 51 GRT scallop DAS

that possess a

scallop limited

access permit that

do not qualify for a

Category C Permit

must meet landing

criteria as required

for Permit Category

B..

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

\1\ Vessel must have landed monkfish during qualifying period, i.e.,

February 28, 1991, through February 27, 1995, in the amounts

indicated.

\2\ DAS allocations indicated are for fishing years 1999, 2000, and

2001. For fishing years 2002 and thereafter, monkfish DAS will be set

to zero (0), unless other action is taken by the NEFMC and MAFMC and

implemented by NMFS.

Trip Limits During a Monkfish DAS

No monkfish trip limits apply to vessels fishing during a monkfish

DAS prior to May 1, 2000. If, based on landings, projected landings,

and other available data, the Regional Administrator determines that

the SFMA monkfish catch (for the period May 1, 1999 - April 30, 2000)

is less than or equal to the Year 1 SFMA target TAC, a notification

will be published in the Federal Register specifying that no monkfish

trip limit applies to a vessel that is fishing under a monkfish DAS in

the SFMA. Otherwise, the following trip limits will apply in the SFMA

beginning May 1, 2000, depending on the type of monkfish permit the

vessel holds and the type of gear the vessel uses: (1) Category A and C

vessels using mobile gear during a monkfish DAS, a landing limit of

1,500 lb (680 kg) tail-weight or 4,980 lb (2,259 kg) whole weight per

DAS; (2) Category B and D vessels using mobile gear during a monkfish

DAS, a landing limit of 1,000 lb (454 kg) tail-weight or 3,320 lb

(1,506 kg) whole weight per DAS; and (3) any vessel using fixed gear

during a monkfish DAS, a landing limit of 300 lb (136 kg) tail-

[[Page 54734]]

weight or 996 lb (452 kg) whole weight per DAS.

Incidental Catch for Vessels Not on a Monkfish DAS

Beginning November 8, 1999, the following measures apply:

1. Vessels lawfully using large mesh (5\1/2\-inch (14-cm) diamond

or 6-inch (15.3-cm) square mesh throughout the body, extension, and

codend) while not on a monkfish, multispecies, or scallop DAS, may

retain and land whole monkfish up to 5 percent of the total weight of

fish on board (or any prorated combination of tail-weight and whole

weight percentage based on the conversion factor in Sec. 648.94 of

subpart F--Management Measures for the Northeast Multispecies and

Monkfish Fisheries).

2. Vessels that are not under any DAS and fishing with small mesh,

rod and reel, or handlines may land up to 50 lb (23 kg) tail-weight or

166 lb (75 kg) whole weight per trip. Small mesh is considered to be

any mesh smaller than the large mesh described in paragraph 1.

Multispecies vessels that are 30 ft (9.1 m) and elect not

to fish under the multispecies DAS program may also land up to 50 lb

(23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish per

trip.

3. Multispecies vessels with a monkfish incidental catch permit

fishing in the NFMA may land up to 300 lb (136 kg) tail-weight or 996

lb (452 kg) whole weight of monkfish per multispecies DAS, or 25

percent of total weight of fish on board, whichever is less. If the

vessel fishes for any portion of the trip in the SFMA, it may land up

to 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish

per multispecies DAS.

Prior to May 1, 2002

1. Vessels with a multispecies permit and a Category C or D limited

access monkfish permit - A multispecies vessel that fishes only in the

NFMA has no trip limit when it is on a multispecies DAS. If the vessel

fishes for any portion of the trip in the SFMA during a multispecies

DAS, it may land up to 300 lb (136 kg) tail-weight or 996 lb (452 kg)

whole weight of monkfish per multispecies DAS while using mobile gear

or 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish

per multispecies DAS while using fixed gear.

2. Vessels with a sea scallop and a Category C or D limited access

monkfish permit - A vessel that has a scallop dredge on board or is on

a scallop DAS may land up to 300 lb (136 kg) tail-weight or 996 lb (452

kg) whole weight of monkfish per scallop DAS.

3. Sea scallop vessels with a monkfish incidental catch permit -

These vessels may land up to 300 lb (136 kg) tail-weight or 996 lb (452

kg) whole weight of monkfish per DAS when on a scallop DAS.

After April 30, 2002

1. Vessels with a multispecies and a Category C or D limited access

monkfish permit - Multispecies vessels may land up to 300 lb (136 kg)

tail-weight or 996 lb (452 kg) whole weight of monkfish per

multispecies DAS, or 25 percent of total weight of fish on board,

whichever is less. Vessels using fixed gear in the SFMA may land up to

50 lb (23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish

per multispecies DAS.

2. Vessels with a sea scallop and a Category C or D limited access

monkfish permit - Vessels that have a scallop dredge on board or are on

a scallop DAS may land up to 200 lb (91 kg) tail-weight or 664 lb (301

kg) whole weight of monkfish per scallop DAS.

3. Sea scallop vessels with a monkfish incidental catch permit -

These vessels may land up to 200 lb (91 kg) tail-weight or 664 lb (301

kg) whole weight of monkfish per scallop DAS.

Minimum Size Limits

Beginning November 8, 1999, possession or landing of monkfish tails

measuring less than 11 inches (27.9 cm) in length or whole monkfish

less than 17 inches (43.2 cm) total length by any vessel that has a

Federal fisheries permit or any vessel fishing in the exclusive

economic zone is prohibited.

Beginning on May 1, 2000, in Year 2 of the FMP, the minimum

monkfish size limit for vessels fishing or landing in the SFMA, only,

will be 21 inches (53.3 cm) total length or 14 inches (35.6 cm) tail

length. If, based on landings, projected landings, and other available

data, the Regional Administrator determines that the SFMA monkfish

catch for the period May 1, 1999, through April 30, 2000, is less than

or equal to the Year 1 SFMA target TAC, a notification will be

published in the Federal Register specifying the minimum monkfish size

limit of 17 inches (43.2 cm) total length or 11 inches (27.9 cm) tail

length for vessels fishing for, catching, or landing monkfish in the

SFMA.

Gillnet Limits

A vessel issued a monkfish limited access permit or fishing under a

monkfish DAS may fish with, haul, possess, or deploy up to 160

gillnets. A vessel issued a multispecies limited access permit and a

limited access monkfish permit or fishing under a monkfish DAS may fish

any combination of monkfish, roundfish, and flatfish gillnets, up to

160 nets total, provided that the number of monkfish, roundfish, and

flatfish gillnets is consistent with the limitations of

Sec. 648.82(k)(1)(i) and that the nets are tagged in accordance with

the regulations, as specified in Sec. 648.82. Nets cannot be longer

than 300 ft (91.44 m), or 50 fathoms, in length. Beginning November 8,

1999, all monkfish gillnets fished, hauled, possessed, or deployed by a

vessel fishing for monkfish under a monkfish DAS are allowed one tag

per net, with one tag secured to every other bridle of every net within

a string of nets. Tags are obtained as described in Sec. 648.4.

Time out of the Fishery

Beginning January 1, 2000, Vessels with Category A or B permits

(i.e., ``monkfish-only'') are required to declare out of the monkfish

fishery and may not use a monkfish DAS for a continuous 20-day block

during the months of April, May, and June. Such vessels may engage in

other fisheries in which they may legally participate, but they may not

possess any monkfish during this 20-day block. Specified periods to

protect groundfish spawning (when multispecies vessels are required to

declare out of the fishery) also apply to multispecies DAS used when

targeting monkfish. Multispecies DAS vessels that declare out of the

multispecies fishery for any reason, including the fulfillment of their

20-day out periods, are prohibited from possessing monkfish. Vessels

that target species other than groundfish and monkfish are, however,

allowed to participate in exempted fisheries during the mandatory

groundfish tie-up periods. Multispecies vessels with a category C or D

monkfish permit are not required to comply with the time-out

requirements described here for monkfish-only vessels.

Framework Adjustment Process

The framework adjustment process includes annual reviews by a

Monkfish Monitoring Committee (MFMC), which evaluates the effectiveness

of the FMP to meet the fishing mortality and rebuilding targets. The

MFMC develops management options for consideration and approval by the

Councils, and the Councils are required to recommend changes,

adjustments, or additions to the management measures in effect to the

Regional Administrator, by February 7 of each year, for implementation

at the beginning of the fishing year. The Regional Administrator may

select

[[Page 54735]]

measures recommended by the MFMC that were not rejected by either

Council if the Councils fail to submit a recommendation. Adjustable

management measures include: (1) target TACs, (2) Overfishing

Definition reference points, (3) closed seasons or closed areas, (4)

minimum size limits, (5) liver to monkfish landings ratios, (6) annual

monkfish DAS allocations and monitoring, (7) trip or possession limits,

(8) blocks of time out of the fishery, (9) gear restrictions, (10)

transferability of permits and permit rights, and (11) other

frameworkable measures in 50 CFR 648.90 and 50 CFR 648.55.

Restrictions on Liver Landings to Prevent High-grading

Landings of monkfish livers are restricted to 25 percent of the

total weight of monkfish tails or 10 percent of the weight of whole

monkfish, whichever is applicable.

Minimum Mesh and Gear Restrictions

Vessels that fish while they are called into the monkfish DAS

program must use large mesh, unless the vessel is also fishing during a

multispecies DAS. When called into the monkfish (but not the

multispecies) DAS program, large mesh is defined as 10-inches (25.4-cm)

square or 12-inches (30.5-cm) diamond for trawls and 12-inches (30.5-

cm) diamond for gillnets. Vessels that have a category C or D permit

and a limited access sea scallop permit may not use a dredge during a

monkfish DAS.

Comments and Responses

Four written comments on the Monkfish FMP were received during the

comment period date established by the NOA of the Monkfish FMP, which

ended February 1, 1999. These comments were considered by NMFS before

it approved the Monkfish FMP on March 3, 1999. Those comments received

during the comment period on the FMP are also addressed here.

NMFS received additional comments on the proposed rule, as well as

comments on the FMP, during the comment period specified in the

proposed rule, which ended on March 26, 1999. Because the comment

period for the rule was distinct from, and followed the comment period

for the FMP, comments received during the proposed rule period were not

considered in NMFS's determination to approve the Monkfish FMP.

However, these comments were considered in approval and implementation

of the proposed measures by this final rule. Of the second group of

letters received, only comments on the proposed rule are addressed here

since the comment period on the FMP had closed prior to their

submission.

Comment 1: While one commenter agreed that the FMP ``is likely to

eliminate overfishing and begin stock rebuilding,'' it criticizes what

it perceives as an inequity regarding the DAS allocated to scallop and

multispecies permit holders, relative to the fishing time allocated to

holders of other Northeast region limited access fishing permits.

Specifically, the commenter objects to the provision that prevents

``monkfish-qualifying'' scallop and multispecies permit holders from

receiving an allocation of monkfish directed DAS in excess of their

scallop and multispecies DAS. The commenter, viewing this provision as

discriminatory, requested that it be disapproved and returned to the

Councils for further deliberation.

Three comments stated that New Bedford/Fairhaven fishermen are

being forced to trade an economic viability that would otherwise be

available to them - that is, that there must be a trade-off of days in

the scallop and multispecies fisheries. In addition, scallop and

multispecies fisheries are forced to forfeit an economic opportunity in

their separately regulated, unrelated industry. Other participants in

the monkfish fishery that do not have a multispecies or scallop permit

forfeit nothing to be able to participate in this fishery. At the very

least, for those vessels that can demonstrate that they have

participated, there should be a limited monkfish fishery, exempted from

either their scallop or groundfish DAS.

Response 1: Most multispecies and scallop vessels will qualify for

monkfish limited access based on a vessel's monkfish landings while

targeting a mix of multispecies/monkfish or scallops/monkfish. Most

monkfish are landed as incidental catch from groundfish and scallop

fishing. In the past, this incidental catch accounted for over 80

percent of the catch of monkfish, but increases in directed effort in

the early to mid-1990s helped reduce that incidental catch proportion

to 70 percent. In keeping with the mixed catch nature of these

fisheries and the type of fishing effort that qualifies the vessel, it

is necessary that, when on a monkfish DAS, trips that exceed the

monkfish incidental catch allowances must also count against the

multispecies or scallop DAS. If multispecies and scallop vessels were

able to take their monkfish DAS apart from (and in addition to)

multispecies or scallop DAS, fishing mortality goals could not be met.

In response, the Councils would have to reduce monkfish DAS allocations

to uneconomic levels, possibly to levels that are less than one trip

length in duration.

Comment 2: Many commenters felt that the rule was inconsistent with

national standard 2, which requires use of the best scientific

information available, for several reasons. First, landings data used

in the development of the management measures in the FMP (through 1996)

were from a period prior to the implementation of the exempted area

located primarily off the Continental Shelf. Second, the FMP's

discussion of economic impact is limited to old data and vessel owners

only. Third, the existing data do not support management based on two

stocks, and the northern and southern areas are arbitrarily divided

into management areas without evidence that the areas contain different

stocks. Fourth, the stock assessment does not show a large biomass of

large mature monkfish beyond the continental shelf, as evidenced by

existing landing slips. One group felt that these inadequate data led

to the development of over-restrictive specifications set forth in the

rule.

Several commenters noted that the Northeast Fisheries Science

Center (NEFSC) bottom trawl surveys do not historically land

significant amounts of monkfish. One commenter charged that fishery

dependent data, such as landings, harvesting locations, depth of water

at locations, and size landed, have been ignored or minimized during

FMP development by not including 4 years of mandatory reporting data.

Response 2: NMFS has determined that the management measures were

based on the best scientific information available and upon sound

conclusions based on such information where no direct information or

data were available. The most recent detailed stock assessment was

conducted by SAW 23 (NEFSC-1997) during the fall of 1996. This

assessment used fishery-dependent and survey data through the end of

1995 to evaluate the status of the monkfish resource. Survey data are

the most complete data and, therefore, the best scientific information

available. The estimates of fishing mortality trends from 1963 to 1995

were analyzed in 5-year blocks to smooth the inter-annual variation

that occurs in a randomized survey. The analysis indicated that adding

1997 data would not radically alter the estimates of fishing mortality,

although the proportion of monkfish at larger size may still be

declining.

Admittedly, while the surveys do not encompass the entire range of

the monkfish resource - no samples were taken offshore of the

Continental Shelf

[[Page 54736]]

edge - these surveys do provide a reasonable estimate of stock

abundance for that portion of the population in the coastal and shelf

areas. The surveys are also the only scientific data available on this

subject. The fact that a portion of the monkfish resource lies in

waters seaward of the edge of the continental shelf has been known

since at least the 1950s. It is clear from the severe depletion of the

resource on the shelf (as revealed by NMFS' surveys) that subsidies or

exchanges of fish from deep to shallow waters were insufficient to halt

the decline of the inshore portion of the resource due to fishing. This

implies that the offshore portion of the resource is small and/or the

exchange rate is low. In any regard, the severe depletion of the

shallow portions of the resource in the face of increased fishing is

indicative of the vulnerability of this resource to harvest. Given the

likely greater sensitivity of deep-water resources to exploitation,

there is no reason to believe that an intensive, unregulated fishery in

the offshore waters could be sustained. A prudent use of the

``precautionary management'' principal, as envisioned in the

Sustainable Fisheries Act, would be to assume that the offshore portion

of this resource would be no more productive than the inshore

(depleted) portion of the resource and to develop appropriate

management regulations. This is the basis of the FMP.

The portion of the range of monkfish not included in the NEFSC

surveys is in deep water (>150 fathoms). Based on the continued low

levels of abundance throughout the shelf, as indicated by recent

surveys, there is no evidence that the deep water portion of the

resource is contributing a significant amount of recruitment to the

surveyed region. Whatever recruitment is being provided from deep water

is jeopardized by the current areal expansion of the commercial fishery

into these areas.

Furthermore, in addition to the survey-based estimates, the 21st

SAW included monkfish within its comprehensive assessment of the

northeast demersal finfish complex. Most of the analyses in the

comprehensive assessment were intended to show broad, long-term trends

that were consistent across species. The monkfish indices were not

classified by management area, but showed a decline to low levels of

biomass through 1987. Since that time, biomass has fluctuated without

trend at low levels, while abundance has increased in the NFMA.

More recent information does not contradict the conclusion of SAW

23 that monkfish are at least fully exploited and might be over-

exploited. Given monkfish's wide range and the extent of the surveys,

the FMP's management measures are based on the best scientific

information available and appear to be consistent with national

standard 2. As other data become available, they may be incorporated by

way of management measures altered under the framework provision.

Finally, the division of the monkfish fishery into two management

areas is partly based on the biological characteristics of the resource

and partly based on the differences in fisheries in the Gulf of Maine

versus areas to the south. Although growth rates are similar for

monkfish in both areas, monkfish demonstrate different patterns in

recruitment and stock biomass over the survey time series. There

appears to be little adult migration between the two areas and egg

masses from spawning in the Gulf of Maine probably stay within the Gulf

of Maine and northern Georges Bank.

Catches from each area will be monitored to evaluate the

effectiveness of the management measures to meet the individual

mortality objectives.

Comment 3: One commenter felt that the FMP and its regulations

violate national standard 3, relating to managing fish stocks as a

unit, because the NEFSC survey of the stock does not include the

Continental Shelf (200 m, or 100 fathoms), where a directed fishery is

prosecuted. This comment was echoed by all of the legislators and by

most of the commenters who faulted the overfishing definition for

including no data from offshore of the Continental Shelf edge, where

significant monkfish effort was directed after adoption of the

Northeast Multispecies FMP's Amendment 7. One commenter felt that

monkfish in this area should be managed via establishment of a separate

management area. Most commenters emphasized that NMFS had approved a

monkfish exemption area more than 2 years ago in that area, and most

commenters added that the significant landings from there in the past 2

years are not reflected in the FMP.

Response 3: NMFS has determined that the Monkfish FMP and its

implementing regulations are consistent with national standard 3.

National standard 3 requires that a stock be managed as a unit

throughout its range, and that interrelated stocks be managed as a

unit, or in close coordination. Data available indicate that the

monkfish range from Canadian waters to Cape Lookout, North Carolina,

and possibly further south. Since it is unclear if there are several

stocks within this range, the stock is managed in close coordination

throughout the known area. While the NEFSC survey does not routinely

sample beyond the continental shelf break, NMFS is confident that a

representative sample of the population is accounted for in the survey.

Further information on this use of survey data can be found in Response

2.

Comment 4: Several commenters felt that the proposed regulations

violate national standard 4, relating to fairness and equity of the

measures to fishers. Specifically, several commenters maintained that

the FMP does not accurately depict the socioeconomic impact of the

regulations on New Bedford, does not mention New Bedford's reliance on

fishing in the monkfish exempted area offshore, would increase the

unemployment roles in the Commonwealth of Massachusetts, and

disproportionately impacts New Bedford scallopers, draggermen,

wholesalers, and processors.

Many commenters maintained that no mention was made of fish

processing companies in the discussion of economic impacts and stated

that the economic impact incorporated in the FMP was not subject to

scrutiny by economists. One commenter stressed that denying access to

the deep water fishery in the canyons will have a negative effect on

New Bedford's economy and that there was no consideration of this when

proposing this measure. A fishery supply company said that mesh changes

from 8 inches (20.3 cm) in the codend to 10 inches (25.4 cm) square or

12 inches (30.5 cm) diamond in the codend will devastate its business

in that it will result in its possessing a mesh inventory that will

have no other application.

Response 4: The FMP considers the socioeconomic impact on New

Bedford, as well as all ports that land monkfish. Data in the FMP list

monkfish revenue by port (including New Bedford) from 1994 through

1997. Supplement 1 to the Monkfish FMP, dated October 23, 1998, also

summarizes the consequences of the proposed action for small

businesses, including processors in New Bedford. During the second

round of public hearings, the Councils were given data for New

Bedford's fishing industry, including the New Bedford processing

sector, which were considered when assessing economic and social

impacts.

National standard 4 requires fisheries regulations not to

discriminate against residents of different states and that any

allocation of fishing privileges be fair and equitable to all such that

the allocation be calculated to promote conservation and that no

particular entity acquire an excessive share of such

[[Page 54737]]

privileges. The Councils and NMFS considered these factors, as

incorporated in the FMP and other documents, in developing the Monkfish

FMP and concluded that the measures adopted were the best suited to

provide fair and equitable fishing opportunities to all sectors of the

fishery.

Comment 5: Several commenters felt that the changes to allow North

Carolina industry to qualify for limited access permits were unfair.

Response 5: The 1997 public hearing document erroneously indicated

that the southernmost line of the SFMA would be at the Virginia-North

Carolina (NC) border, which would have exempted NC catches from

management. In fact, the southernmost line is the North Carolina/South

Carolina border. Under the correct provision, NC fishermen are subject

to the same qualification criteria that apply to vessels in other

states and may use state landings data to document their participation

in the monkfish fishery. There is no bias that excludes NC participants

from meeting the limited access criteria, and NC vessels that do not

qualify appear to be indistinguishable from vessels in other states

that do not qualify. This error was corrected in subsequent versions of

the document, which were available to the public. Fishers affected by

these measures were thus provided ample opportunity to comment on them,

and the Councils and NMFS were fully aware of comments concerning NC

participants before the Councils adopted the FMP.

Comment 6: One commenter stated that unreasonable trip or daily

limits cause a great deal of discards at sea, which do not survive.

Response 6: NMFS does not believe that the trip or daily limits

established in the Monkfish FMP are unreasonable or that they will

result in a great deal of discards. In fact, after implementation of

the FMP, there are no trip limits established in the NFMA for the first

3 years nor during the first year in the SFMA for limited access

monkfish vessels fishing during either a monkfish or multispecies DAS.

Comment 7: A processor commented that the preamble to the proposed

rule states that the rebuilding period is 10 years, based on

consideration of the status and biology of the stock and on the needs

of fishing communities. The commenter continued that the data relevant

to the biology and to the status of the stock have not been acquired by

NMFS in the 8 years of looking at the species and that the assessment

of the needs of the communities was grossly inadequate in the FMP.

Thus, it is unrealistic to state credibly to the constituents of this

fishery that their community needs determined the rebuilding period.

Response 7: Sections 304(e)(4)(A)(i) and (ii) of the Magnuson-

Stevens Act requires that the time period specified for ending

overfishing and rebuilding the fishery shall be as short as possible,

not to exceed 10 years. The FMP takes into consideration the needs of

the communities as justification for establishing the 10-year

rebuilding period and not a shorter rebuilding period. Further, as

stated previously, the management measures in the FMP must be based on

the best scientific information available.

