Fisheries of the Northeastern United States; Framework 12 to the Atlantic Sea Scallop Fishery Management Plan; Technical Amendment to the Monkfish Landing Restrictions and Application/Renewal Permit Restrictions

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement measures contained in Framework Adjustment 12 to the Atlantic Sea Scallop Fishery Management Plan (FMP). The intent of Framework Adjustment 12 and these final regulations is to adjust the limited access scallop days-at-sea (DAS) allocations for the fishing year March 1, 2000, through February 28, 2001. This final rule also corrects and clarifies the final rule implementing the Monkfish FMP by providing clarification on how the 5-percent and 25-percent incidental catch criteria are to be calculated for the purpose of determining the allowable incidental catch level of monkfish and monkfish tails compared to the total weight of fish on board. In addition, this final rule clarifies the monkfish permit application/renewal deadlines.

DATES:

This rule is effective March 1, 2000, except that amendments to § 648.4(a)(9)(i)(B) and § 648.94(b)(4)(i), (b)(4)(ii), (c)(1)(i), and (c)(3)(i) are effective March 3, 2000.

ADDRESSES:

Copies of the supporting documents for Framework Adjustment 12 are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

FOR FURTHER INFORMATION CONTACT:

Paul H. Jones, Fishery Policy Analyst, 978-281-9273, fax 978-281-9135, e-mail paul.h.jones@noaa.gov

SUPPLEMENTARY INFORMATION:

Background

Regulations implementing Amendment 7 to the FMP (64 FR 14835, March 29, 1999) redefined overfishing; revised the existing fishing mortality (F) reduction schedule through fishing year 2008 to reduce the allowable DAS for Atlantic sea scallop vessels in order to rebuild the scallop stock within 10 years; and established an annual monitoring and review process to adjust management measures to meet the stock rebuilding objectives.

The New England Fishery Management Council (Council) developed Framework 12 to the Sea Scallop FMP to adjust the fishing year 2000 DAS allocations for limited access scallop vessels. This action increases the fishing year 2000 annual DAS allocations from the level specified in the FMP as follows: Full-time from 51 DAS to 120 DAS, Part-time from 20 to 48 DAS, and Occasional from 4 to 10 DAS. The adjustment is needed to make the DAS allocations for fishing year 2000 consistent with current resource conditions.

When the Council developed Amendment 7, survey data and stock assessment information were current through July 1997. The multispecies area closures had just recently been implemented on Georges Bank and in Southern New England, and the closure to protect scallops had not yet been implemented in the Mid-Atlantic. The effect of rebuilding stock in the closed areas could not be predicted very precisely. Therefore, Amendment 7 relied on large cuts in DAS allocations to achieve the F targets needed to stop overfishing and rebuild the stock. Amendment 7 recognized the large reduction in DAS would have significant economic and social effects on the industry, the economy, and small communities that depend on the scallop fishery.

Based on an updated assessment from the 29th Northeast Regional Stock Assessment Workshop (September 1999) and the 1999 Stock Assessment and Fishery Evaluation (SAFE) Report, the Scallop Plan Development Team (PDT) determined that increasing the Amendment 7 DAS allocations for each of three permit categories to the same amounts as in the 1999 fishing year would meet the 2000 F target. This is contingent on scallops in the closed areas remaining protected or that access by scallop vessels to the closed areas is conservation neutral. The SAFE Report dated September 1, 1999, included new biological projections that indicate that scallop rebuilding is ahead of the schedule anticipated in the Amendment 7 analysis. The accelerated rebuilding has occurred primarily because of a strong year class of scallops in 1998 and because of rapidly accumulating biomass in the Georges Bank and Southern New England multispecies closed areas. More importantly, the Amendment 7 F targets are now expected to rebuild stock biomass to target levels for Georges Bank by 2005 and in the Mid-Atlantic by 2003. No recommendations were made by the Scallop PDT for subsequent years.

Abbreviated Rulemaking

The Council requested publication of the management measures as a final rule after considering the required factors stipulated in the regulations governing the Atlantic sea scallop fishery (§ 648.55(g)) and providing supporting analysis for each factor considered. The Administrator, Northeast Region, NMFS, concurred with the Council's recommendation and has determined that Framework Adjustment 12 should be published as a final rule.

NMFS is adjusting the scallop regulations following the procedure for framework adjustments established by Amendment 4 and codified in 50 CFR part 648, subpart D. The Council followed this procedure when making adjustments to the FMP by developing and analyzing the actions over the span of two Council meetings held on September 22, 1999, and November 17, 1999.

