E9-25754. Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Monkfish Fishery

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS is proposing a regulatory amendment to the Monkfish Fishery Management Plan (FMP) to allow projects funded through the Monkfish Research Set-Aside (RSA) Program to carryover unused monkfish RSA days-at-sea (DAS) into the following fishing year. Given the most recent information on the status of monkfish stocks, the regulation that prohibits monkfish RSA DAS to be carried over to the next fishing year is no longer necessary. In addition, this action would provide researchers with flexibility to complete research funded through the Monkfish RSA Program.

DATES:

Written comments must be received no later than 5 p.m. eastern standard time, on November 25, 2009.

ADDRESSES:

You may submit comments, identified by RIN number 0648-AY01, by any of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking portal http://www.regulations.gov.
• Fax: [phone], Attn: Anna Macan.
• Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Monkfish RSA DAS Regulatory Amendment.”

Instructions: All comments received are part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

NMFS will accept anonymous comments. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Anna Macan, Fishery Management Specialist, phone [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

Background

The monkfish fishery is jointly managed by the New England and Mid-Atlantic Fishery Councils, with the New England Council having the administrative lead. The fishery extends from Maine to North Carolina, and is divided into two management units: The Northern Fishery Management Area (NFMA) and the Southern Fishery Management Area (SFMA).

The Monkfish RSA Program was implemented through Amendment 2 to the Monkfish FMP, and 500 DAS are set aside annually from the total number of DAS allocated to limited access monkfish vessels to encourage vessels to participate in cooperative research. Because the amendment was silent on this issue of whether RSA DAS allocated to a research project should be allowed to be carried over to the following fishing year, during the rulemaking for Amendment 2, NMFS implemented a regulation that prohibited the carryover of unused monkfish RSA DAS (§ 648.92(c)(1)(v)). This regulation was not an element of the RSA program as proposed by the Councils in Amendment 2 to the FMP, but rather was implemented in the final rule for the amendment under NMFS's administrative authority, under section 305(d) of the Magnunson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS took this approach due, in part, to the status of the stock at the time; at the time the amendment was being implemented, monkfish were considered overfished in both areas, with little sign of rebuilding. Since the stock is now considered to be rebuilt, the restriction on carrying over RSA DAS has become less of a concern.

Recent experience has demonstrated that researchers who participate in the monkfish RSA program have often been unable to use all of their allocated RSA DAS within the fishing year for which the grants were issued. Reasons such as unsafe weather conditions, unexpected DAS adjustments (e.g., Framework Adjustment 4 to the FMP), higher than expected fuel costs, and delayed grant approval have caused RSA DAS to go unused, resulting in loss of fishing revenue and corresponding research funding.

Allowing RSA DAS carryover would improve the success of the Monkfish RSA Program and would be consistent with the rationale for allowing commercial DAS carryover, detailed in the original FMP (e.g., to reduce the incentive to operate in unsafe conditions at the end of the fishing year).

NMFS considered four options for how monkfish RSA DAS could be carried over, as follows:

Option 1: Allow a specific number of DAS to be carried over by each project. For example, each project could be allowed to carry over up to four unused DAS to be used in the following fishing year. This option would be consistent with the current carryover policy for commercial vessels (which limits each vessel to four carryover DAS). However, this does not take into account variations in the number of monkfish RSA DAS granted to each project or the number of vessels that may be involved.

Option 2: Allow for a fixed percentage of RSA DAS carryover based on current commercial carryover policy. Because monkfish vessels are currently allowed to carryover 4 of their allocated 31 DAS, representing 13 percent of their base DAS allocation, this 13 percent could be applied to each project's RSA DAS as well. For example, if a project were granted 200 RSA DAS in fishing year (FY) 2009, up to 26 of these DAS could be carried over to FY 2010. Unlike Option 1, this percentage-based scheme would allow for those projects given more RSA DAS the opportunity to carryover more DAS. The carryover percentage for RSA DAS would be adjusted annually with any changes in the carryover allocation to commercial vessels, accounting for changes in the management of the fishery. If carryover DAS are discontinued in the commercial fishery, no rollover DAS would be allowed for RSA.