Comment 8: Several commenters commented that the proposed rule is

not consistent with national standard 1 because the FMP cannot achieve

optimum yield as it seeks to return stock to a level that nearly equals

an unfished state, and that the Ftarget and

Fthreshold dates (1970-1979) predate the directed and even

incidental fisheries and, therefore, are not relevant when attempting

to identify a parameter for optimal sustainable yield.

Response 8: Threshold fishing mortality rates are estimates of

Frep, the fishing mortality rate that results in long-term

replacement of the stock. These threshold values are estimated as the

average mortality rate for a period when monkfish in the two management

areas were relatively abundant and stable. Based on biological data

from the research survey, the monkfish technical working group

recommended that this period be 1970-1979.

This is part of the overfishing definition, which describes

overfishing thresholds that should be avoided and management targets to

be achieved. The definition is consistent with NMFS's ``Scientific

Review of Definitions of Overfishing in U.S. Fishery Management Plans''

and complies with the requirements of the Sustainable Fisheries Act and

national standard 1 guidelines. For a further discussion of compliance

with national standard 1, see Section 5.1 of the Monkfish FMP.

Comment 9: One commenter noted that there is no accommodation in

the proposed rule for scallop vessels as pertains to incidental catch

for vessels not on a monkfish DAS.

Response 9: Such accommodation is specified at

Sec. 648.94(c)(2)(i) and (ii).

Comment 10: One commenter stated that the MFMC should have more

than two industry representatives. Conversely, another group stated

that the Magnuson-Stevens Act should not allow industry stakeholders to

be committee members because the resultant plan represents that

member's interests and further questions the validity and

constitutionality of a law ``written for and by a few participants in

the industry.''

Response 10: The various species monitoring committees established

by the Councils in the Northeast Region are balanced in their

representation and usually include one industry representative. Because

the MFMC encompasses two management areas, it will have two

representatives to present the industry perspective in matters before

the MFMC. There is also ample evidence of extensive and wide-ranging

industry involvement at meetings of the Oversight and Industry Advisory

Committees and at Council meetings, in developing this FMP. Further,

the Magnuson-Stevens Act allows for industry stake-holders to

participate in FMP development. All Council and committee meetings are

open to public participation.

Comment 11: One industry processor commented on the dealer

reporting burden estimate specified under the Paperwork Reduction Act

(PRA). The commenter said that the dealer employment report takes

approximately 30 minutes to do, not the 2 minutes per report estimated

by NMFS, and that vessel trip reports take approximately 15 minutes per

report, not the 5 minutes per report estimated by NMFS.

Response 11: The dealer employment data is part of the fishery

products report (NOAA Form 88-13) in the Processed Product Family of

Forms, OMB Control No. 0648-0018. The employment data on that form is

mandatory, while the remainder of the data requested on the form is

voluntary. The employment data is estimated to take 2 minutes per

response, whereas the entire report is estimated at 30 minutes per

response. NMFS estimates of burden for meeting all reporting

requirements, including the vessel trip reports, reflect only the

additional burden placed on respondents for items not normally

collected in the normal course of their business practices.

Comment 12: One commenter stated that there is no provision in the

proposed rule for notifying vessel owners of Monkfish Incidental Catch

Permits. The commenter added that there is no apparent notification of

the entire industry, including all vessels registered as fishing

vessels, that possession of monkfish requires a permit for which they

must apply.

Response 12: Section 648.4(a)(9) of the proposed rule states that

``any vessel of the United States, including a charter or party boat,

must have been issued and have on board a valid monkfish

[[Page 54738]]

permit to fish for, possess, or land any monkfish in or from the EEZ.''

An incidental catch permit for monkfish is an open-access permit - it

is available to any vessel, at any time, wishing to fish for monkfish.

Consistent with other species FMPs, the publication of these

regulations as a final rule in the Federal Register will serve as

notification to vessel owners. Additionally, after the approval of the

FMP, the NMFS Northeast Region mailed a letter explaining the

permitting process to all monkfish permit pre-qualifiers, past and

present, and to all current permit holders of any fishery permit.

Comment 13: A commenter questioned the skin-on requirement for fish

or parts, proposed under the section ``Monkfish minimum fish sizes.''

The commenter maintained that, in practice, monkfish cheeks and livers

are generally not landed with the skin on. The proposed rule should

also make clear that possession of monkfish cheeks is allowed.

Response 13: The skin-on requirement is for purposes of

determining compliance with the minimum tail size requirement.

Specifically, the minimum fish size, as applied to the tail, is

determined by measuring from the fourth dorsal spine, which must,

therefore, be intact. Thus, for enforcement purposes, the skin must

remain on the tails. NMFS presumes that livers and cheeks will be

processed only from the same legal-sized fish from which tails are

obtained. NMFS further recognizes that it is not possible to land a

liver ``skin-on.'' Since the liver and cheeks are not a determining

part of the minimum fish size requirement, the skin-on requirement does

not apply to them.

Comment 14: A commenter said that the proposed rule states that the

procedures for administering the trip limit for cod under the Northeast

Multispecies FMP apply to landings of monkfish during a monkfish DAS

and added that clarification is needed for those not familiar with the

multispecies FMP.

Response 14: Due to NMFS disapproval of the running clock

provision, the particular section referenced by the commenter has been

removed from this final rule. Therefore, no clarification is necessary.

Comment 15: A vessel owner stated that:

the proposed rule violates the Regulatory Flexibility Act (RFA)

because 1) it invokes a policy that has takings implementations as

set out in Executive Order (E.O.) 12630 in Sect. 601 of the Act and

does not compensate for the takings; 2) it does not follow the

regulatory philosophy in E.O. 12866 of the Act, which requires NMFS

to select regulatory approaches to maximize net benefits; 3) NMFS

has not based its decision on the best reasonably obtainable

scientific, technical, economic, and other information concerning

the need for, and consequences of, the intended regulation as set

out in E.O. 12866, Sect. 1(b)(7) in Sect. 601 of the Act; 4) it does

not impose the least burden on society, including individuals,

businesses of different sizes * * * as required in E.O. 1206 c,

Sect. 1(b)(11) and is not simple and easy to understand language as

required in Sect. 1(b)(12) of the Order; 5) it is a significant

regulatory action under E.O. 12866 and requires a regulatory plan

approved by the Agency head, which requirement has not been met as

required in Sect. 4(C)(A) through (F); 6) no RFA has been prepared

describing the impact of the proposed rule on small entities (boat

owners, processors, and related industry support businesses) as

required by Sect. 603 of the Act; 7) there is no final RFA that

describes and estimates the number of small entities and the steps

taken to minimize the significant economic impact on small entities

as required by Sect. 604 of the Act; and 8) NMFS has not carried out

the periodic review of its rules, which have or will have a

significant economic impact upon a substantial number of small

entities as required by Section 610 of the Act - there is no

indication in the FMP and the proposed rule that this will be done

going forward.

Response 15: This particular comment makes reference to several

Executive Orders (E.O.s) as a basis for compliance with the RFA. The

requirements of the mentioned E.O.s are not a pre-requisite to a

determination on an action's compliance with the RFA. The thresholds

for action on each of these requirements differ substantially, and

there is no basis for arguing that an action fails to comply with the

RFA on the grounds of any perceived relationship between it and an E.O.

Further, NMFS has determined that it meets the requirements of all

applicable E.O.s.

That being said, the analysis included in the amendment indicates

that there are non-selected alternatives that would have imposed a more

rigorous reduction schedule. However, these options were rejected on

the basis of the greater economic impact on small entities, and the

current 4-year phase-in was selected to ease economic dislocation while

still achieving rebuilding. This option is consistent with the

regulatory philosophy of E.O. 12866 and the separate requirements of

the RFA. In any event, the RFA does not require that the least

burdensome alternative be chosen. Rather, for an action for which an

IRFA/FRFA was prepared, NMFS must describe the steps taken to minimize

the economic impact on small entities consistent with the stated

objectives of applicable statues, the reasons for selecting the

alternative in the final rule, and the reasons why significant

alternatives to the rule were rejected. An initial regulatory

flexibility analysis was prepared. The analysis is presented in Section

8.3.6 of the FEIS. That analysis illustrates the economic impacts of

and significant alternatives to the proposed action. That document was

open for comment with the rule. NMFS is addressing comments received on

the IRFA in this preamble to the final rule, has made revisions to the

rule, and has prepared a FRFA. This rule contains a summary of the

FRFA, as required by the RFA. Further, the action was found significant

under E.O. 12866, primarily for the controversial and novel legal

issues it raises.

Comment 16: A commenter stated that the measures discussed in the

January 1998 public hearing document, pertaining to trip limits for

scallop and multispecies vessels that also qualified for a monkfish

limited access permit, were more lenient in the SFMA than the measures

that were contained in the proposed rule. Since these later measures

were more restrictive, the commenter feels that the measures should

have been submitted to another public hearing process before

publication of the proposed rule.

Response 16: The Monkfish Committee and the Councils considered the

comments received during the public hearings when further revising the

management measures in the Monkfish FMP. The public had ample

opportunity during these subsequent Monkfish Committee and Council

meetings to voice its concerns. The measures were further open to

public comment for the period established by the NOA for the Monkfish

FMP. These comments were considered prior to the FMP approval/

disapproval process. Finally, the proposed rule also provided an

opportunity for public comment on the measures.

Comment 17: A fishing company stated that the FMP understates

dramatically the economic impact of the FMP, and estimates the impact

to between 150 and 200 million dollars a year, not including the

multiplier effect of the dollars in the community nor the impact on

national trade. The economic statement treats the fishery as primarily

a bycatch fishery and, the commenter stated, this is not the case.

Response 17: Historically, over 80 percent of the monkfish landings

are made as bycatch from groundfish and scallop fishing. Recent

directed effort, particularly by scallop and gillnet vessels and deeper

water trawls, has lowered that percentage to 70 percent bycatch.

However, the bulk of this fishery is still bycatch. The economic

[[Page 54739]]

impact analysis keeps in mind the fact that international markets

determine U.S. domestic prices. Costs to the industry over the long

term will be offset by increased net benefits and gross revenue. These

estimated benefits are considered underestimated because the effect of

the size limit and the rebuilt age structure will increase the

proportion of larger, more valuable monkfish.

Comment 18: Several commenters noted that records were not required

to be kept during the specified qualifying period which may cause many

vessel owners who should be able to qualify to not qualify. They also

stated that this is unfair to vessel owners (generally gillnetters

catching whole monkfish for the Asian market) who entered the fishery

late into the qualifying period or after the qualifying period ended.

Response 18: A notice of a ``control date'' for entry into the

monkfish fishery was published in the Federal Register on February 27,

1995 (60 FR 10574), which described potential eligibility criteria for

future access to that resource should a management regime be

implemented to limit the number of participants in the fishery. The

intent was to discourage new entries into this fishery based on

economic speculation, which was of particular concern at that time due

to the high price of monkfish livers to the Asian market. The

announcement further gave the public notice that they should locate and

preserve records that substantiate and verify their participation in

the monkfish fishery.

Comment 19: A commenter stated that the lower trip limit for fixed,

versus mobile, gear in the proposed rule is discriminatory toward the

fixed gear sector and is in violation of national standard 4 relating

to fairness and equality of the measures to fishers.

Response 19: The purpose of trip limits is to be fair and equitable

to all fishers. They are designed to reflect each gear sector's

historic level of participation in the fishery and approximate the

customary monkfish bycatch of these vessels. Since the limits represent

equivalent reductions for each gear sector to promote conservation, the

limits have been determined to be consistent with national standard 4.

Comment 20: One industry group stated that the biomass-based

overfishing definition is not authorized by the Magnuson-Stevens Act

and that the proposed rule's biomass-based overfishing threshold is

inexplicable in that it is much more restrictive than the already over-

restrictive counterpart threshold in the FMP.

Response 20: In order to comply with the SFA and national standard

1 of the Magnuson-Stevens Act, an overfishing definition must, at a

minimum, have an objective and measurable way to determine the status

of a stock and the amount of fishing that should be specified. There

are two types of determinants to satisfy this need: stock biomass and

fishing mortality. These two should be compared with a maximum fishing

mortality (F) threshold and a minimum biomass (B) threshold, which are

chosen based on a stock's reproductive potential, and a determination

made as to whether a stock is overfished (F is too high) or is in an

overfished condition (B is too low). For some stocks, this threshold

biomass level should be no less than the minimum stock size that could

be rebuilt in 10 years or less to the biomass level that results in the

maximum sustainable yield, if F was reduced to minimal practical

levels. Thus, biomass, in the form of biomass targets, must be

considered when attempting to achieve MSY on a continuing basis. In

fact, it is the crux of the national standard 1 criteria and is,

therefore, a critical component of any overfishing definition.

Comment 21: Two commenters questioned the length of the comment

period on the proposed rule. Specifically, one asked how NMFS can

approve the FMP 24 days before the close of comments on the rule, an

apparent violation of the Magnuson-Stevens Act and the Administrative

Procedure Act (APA). The FMP was approved on March 3, 1999, and the

comment period for the proposed rule closed on March 26, 1999. Another

stated that NMFS did not provide those directly impacted by the FMP

with sufficient time to comment on it, nor the opportunity to comment

on it or to inform the agency and the Secretary of issues prior to the

FMP's approval.

Response 21: The Magnuson-Stevens Act, as amended in 1996,

established independent review schedules for both the FMP and the

implementing regulations. The NOA, published on December 2, 1998, for

the monkfish FMP, established the beginning of the 60-day public review

period for the FMP. The statutory date by which NMFS must approve,

partially approve, or disapprove the FMP is 30 days after the end of

the comment period on the FMP, regardless of when the proposed rule to

implement the FMP is published. The proposed rule to implement the

measures contained in the FMP had its own comment period. Under usual

circumstances, the review of both elements will run more or less

concurrently. In cases of extreme complexity or controversiality, the

review schedules can become disconnected, as with this regulation.

Consequently, the approval/disapproval date as specified under the

Magnuson-Stevens Act arrived during the comment period for the

regulations implementing the FMP. However, the Magnuson-Stevens Act

requires that both the FMP and the regulations implementing it be

consistent with the requirements specified in the Act. Consequently,

the proposed rule is also reviewed for consistency. At the time of the

publication of the proposed rule (February 16, 1999), NMFS had not yet

made the determination that the FMP was consistent with the Magnuson-

Steven Act. It did make that determination during the comment period on

the proposed rule. Thus, the approval of the FMP separate from the

final rule is not inconsistent with the Magnuson-Stevens Act or the

APA.

Comment 22: An industry group requested that the Secretary order

interim management measures consisting of (1) a limited access program

as specified in the rule, (2) permit and reporting requirements as

specified in the rule, (3) minimum fish sizes as specified in the rule,

(4) area specific spawning closures, and (5) total allowable catch

equal to the mean harvest of recent years to be controlled via DAS, or

trip limits, or both.

Response 22: This final rule will implement the first three

elements of the commenter's request in sufficient time to address

conservation needs in this fishery, and, therefore, interim management

measures are not necessary. The final two items are inconsistent with

the approved FMP and are not considered to be necessary at this time.

However, the rule implements a framework provision whereby actions such

as these can be implemented. A framework action will allow for

abbreviated rulemaking, while still allowing for public comment on the

action.

Comment 23: One commenter noted that the OFDs specified in the

proposed rule differed from that specified in the FMP. Specifically,

the rule indicated a biomass threshold for the NFMA of 2.29 kg/tow and

for the SFMA of 1.82 kg/tow, whereas the FMP specifies 1.45 kg/tow and

0.75 kg/tow, respectively.

Response 23: The proposed rule inadvertently labeled the biomass

targets from the FMP as biomass thresholds. The text of the OFD, as

included in the FMP, is the correct OFD for this FMP. Since the

overfishing definition is not codified, the error is not corrected per

se by this rule.

[[Page 54740]]

Further, future management actions will be based on the overfishing

definition and associated levels as stated in the FMP, not as stated in

the proposed rule.

Comment 24: One commenter remarked on the complexity of the

proposed rule by stating that by incorporating the regulations for

monkfish in the multispecies regulations, the Agency has significantly

increased the complexity of regulations related to monkfish. The

commenter concluded that it is plausible that the industry will be in

violation without being aware that it is in violation.

Response 24: NMFS agrees that regulations are becoming increasingly

complex and encourages people to obtain a copy of the regulations and

become familiar with them. NMFS suggests that industry participants

also contact the New England Fishery Management Council to request to

be placed on its mailing list for news releases, which explain new

regulations.

Comment 25: One of the industry's comment stated that mortality

controls on fishing in other FMPs - closures, state restrictions, DAS,

the buyback program, multispecies and scallop reporting mechanisms -

all protect the harvest of monkfish, and are not reflected in the FMP.

Response 25: The monkfish FMP does consider other measures that may

have had a direct or indirect impact on monkfish mortality, and NMFS

recognizes that these measures contribute to the conservation of

monkfish. Nevertheless, as documented in the FMP, these measures by

themselves have not been sufficient to prevent overfishing and rebuild

monkfish stocks consistent with Magnuson-Stevens Act's requirements.

Changes in the Final Rule From the Proposed Rule

Changes made are primarily related to technical and administrative

needs and concerns and are made to clarify the intent of the

regulations. These changes are listed below in the order that they

appear in the regulations:

In Sec. 648.4, paragraph (a)(9)(i)(H), a reference to

Sec. 648.4(a)(3)(i)(H) is corrected to read Sec. 648.4(a)(1)(i)(H).

In Sec. 648.7, paragraph (b)(1)(i) is revised. This paragraph in

the proposed rule should have only added the requirement for vessel

owners or operators to report monkfish on the daily fishing log

reports. However, this paragraph inadvertently required only moratorium

permitted vessels to maintain daily fishing log reports for all fishing

trips. Under regulations implemented November 1, 1998 (64 FR 52639,

October 1, 1998), the requirement contained in this paragraph applies

to all Federally permitted vessels including party or charter vessels

and is no longer limited to only moratorium permitted vessels. The

change in the above final rule is consistent with current regulations.

In Sec. 648.7, paragraph (b)(1)(iii), which references old

reporting requirements for any party or charter vessel issued a Federal

summer flounder or scup permit, other than a moratorium permit, is

removed. The monkfish proposed rule inadvertently addressed the

reporting requirements for charter and party vessels in (b)(1)(iii),

which are now addressed in paragraph (b)(1)(i) of the above mentioned

final rule.

In Sec. 648.10, paragraph (c), a reference to

Sec. 648.4(a)(1)(i)(H)(3) is corrected to read

Sec. 648.4(a)(1)(i)(M)(3).

In Sec. 648.10, paragraph (c), a reference to

Sec. 648.4(a)(9)(i)(J) is corrected to read Sec. 648.4(a)(9)(i)(N)(3).

In Sec. 648.10, paragraph (c)(5), which references Sec. 648.94(b)

and (c), is corrected to refer to Sec. 648.94(c) only and is revised

for clarity.

In Sec. 648.14, paragraphs (y)(8) and (y)(11), which pertained to

possession and trip limits and included consideration of the

disapproved ``running clock'' provision, are revised and simplified.

In Sec. 648.80, paragraphs (a)(4)(i)(A), (a)(7)(iv)(B), (a)(8)(i),

(a)(9)(i)(D), and (b)(3)(ii), which pertain to the allowable incidental

catch of monkfish and monkfish parts in the various exempted fisheries,

are revised to clarify that the lesser of the allowable incidental

catches heretofore specified and the incidental catches specified under

the monkfish regulations applies.

In Sec. 648.92, paragraph (b)(1) is revised to clarify that

multispecies and scallop permit holders that also qualify for a

monkfish limited access permit shall be allocated up to 40 monkfish

DAS, depending on whether they have enough multispecies and/or scallop

DAS to use concurrently with their monkfish DAS allocation as required

by Sec. 648.92(b)(2).

In Sec. 648.92, paragraph (b)(5) is revised to clarify that

spawning season restrictions will be implemented effective January 1,

2000.

In Sec. 648.92, paragraph (b)(8)(ii) is revised to clarify that

tagging requirements for gillnetters fishing for monkfish under a

monkfish DAS will be implemented effective May 1, 2000.

In Sec. 648.93, paragraph (a)(2) is revised to clarify that

monkfish cheeks and livers are exempt from the requirement of having to

have skin on while possessed on board and at the time of landing.

In Sec. 648.94, paragraphs (b)(2)(vi)(A), (B), and (C), which

pertain to landings in consideration of the disapproved ``running

clock'' provision, are removed.

In Sec. 648.94, paragraph (b)(2)(vi), which references the trip

limit for cod and which reference does not apply because of the

disapproval of the ``running clock'' provision, is revised and

simplified.

In Sec. 648.94, paragraph (b)(7) is added to clarify that a limited

access scallop vessel fishing under a monkfish DAS (Category C and D)

that is not using dredge gear and does not have dredge gear on board

will be subject to the applicable trip limits specified at

Sec. 648.94(b)(1) and (b)(2). A vessel that has a Category C or D

monkfish permit and a limited access sea scallop permit is prohibited

from using dredge gear or possessing it on board during a monkfish DAS.

Paragraph (b)(7) states explicitly what was implied in the proposed

rule and is consistent with Section 4.6.3 of the Monkfish FMP.

In Sec. 648.94, paragraph (e), which referenced transiting when

exceeding the monkfish landing limit, which would have been in

accordance with the disapproved ``running clock'' provision, is

revised.

In Sec. 648.96, paragraphs (a)(2) and (c)(1), which referenced the

``running clock'' provision, which is a disapproved provision, are

revised.

In Sec. 648.96, paragraphs (a)(4) and (c) are corrected, as

requested by the NEFMC, by removing a requirement that documentation

and analyses for a framework adjustment be made available at least two

weeks before the first of the final two meetings, which would have been

inconsistent with the framework adjustment procedures of both the

Northeast Multispecies and Atlantic Scallop FMPs.

NOAA codifies its OMB control numbers for information collection at

15 CFR part 902. Part 902 collects and displays the control numbers

assigned to information collection requirements of NOAA by OMB pursuant

to the Paperwork Reduction Act (PRA). This final rule codifies OMB

control number 0648-0202 for Secs. 648.91 through 648.94, and

Sec. 648.96.

Under NOAA Administrative Order 205-11, dated December 17, 1990,

the Under Secretary for Oceans and Atmosphere has delegated to the

Assistant Administrator for Fisheries, NOAA, the authority to sign

material for publication in the Federal Register.

Classification

NMFS has determined that the FMP that this rule implements is

necessary for the conservation and management of

[[Page 54741]]

the monkfish fishery and is consistent with the national standards of

the Magnuson-Stevens Act and other applicable law.

This action has been determined to be significant for the purposes

of E.O. 12866.