Public Comments Received and Response

The September 22, 1999, Council meeting was the first of two meetings that provided an opportunity for public comment on Framework Adjustment 12. A draft document containing the proposed management measures and their rationale was available to the public during the second week in November 1999 and notification of the initial and final Council meetings were mailed to people on the Council's extensive interested party mailing list and published in the Federal Register. The final public hearing was held on November 17, 1999. Testimony provided by industry members at the public meetings favored the increase in DAS allocation; there were no negative comments. NMFS agrees and approved Framework 12 on February 22, 2000.

Monkfish Technical Amendment

This final rule also implements a technical change to clarify the Council's intent concerning the 5-percent and 25-percent incidental catch criteria implemented in regulations under the Monkfish FMP. This final rule adds language that will clarify how the 5-percent and 25-percent incidental catch criteria will be calculated for the purpose of determining the allowable incidental catch of monkfish and monkfish tails. The monkfish regulations specify that any vessel issued a monkfish Category C or D permit that is fishing under a multispecies DAS and not under 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 25 percent of the total weight of fish on board, whichever is less. As currently written in the regulations, in order to comply with the 25-percent incidental catch criterion, vessels that possess whole monkfish must retain more fish overall than vessels that retain monkfish tails. For example, if a vessel landed 250 lb (113.4 kg) of monkfish tails, its total fish landings must equal at least 830 lb (376.5 kg) to fulfill the 25-percent rule. Conversely, if a vessel landed the whole weight equivalent of the tails, i.e., 830 lb (376.5 kg), the vessel must land at least 3,320 lb (1505.9 kg) of total fish.

A similar rule also exists for any vessel issued a monkfish incidental catch permit and fishing with large mesh while not on a monkfish, multispecies, or scallop DAS. Vessels fishing under this scenario may land monkfish (whole or tails) only up to 5 percent of the total weight of fish on board. As stated earlier, in order to comply with the 5-percent criterion vessels that possess whole monkfish are required to retain more fish than vessels that retain monkfish tails.

To address this, the Council, at its November 17, 1999, meeting, clarified its intent and voted to recommend a technical change to the final rule implementing the Monkfish FMP. A review of the Monkfish FMP text and background material germane to the issue shows that a technical amendment is warranted by the record. Therefore, this final rule adds language to clarify this measure by specifying that for the purpose of determining compliance with the 5-percent and 25-percent incidental catch criteria, monkfish landed as whole weight will be converted to tail weight by dividing the amount of whole weight possessed or landed by 3.32. The converted tail weight will then be used to determine the appropriate 5-percent or 25-percent threshold.

In addition, this final rule clarifies the permit application/renewal requirements for the monkfish fishery. The current regulations (§ 648.4(a)(9)((i)(B)) indicate that the Regional Administrator must receive a completed application by the last day of the fishing year for which the permit is required (April 30, 2000). However, § 648.4(a)(9)(i)(M) indicates that vessel owners must apply for a limited access permit within 12 months of the effective date of the regulations implementing the Monkfish FMP, which became effective on November 8, 1999. This rule clarifies that applications for limited access monkfish permits must be received no later than November 7, 2000, rather than the end of the monkfish fishing year (April 30, 2000).

Classification

This final rule has been determined to be not significant for the purposes of E.O. 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds that because public meetings held by the Council to discuss the management measure implemented by this rule provided adequate prior notice and opportunity for public comment, further notice and opportunity to comment on this rule is unnecessary. Also, because the technical amendments to the monkfish final rule merely clarify Council intent regarding conversions of weights and an application deadline without affecting a substantive change to the existing regulations, prior notice and opportunity for public comment are unnecessary. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds that good cause exists to waive prior notice and opportunity for comment.

Increasing DAS allocations for fishing year 2000 for scallop limited access vessels relieves restrictions. Accordingly, under 5 U.S.C. 553(d)(1), the 30-day delay in effectiveness is not required. Technical amendments to § 648.4(a)(9)(i)(B) and § 648.94(b)(4)(i), (b)(4)(ii), (c)(1)(i), and (c)(3)(i) merely clarifies the existing regulations. They do not make any substantive change to the regulations. Thus, these amendments do not constitute a substantive rule subject to the requirement for a 30-day delay in effective date contained in 5 U.S.C. 553(d).

Because a general notice of proposed rulemaking is not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. While a regulatory flexibility analysis is not required and none has been prepared, the economic impacts on affected fishers and alternatives to the rule were considered by the Council and NMFS. Copies of the analysis for Framework 12 may be obtained from the Council (see ADDRESSES).

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

2. In § 648.4, paragraph (a)(9)(i)(B) is revised to read as follows:

3. In § 648.53, paragraph (b) is amended by revising the table to read as follows:

4. In § 648.94, paragraphs (b)(4)(i), (b)(4)(ii), (c)(1)(i), and (c)(3)(i) are revised to read as follows: