[Federal Register Volume 69, Number 223 (Friday, November 19, 2004)]
[Rules and Regulations]
[Pages 67780-67804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25722]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) Provisions; Fisheries of the Northeastern United States; 
Northeast (NE) Multispecies Fishery; Framework Adjustment 40-A; Interim 
Final Rule

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / 
Rules and Regulations

[[Page 67780]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.; ID 080204G]
RIN 0648-AS34


Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) Provisions; Fisheries of the Northeastern United 
States; Northeast (NE) Multispecies Fishery; Framework Adjustment 40-A

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

ACTION:  Interim final rule; request for comments.

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SUMMARY:  NMFS is implementing approved measures contained in Framework 
Adjustment 40-A (FW 40-A) to the NE Multispecies Fishery Management 
Plan (FMP). FW 40-A was developed by the New England Fishery Management 
Council (Council) to provide additional opportunities for vessels in 
the fishery to target healthy stocks of groundfish in order to mitigate 
the economic and social impacts resulting from the effort reductions 
required by Amendment 13 to the FMP, and to harvest groundfish stocks 
at levels that approach optimum yield (OY). This rule implements three 
programs to allow vessels to use Category B Days-at-Sea (DAS) (both 
Regular and Reserve) to target healthy stocks: Regular B DAS Pilot 
Program; Closed Area (CA) I Hook Gear Haddock Special Access Program 
(SAP) for the Georges Bank (GB) Cod Hook Sector (Sector); and Eastern 
U.S./Canada Haddock SAP Pilot Program. In addition, FW 40-A relieves an 
Amendment 13 restriction that prohibited vessels from fishing both in 
the Western U.S./Canada Area and outside that area on the same trip.

DATES:  Effective November 19, 2004. Comments must be received by 
December 20, 2004.

ADDRESSES:  You may submit comments by any of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#f4b2a3c0c4b5b4babbb5b5da939b82"><span class="__cf_email__" data-cfemail="e1a7b6d5d1a0a1afaea0a0cf868e97">[email protected]</span></a>. Include in the subject line the 
following: ``Comments on the Proposed Rule for Groundfish Framework 40-
A.''
    <bullet> Federal E-Rulemaking Portal: http://www.regulations.gov.
    <bullet> Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of 
the envelope, ``Comments on the Interim Rule for Groundfish Framework 
40-A.''
    <bullet> Fax: (978) 281-9135.
    Copies of FW 40-A, its Regulatory Impact Review (RIR), and the 
Environmental Assessment (EA) are available from Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, The Tannery Mill 2, Newburyport, MA 01950. NMFS prepared a 
Final Regulatory Flexibility Analysis (FRFA), which is contained in the 
Classification section of this rule. Copies of the Small Entity 
Compliance Guide are available from the Regional Administrator, 
Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 
01930-2298.
    Written comments regarding this interim final rule should be 
submitted to the Regional Administrator at the above address. Written 
comments regarding the burden-hour estimates or other aspects of the 
collection-of-information requirements contained in this rule should be 
submitted to the Regional Administrator by e-mail to David Rostker, 
<a href="/cdn-cgi/l/email-protection#581c392e313c070a372b2c333d2a1837353a763d3728763f372e"><span class="__cf_email__" data-cfemail="c286a3b4aba69d90adb1b6a9a7b082adafa0eca7adb2eca5adb4">[email protected]</span></a> or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:  Thomas Warren, Fishery Policy 
Analyst, phone: (978) 281-9347, fax; (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The Council developed Amendment 13 to bring the FMP into compliance 
with all Magnuson-Stevens Act requirements, including ending 
overfishing and rebuilding all overfished groundfish stocks. Amendment 
13 was partially approved by the Secretary of Commerce on March 18, 
2004. A final rule implementing the approved measures was published 
April 27, 2004 (69 FR 22906), and most measures became effective on May 
1, 2004. Amendment 13 adopted a suite of management measures to reduce 
fishing mortality on groundfish stocks that are either overfished, or 
where overfishing is occurring. For several stocks, the fishing 
mortality targets adopted in Amendment 13 represented substantial 
reductions from previous levels. For other stocks, the fishing 
mortality targets were set at or above previous levels, and fishing 
mortality could remain the same or potentially increase without causing 
overfishing. Because most fishing trips in this fishery catch a wide 
range of species, and the principal management tool used in the FMP to 
reduce fishing effort is DAS, the reduction in DAS implemented by 
Amendment 13 impacts numerous species. It is difficult to design 
management measures that selectively change fishing mortality for 
individual species. Because the management measures in Amendment 13 
were designed to reduce fishing mortality where necessary, they may 
also reduce fishing mortality more than is necessary for other, 
healthier stocks due to the multispecies nature of the fishery. As a 
result, yield from healthier stocks may have been reduced and the 
ability of the FMP to ensure OY from these stocks may be diminished. OY 
is the amount of fish that will provide the greatest overall benefit to 
the nation. Because of the complexity of Amendment13, it was not 
possible to develop and analyze measures to increase yield on these 
healthier stocks in time to meet litigation-imposed deadlines. FW 40-A 
was conceived and developed as a follow-up to Amendment 13 to implement 
programs that would provide additional opportunities to target healthy 
groundfish stocks in order to maximize the ability to achieve OY. These 
programs will also mitigate some of the negative economic and social 
impacts caused by the effort reductions in Amendment 13.
    Among the primary Amendment 13 management measures to control 
fishing mortality are DAS reductions. Amendment 13 categorized the DAS 
allocated to each permit as Category A DAS, Category B DAS, which were 
further categorized as Regular B and Reserve B, and Category C DAS. 
Category A DAS can be used to target any regulated groundfish stock, 
while Category B DAS are to be used only to target healthy groundfish 
stocks in a restricted manner. Category C DAS cannot be used at all at 
this time. Amendment 13 implemented one program that allows the use of 
B DAS (CA II Yellowtail Flounder SAP). This interim final rule 
implements the following B DAS Programs proposed in FW 40-A, with the 
exceptions noted below: The Regular B DAS Pilot Program; the CA I Hook 
Gear Haddock SAP for the Sector; and the Eastern U.S./Canada Haddock 
SAP Pilot Program. The disapproved measures are: Allowance of non-
Sector participants in the CA I Hook Gear Haddock SAP; and the use of a 
flounder net in the Eastern U.S./Canada Haddock SAP Pilot Program. 
Further explanation of the reasons for disapproval of those measures is 
provided under Disapproved Measures.

[[Page 67781]]

Comments and Responses

Regular B DAS Pilot Program

    Comment 1: One commenter suggested that, under the Regular B DAS 
Pilot Program, GB yellowtail flounder should not be listed as one of 
the stocks that can withstand additional fishing effort, given the 
recent updated status of the stock and the fact that the Council 
approved 2005 fishing year TAC lower than the TAC adopted for the 2004 
fishing year.
    Response: FW 40-A identifies GB yellowtail flounder as a target 
stock, i.e., a stock that can support additional fishing effort under 
the Regular B DAS Pilot Program. The list of target species was 
provided for informational purposes, and is based upon the analyses in 
Amendment 13. Based on the recent Transboundary Management Guidance 
Committee (TMGC) Guidance Document for the 2005 fishing year, there is 
an indication that the biomass level for GB yellowtail flounder may be 
lower than previously estimated in Amendment 13. The harvest level of 
GB yellowtail flounder for the current fishing year is based upon the 
best available information at the time FW 40-A was developed, and the 
harvest of the GB yellowtail flounder stock will be limited by a hard 
TAC. The TAC for GB yellowtail flounder that the Council approved for 
the 2005 fishing year takes into account the current estimate of the 
biomass level, and the TAC for the 2004 fishing year. The TAC for GB 
yellowtail flounder and the use of Regular B DAS to target this stock 
is consistent with the TMGC's management strategy and the goals of the 
FMP.
    Comment 2: Seven commenters were concerned that, under the proposed 
rule, participants in the Regular B DAS Pilot Program would be 
prohibited from fishing in the Eastern U.S./Canada Area, and that this 
prohibition would restrict opportunities to use Regular B DAS. The 
commenters noted that this restriction was inconsistent with the FW 40-
A document, would contribute to the underharvest of the U.S./Canada 
haddock TAC, and prevent realization of OY. The Council, in a September 
29, 2004, letter to NMFS clarified its intent that vessels should be 
allowed to participate in the Regular B DAS Pilot Program and fish in 
the Eastern U.S./Canada Area.
    Response: NMFS agrees that the proposed rule was inconsistent with 
the Council's intent; this interim final rule is accordingly revised to 
allow vessels the opportunity to fish under the Regular B DAS Pilot 
Program when fishing in the Eastern U.S./Canada Area.
    Comment 3: Two commenters suggested a clarification to the 
requirement for vessels participating in the Regular B DAS Pilot 
Program to notify NMFS for the purpose of deploying observers. 
Specifically, the commenters noted that the requirement that vessels 
provide information on the planned fishing area or areas (Gulf of Maine 
(GOM), GB, or Southern New England (SNE)/Mid-Atlantic (MA)) should be 
clarified to indicate that the area planned for fishing is not binding 
(i.e., even though a vessel indicates it intends to fish in the GOM, it 
can change its plan and fish elsewhere).
    Response: NMFS agrees that this requirement is non-binding and has 
revised the regulatory text of the interim final rule to clarify this 
requirement.
    Comment 4: Two commenters disagreed with an aspect of the Regular B 
DAS Pilot Program and the Eastern U.S./Canada Haddock SAP Pilot Program 
requirement to ``flip'' from a Regular B DAS to an A DAS. Specifically, 
the commenters did not support the timing of the flipping requirement 
as written in the proposed rule, which would have required vessels to 
flip immediately if the vessel brings on board more legal-sized 
groundfish than the applicable landing limit. The commenters stated 
that the proposed regulatory language was not consistent with the 
Council's intent that a vessel flip from a Regular B DAS to an A DAS 
prior to crossing the demarcation line on the way back to port after 
fishing. One commenter suggested that, if the requirement for immediate 
flipping were retained, the restriction should not apply on a per-DAS 
basis, but should instead be applied to the maximum trip limit.
    Response: Based on public comment, including the Council's, NMFS 
agrees that the proposed rule was not consistent with the Council's 
intent, and this interim final rule requires a vessel to flip from a B 
DAS to an A DAS prior to crossing the demarcation line, if the vessel 
has on board more legal-sized groundfish than the landing limits.
    Comment 5: Two commenters stated that the Regional Administrator's, 
Northeast Regional Office NMFS (Regional Administrator's) authority to 
close the Regular B DAS Pilot Program is too vague. The Council 
suggested removal of the Regional Administrator's authority to close 
for reasons relating to observer coverage, and stated that the Council 
did not recommend using the level of observer coverage as a basis for 
closing the Program.
    Response: Because the Regular B DAS Pilot Program and the Eastern 
U.S./Canada Haddock SAP Pilot Program are pilot programs, and one of 
the objectives of these programs is to test the Regular B DAS concept, 
NMFS believes that consistency with the objectives of the FMP must be a 
condition for the continuation of the program. Pursuant to the 
authority granted the agency under section 305(d) of the Magnuson-
Stevens Act, this interim rule provides that the Regional Administrator 
may terminate the programs if it is projected that continuation of the 
programs would undermine the achievement of the objectives of the FMP 
or the programs. With respect to the comments that the Regional 
Administrator's authority is too vague, NMFS believes that, in this 
case, the non-specific nature of this authority is in the best interest 
of the NE multispecies fishery. Because there are no data regarding 
fishing practices under the Regular B DAS Pilot Program, it would be 
difficult for the Regional Administrator to develop precise criteria to 
demonstrate that the programs are working as designed. NMFS intends to 
deploy a level of observers that is much higher than in the fishery at-
large, and to closely monitor all sources of information in order to 
monitor the incidental TACs and ensure that continuing operation of the 
pilot programs is consistent with the goals of the FMP.
    Comment 6: One commenter suggested that FW 40-A implement hard TACs 
on the stocks that are targeted (while fishing under a B DAS). The 
commenter was concerned that the Amendment 13 allocation of A DAS may 
not adequately limit the level of fishing mortality on the target 
stocks, and questioned the assumption in the FW 40-A analysis that 
concludes the current fishing mortality rates are less than the target 
fishing mortality rates (for the target stocks). The commenter noted 
that the rate of harvest of the GB yellowtail flounder from the CA II 
Yellowtail Flounder SAP was higher in reality than had been estimated 
in the Amendment 13 analysis, and concluded that, in a similar manner, 
the rate of harvest of other target stocks under the programs proposed 
by FW 40-A may also be higher than anticipated in the FW 40-A analysis. 
The commenter concluded that hard TACs on target stocks are necessary 
to ensure that the mortality targets are not exceeded.
    Response: A hard TAC for target stocks while fishing under an A DAS 
was not included in FW 40-A. Because NMFS can only approve or 
disapprove substantive measures in a framework adjustment, it cannot 
add a new, substantive measure that was not proposed in FW 40-A. 
Regarding the commenter's concerns about the

[[Page 67782]]

allocation of A DAS, with the exception of the hard TACs implemented 
for the U.S./Canada Management Area and the GB cod hard TAC associated 
with the Sector, Amendment 13 implemented DAS as the principal 
management tool to control fishing effort. Although FW 40-A implements 
incidental hard TACs for stocks of concern for the Regular B DAS Pilot 
Program, as well as hard TACs for species of concern (for both SAPs) 
and for target species for one of the two SAPs, it does not modify the 
basic strategy of the use of A DAS to control effort on target stocks 
under the Regular B DAS Pilot Program. Table 40 in FW 40-A compares the 
target fishing mortality to the expected fishing mortality and 
concludes that, for the healthy stocks, the fishing mortalities that 
are expected to result from the Amendment 13 measures are approximately 
one-half the Amendment 13 target fishing mortalities. Information on 
landings to date of GB haddock from the U.S./Canada Management Area in 
the 2004 fishing year show that, for GB haddock, the current landings 
are well below the U.S./Canada TAC. Although the use of B DAS to target 
stocks that are in relatively good condition is an additional source of 
fishing mortality, FW 40-A implements many constraints on the use of B 
DAS that will limit fishing mortality on target stocks (e.g., 
incidental TACs, limitation of number of B DAS used, hard TACs for the 
SAPs). Due to these constraints, it is very likely that the use of B 
DAS will be limited by incidental hard TACs in the Regular B DAS Pilot 
Program, and by hard TACs or incidental hard TACs in the two SAPs 
implemented under FW 40-A prior to exceeding the target TACs for the 
target stocks. Secondly, the FW 40-A document concludes that Regular B 
DAS use in the pilot program will occur in all allowable areas and will 
not be focused on any single stock. Lastly, as indicated in the 
response to Comment 5, the Regional Administrator is provided the 
authority to close the programs if continuation of the programs are 
determined to be inconsistent with the objectives of the FMP.
    Comment 7: One commenter supported hard incidental TACs for the 
Regular B DAS Pilot Program, but was against increasing the incidental 
TACs in 2005, as proposed in FW 40-A, stating that this increase was 
not supported by scientific information currently available. The 
commenter was particularly concerned about the GB cod incidental TAC 
increase, urged use of the precautionary approach, and suggested that 
any increases should be delayed until the 2005 assessments.
    Response: The increase in TACs for the 2005 and 2006 fishing year 
are based upon the Amendment 13 analysis that indicates stocks will 
increase in size and is based on the best scientific information 
available. In 2005, a biennial review will be conducted in accordance 
with the process implemented by Amendment 13. At that time, the Plan 
Development Team (PDT) will perform a review of the fishery, develop 
target TACs for the upcoming fishing year, and develop options for 
Council consideration on any necessary changes to measures to achieve 
the goals and objectives of the FMP. This biennial review, however, 
does not preclude the Council from adjusting the TACs through a 
management action at any time, if necessary, in order to respond to new 
information on the status of the stock.
    Comment 8: One commenter expressed general support for the range of 
management measures proposed to implement the Regular B DAS Pilot 
Program, including the Vessel Monitoring System (VMS) requirements, 
NMFS notification for deployment of observers, daily reporting via VMS, 
mandatory flipping, the prohibition on discarding, and the 1-year 
duration of the program.
    Response: NMFS agrees and the interim final rule implements these 
proposed measures.
    Comment 9: Two commenters did not support the Regular B DAS Pilot 
Program requirements regarding white hake. The commenters suggested 
that similar management measures be applied to the white hake stock as 
apply to the rest of the groundfish stocks of concern, i.e., when the 
incidental TAC of white hake is harvested for a quarter, the entire 
white hake stock area should be closed to the use of a Regular B DAS 
for the remainder of the quarter, rather than a prohibition on white 
hake retention. The commenters believe that the proposed FW 40-A 
measure to prohibit retention of white hake would provide less 
protection for that stock than for the other groundfish stocks of 
concern, and that such separate treatment is not justified due to the 
status of the white hake stock and the level of fishing mortality on 
that stock. Lastly, one commenter stated that the prohibition on 
retention of white hake (when the incidental TAC has been harvested) is 
inconsistent with the mandatory discard provision of the Regular B DAS 
Pilot Program.
    Response: The FW 40-A document proposed that, for stocks of 
concern, with the exception of white hake, once the incidental TAC has 
been harvested, the stock area should close to the use of Regular B 
DAS. The stated reason for this exception is the fact that the 
geographic area associated with the white hake stock covers all the 
statistical areas under management by the FMP. Because of the large 
stock area, as well as the relatively low incidental TAC for white 
hake, closure of the stock area upon harvest of the TAC could result in 
relative swift closure of the entire Regular B DAS Pilot Program, 
resulting in relatively few economic benefits accruing to the fishery. 
Although the incidental catch TACs are the primary measure to control 
fishing mortality, they are not the only control. The maximum number of 
Regular B DAS that may be used per quarter is 1,000. The FW 40-A 
analysis indicates that the incidental TACs for CC/GOM yellowtail 
flounder, GB cod, and white hake are likely to be caught before 1,000 
Regular B DAS are used. When the TACs for CC/GOM yellowtail flounder or 
GB cod are harvested, the geographic areas associated with those stocks 
will be closed to the use of Regular B DAS. Table 52 of FW 40-A 
indicates that the size of the TAC and the number of DAS that it may 
take to catch the TAC are lower for both CC/GOM yellowtail flounder and 
GB cod (9 mt, 794 days; 19.75 mt, 435 days, respectively) than for 
white hake (38.5 mt; 849 days). Based upon this information, closure of 
the CC/GOM yellowtail flounder and GB cod stock areas will likely occur 
prior to the time the white hake quarterly TAC is reached. Because 
these two stock areas comprise essentially the same area as the white 
hake stock, and closure on the basis that these stock incidental TACs 
are reached would result in the closure of the areas to the use of 
Regular B DAS, the incidental TACs for CC/GOM yellowtail flounder and 
GB cod are likely to provide indirect protection to white hake. NMFS 
agrees that white hake is a stock of concern, and believes that the 
management measures for white hake achieve an acceptable balance of 
protection of the stock and consideration of economic factors.
    Comment 10: One commenter requested that NMFS include in the letter 
to permit holders announcing the approval of FW 40-A and the interim 
final rule implementing the management measures a clarification that 
only monkfish vessels with a monkfish limited access Category C or D 
permit may use a Regular B DAS.
    Response: NMFS will include this clarification in the letter to NE 
multispecies permit holders. This clarification is necessary due to the 
complexity of the rules that pertain to

[[Page 67783]]

the vessels with both limited access multispecies and monkfish permits.

CA I Hook Gear Haddock SAP

    Comment 11: Eight commenters did not support the proposed CA I Hook 
Gear Haddock SAP measures pertaining to the harvest of cod. Five of 
these expressed concern about the potential impact of the use of A DAS 
by non-Sector vessels in the SAP on GB cod given that, as proposed, cod 
caught under an A DAS would not count toward the incidental TAC for GB 
cod. The commenters stated that FW 40-A does not include a quantitative 
analysis of the impacts of the use of an A DAS in CA I, specifically 
with respect to GB cod, and made the point that an A DAS fished inside 
CA I is not equivalent to an A DAS fished outside of CA I. One 
commenter stated that the unconstrained use of A DAS in the SAP would 
exacerbate the derby aspect of the fishery and create a safety concern 
due to the small size of vessels that may choose to participate, and 
the weather that can be expected during the season proposed for the 
SAP. One commenter suggested that all legal-sized cod caught by non-
sector vessels should be retained in order to minimize the potential 
impact on cod. Four commenters stated that the incidental TAC for GB 
cod allocated to non-Sector vessels (16 percent of the overall GB cod 
incidental TAC; 12.6 mt for the 2004 fishing year) is too high, and two 
commenters stated that only cod caught on a B DAS should count toward 
the incidental TAC.
    Response: NMFS agrees that the potential impact of the SAP on GB 
cod as proposed for non-Sector vessels is of concern, and is one of the 
reasons NMFS has disapproved the measures that allow the participation 
of non-Sector vessels in the SAP. A full explanation of the reasons for 
the disapproval of the management measures that pertain to the non-
Sector vessels in contained in the preamble of this rule under 
``Disapproved Measures.'' The specific changes to the regulations are 
identified in the preamble under ``Changes to the Proposed Rule.''
    Comment 12: Four commenters expressed concerns regarding the 
different rules proposed for the Sector and non-Sector vessels. Two 
commenters noted that the management measures proposed for the non-
Sector vessels put the Sector vessels at a financial disadvantage 
compared with the non-Sector vessels. One commenter considered the 
different rules applicable to the non-Sector as an unfair double-
standard. One commenter believed that the rules that were proposed to 
pertain to the non-Sector vessels did not accurately reflect the 
results of the research that forms the basis of the analysis of the 
impacts of the SAP.
    Response: NMFS agrees that the FW 40-A document did not fully 
justify the differences in the proposed management measures that 
pertain to Sector and non-Sector participants in the SAP. Furthermore, 
implementation of two sets of rules for the SAP (Sector rules and non-
Sector rules) would be extremely difficult to enforce and monitor, 
creating a significant administrative burden to NMFS. The 
administrative and enforcement costs, with relatively little economic 
benefit derived from the non-Sector vessels, is one of the reasons that 
NMFS has disapproved the measures that would have allowed the 
participation of non-sector vessels in the SAP. A full explanation of 
the reasons for the disapproval of the management measures that would 
have pertained to the non-Sector vessels in contained in this preamble 
under ``Disapproved Measures.''
    Comment 13: Five commenters addressed the proposed requirement for 
VMS double polling of vessels participating in the CA I Hook Gear 
Haddock SAP. Commenters requested either that the requirement for 
double polling be eliminated, or that NMFS not hold vessel owners 
responsible for paying for double polling.
    Response: NMFS concurs and has removed the requirement of mandatory 
double polling from the interim final rule because the additional cost 
(to vessel owners or NMFS) was not specifically included in FW 40-A and 
may not currently be justified. Instead this interim final rule 
requires that double polling may be initiated by NMFS, at its 
discretion, for NE multispecies vessels fishing in the U.S./Canada Area 
or in a SAP. If NMFS uses its discretion to initiate double polling in 
the future, NMFS will pay for the cost of the second poll.
    Comment 14: One commenter did not support Sector vessels fishing in 
CA I, and believed that access to that area is unjustified because it 
is a closed area.
    Response: The access to CA I by Sector vessels implemented by this 
interim final rule is consistent with the premise of a SAP and the 
goals of the FMP. Allowing vessels to fish in CA I is justified by the 
status of the haddock stock, the potential economic gains for the 
fishery, and the limited scope and duration of the program and the 
restrictions that limit the biological impacts. This interim final rule 
implements a hard TAC for haddock harvested in the SAP, and current 
regulations include a hard TAC for GB cod harvested by the Sector, 
including cod caught incidentally in the SAP.
    Comment 15: Two commenters suggested that the interim final rule 
prohibit vessels that are participating in the CAI SAP from having 
either a gillnet or trawl onboard.
    Response: Because the intent of this SAP is to allow vessels to use 
demersal longlines or tubtrawl gear to target haddock in a portion of 
CA I, this interim final rule clarifies that only longline or tubtrawl 
gear are allowed aboard vessels that participate in this SAP.
    Comment 16: One commenter noted that the SAP may create a derby 
fishery for haddock, and stated concern that there could be impacts on 
the haddock market.
    Response: NMFS agrees that as proposed there may have been 
incentive for non-Sector, as well as Sector vessels to fish in the SAP, 
thus creating a derby and potentially impacting the haddock market, at 
least in the short term. Although vessels may choose whether and when 
to participate in the SAP, disapproval of participation of non-Sector 
vessels in this SAP will likely lessen or eliminate a potential derby 
because Sector vessel are fishing under Sector rules that strictly 
limit and spread out effort on cod, which should also have an impact on 
how and when effort directed at haddock in this SAP will occur.
    Comment 17: Three commenters requested clarification in the interim 
final rule about the requirement for the Sector to provide observer 
funding in this SAP, if necessary. They requested that NMFS make it 
clear that Sector vessels would not be unfairly burdened with the costs 
associated with funding non-Sector vessels participating in the SAP.
    Response: The commenters' concerns should be resolved by the fact 
that non-Sector vessels will not be allowed to participate in the SAP. 
A full explanation of the reasons for the disapproval of the management 
measures that pertain to the non-Sector vessels in contained in the 
preamble of this rule under ``Disapproved Measures.''
    Comment 18: Three commenters were concerned with the specific 
provisions regarding the haddock TAC and the GB cod incidental TAC 
associated with the SAP as proposed, and how they may affect the 
Sector's fishing activities in the SAP. Three commenters suggested that 
NMFS make it clear that, when the incidental GB cod TAC is harvested, 
Sector vessels would be allowed to continue to fish under a B DAS in 
the

[[Page 67784]]

SAP, since they are fishing under a separate GB cod TAC allocation. One 
commenter further clarified that Sector vessels should be allowed to 
continue to fish in the SAP until the haddock TAC has been harvested. 
The Council commented that the proposed rule was incorrect in stating 
that only haddock caught under a B DAS in the SAP would be counted 
against the haddock TAC, and clarified that the Council's intent was 
that all haddock caught in the SAP should be applied against the 
haddock TAC.
    Response: All cod caught by Sector vessels fishing in the SAP will 
be counted against the Sector's allocation of GB cod. The proposed rule 
stated that the GB cod incidental TAC would apply to non-Sector vessels 
fishing in the SAP. The commenters' concerns regarding this issue 
should be resolved by the fact that participation in the SAP by non-
Sector vessels has been disapproved. With respect to the haddock TAC, 
NMFS agrees with the Council that FW 40-A intended that haddock 
harvested under either an A DAS or B DAS should count toward the 1,000-
mt haddock TAC. Although the preamble of the proposed rule was 
consistent with the Council's intent (i.e., all haddock caught in the 
SAP would be counted against the haddock TAC), the regulatory text of 
the proposed rule was incorrect and conflicted with the preamble of the 
proposed rule in stating that only haddock caught under a B DAS would 
be counted against the haddock TAC. NMFS has corrected the regulatory 
text of this interim final rule to reflect Council intent that the all 
haddock caught in the SAP will be counted against the TAC.
    Comment 19: One commenter suggested that all legal-sized cod caught 
by non-Sector vessels should be retained in order to minimize the 
impact of the SAP on GB cod.
    Response: The commenter's concerns are rendered moot by the fact 
that participation in the SAP by non-Sector vessels has been 
disapproved. A full explanation of the reasons for the disapproval of 
the management measures that pertain to the non-Sector vessels is 
contained in this preamble under ``Disapproved Measures.''
    Comment 20: One commenter suggested that because white hake may be 
caught in the SAP, and white hake is a groundfish stock of concern, the 
interim final rule should include measures to monitor and control the 
bycatch of white hake in the SAP.
    Response: Such a measure was not proposed by the Council in FW 40-
A. Because NMFS can only approve or disapprove substantive measures in 
a framework adjustment, it cannot add a new substantive measure that is 
not part of FW 40-A. Furthermore, such new requirements are not 
necessary because the vessel reporting requirements in the current 
regulations already require vessels with a NE multispecies permit to 
report all species landed or discarded. The bycatch of white hake is 
controlled indirectly by the haddock TAC set for the SAP, which will 
limit the total amount of fishing effort in the SAP. Further, the 
disapproval of participation of non-Sector vessels in the SAP will 
reduce potential effort in this SAP.
    Comment 21: One commenter requested clarification as to whether 
Sector participants in the SAP must report cod and haddock catches from 
the SAP using VMS, or through the Sector Manager. The commenter 
suggested that Sector vessels should be required to report daily either 
through VMS or the Sector Manager.
    Response: FW 40-A states that the Sector Manager will provide NMFS 
with daily reports of cod and haddock landings. The proposed rule 
regulatory text stated that the owner or operator of a vessel 
participating in the Sector and declared into the CA I Hook Gear 
Haddock Area must submit reports to the Sector Manager, with 
instructions to be provided by the Sector Manager, of each day fished, 
when declared into the area. The Council's intent was for Sector 
members to report through the Sector Manager. NMFS believes it is 
impractical to administer two separate reporting systems in order to 
allow vessels the option of either reporting through VMS or the Sector 
Manager. The preamble of the interim final rule will clarify that 
Sector members participating in the SAP must report daily to the Sector 
manager and that the Sector Manager will report daily to NMFS.
    Comment 22: One commenter requested that NMFS clarify that all GB 
cod caught by Sector members participating in the SAP be counted 
against the Sector's allocation of GB cod.
    Response: The preamble to the proposed rule stated ``All cod caught 
by Sector vessels would count against the Sector's cod TAC.'' NMFS will 
clarify the regulatory text to explicitly state that all cod caught by 
Sector vessels will count against the Sector's allocation of GB cod.

Eastern U.S./Canada Haddock SAP Pilot Program

    Comment 23: Two commenters strongly supported this Pilot Program 
due to the healthy status of the GB haddock stock, as well as the need 
to encourage the harvest of the stocks managed under the U.S./Canada 
Resource Sharing Understanding.
    Response: NMFS agrees that this Pilot Program is justified because 
it will provide additional opportunity for NE multispecies DAS vessels 
using trawl gear to target haddock using B DAS and is consistent with 
the goals of FW 40-A and the FMP. The SAP Pilot Program is thus 
implemented through this interim final rule.
    Comment 24: One commenter did not support the requirement to 
provide information to NMFS 72 hours prior to departing on a trip into 
the Eastern U.S./Canada Haddock SAP Pilot Program (for the purpose of 
deploying observers), and stated that the requirement is impractical 
and poses risks to safety. Two commenters did not support the 
requirement to provide such information to NMFS for trips into the CA I 
Hook Gear Haddock SAP.
    Response: This requirement is consistent with the observer 
notification requirement currently in effect for vessels fishing in the 
U.S./Canada Management Area. Vessel owners who choose to fish in either 
of these programs must provide notice to NMFS of the vessel name; 
contact name for coordination of observer deployment; telephone number 
for contact; and date, time, and port of departure at least 72 hours 
prior to the beginning of any trip that it declares into the SAP, in 
accordance with instructions provided by the Regional Administrator. 
The objective is to provide notification to the NMFS Observer Program 
of planned trips, prior to the departure of the trip, so that the 
Observer Program has sufficient time to contact and deploy observers. 
Monitoring of these new programs is critical to their success and 
continuation or adjustment, and to collect critical information on 
their effectiveness. NMFS has determined that a notification period of 
72 hours represents a balance between the requirements of the Observer 
Program and the interests of the fishing industry, while still meeting 
the objectives of FW 40-A. NMFS disagrees that such notification poses 
a safety risk. The vessel operator is responsible for safe operation of 
the vessel, and NMFS does not expect vessel operators to make decisions 
that subject their vessels to unnecessary risk in order to comply with 
this observer regulation or any other regulation. The NMFS observer 
program will work with vessel owners in order to try to accommodate 
their needs.
    Comment 25: One commenter believed that the allocation of an 
incidental GB cod TAC to the Eastern

[[Page 67785]]

U.S./Canada Haddock SAP Pilot Program has no purpose and appeared to 
represent an inconsistency with the U.S./Canada Resource Understanding. 
The commenter interpreted this incidental TAC as an additional 
allocation of GB cod that would result in the overharvest of the agreed 
upon U.S. GB cod TAC (under the Resource Understanding). Furthermore, 
he stated that the existence of the U.S./Canada Resource Sharing 
Understanding TAC for GB cod makes the proposed incidental GB cod TAC 
unnecessary. The commenter suggested that the incidental GB cod TAC 
proposed for this SAP be reallocated to the Regular B DAS Pilot 
Program.
    Response: The incidental GB cod TAC for this SAP is not an 
allocation of GB cod that NE multispecies vessels may catch in addition 
to the United States's share of the GB cod TAC established under the 
U.S./Canada Resource Sharing Understanding. The GB cod TAC set pursuant 
to the Understanding represents the total amount of GB cod that may be 
caught from the Eastern U.S./Canada Area. It is important to note that 
the SAP area represents only a small portion of the Eastern U.S./Canada 
Area.
    Comment 26: Two commenters expressed general support for the range 
of management measures proposed to implement the Eastern U.S./Canada 
Haddock SAP Pilot Program, with one commenter stating that it would be 
important for the economic survival of the fleet.
    Response: NMFS agrees that the range of management measures 
developed for the Eastern U.S./Canada Haddock SAP Pilot Program is 
appropriate, that the opportunity that the program affords is 
important, and has approved this SAP and its proposed measures, with 
the exception of the proposed use of flounder nets as explained under 
Comment 27.
    Comment 27: Two commenters expressed concern about the proposed 
gear requirements for this SAP. One commenter stressed the need for 
high levels of observer coverage in order to carefully monitor the 
effectiveness of the allowable trawls in minimizing retention of cod. 
The second commenter suggested that only use of the haddock separator 
trawl be allowed in the SAP area, rather than the haddock separator 
trawl and the flatfish net.
    Response: NMFS agrees that sufficient levels of observer coverage 
are necessary in order to monitor the SAP and ensure that the SAP does 
not undermine achievement of the goals of the FMP. NMFS also agrees 
with the commenter that suggested that only the haddock separator trawl 
be allowed to be used in the SAP. Due to concerns regarding GB 
yellowtail flounder and GB cod bycatch in the SAP area, NMFS has 
disapproved the use of a flatfish net when fishing in the Eastern U.S./
Canada Haddock SAP Pilot Program. Participating vessels may have a 
flounder net on board the vessel while in the SAP area, provided the 
flounder net is stowed in accordance with the regulations. A full 
explanation of the reasons for disapproval of the flounder net is 
contained in this preamble under ``Disapproved Measures.''

Combined Trips to Western U.S./Canada Area

    Comment 28: Seven commenters supported the measure that allows 
vessels to fish both inside and outside of the Western U.S./Canada Area 
(but not in the Eastern U.S./Canada Area) on the same trip, but believe 
that the measure, as written in the proposed rule, did not fully 
reflect the intent of the Council. Specifically, they stated that the 
proposed restriction to one entry and exit to/from the Western U.S./
Canada Area per trip does not allow sufficient flexibility. One 
commenter stated that this flexibility is important for the economic 
survival of the groundfish fleet during the fishery's rebuilding.
    Response: The proposed rule would have limited vessels to one entry 
and exit of the Western U.S./Canada Area per trip in order to enable 
accurate monitoring of yellowtail flounder landings from inside and 
outside of the Western U.S./Canada Area. The stock of yellowtail 
flounder inside the Area is different from the stock outside the Area, 
and landings must be attributed to the correct yellowtail flounder 
stock. In response to comments, NMFS re-evaluated its capability to 
monitor such landings and concluded that it will be able to monitor 
landings from inside and outside of the Western U.S./Canada Area. 
Therefore, NMFS has modified the interim final rule to allow vessels 
unlimited flexibility to fish inside and outside of the Western U.S./
Canada Area during a single trip in order to be more fully consistent 
with Council intent and to provide greater flexibility to the fleet.

General Comments

    Comment 29: One commenter supported many of the monitoring and 
reporting requirements proposed for the B DAS programs proposed under 
FW 40-A but suggested that, for all programs, vessels be required to 
report all fish landed and discarded, as well as location fished, 
through the VMS. In addition, the commenter suggested that, for each 
area fished, information be reported by 10-minute squares rather than 
by statistical area.
    Response: The VMS reporting requirements implemented by FW 40-A for 
vessels participating in the three programs are in addition to the 
existing reporting requirements that such vessels must also comply 
with. That is, vessels are required to submit Vessel Trip Reports 
(VTRs) that include information on all species landed and discarded, as 
well as location fished. The specific VMS requirements implemented by 
this interim final rule were designed to support the specific real-time 
reporting demands of the three programs in FW 40-A. The VMS 
requirements enable real-time monitoring of TACs of either incidental 
or target stocks. Requiring vessels to report all species and location 
fished through VMS is not justified because it is not necessary in 
order to monitor the TACs, would unnecessarily duplicate the 
information reported through VTRs, and would add additional cost and 
burden to the vessel owner/operator. A requirement that vessels report 
by 10-minute square areas was not proposed by the Council and would be 
inconsistent with the NMFS Northeast Region's current methodology of 
reporting.
    Comment 30: Two commenters stated that sufficient observer coverage 
is critical to the proposed B DAS programs, and stated that there would 
be strong incentives for fishermen to misreport discards in these 
programs. They recommended that the level of observer coverage be 
between 20 and 50 percent, and requested that NMFS identify the 
specific level of observer coverage that will be provided to these 
proposed programs.
    Response: NMFS agrees that sufficient observer coverage is critical 
to the programs implemented by this interim final rule and NMFS intends 
to deploy a much higher level of observer coverage to the programs than 
deployed to the fishery at large.
    Comment 31: One commenter believes that the TACs for the target 
stocks are too high for all these B DAS programs, stating that the 
calculations for the TACs for these stocks were based upon the fishing 
mortality rates that correspond to Fmsy instead of the lower fishing 
mortality rates that correspond to OY. The commenter noted that the 
analysis that identifies target stocks relies on the information 
contained in Table 40, on page 131 of the FW 40-A document.
    Response: NMFS believes that the TACs were calculated in an 
appropriate manner and are based upon the best

[[Page 67786]]

available scientific information. The basis for setting TACs on target 
stocks is the fishing mortality rate schedule in Amendment 13 to the 
FMP. Amendment 13 implemented an adaptive F approach to rebuild most 
stocks and a phased F approach for a few others. The adaptive approach 
sets F=Fmsy for 2004-2008, and adjusts effort and F in 2009-2014 to 
ensure rebuilding is achieved. To be consistent with Amendment 13, the 
FW 40A TACs should be computed using the Fmsy values until 2008. The 
national standard guidelines state that ``Optimum yield means the 
amount of fish that will provide the greatest overall benefit to the 
Nation...'' As a consequence, OY in the context of FW 40A is the yield 
that results from following the Amendment 13 rebuilding plan and 
associated F schedule for individual stocks. Using a lower F rate 
schedule (75 percent of Fmsy) would require changing Amendment 13 
rebuilding plans.
    Comment 32: One commenter urged NMFS to evaluate carefully the 
effectiveness of the A DAS management measures adopted in Amendment 13 
to determine if they have achieved the expected fishing mortality 
reductions and suggested that, if such measures have failed to perform 
as expected, the Regular B DAS Pilot Program must be re-evaluated.
    Response: NMFS agrees that it will be important to evaluate the 
effectiveness of the Amendment 13 management measures and the 
implications of any management measures implemented subsequent to 
Amendment 13. Both the regular B DAS Program and the Eastern U.S./
Canada Haddock SAP are pilot programs with limited durations for the 
purpose of evaluating their impact on groundfish stocks of concern. The 
2005 biennial review of the groundfish fishery is the appropriate 
context for such an evaluation.
    Comment 33: One commenter suggested that, because barndoor skate 
and thorny skate may be caught in the B DAS programs proposed under FW 
40-A, the interim final rule should include measures to monitor and 
control the bycatch of barndoor and thorny skates.
    Response: NMFS will monitor bycatch of barndoor and thorny skates 
as well as all other species in the B DAS programs. The vessel 
reporting requirement in the current regulations require all vessels 
with a NE multispecies permit to report all species landed and/or 
discarded. The bycatch of all species, including skates will be 
controlled indirectly by the target TACs set for the two SAPs proposed 
in FW 40-A, and by the incidental TACs and DAS restrictions of the 
Regular B DAS Pilot Program, which will limit the total amount of 
fishing effort in the programs. FW 40-A includes a Skate Baseline 
Review, consistent with the requirements of the Northeast Skates 
Fishery Management Plan, that concludes that the overall impact of the 
FW 40-A management measures on skates is expected to be low.
    Comment 34: The Council commented that the list of stocks of 
concern should not be codified, noting that, if a stock status changes, 
a revision to the regulations would be necessary. The Council suggested 
that, instead, the regulations be revised to require the Regional 
Administrator to determine the list of stocks of concern, based on 
current information.
    Response: In order to implement the proposed FW 40-A measures, such 
as incidental TACs, that are specific to specific stocks of concern, 
the regulations must reference such stocks of concern. A process that 
would require the Regional Adminstrator to define stocks of concern was 
neither developed by the Council, nor included in the proposed rule. 
Because particular management measures are applied on a stock-specific 
basis to stocks of concern, adjustment to the stocks of concern would 
require a regulatory change.
    Comment 35: The Council commented that FW 40-A allows vessels 
fishing in the Eastern U.S./Canada Area to fish anywhere in the Eastern 
U.S./Canada Area using either an A or B DAS, including the CA II 
Yellowtail Flounder SAP and the Eastern U.S./Canada Haddock SAP Pilot 
Program on the same trip, providing the SAPs are open. The Council 
added that, at a minimum, a vessel should be able to fish in both the 
CA II Yellowtail Flounder SAP and the Eastern U.S./Canada Haddock SAP 
Pilot Program on the same trip under a B DAS.
    Response: Vessels may use either an A or B DAS in the CA II 
Yellowtail Flounder SAP and the Eastern U.S./Canada Haddock SAP Pilot 
Program. However, should a vessel intend to fish outside either of 
these two SAPs when fishing in the Eastern U.S./Canada Area, it must 
fish under an A DAS for the entire trip, despite fishing part of the 
trip in one of the two SAPs. The reason for this restriction is that 
with the exception of the Regular B DAS Pilot Program, B DAS may not be 
used outside of a SAP. FW 40-A contains no justification for, or 
analysis of the potential impact of allowing vessels to fish under a 
Reserve or Regular B DAS in the U.S./Canada Area outside of a SAP or 
the Regular B DAS Program.
    Comment 36: One commenter suggested that the use of a combination 
of Reserve B and Regular B DAS be allowed on the same trip into a SAP.
    Response: The proposed rule would have prohibited vessels from 
using a Regular B DAS and Reserve B DAS on the same trip (in a SAP) due 
to the concern that it would not be technically feasible to administer 
such a measure. However, based upon further consideration, NMFS has 
determined that it will be possible to administer this measure and has 
modified the regulatory text in this interim final rule to allow the 
use of both types of B DAS on the same trip when fishing in a SAP.