The Council prepared an FEIS for the Monkfish FMP; an NOA was

published on January 15, 1999 (64 FR 2639). This action is expected to

have a significant impact on the human environment. NMFS determined

upon review of the FMP/FEIS and public comments that approval and

implementation of the Monkfish FMP is environmentally preferable to the

status quo. The FEIS demonstrates that it contains management measures

able to halt overfishing and rebuild the monkfish stock; protect harbor

porpoise; provide economic and social benefits to the fishing industry

in the long term; and contribute to better balance in the ecosystem in

terms of monkfish and groundfish resources.

In compliance with the Regulatory Flexibility Act, the Council

prepared and NMFS adopted an IRFA contained in the FMP that describes

the economic impacts of the proposed rule, if adopted, on small

entities. The FRFA consists of the IRFA, public comments and responses

thereto, the analysis of impacts and alternatives in the Monkfish FMP,

and the summary that follows. The reasons for selecting the measures

are set out in the preamble to this rule and in the Monkfish FMP.

The measures are restrictive, and impacts on the industry are

expected to be considerable. In the early years of the program, some

vessel owners may be unable to cover their operating costs, in part

because of these restrictions and because of the poor condition of the

stocks. Such vessel owners are expected to leave the fishery. Relative

to the status quo, however, implementation of this FMP is expected to

produce significant positive effects on a substantial number of small

entities after stock abundance of monkfish recovers. The majority of

the vessels in the monkfish fishery are considered small entities and,

therefore, all alternatives and measures intended to mitigate adverse

impacts on the fishing industry necessarily mitigate adverse impacts on

small entities. Chief among the measures taken that minimizes the

impacts on small entities, however, is the selection by the Council of

the longest rebuilding period allowed by the Magnuson-Stevens Act. The

Magnuson-Stevens Act requires that overfishing be ended and the fishery

rebuilt in the shortest time period as possible, not to exceed 10

years. The Council selected 10 years to lessen the impact on the

fishing communities and minimize adverse impacts on small entities. For

a discussion of other measures selected to mitigate impacts on small

entities, see the comments on the FMP, proposed rule, and IRFA, which

are summarized and responded to in the preamble.

The monkfish management measures will reduce the overall revenues

of the monkfish fishery by approximately 50 to 54 percent in the first

3 years of the program compared to the status quo. Further reductions

in catch are necessary in Year 4 to stop overfishing and allow

rebuilding. These measures will also reduce overall revenues by 69

percent compared to the status quo.

The impact of these measures will not be uniform for all vessels or

all sectors. Instead, the measures will have different effects on

different gear groups, with vessels using gillnets and vessels fishing

in the Mid-Atlantic being relatively more affected than other vessels.

Due to the requirement and desirability to minimize regulatory

discards, the catch reduction for vessels that qualify for a limited

access monkfish permit are more severe than for vessels that target

other species and land their monkfish incidental catch. Fishery sectors

that rely more heavily on monkfish will, therefore, experience greater

effects than other groups.

Projected revenues from fishing will be positive beginning in the

year 2009, which will create demand for other goods and services in the

area and lead to increased production and employment. The overall

impacts will be positive. These measures are expected to increase net

present value of gross revenues by $20 million over 20 years. Including

the estimated cost savings is expected to produce an increase in net

benefits to the nation of $38 million over a 20-year period. The

negative effects of the non-selected alternatives would be greater than

those of these selected measures.

The recreational sector is not expected to be negatively impacted

by this action.

Alternatives Considered, but Rejected by the Councils

Alternatives 1, 2 and 4 were taken to public hearings in January

1997, as non-preferred alternatives. Due to the preponderance of public

comment for (then) preferred Alternative 3 the Councils chose to

continue development of Alternative 3 for inclusion in the FMP.

Alternative 3, along with non-preferred Alternatives 3a and 3b, were

taken to public hearings in January, 1998. See also Section 8.1.2.2.1.

of the Monkfish FMP/EIS for rationale for the adoption of the preferred

alternative. The alternatives are summarized below.

1. No Action - Status quo

See Volume I, Section 8.1.4.3 of the Monkfish FMP/EIS.

2. Non-preferred Alternative 1 - Bycatch trip limits and quota-

controlled limited access fishery

See Volume I, Section 8.1.4.4.1 of the Monkfish FMP/EIS.

Alternative 1 was rejected because quotas would not work well for many

mixed-species fisheries that include monkfish and the proposed bycatch

trip limits were anticipated to cause unacceptably high discarding. No

positive comments were given at the 1997 public hearings.

3. Non-preferred Alternative 2 - Mixed catch trip limits and quota-

controlled limited access fishery

See Volume I, Section 8.1.4.4.2 of the Monkfish FMP/EIS.

Alternative 2 was an attempt to increase the bycatch trip limits and

accommodate incidental catches of monkfish in fisheries that targeted a

mixed catch where monkfish was a component. The Councils rejected

Alternative 2 because it relied too heavily on trip limits to manage

the fishery and had unacceptably low directed fishery quotas.

4. Non-preferred Alternative 4 - Days-at-sea effort control

See Volume I, Section 8.1.4.4.3 of the Monkfish FMP/EIS.

Alternative 4 is a modification of DAS management proposed by

Alternative 3, but with lower incidental catch allowances to boost the

allocation of monkfish to the limited access fishery. The added

allocation would enable the Councils to allocate some days to all

vessels that qualify for monkfish limited access while meeting the

mortality goals of the FMP. Some favorable comments for Alternative 4

were received at public hearings, but the overwhelming majority of

people supported Alternative 3. The Councils ultimately rejected

Alternative 4 because the DAS allocated to limited access vessels were

too low and the bycatch trip limits would create unacceptable

discarding.

5. Non-preferred Alternative 3a

See Volume I, Section 8.1.4.2.2 of the Monkfish FMP/EIS. This

alternative is evaluated and analyzed in the EIS. Alternative 3a was

expected to achieve similar mortality reductions to the preferred

alternative, but discards were estimated to be higher in the NFMA and

substantially higher in the SFMA.

6. Non-preferred Alternative 3b

See Volume I, Section 8.1.4.2.3 of the Monkfish FMP/EIS. This

alternative is evaluated and analyzed in the EIS. Alternative 3b was

expected to achieve similar mortality reductions to the

[[Page 54742]]

preferred alternative, but discards were estimated to be higher in the

NFMA and substantially higher in the SFMA.

Notwithstanding any other provision of law, no person is required

to respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the Paperwork Reduction Act unless that collection of information

displays a currently valid OMB Control Number.

This rule contains 19 new collection-of-information requirements

subject to the Paperwork Reduction Act. The collection of this

information has been approved by the OMB, and the OMB control numbers

and public reporting burden are listed as follows:

Limited access monkfish permits, including four new permit

categories, OMB# 0648-0202, (30 minutes/response). In subsequent years,

permit renewal, OMB# 0648-0202, (15 minutes/response). Some applicants

need to provide documentation of eligibility, OMB# 0648-0202, (1 hour/

response)

Monkfish incidental catch permits, OMB# 0648-0202, (30 minutes/

response). In subsequent years, permit renewal, OMB# 0648-0202, (15

minutes/response).

Permit appeals, OMB# 0648-0202, (180 minutes/response).

Vessel replacement, OMB# 0648-0202, (180 minutes/response).

Vessel upgrade, OMB# 0648-0202, (180 minutes/response).

Retention of vessel history, OMB# 0648-0202, (30 minutes/response).

Operator permit, OMB# 0648-0202, (60 minutes/response).

Dealer permit, OMB# 0648-0202, (5 minutes/response).

Dealer landing report, OMB# 0648-0202, (5 minutes/response(trip)).

Dealer employment report, OMB# 0648-0202, (2 minutes/response).

Gillnet designation-declaration into the gillnet fishing category,

OMB# 0648-0202, (10 minutes/response).

Call-in, call-out (DAS reporting), OMB# 0648-0202, (2 minutes/

response).

Area declaration for identifying compliance with the differential

size limit beginning May 1, 2000, OMB# 0648-0202, (3 minutes/

response).

Notification of transiting, OMB# 0648-0202, (1 minute/response if

made with hail, 3 minutes/response if separate call).

Vessel trip reports, OMB# 0648-0202, (5 minutes/response).

Hail weight reports, OMB# 0648-0202, (3 minutes/response).

Net tagging requirements, OMB# 0648-0202, (1 minute to attach 1

tag, 2 minutes to notify of lost tags and request replacement).

Good Samaritan credits, OMB# 0648-0202, (30 minutes/response).

Declarations of blocks of time out of the fishery, OMB# 0648-0202,

(3 minutes/response).

Public comment is sought regarding: whether the collection of

information is necessary for the proper performance of the functions of

the agency, including whether the information shall have practical

utility; the accuracy of the burden estimate; ways to enhance the

quality, utility, and clarity of the information to be collected; and

ways to minimize the burden of the collection of information, including

through the use of automated collection techniques or other forms of

information technology. Send comments regarding these reporting burden

estimates or any other aspect of the collection of information,

including suggestions for reducing the burden, to NMFS and OMB (see

ADDRESSES).

A formal section 7 consultation under the ESA was initiated for the

Monkfish FMP based on information provided in the FEIS; a separate

Biological Assessment that was submitted on September 23, 1998;

Supplement 1 to the Monkfish FMP, which contains a revised RFA

submitted on October 23, 1998; NMFS's proposed rule under the Magnuson-

Stevens Act; NMFS entanglement data; and other relevant sources. In a

biological opinion (BO) dated December 21, 1998, the Assistant

Administrator for Fisheries, NMFS, determined that fishing activities

conducted under the Monkfish FMP and its implementing regulations are

not likely to jeopardize the continued existence of threatened or

endangered species or designated critical habitat. The final rule is

virtually identical to the measures analyzed in the December 21, 1998,

BO and thus the BO is still applicable.

Potential adverse impacts to marine mammals resulting from fishing

activities conducted under this FMP are discussed in the EIS, which

focuses on potential impacts to harbor porpoise, right whales, and

humpback whales. The monkfish sink gillnet fishery is subject to

regulation under the harbor porpoise and large whale take reduction

plans. The measures contained in the Harbor Porpoise and Large Whale

Take Reduction Plans are expected to reduce the take of marine mammals

in this fishery to acceptable levels within six months of plan

implementation and to within levels approaching a zero mortality or

serious injury rate within 5 years.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: September 30, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 15 CFR part 902, chapter

IX, and 50 CFR part 648, chapter VI, are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE

PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as

follows:

Authority: 44 U.S.C. 3501 et seq.

2. In Sec. 902.1, the table in paragraph (b) is amended by adding

under 50 CFR the following entries in numerical order:

Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork

Reduction Act.

* * * * *

(b) * * *

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

Current OMB control number

CFR part or section where the information (all numbers begin with 0648-

collection requirement is located )

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

* * * * *

50 CFR

* * * * *

648.91 -0202

648.92 -0202

648.93 -0202

648.94 -0202

648.96 -0202

* * * * *

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

50 CFR Chapter VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

2. In Sec. 648.1, the first sentence of paragraph (a) is revised to

read as follows:

Sec. 648.1 Purpose and scope.