Option 3: Allow for projects to rollover of all unused RSA DAS into the following fishing year.

Option 4: Status quo, NMFS retains its conservative approach and does not allow for the carryover of RSA DAS.

Option 3, the rollover of all RSA DAS, is NMFS's preferred alternative. The annual allocation of 500 DAS to the monkfish RSA program is a small percentage of the total DAS allocated to the fishery. Since 2006, when the program was first implemented, around 2 percent of the allocated DAS have been RSA DAS. In 2008, only 346.88 (69.38 percent) of the 500 RSA DAS awarded to various projects were used. The unused 2008 RSA DAS of 153.12 days would have represented less than 1 percent of the total 2009 allocated DAS, had the rollover of all unused RSA DAS been allowed in 2009. When considering fishing effort for 2008, the used RSA DAS represented less than 7 percent of the total DAS used. Furthermore, the biological impacts of the 500 RSA DAS have already been assessed in Amendment 2 and because monkfish is considered a data poor stock, the research generated from these projects outweigh any minimal biological impacts associated with rollover of RSA DAS.

The other three non-preferred options either do not allow for the carryover of RSA DAS, or do not allow for all RAS DAS to be carried over. As a result, these options would not maximize the recovery of revenue that is needed to fund the research projects. If RSA funding cannot be realized, researchers may have to abandon their projects or seek support from other sources that often result in a lengthy review process. Therefore, NMFS considers option 3 as the best approach to successfully implement the Monkfish RSA Program. Also, had the 500 monkfish DAS set aside for research instead remained in the commercial fishery pool, some of these DAS would have been able to be carried over to the next fishing year under existing regulations. If carryover DAS are discontinued in the commercial fishery, NMFS would reconsider whether rollover of RSA DAS would be allowed under the Monkfish RSA Program.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with the Monkfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

The entities affected by this action are research institutions and universities, which are the groups that apply for and are issued grants through the Monkfish RSA Program. The proposed action to allow carryover of monkfish RSA DAS into the next fishing year would provide researchers the flexibility necessary to complete research projects funded through the Monkfish RSA Program. In recent years, researchers have stated that factors such as regulatory changes, increased fuel costs, and delayed grant approval, have greatly impacted their ability to use all of the monkfish RSA DAS within the fishing year for which they were granted. For example, in fishing year 2007 (the second year of the program), 367 monkfish RSA DAS were allocated, but 296 DAS were used, leaving 71 monkfish RSA DAS unused. However, in fishing year 2008, the number of unused monkfish RSA DAS doubled to 153 out of a total of 500 monkfish RSA DAS allocated.

This action is administrative in nature and will not have any economic impacts on small entities. This action would allow researchers issued grants under the Monkfish RSA Program the ability to fulfill those grant obligations by providing them the opportunity to complete their research projects if, for unforeseen circumstances, they are unable to utilize all of their monkfish RSA DAS during the fishing year for which those DAS were granted. Therefore, because this action makes only a minor administrative change to the Monkfish RSA Program to ensure that this program functions as intended, it will not have any economic effect on small entities.

As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: October 20, 2009.

James W. Balsiger,

Acting Assistant Administrator For Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be 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 § 648.92, paragraph (c)(1)(v) is revised to read as follows:

§ 648.92

Effort-control program for monkfish limited access vessels.

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(c) * * *

(1) * * *

(v) If the Regional Administrator determines that the annual allocation of research DAS will not be used in its entirety once all of the grant awards have been approved, the Regional Administrator shall reallocate the unallocated research DAS as exempted DAS to be authorized as described in paragraph (c)(2) of this section, and provide notice of the reallocation of DAS in the Federal Register. Any allocated research DAS that are not used during the fishing year for which they are granted may be carried over into the next fishing year. Any unallocated research DAS may not be carried over into the next fishing year.

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