Disapproved Measures

Non-Sector Participants in the CA I Hook Gear Haddock SAP

    FW 40-A proposed the CA I Hook Gear Haddock SAP for a directed 
haddock fishery for both GB Cod Hook Sector members and non-members. 
Management measures proposed for the non-Sector vessels were 
considerably different from those pertaining to Sector vessels. The 
proposed program for non-Sector vessels fishing in the SAP was complex, 
in that it proposed to: Count cod catch against the SAP's incidental 
cod TAC only when fishing under a B DAS; allow participants to fish 
both inside and outside the SAP area on the same trip under different 
gear restrictions; and allow non-DAS groundfish vessels to participate 
in the SAP, but did not provide for how specific measures would apply 
to these vessels. The proposed provisions would be very difficult to 
enforce and monitor, and were not fully analyzed. Due to the relatively 
low number of non-Sector vessels (10) that are expected to participate 
in this proposed SAP, and the relatively high cost to implement the 
proposed program, the overall cost/benefit ratio would be very high. 
Furthermore, there appear to be insufficient controls on GB cod 
mortality for the proposed SAP, and an insufficient analysis of the 
impact of non-Sector vessels on GB cod. In contrast, the rules that 
pertain to Sector participants in the SAP are relatively simple (i.e., 
cod caught under A and B DAS count toward the GB cod TAC, the same gear 
restrictions apply regardless of where Sector vessels are fishing on a 
particular trip, only DAS permit categories are eligible to participate 
in the Sector). Furthermore, all cod caught by Sector vessels would 
count toward the Sector's allocation of GB cod; therefore, the fishing 
mortality on GB cod would be fully accounted for. Many commenters 
expressed concerns

[[Page 67787]]

regarding the proposed CA I Hook Gear Haddock SAP. The environmental 
organizations and hook fishermen that commented were opposed to the 
fact that GB cod caught in the SAP while fishing on a Category A DAS 
would not count toward the incidental GB cod Total Allowable Catch 
(TAC), and noted that there has not been an analysis of allowing the 
use of A DAS in CA I. Although some commenters expressed broad support 
for the SAP, the most of the commenters were either against the program 
or noted qualified support for the program, taking issue with specific 
aspects of the SAP (e.g., how accounting of the TACs would occur with 
respect to Category A and B DAS, the different measures proposed for 
Sector and non-Sector vessels, and the accounting of cod and haddock 
catches).
    Because of the insufficient controls on GB cod mortality, the 
proposed measures are not consistent with national standard 1 and 
section 303(a)(1)(A) of the Magnuson-Stevens Act. Because of the high 
cost/benefit ratio of the proposed SAP, the proposed measures are not 
consistent with national standard 7. Therefore, NMFS has disapproved 
the applicability of this measure to non-Sector vessels.
    Because of the disapproval of the non-Sector participation in the 
CA I Hook Gear Haddock SAP, the proposed incidental GB cod TAC 
allocated under FW 40-A for non-Sector vessels fishing in the CA I Hook 
Gear Haddock SAP (16 percent of the total GB cod incidental catch TAC; 
i.e., 12.6 mt, 15.5 mt, and 20.3 mt in Fishing Years 2004, 2005, and 
2006, respectively) is reallocated to the Regular B DAS Pilot Program. 
The FW 40-A document states that: ``The use of Category B (Regular) 
DAS, outside of a SAP, will be constrained by a ``hard'' incidental 
catch TAC for stocks of concern. These TACs are reduced by the amount 
of the total incidental catch TAC that is assigned to SAPs.'' The 
implication of this text is that the TAC assigned for the Regular B DAS 
Pilot Program is reduced in order to allocate an incidental TAC to a 
SAP. Therefore, NMFS concludes that it is appropriate that the Regular 
B DAS Pilot Program absorb the incidental GB cod TAC originally 
allocated to the non-Sector vessels in the CA I Hook Gear Haddock SAP. 
Thus, the total amount of the annual GB cod incidental TAC allocated to 
the Regular B DAS Pilot Program is increased from the amount specified 
in FW 40-A (50 percent; 39.5 mt, and 48.5 mt, for fishing years 2004 
and 2005, respectively) to 66 percent (52.14 mt and 64.02 mt, for 
fishing years 2004 and 2005, respectively). The amount allocated to the 
Eastern U.S./Canada Haddock SAP Pilot Program will remain at 27 mt, 33 
mt, and 43 mt for fishing years 2004, 2005, and 2006, respectively (34 
percent), because no additional GB cod incidental TAC is being 
allocated to this program. Although the EA does not explicitly analyze 
the impact of such a re-allocation (of 16 percent of the GB incidental 
cod TAC), based upon the FW 40-A analysis of the proposed action and 
alternatives, NMFS concludes that the biological and economic impacts 
of the three programs being implemented (combined) will be very similar 
to those impacts analyzed in FW 40-A. The social impacts will be 
slightly different, in that no benefits from the CA I Hook Gear Haddock 
SAP will be received by non-Sector vessels. Because how any 
reallocation of this GB incidental TAC should be handled was not 
specified in the proposed rule, NMFS is soliciting comment on this 
management measure.

Use of Flounder Nets in the Eastern U.S./Canada Haddock SAP Pilot 
Program

    FW 40-A proposed that vessels fishing in the Eastern U.S./Canada 
Haddock SAP Pilot Program would be allowed to fish with either a 
haddock separator trawl or with a flatfish net (consistent with the 
gear regulations pertaining to the Eastern U.S./Canada Area). 
Commenters raised concerns about the effectiveness of the required 
trawl gear, and the need to monitor the program carefully with high 
levels of observers. One industry member recommended restricting the 
allowable gear to the haddock separator trawl (i.e., prohibit flatfish 
nets in this area). This SAP was proposed specifically to allow vessels 
to target haddock, which the haddock separator trawl is intended to do. 
Although information on the effectiveness of the haddock separator 
trawl is still preliminary, data indicate that the design of the 
haddock separator trawl may be successful in selecting for haddock, and 
the use of this net is likely to result in a lower level of cod and 
yellowtail flounder bycatch than would allowance of a flatfish net in 
this area. Given the fact that, during the 2004 fishing year the 
yellowtail flounder TAC from the Eastern U.S./Canada Area was harvested 
at a high rate, allowance of a flatfish net in this area would be 
problematic. Because the use of the flounder net has not been 
demonstrated to minimize bycatch of GB cod and yellowtail flounder for 
vessels targeting haddock, the proposed measure is not consistent with 
national standard 9 or section 303(a)(11)(A) of the Magnuson-Stevens 
Act, regarding minimizing bycatch mortality. Further, to allow gear 
that would result in substantial catches of cod and yellowtail flounder 
in the U.S./Canada Area, could result in early closure of that area to 
all groundfish DAS vessels and result in foregone opportunities to 
harvest haddock, which would be inconsistent with the objectives of the 
FMP. In light of this information, NMFS has disapproved the use of a 
flounder net for vessels fishing in the Eastern U.S./Canada Haddock SAP 
Pilot Program.

Approved Measures

    NMFS has approved the remainder of the measures proposed in FW 40-
A. A description of these approved measures follows.

1. Regular B DAS Pilot Program

    The Regular B DAS Pilot Program creates opportunities to use B 
Regular DAS outside of a SAP to target stocks that can withstand 
additional fishing effort (GOM, haddock, pollock, GOM winter flounder, 
GB haddock, GB yellowtail flounder, and GB winter flounder). The pilot 
program will run part of both the 2004 and 2005 fishing years, from 
November 19, 2004 through October 31, 2005. In order to limit the 
potential biological impacts of the program, only 1,000 B Regular DAS 
per quarter (November 19, 2004 through January 2005, February through 
April 2005, May through July 2005, and August through October 2005) may 
be allocated for use for the entire pilot program. These DAS will not 
be allocated to individual vessels, but will be used by vessels on a 
first-come, first-served basis.
    Vessels participating in this program must be equipped with an 
approved VMS. The vessel owner or operator must notify the NMFS 
Observer Program at least 72 hours in advance of a trip in order to 
facilitate observer coverage. This notice will require reporting of the 
following information: The general area or areas that will be fished 
(GOM, GB, or Southern New England (SNE)); vessel name; contact name for 
coordination of observer deployment; telephone number of contact; date, 
time, and port of departure. Providing notice of the area that the 
vessel intends to fish will not restrict the vessel's activity to only 
that area identified for that trip, but will be used to plan observer 
coverage to ensure statistically robust results. Prior to departing on 
a trip, the vessel owner or operator must notify NMFS via VMS that the 
vessel intends to participate in the Regular B DAS Pilot Program. There 
are no specific gear requirements for participation, but vessels will 
not be

[[Page 67788]]

allowed to fish on that trip in a SAP or in a seasonal or year-round 
closed area, and must comply with the gear requirements of the FMP. 
Vessels may fish in the Regular B DAS Pilot Program and in the U.S./
Canada Management Area on the same trip, provided the vessel abides by 
the most restrictive regulations that apply. The proposed rule for FW 
40-A would have prohibited fishing in the Regular B DAS Pilot Program 
and the Eastern U.S./Canada Area on the same trip; however, this 
interim final rule, in order to be consistent with Council intent, 
allows participation in the Regular B DAS Pilot Program in the Eastern 
U.S./Canada Area. Because this measure was not included in the proposed 
rule, NMFS is soliciting additional comment on this management measure. 
While fishing under a Regular B DAS in this program, Regular B DAS will 
accrue at the rate of 1 DAS for each calendar day, or part of a 
calendar day, fished. For example, a vessel that leaves on a trip at 11 
p.m. on the first calendar day and returns at 10 p.m. on the second 
calendar day, will be charged 48 hours of B Regular DAS instead of 23 
hours, because the fishing trip would have spanned 2 calendar days. 
Vessels fishing in this program are prohibited from discarding legal-
sized regulated groundfish and are limited to landing 100 lb (45.4 kg) 
per DAS for each of six groundfish stocks of concern (GOM cod, GB cod, 
American plaice, white hake, SNE/MA winter flounder, and witch 
flounder), and are limited to a landing limit of 25 lb (11.3 kg) per 
DAS for each of two stocks of concern (CC/GOM and SNE/MA yellowtail 
flounder). If a vessel harvests and brings on board legal-sized 
regulated groundfish in excess of the landing limits, the vessel 
operator must retain the excess catch and notify NMFS via VMS prior to 
crossing the demarcation line in order to change its DAS category from 
a Regular B DAS to a Category A DAS (``DAS flip''). The landing limits 
will be applied at the end of a vessel's trip. For example, a vessel 
declared in the Regular B DAS Pilot Program that catches 300 lb (136.2 
kg) of cod on the first day of a 2-day trip will not be required to 
flip immediately to an A DAS on the first day, but, if after completing 
its fishing trip after 26 hours (being charged 48 hours), the vessel 
has caught 300 lb (136.2 kg), the vessel will be required to flip to an 
A DAS prior to crossing the demarcation line (for 2 days of fishing the 
vessel is only allowed 2-days-worth of cod, or 200 lb). Based upon 
public comment and to ensure consistency with FW 40-A, this interim 
final rule has modified the proposed rule language that stated that a 
vessel must flip its DAS category immediately upon exceeding the 
landing limit. Instead, this interim final rule requires a vessel to 
flip its DAS category prior to crossing the VMS demarcation line on its 
return trip to port. If a vessel flips from a Regular B DAS to an A 
DAS, it will be charged Category A DAS, which will accrue to the 
nearest minute, for the entire trip, and will be subject to the 
possession and landing restrictions that apply to the fishery as a 
whole (i.e., not the Regular B DAS Pilot Program limits). In addition, 
this interim final rule has modified the proposed rule language to 
resolve a potential problem with the prohibition on discarding. The 
interim final rule allows discarding of regulated groundfish in 
instances where mandatory retention would conflict with a prohibition 
on retention of such species (e.g., the current prohibition on 
retention of yellowtail flounder from the Western U.S./Canada Area). In 
order to ensure that a vessel will always have the ability to flip to a 
Category A DAS while fishing under a Regular B DAS (should it encounter 
a groundfish species of concern in an amount that exceeds the trip 
limit), the number of Regular B DAS that may be used on a trip is 
limited to the number of Category A DAS that the vessel has at the 
start of the trip. For example, if a vessel plans a trip under the 
Regular B DAS Pilot Program and has 5 Category A DAS available, the 
maximum number of Regular B DAS that the vessel may fish on that trip 
under the Regular B DAS Pilot Program would be 5.
    NMFS will administer the 1,000 Regular B DAS maximum by monitoring 
the number of Regular B DAS accrued on trips that end under a Regular B 
DAS. Declaration of the trip through VMS does not serve to reserve a 
vessel's right to fish under a Regular B DAS. In order to be considered 
actively fishing in the program, a vessel must both declare their trip 
via VMS and have crossed the demarcation line. When 1,000 Regular B DAS 
are used in a quarter, the Regular B DAS Pilot Program will end for 
that quarter.
    In order to limit the potential impact on fishing mortality that 
the use of Category B DAS (Regular B DAS or Reserve B DAS) may have on 
groundfish stocks of concern, a quarterly Incidental TAC is set for the 
groundfish stocks of concern, as summarized in the following table:

                              Incidental TACs for B Regular DAS Pilot Program (mt)
----------------------------------------------------------------------------------------------------------------
                                                              Nov 2004 to  Feb 2005 to  May 2005 to  Aug 2005 to
                      Stocks of Concern                         Jan 2005     Apr 2005     Jul 2005     Oct 2005
----------------------------------------------------------------------------------------------------------------
GOM cod.....................................................         48.5         48.5         63.5         63.5
GB cod......................................................        26.07        26.07        32.01        32.01
Cape Cod/GOM yellowtail flounder............................            9            9         12.5         12.5
American plaice.............................................         92.5         92.5           90           90
white hake..................................................         38.5         38.5           38           38
Southern New England/Mid-Atlantic (SNE/MA) yellowtail                17.5         17.5         49.5         49.5
 flounder...................................................
SNE/MA winter flounder......................................         71.5         71.5           89           89
witch flounder..............................................        129.5        129.5          175          175
----------------------------------------------------------------------------------------------------------------
* Note: The incidental TACs for GB cod specified for the Regular B DAS Pilot Program have been revised from the
  proposed rule to account for the reabsorption of the GB cod incidental TAC proposed for the non-Sector vessels
  fishing in the CA I Hook Gear Haddock SAP (see Disapproved Measures for further explanation).

    With the exception of white hake, if the incidental TAC for any one 
of these species is caught during a quarter (landings plus discards), 
use of Regular B DAS in the pertinent stock area will be prohibited for 
the remainder of that quarter. Because several stocks of concern may be 
found in a given stock area, the closure of that stock area to the use 
of Regular B DAS will result in the prohibition of fishing under a 
Regular B DAS for all stocks of concern in that stock area, even if 
there is TAC remaining for some of the stocks of concern for that 
quarter. All stock areas will reopen for the use of B Regular DAS at 
the beginning of the subsequent quarter. If the white hake incidental 
TAC is caught in a quarter, the possession of white hake will be 
prohibited when fishing under Regular

[[Page 67789]]

B DAS in all stock areas for the remainder of that quarter. White hake 
is treated differently than the other stocks of concern because the 
stock area for white hake covers all the waters from GOM through SNE, 
and closure of its stock area to the use of Regular B DAS, rather than 
prohibiting its possession, would unnecessarily curtail the Regular B 
DAS Pilot Program. Incidental TACs are not specified for ocean pout, 
southern windowpane flounder, and Atlantic halibut, three stocks of 
concern, because the magnitude of the catches of these stocks is 
considered insignificant.
    This program allows the use of Regular B DAS by vessels fishing for 
species managed under other fishery management plans that require the 
use of a groundfish DAS, such as monkfish. A monkfish vessel with a 
limited access monkfish Category C or D permit that fishes under a 
monkfish DAS, and is therefore required to utilize a NE multispecies 
DAS, may choose to use a Regular B DAS instead of an A DAS, provided 
the use of the Regular B DAS is still allowed in the stock area the 
vessel will be fishing, and provided the vessel adheres to all 
applicable regulations.
    To ensure adequate monitoring of these TACs, vessels fishing in the 
Regular B DAS Pilot Program are required to report their catch of 
groundfish stocks of concern, for which there is an incidental TAC, 
daily through VMS, including the amount of fish kept and discarded, by 
statistical area fished. In addition, NMFS is intending to increase 
observer coverage for this program in order to monitor adequately catch 
and the effectiveness of the pilot program measures in ensuring 
adherence to Amendment 13 fishing mortality goals. As another measure 
to ensure that the pilot program is carried out in a manner consistent 
with FW 40-A and Amendment 13 objectives, this interim final rule 
provides that the Administrator, Northeast Region, NMFS (Regional 
Administrator) may prohibit the use of Regular B DAS for the duration 
of a quarter or fishing year, if it is projected that continuation of 
the Regular B DAS Pilot Program will undermine the achievement of the 
objectives of the FMP or the Regular B DAS Pilot Program. NMFS is 
soliciting additional comments on the Regional Administrator's 
authority to close this program.