(a) This part implements the fishery management plans (FMPs) for

the

[[Page 54743]]

Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel,

Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the

Atlantic sea scallop fishery (Atlantic Sea Scallop FMP); the Atlantic

surf clam and ocean quahog fisheries (Atlantic Surf Clam and Ocean

Quahog FMP); the Northeast multispecies and monkfish fisheries ((NE

Multispecies FMP) and (Monkfish FMP)); the summer flounder, scup, and

black sea bass fisheries (Summer Flounder, Scup, and Black Sea Bass

FMP); and the Atlantic bluefish fishery (Atlantic Bluefish FMP). * * *

* * * * *

3. In Sec. 648.2, the definitions for ``Monkfish or anglerfish'',

``Out of the multispecies fishery or DAS program'', and ``Tied up to

the dock'' are removed; the definitions for ``Day(s)-at-Sea (DAS)'',

``Fishing year'', ``Prior to leaving port'', ``Sink gillnet or bottom-

tending gillnet'', ``Upon returning to port'', and ``Vessel Monitoring

System (VMS)'' are revised; and the definitions for ``Councils'',

``Monkfish'', ``Monkfish gillnets'', ``Monkfish Monitoring Committee'',

``Out of the monkfish fishery'', ``Out of the multispecies fishery'',

and ``Tied up to the dock or tying up at a dock'' are added

alphabetically to read as follows:

Sec. 648.2 Definitions.

* * * * *

Councils, with respect to the monkfish fishery, means the New

England Fishery Management Council (NEFMC) and the Mid-Atlantic Fishery

Management Council (MAFMC).

Day(s)-at-Sea (DAS), with respect to the NE multispecies and

monkfish fisheries, and Atlantic sea scallop fishery, except as

described in Sec. 648.82(k)(1)(iv), means the 24-hour period of time or

any part thereof during which a fishing vessel is absent from port to

fish for, possess, or land, or fishes for, possesses, or lands,

regulated species, monkfish, or scallops.

* * * * *

Fishing year means:

(1) For the Atlantic sea scallop fishery, from March 1 through the

last day of February of the following year.

(2) For the NE multispecies and monkfish fisheries, from May 1

through April 30 of the following year.

(3) For all other fisheries in this part, from January 1 through

December 31.

* * * * *

Monkfish, also known as anglerfish or goosefish, means Lophius

americanus.

Monkfish gillnets means gillnet gear with mesh size no smaller than

10-inches (25.4 cm) diamond mesh that is designed and used to fish for

and catch monkfish while fishing under a monkfish DAS.

Monkfish Monitoring Committee means a team of scientific and

technical staff appointed by the NEFMC and MAFMC to review, analyze,

and recommend adjustments to the management measures. The team consists

of staff from the NEFMC and the MAFMC, NMFS Northeast Regional Office,

NEFSC, the USCG, two fishing industry representatives selected by their

respective Council chairman (one from each management area with at

least one of the two representing either the Atlantic sea scallop or

northeast multispecies fishery), and staff from affected coastal

states, appointed by the Atlantic States Marine Fisheries Commission.

The Chair is elected by the Committee from within its ranks, subject to

the approval of the Chairs of the NEFMC and MAFMC.

* * * * *

Out of the monkfish fishery means the period of time during which a

vessel is not fishing for monkfish under the monkfish DAS program.

Out of the multispecies fishery means the period of time during

which a vessel is not fishing for regulated species under the NE

multispecies DAS program.

* * * * *

Prior to leaving port, with respect to the call-in notification

system for the Atlantic sea scallop, NE multispecies, and monkfish

fisheries, means prior to the last dock or mooring in port from which a

vessel departs to engage in fishing, including the transport of fish to

another port.

* * * * *

Sink gillnet or bottom-tending gillnet means any gillnet, anchored

or otherwise, that is designed to be, or is fished on or near, the

bottom in the lower third of the water column.

* * * * *

Tied up to the dock or tying up at a dock means tied up at a dock,

on a mooring, or elsewhere in a harbor.

* * * * *

Upon returning to port, means, for purposes of the call-in

notification system for the NE multispecies and monkfish fisheries,

upon first tying up at a dock at the end of a fishing trip.

* * * * *

Vessel Monitoring System (VMS) means a vessel monitoring system or

VMS unit as set forth in Sec. 648.9 and approved by NMFS for use by

Atlantic sea scallop, NE multispecies, and monkfish vessels, as

required by this part.

* * * * *

4. In Sec. 648.4, paragraph (a)(9) is added to read as follows:

Sec. 648.4 Vessel and individual commercial permits.

(a) * * *

(9) Monkfish vessels. Any vessel of the United States, including a

charter or party boat, must have been issued and have on board a valid

monkfish permit to fish for, possess, or land any monkfish in or from

the EEZ.

(i) Limited access monkfish permits (effective November 8, 1999.

(A) Eligibility. A vessel may be issued a limited access monkfish

permit if it meets any of the following limited access monkfish permits

criteria:

(1) Category A permit (vessels without multispecies or scallop

limited access permits). The vessel landed 50,000 lb (22,680

kg) tail-weight or 166,000 lb (75,297.6 kg) whole weight of monkfish

between February 28, 1991, and February 27, 1995;

(2) Category B permit (vessels less than 51 gross registered

tonnage (GRT) without multispecies or scallop limited access permits

that do not qualify for a Category A permit). The vessel landed

7,500 lb (3,402 kg) tail-weight or 24,900 lb (11,294.6 kg)

whole weight of monkfish between February 28, 1991, and February 27,

1995;

(3) Category C permit (vessels with multispecies or scallop limited

access permits). The vessel landed 50,000 lb (22,680 kg)

tail-weight or 166,000 lb (75,297.6 kg) whole weight of monkfish

between February 28, 1991, and February 27, 1995; or

(4) Category D permit (all vessels with multispecies limited access

permits and vessels less than 51 GRT with scallop limited access

permits that do not qualify for a Category C permit). The vessel landed

7,500 lb (3,402 kg) tail-weight or 24,900 lb (11,294.6 kg)

whole weight of monkfish between February 28, 1991, and February 27,

1995.

(B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of

this section.

(C) Qualification restrictions. (1) See paragraph (a)(1)(i)(C) of

this section.

(2) Vessels under agreement for construction or under

reconstruction. A vessel may be issued a limited access monkfish permit

if the vessel was under written agreement for construction or

reconstruction between February 28, 1994, and February 27, 1995, and

such vessel meets any of the qualification criteria regarding amount of

landings as stated in paragraph (a)(9)(i)(A) of this section between

February 28, 1991, and February 27, 1996.

(D) Change in ownership. (1) See paragraph (a)(1)(i)(D) of this

section.

(2) A vessel may be issued a limited access monkfish permit if it

was under

[[Page 54744]]

written agreement for purchase as of February 27, 1995 and meets any of

the qualification criteria regarding amount of landings as stated in

paragraph (a)(9)(i)(A) of this section between February 28, 1991, and

February 27, 1996.

(E) Replacement vessels. (1) See paragraph (a)(1)(i)(E) of this

section.

(2) A vessel 51 GRT that lawfully replaced a vessel 51 GRT that upgraded from a vessel size 2 (0.81 m2)).

Sec. 648.92 Effort-control program for monkfish limited access

vessels.

(a) General. A vessel issued a limited access monkfish permit may

not fish for, possess, retain, or land monkfish, except during a DAS as

allocated under and in accordance with the applicable DAS program

described in this section, except as otherwise provided in this part.

(1) End-of-year carry-over. With the exception of vessels that held

a Confirmation of Permit History as described in Sec. 648.4(a)(1)(i)(J)

for the entire fishing year preceding the carry-over year, limited

access vessels that have unused DAS on the last day of April of any

year may carry over a maximum of 10 unused DAS into the next fishing

year. Any DAS that have been forfeited due to an enforcement proceeding

will be deducted from all other unused DAS in determining how many DAS

may be carried over.

(2) [Reserved]

(b) Monkfish DAS program--permit categories and allocations--(1)

Limited access monkfish permit holders. For fishing years 1999, 2000,

and 2001, all limited access monkfish permit holders shall be allocated

40 monkfish DAS for each fishing year. Multispecies and scallop limited

access permit holders who also qualify for a limited access monkfish

permit shall be allocated up to 40 monkfish DAS for each fishing year,

depending on whether they have sufficient multispecies and/or scallop

DAS to use concurrently with their monkfish DAS, as required by

paragraph (b)(2) of this section. For fishing years 2002 and

thereafter, no monkfish DAS will be allocated to any limited access

monkfish permit holder.

(2) Category C and D limited access monkfish permit holders. Each

monkfish DAS used by a limited access multispecies or scallop vessel

holding a Category C or D limited access monkfish permit shall also be

counted as a multispecies or scallop DAS, as applicable.

(3) Accrual of DAS. Same as Sec. 648.53(e).

(4) Good Samaritan credit. Same as Sec. 648.53(f).

(5) Spawning season restrictions. Beginning January 1, 2000, a

vessel issued a valid Category A or B limited access monkfish permit

under Sec. 648.4(a)(9)(i)(A)(1) or (a)(9)(i)(A)(2) must declare and be

out of the monkfish DAS program, as described in paragraph (b) of this

section, for a continuous 20-day period between April 1 and June 30 of

each calendar year using the notification requirements specified in

Sec. 648.10. If a vessel owner has not declared and been out for a

continuous 20-day period between April 1 and June 30 of each calendar

year on or before June 11 of each year, the vessel is prohibited from

fishing for possessing or landing any monkfish during the period June

11 through June 30, inclusive.

(6) Declaring monkfish DAS and blocks of time out. A vessel's owner

or authorized representative shall notify the Regional Administrator of

a vessel's participation in the monkfish DAS program and declaration of

its continuous 20-day period out of the monkfish DAS program, using the

notification requirements specified in Sec. 648.10.

(7) Adjustments in annual monkfish DAS allocations. Adjustments in

annual monkfish DAS allocations, if required to meet fishing mortality

goals, may be implemented pursuant to the framework adjustment

procedures of Sec. 648.96.

(8) Gillnet restrictions--(i) Number and size of nets. A vessel

issued a monkfish limited access permit or fishing under a monkfish DAS

may not fish with, haul, possess, or deploy more than 160 gillnets. A

vessel issued a multispecies limited access permit and a limited access

monkfish permit, or fishing under a monkfish DAS, may fish any

combination of monkfish, roundfish, and flatfish gillnets, up to 160

nets total, provided that the number of monkfish, roundfish, and

flatfish gillnets is consistent with the limitations of

Sec. 648.82(k)(1)(i) and that the nets are tagged in accordance with

the regulations, as specified in Sec. 648.82. Nets may not be longer

than 300 ft (91.44 m), or 50 fathoms, in length.

(ii) Tagging requirements. Beginning May 1, 2000, all gillnets

fished, hauled, possessed, or deployed by a vessel fishing for monkfish

under a monkfish DAS must have one monkfish tag per net, with one tag

secured to every other bridle of every net within a string of nets.

Tags must be obtained as described in Sec. 648.4. A vessel operator

must account for all net tags upon request by an authorized officer.

(iii) Lost tags. A vessel owner or operator must report lost,

destroyed, or missing tag numbers by letter or fax to the Regional

Administrator within 24 hours after tags have been discovered lost,

destroyed, or missing.

(iv) Replacement tags. A vessel owner or operator seeking

replacement of lost, destroyed, or missing tags must request

replacement tags by letter or fax to the Regional Administrator. A

check for the

[[Page 54749]]

cost of the replacement tags must be received before the tags will be

re-issued.

(v) Method of counting DAS. A vessel fishing with gillnet gear

under a monkfish DAS will accrue 15 hours monkfish DAS for each trip

greater than 3 hours but less than or equal to 15 hours. Such vessel

will accrue actual monkfish DAS time at sea for trips less than or

equal to 3 hours or greater than 15 hours. A vessel fishing with

gillnet gear under only a monkfish DAS is not required to remove

gillnet gear from the water upon returning to the dock and calling out

of the DAS program, provided that the vessel complies with the

requirements and conditions of paragraphs (b)(8)(i), (ii), (iii), (iv),

and (v) of this section.

Sec. 648.93 Monkfish minimum fish sizes.

(a) Minimum fish sizes. (1) All monkfish caught in or from the EEZ

or by vessels issued a Federal monkfish permit must meet the following

minimum fish size requirements (total length and tail length) unless

such minimum fish sizes are adjusted pursuant to paragraph (b) of this

section:

MINIMUM FISH SIZES

(Total Length/Tail Length)

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

Total Length Tail Length

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

17 inches (43.2 cm) 11 inches (27.9 cm)

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

(2) The minimum fish size applies to the whole fish (total length)

or to the tail of a fish (tail length) at the time of landing. Fish or

parts of fish, with the exception of cheeks and livers, must have skin

on while possessed on board a vessel and at the time of landing in

order to meet minimum size requirements. ``Skin on'' means the entire

portion of the skin normally attached to the portion of the fish or

fish parts possessed. Monkfish tails are measured from the anterior

portion of the fourth cephalic dorsal spine to the end of the caudal

fin. Any tissue anterior to the fourth dorsal spine is ignored. If the

fourth dorsal spine or the tail is not intact, the minimum size is

measured between the most anterior vertebra and the most posterior

portion of the tail.

(b) Adjustments--(1) Vessels fishing in the SFMA. (i) Unless the

Regional Administrator makes the determination specified in paragraph

(b)(1)(ii), beginning on May 1, 2000, the minimum fish size limit for

vessels fishing in the SFMA, or for vessels not declared into the NFMA,

is 21 inches (53.3 cm) total length/14 inches (35.6 cm) tail length.

(ii) If, based on landings, projected landings, and other available

data, the Regional Administrator determines that the SFMA monkfish

catch for the period May 1, 1999, through April 30, 2000, is less than

or equal to the Year 1 SFMA TAC, a notification will be published in

the Federal Register specifying the minimum monkfish size limit of 17

inches (43.2 cm) total length/11 inches (27.9 cm) tail length for

vessels fishing for, catching, or landing monkfish in the SFMA.

(2) Vessels fishing in the NFMA. An adjustment to the minimum size

possession limits for vessels fishing for, catching, or landing fish in

the SFMA under paragraph (b)(1) of this section will not affect the

minimum size possession limits for vessels fishing for or landing

monkfish in the NFMA, which will remain as described in paragraph

(a)(1) of this section. If the size limits specified in paragraph

(b)(1) of this section become effective for the SFMA, a vessel

intending to fish for and catch monkfish under a monkfish DAS only in

the NFMA must declare into that area for a period not less than 30 days

when calling in under the DAS program or as otherwise directed by the

Regional Administrator. A vessel that has not declared into the NFMA

under this paragraph shall be presumed to have fished in the SFMA and

shall be subject to the more restrictive requirements of that area.

Such restrictions shall apply to the entire trip. A vessel that has

declared into the NFMA may transit the SFMA providing that it complies

with the transiting and gear storage provisions described in

Sec. 648.94(e) and provided that it does not fish for or catch

monkfish, or any other fish, in the SFMA.

Sec. 648.94 Monkfish possession and landing restrictions.

(a) General. Monkfish may be possessed or landed either as tails

only, or in whole form, or any combination of the two. When both tails

and whole fish are possessed or landed, the possession or landing limit

for monkfish tails shall be the difference between the whole weight

limit minus the landing of whole monkfish, divided by 3.32. A 996 lb

(452 kg) whole weight trip limit and a 600 lb (272 kg) landing of whole

fish shall, for example, allow for a maximum landing of tails of 119.3

lb (54.1 kg).

(b) Vessels issued limited access monkfish permits--(1) Vessels

fishing under the monkfish DAS program prior to May 1, 2000. For

vessels fishing under the monkfish DAS program prior to May 1, 2000,

there is no monkfish trip limit.

(2) Vessels fishing under the monkfish DAS program May 1, 2000, and

thereafter. (i) Unless the Regional Administrator makes the

determination specified in paragraph (b)(2)(ii), the trip limits

specified in paragraphs (b)(2)(iii), (iv), (v), and (vi) of this

section apply to vessels fishing under the monkfish DAS program in the

SFMA.

(ii) If, based on landings, projected landings, and other available

data, the Regional Administrator determines that the SFMA monkfish

catch for the period May 1, 1999, through April 30, 2000, is less than

or equal to the Year 1 SFMA TAC, no monkfish trip limit shall apply to

a vessel that is fishing under a monkfish DAS. Such determination shall

be published in the Federal Register.

(iii) Category A and C vessels using trawl gear. Category A and C

vessels exclusively using trawl gear during a monkfish DAS may land up

to 1,500 lb (680 kg) tail-weight or 4,980 lb (2,259 kg) whole weight of

monkfish per DAS (or any prorated combination of tail-weight and whole

weight based on the conversion factor).

(iv) Category B and D vessels using trawl gear. Category B and D

vessels using exclusively trawl gear during a monkfish DAS may land up

to 1,000 lb (454 kg) tail-weight or 3,320 lb (1,506 kg) whole weight of

monkfish per DAS (or any prorated combination of tail-weight and whole

weight based on the conversion factor).

(v) Vessels using gear other than trawl gear. Any vessel issued a

limited access monkfish permit and using gear other than trawl gear

during a monkfish DAS may land up to 300 lb (136 kg) tail-weight or 996

lb (452 kg) whole weight of monkfish per DAS (or any prorated

combination of tail-weight and whole weight based on the conversion

factor).

(vi) Administration of landing limits. A vessel owner or operator

may not exceed the monkfish trip limits as specified in paragraphs

(b)(2)(iii), (iv), and (v) of this section per monkfish DAS fished, or

any part of a monkfish DAS fished.

(3) Category C and D vessels fishing during a multispecies DAS

prior to May 1, 2002--(i) NFMA. There is no monkfish trip limit for a

Category C or D vessel that is fishing under a multispecies DAS

exclusively in the NFMA.

(ii) SFMA. If any portion of a trip is fished only under a

multispecies DAS, and not under a monkfish DAS, in the SFMA, the vessel

may land up to 300 lb (136 kg) tail-weight or 996 lb (452 kg) whole

weight of monkfish per DAS if

[[Page 54750]]

trawl gear is used exclusively during the trip, or 50 lb (23 kg) tail-

weight or 166 lb (75 kg) whole weight if gear other than trawl gear is

used during the trip.

(iii) Transiting. A vessel that harvested monkfish in the NFMA may

transit the SFMA and possess monkfish in excess of the SFMA landing

limit provided such vessel complies with the provisions of

Sec. 648.94(e).

(4) Category C and D vessels fishing during a multispecies DAS from

May 1, 2002, and thereafter--(i) NFMA. Any Category C or D vessel that

is fishing under a multispecies DAS in the NFMA may land up to 300 lb

(136 kg) tail-weight or 996 lb (452 kg) whole weight of monkfish per

DAS, or 25 percent of the total weight of fish on board, whichever is

less.

(ii) SFMA. If any portion of a trip is fished only under a

multispecies DAS and not under a monkfish DAS in the SFMA, a vessel

issued a Category C or D permit may land up to 300 lb (136 kg) tail-

weight or 996 lb (452 kg) whole weight of monkfish per DAS, or 25

percent of the total weight of fish on board, whichever is less, if

trawl gear is used exclusively during the trip, or 50 lb (23 kg) tail-

weight or 166 lb (75 kg) whole weight if gear other than trawl gear is

used during the trip.

(5) Category C and D vessels fishing under the scallop DAS program

prior to May 1, 2002. A category C or D vessel fishing under a scallop

DAS with a dredge on board, or under a net exemption provision as

specified at Sec. 648.51(f), may land up to 300 lb (136 kg) tail-weight

or 996 lb (452 kg) whole weight of monkfish per DAS (or any prorated

combination of tail-weight and whole weight based on the conversion

factor).

(6) Category C and D vessels fishing under the scallop DAS program

from May 1, 2002, and thereafter. A category C or D vessel fishing

under a scallop DAS with a dredge on board may land up to 200 lb (91

kg) tail-weight or 664 lb (301 kg) whole weight of monkfish per DAS (or

any prorated combination of tail-weight and whole weight based on the

conversion factor).

(7) Category C and D Scallop Vessels Declared into the Monkfish DAS

Program without a Dredge on Board. Category C and D vessels that have

declared into the Monkfish DAS Program and that do not fish with or

have on board a dredge are subject to the same possession limits as

specified at (b)(1) and (b)(2). Such vessels are also subject to

provisions applicable to Category A and B vessels fishing only under a

monkfish DAS, consistent with the provisions of this part.

(c) Vessels issued a monkfish incidental catch permit--(1) Vessels

fishing under a multispecies DAS--(i) NFMA. Vessels issued a monkfish

incidental catch permit fishing under a multispecies DAS exclusively in

the NFMA may land up to 300 lb (136 kg) tail-weight or 996 lb (452 kg)

whole weight of monkfish per DAS (or any prorated combination of tail-

weight and whole weight based on the conversion factor), or 25 percent

of the total weight of fish on board, whichever is less.

(ii) SFMA. If any portion of the trip is fished by a vessel issued

a monkfish incidental catch permit under a multispecies DAS in the

SFMA, the vessel may land up to 50 lb (23 kg) tail-weight or 166 lb (75

kg) whole weight of monkfish per DAS (or any prorated combination of

tail-weight and whole weight based on the conversion factor).

(2) Scallop dredge vessels fishing under a scallop DAS--(i) Prior

to May 1, 2002. A scallop dredge vessel issued a monkfish incidental

catch permit fishing under a scallop DAS may land up to 300 lb (136 kg)

tail-weight or 996 lb (452 kg) whole weight of monkfish per DAS (or any

prorated combination of tail-weight and whole weight based on the

conversion factor).

(ii) From May 1, 2002, and thereafter. A scallop dredge vessel

issued a monkfish incidental catch permit fishing under a scallop DAS

may land up to 200 lb (91 kg) tail-weight or 664 lb (301 kg) whole

weight of monkfish per DAS (or any prorated combination of tail-weight

and whole weight based on the conversion factor).

(3) Vessels not fishing under a monkfish, multispecies or scallop

DAS--(i) Vessels fishing in the GOM/GB, SNE and MA Regulated Mesh Areas

with large mesh. A vessel issued a valid monkfish incidental catch

permit and fishing in the GOM/GB or SNE RMAs with large mesh as defined

in Sec. 648.80(a)(2)(i) and (b)(2)(i), respectively, or fishing in the

MA RMA with mesh no smaller than specified at Sec. 648.104(a)(1), while

not on a monkfish, multispecies, or scallop DAS, may possess, retain,

and land monkfish (whole or tails) only up to 5 percent of the total

weight of fish on board.

(ii) [Reserved]

(4) Vessels fishing with small mesh. A vessel issued a valid

monkfish incidental catch permit and fishing with mesh smaller than the

mesh size specified by area in paragraph (c)(3) of this section, while

not on a monkfish, multispecies, or scallop DAS, may possess, retain,

and land only up to 50 lb (23 kg) tail-weight or 166 lb (75 kg) whole

weight of monkfish per trip.

(5) Small vessels. A vessel issued a limited access multispecies

permit and a valid monkfish incidental catch permit that is

30 feet (9.1 m) in length and that elects not to fish under the

multispecies DAS program may possess, retain, and land up to 50 lb (23

kg) tail-weight or 166 lb (75 kg) whole weight of monkfish per trip,

regardless of the weight of other fish on board.

(6) Vessels fishing with handgear. A vessel issued a valid monkfish

incidental catch permit and fishing exclusively with rod and reel or

handlines with no other fishing gear on board, while not on a monkfish,

multispecies, or scallop DAS, may possess, retain, and land up to 50 lb

(23 kg) tail-weight or 166 lb (75 kg) whole weight of monkfish per

trip, regardless of the weight of other fish on board.

(d) Monkfish liver landing restrictions. (1) A vessel authorized to

land monkfish under this part may possess or land monkfish livers up to

25 percent of the tail-weight of monkfish, or up to 10 percent of the

whole weight of monkfish, per trip, except as provided under paragraph

(d)(2) of this section.

(2) If a vessel possesses or lands both monkfish tails and whole

monkfish, the vessel may land monkfish livers up to 10 percent of the

whole weight of monkfish per trip using the following weight ratio:

(0.10) x [(tail weight x 3.32) + (whole fish x 1)]

Note to paragraph (d)(2): The value 3.32 is the live weight

conversion for tails and the value of 1 is the live weight

conversion for fish landed in a whole condition.

(e) Transiting. A vessel that has declared into the NFMA for the

purpose of fishing for monkfish, or a vessel that is subject to less

restrictive measures in the NFMA, may transit the SFMA, provided that

the vessel does not harvest or possess monkfish from the SFMA and that

the vessel's fishing gear is properly stowed and not available for

immediate use in accordance with Sec. 648.81(e).

(f) Area declaration. Should the trip limits specified in

paragraphs (b)(2)(iii), (iv), (v), and (vi) of this section be

implemented under paragraph (b)(2) of this section, a vessel, in order

to fish for monkfish under a monkfish DAS in the NFMA, must declare

into that area for a period of not less than 30 days. A vessel that has

not declared into the NFMA under this paragraph will be presumed to

have fished in the SFMA under the more restrictive requirements of that

area. Such restrictions will apply to the entire trip. A vessel that

has declared its intent to fish in the NFMA may transit the SFMA,

provided that it complies with the transiting provisions

[[Page 54751]]

described in paragraph (e) of this section.

(g) Other landing restrictions. Vessels are subject to any other

applicable landing restrictions of this part.

Sec. 648.95 [Reserved]

Sec. 648.96 Monkfish framework specifications.

(a) Annual review. The Monkfish Monitoring Committee (MFMC) shall

meet on or before November 15 of each year to develop target TACs for

the upcoming fishing year and options for NEFMC and MAFMC consideration

on any changes, adjustment, or additions to DAS allocations, trip

limits, size limits, or other measures necessary to achieve the

Monkfish FMP's goals and objectives.

(1) The MFMC shall review available data pertaining to discards and

landings, DAS, and other measures of fishing effort; stock status and

fishing mortality rates; enforcement of and compliance with management

measures; and any other relevant information.

(2) Based on this review, the MFMC shall recommend target TACs and

develop options necessary to achieve the Monkfish FMP's goals and

objectives, which may include a preferred option. The MFMC must

demonstrate through analysis and documentation that the options it

develops are expected to meet the Monkfish FMP goals and objectives.

The MFMC may review the performance of different user groups or fleet

sectors in developing options. The range of options developed by the

MFMC may include any of the management measures in the Monkfish FMP,

including, but not limited to: closed seasons or closed areas; minimum

size limits; mesh size limits; net limits; liver to monkfish landings

ratios; annual monkfish DAS allocations and monitoring; trip or

possession limits; blocks of time out of the fishery; gear

restrictions; transferability of permits and permit rights or

administration of vessel upgrades, vessel replacement, or permit

assignment; and other frameworkable measures included in Secs. 648.55

and 648.90.

(3) The Councils shall review the recommended target TACs and all

of the options developed by the MFMC and other relevant information,

consider public comment, and develop a recommendation to meet the

Monkfish FMP's objectives, consistent with other applicable law. The

Councils may delegate authority to the Joint Monkfish Oversight

Committee to conduct an initial review of the options developed by the

MFMC. The oversight committee would review the options developed by the

MFMC and any other relevant information, consider public comment, and

make a recommendation to the Councils. If the Councils do not submit a

recommendation that meets the Monkfish FMP's objectives and is

consistent with other applicable law, the Regional Administrator may

adopt any option developed by the MFMC unless rejected by either

Council, provided such option meets the Monkfish FMP's objectives and

is consistent with other applicable law. If either the NEFMC or MAFMC

has rejected all options, then the Regional Administrator may select

any measure that has not been rejected by both Councils.

(4) Based on this review, the Councils shall submit a

recommendation to the Regional Administrator of any changes,

adjustments, or additions to management measures necessary to achieve

the Monkfish FMP's goals and objectives. The Councils' recommendation

shall include supporting documents, as appropriate, concerning the

environmental and economic impacts of the proposed action and the other

options considered by the Councils. Management adjustments or

amendments for monkfish require majority approval of each Council for

submission to the Secretary.

(5) If the Councils submit, on or before January 7 of each year, a

recommendation to the Regional Administrator after one framework

meeting, and the Regional Administrator concurs with the

recommendation, the recommendation shall be published in the Federal

Register as a proposed rule. The Federal Register notification of the

proposed action shall provide a 30-day public comment period. The

Councils may instead submit their recommendation on or before February

1 if they choose to follow the framework process outlined in paragraph

(c) of this section and request that the Regional Administrator publish

the recommendation as a final rule. If the Regional Administrator

concurs that the Councils' recommendation meets the Monkfish FMP's

objectives and is consistent with other applicable law, and determines

that the recommended management measures should be published as a final

rule, the action shall be published as a final rule in the Federal

Register. If the Regional Administrator concurs that the recommendation

meets the Monkfish FMP's objectives and is consistent with other

applicable law and determines that a proposed rule is warranted, and,

as a result, the effective date of a final rule falls after the start

of the fishing year, fishing may continue. However, DAS used by a

vessel on or after the start of a fishing year shall be counted against

any DAS allocation the vessel ultimately receives for that year.

(6) If the Regional Administrator concurs in the Councils'

recommendation, a final rule will be published in the Federal Register

prior to each fishing year. If the Councils fail to submit a

recommendation to the Regional Administrator by February 1 that meets

the Monkfish FMP's goals and objectives, the Regional Administrator may

publish as a proposed rule one of the MFMC options reviewed and not

rejected by either Council, provided that the option meets the Monkfish

FMP's objectives and is consistent with other applicable law. If the

Councils fail to submit a recommendation that meets the objectives and

is consistent with other applicable law, the Regional Administrator may

adopt any option developed by the MFMC, unless it was rejected by

either the New England or Mid-Atlantic Council, provided the option

meets the objective and is consistent with other applicable law. If,

after considering public comment, the Regional Administrator decides to

approve the option published as a proposed rule, the action shall be

published as a final rule in the Federal Register.

(b) Three-year review of biological objectives and reference

points. The MFMC shall meet on or before November 15, 2001, to evaluate

threshold and target biological reference points. If adjustments are

required, a framework action shall be initiated to replace the existing

(``default'') measures scheduled to take effect on May 1, 2002 (Year

4). The framework process shall include a comprehensive evaluation,

conducted by the MFMC during 2001, of the effectiveness of the

management measures to reduce mortality below the overfishing threshold

and allow rebuilding within (at that time) 6 years. If a change is

required, the framework process shall follow the procedure described in

paragraph (a) of this section, but may also include an adjustment of

the overfishing definition.

(c) Within season management action. Either Council, or the joint

Monkfish Oversight Committee (subject to the approval of the Councils

chairmen), may at any time initiate action to add or adjust management

measures if it is determined that action is necessary to meet or be

consistent with the goals and objectives of the Monkfish FMP.

[[Page 54752]]

Framework adjustments shall require at least one initial meeting of the

Monkfish Oversight Committee or one of the Councils (the agenda must

include notification of the framework adjustment proposal) and at least

two Council meetings, one at each Council. Management adjustments or

amendments for monkfish shall require majority approval of each Council

for submission to the Secretary.

(1) Adjustment process. After a management action has been

initiated, the Councils must develop and analyze appropriate management

actions over the span of at least two Council meetings, one at each

Council. The Councils shall provide the public with advance notice of

the availability of both the proposals and the analysis, and

opportunity to comment on them prior to the first of the two final

Council meetings. The Councils' recommendation on adjustments or

additions to management measures must come from one or more of the

following categories: closed seasons or closed areas; minimum size

limits; mesh size limits; net limits; liver to monkfish landings

ratios; annual monkfish DAS allocations and monitoring; trip or

possession limits; blocks of time out of the fishery; gear

restrictions; transferability of permits and permit rights or

administration of vessel upgrades, vessel replacement, or permit

assignment; and other frameworkable measures included in Secs. 648.55

and 648.90.

(2) Adjustment process for gear conflicts. The Councils may develop

a recommendation on measures to address gear conflict as defined under

Sec. 600.10 of this chapter, in accordance with the procedure specified

in Sec. 648.55(d) and (e).

(3) Councils' recommendation. After developing management actions

and receiving public testimony, the Councils shall make a

recommendation to the Regional Administrator. The Councils'

recommendation must include supporting rationale and, if management

measures are recommended, an analysis of impacts and a recommendation

to the Regional Administrator on whether to issue the management

measures as a final rule. If the Councils recommend that the management

measures should be issued as a final rule, the Councils must consider

at least the following four factors and provide support and analysis

for each factor considered:

(i) Whether the availability of data on which the recommended

management measures are based allows for adequate time to publish a

proposed rule, and whether regulations have to be in place for an

entire harvest/fishing season;

(ii) Whether there has been adequate notice and opportunity for

participation by the public and members of the affected industry in the

development of the Councils' recommended management measures;

(iii) Whether there is an immediate need to protect the resource or

to impose management measures to resolve gear conflicts; and

(iv) Whether there will be a continuing evaluation of management

measures adopted following their implementation as a final rule.

(4) Action by NMFS. If the Councils' recommendation to NMFS

includes adjustments or additions to management measures and:

(i) If NMFS concurs with the Councils' recommended management

measures and determines that the recommended management measures should

be issued as a final rule based on the factors specified in paragraph

(c)(3) of this section, then the measures shall be issued as a final

rule in the Federal Register.

(ii) If NMFS concurs with the Councils' recommendation and

determines that the recommended management measures should be published

first as a proposed rule, then the measures shall be published as a

proposed rule in the Federal Register. After additional public comment,

if NMFS concurs with the Councils' recommendation, then the measures

shall be issued as a final rule in the Federal Register.

(iii) If NMFS does not concur, then the Councils shall be notified

in writing of the reasons for the non-concurrence.

(d) Emergency action. Nothing in this section is meant to derogate

from the authority of the Secretary to take emergency action under

section 305(c) of the Magnuson-Stevens Act.

[FR Doc. 99-26039 Filed 10-6-99; 8:45 am]

BILLING CODE 3510-22-F