2. CA I Hook Gear Haddock SAP

    This SAP allows vessels with a limited access NE multispecies DAS 
permit that are members of the GB Cod Hook Sector (Sector) to target 
haddock using longline or tubtrawl gear, when fishing under either a 
Category A or B DAS within a defined portion of CA I from October 1 - 
December 31. A haddock TAC of 1,000 mt is specified, and the SAP will 
close to all participants when the Regional Administrator projects that 
the TAC (landings and discards from the use of A or B DAS) has been 
caught. Because the proposed rule specified that only haddock caught 
under a B DAS would count toward the TAC, and this interim final rule 
has been modified to reflect Council intent that the all haddock caught 
in the SAP count toward the TAC, NMFS is soliciting additional comment 
on this management measure. All GB cod caught, under either an A DAS or 
B DAS, will count toward the Sector's allocation of GB cod (in contrast 
to the Regular B DAS Pilot Program, or the Eastern U.S./Canada Haddock 
SAP Pilot Program, there is no incidental GB cod TAC specified).
    In order to enable the NMFS Observer Program to administer the 
deployment of observers in the SAP, a vessel intending to participate 
in this SAP must notify NMFS by September 1 (with the exception of the 
2004 fishing year) of its intention to fish in the program. For the 
2004 fishing year, vessels must notify the NMFS Observer Program by a 
date set by the Regional Administrator. NE multispecies permit-holders 
will be notified of the deadline by mail. Notification by vessels 
intending to participate in this SAP will not have to include specific 
information about the date of any trip into the SAP; the intent is 
simply to require that vessels declare their intent for the purposes of 
providing the NMFS Observer Program with an estimate of the total 
number of vessels that may participate. If a vessel does not notify the 
NMFS Observer Program of its intent to participate in the SAP by the 
required date, it may not participate in the SAP during that fishing 
year. For the 2004 fishing year, this notification requirement is 
waived. If the Regional Administrator, based upon this estimated 
participation level, or other information, determines that funding is 
inadequate for the necessary level of observer coverage, the Sector may 
pay the additional costs required to deploy adequate levels of 
observers on the Sector vessels participating in this SAP in order to 
keep the SAP open. In addition, vessels must notify the NMFS Observer 
Program by telephone at least 72 hours prior to leaving on a trip to 
the CA I Hook Gear Haddock SAP and provide the following information: 
Vessel name; contact name for coordination of observer deployment; 
telephone number of contact; and date, time, and port of departure. All 
vessels participating in this SAP must be equipped with an approved 
VMS. Vessels are required to declare into the SAP program via VMS and 
specify the type of DAS that will be used, prior to leaving port on a 
trip into the SAP.
    Vessels may use either a Category A or Category B (Regular or 
Reserve) DAS to participate in the SAP. If fishing on a Category A DAS, 
vessels may fish inside the SAP and outside the SAP on the same trip. 
Vessels fishing under a Category B DAS may not fish both inside and 
outside the SAP area on the same trip. Participating vessels must fish 
in accordance with the Sector's Operations Plan (e.g., for the 2004 
Operations Plan, such vessels are prohibited from discarding legal-
sized cod and may fish an unlimited number of hooks). For species other 
than cod, all vessels are required to comply with the possession and 
trip limit restrictions currently specified in the regulations. Daily 
catch reports for each vessel fishing in the SAP must be submitted to 
the Sector Manager, and the Sector Manager must submit such catch 
reports daily to the Regional Administrator. In addition, NMFS is 
intending to increase observer coverage for this program in order to 
monitor adequately catch and the effectiveness of the SAP measures in 
ensuring adherence to Amendment 13 fishing mortality goals. As another 
measure to ensure that the SAP is carried out in a manner consistent 
with FW 40-A and Amendment 13 objectives, this interim final rule 
provides that the Regional Administrator may close the SAP for the 
duration of the fishing year if it is projected that continuation of 
the SAP will undermine the achievement of the objectives of the FMP or 
the SAP. NMFS is soliciting additional comments on the Regional 
Administrator's authority to close this SAP.
    In addition, this interim final rule provides that the Regional 
Administrator has the authority to close the CA I Hook Gear Haddock 
Access Area for the duration of the fishing year if it is projected 
that continuation of the CA I Hook Gear Haddock SAP will undermine the 
achievement of the objectives of the FMP or the CA I Hook Gear Haddock 
SAP. NMFS is soliciting additional comments on the Regional 
Administrator's authority to close this program.

3. Eastern U.S./Canada Haddock SAP Pilot Program

    The Eastern U.S./Canada Haddock SAP Pilot Program will allow 
limited access NE multispecies DAS vessels to

[[Page 67790]]

target haddock using a Category B DAS from May 1 December 31, in a 
portion of the Eastern U.S./Canada Area, including the northernmost tip 
of CA II, provided the vessel fishes exclusively with a haddock 
separator trawl. The vessel may have a flounder trawl on board, 
provided the flounder net is stowed in accordance with the regulations. 
This 2-year pilot program will expire November 30, 2006. In order to 
limit the potential impact on fishing mortality that the use of 
Category B DAS may have on GB cod, an incidental GB cod incidental TAC 
is specified that represents 34 percent of the overall incidental catch 
TAC for GB cod for fishing years 2004, 2005, and 2006 (27 mt, 33 mt, 
and 43 mt, respectively, based on current information). The percentages 
could be changed by a future management action, and the incidental TACs 
may be recalculated in 2005 to reflect the best information available. 
When the Regional Administrator projects that the haddock TAC or 
incidental cod TAC has been harvested (landings and discards), 
participation in the SAP will close.
    The following management measures for this SAP will be the same as 
the current regulations governing the Eastern U.S./Canada Area: Vessels 
fishing in this SAP must have an approved VMS and will not be charged 
steaming time either to or from the Eastern U.S./Canada Area. Vessel 
owners or operators planning a trip into this SAP are required to 
notify the NMFS Observer Program at least 72 hours prior to leaving on 
a trip into the SAP in order to facilitate observer coverage, and must 
provide the following information to the Observer Program: Vessel name; 
contact name for coordination of observer deployment; telephone number 
of contact; and date, time, and port of departure. In addition, 
participating vessels are required to declare into the SAP via VMS 
prior to departing on a trip into the SAP. Vessels must specify via VMS 
which areas within the Eastern U.S./Canada Area that they intend to 
fish in, and the type of DAS that will be used.
    This interim final rule also implements measures for this SAP that 
are different from the regulations governing the Eastern U.S./Canada 
Area. The cod landing limit is now 1,000 lb (453.6 kg) per trip 
(Category A or B DAS), regardless of trip length, and discarding of 
legal-sized cod while fishing under a Category B DAS is prohibited. If 
a vessel fishing under a Category B DAS exceeds the cod landing limit, 
the owner or operator must notify NMFS via VMS and ``flip'' to a 
Category A DAS prior to crossing the vessel demarcation line. Once a 
vessel flips to a Category A DAS, the vessel must comply with all 
landing restrictions that apply to Category A DAS. All vessels are 
required to comply with the haddock possession limits in place at the 
time of the fishing trip, regardless of the type of DAS the vessel is 
fishing under. In order to ensure that a vessel always will have the 
ability to flip to a Category A DAS while fishing under a B DAS, the 
number of Category B DAS that may be used on a trip is limited to the 
number of Category A DAS that the vessel has at the start of the trip. 
For example, if a vessel plans a trip into the Eastern U.S./Canada 
Haddock SAP Pilot Program and has 5 Category A DAS available, the 
maximum number of Category B DAS that it may fish under the Eastern 
U.S./Canada Haddock SAP Pilot Program is 5.
    FW 40-A changes the cod landing limit for the CA II Yellowtail 
Flounder SAP from 100 lb (45.4 kg)/DAS and 1,000 lb (454 kg)/trip, to 
1,000 lb (454 kg)/trip (and implements a DAS flipping requirement and 
no cod discard rule), in order to make the cod possession limits the 
same as those applicable to the Eastern U.S./Canada Haddock SAP Pilot 
Program. Although the proposed modification to the CA II Yellowtail 
Flounder SAP cod trip limit, including the no discard and flipping 
requirements, was clear in the FW 40-A document, the proposed rule 
inadvertently did not include the no discard and flipping requirements. 
This interim final rule corrects that error, and includes these 
requirements in order to be consistent with Council intent. Because the 
proposed rule did not include the no-discard and flipping requirements, 
NMFS is soliciting additional comments on this management measure. 
Vessels fishing in the Eastern U.S./Canada Area may fish in any 
combination of areas within the Eastern U.S./Canada Area, provided the 
area(s) is open and the vessel abides by the most restrictive 
regulations of the areas fished. For example, a vessel could fish in 
both the Eastern U.S./Canada Haddock SAP Pilot Program, and in the 
portion of the Eastern U.S./Canada Area that is not within a SAP on the 
same trip, provided the vessel fishes under a Category A DAS. Vessels 
fishing under a B DAS may fish in the Eastern U.S./Canada Haddock SAP 
Pilot Program and in the CA II Yellowtail Flounder SAP, but not in the 
portion of the Eastern U.S./Canada Area that is not included in these 
SAPs. Vessels are allowed to transit through CA II in order to enable 
vessels full access to the Eastern U.S./Canada Area.
    Vessels participating in the Eastern U.S./Canada Haddock SAP Pilot 
Program must comply with the reporting requirements for fishing in the 
Eastern U.S./Canada Area. In addition, NMFS is intending to increase 
observer coverage for this program in order to monitor adequately catch 
and the effectiveness of the pilot program measures in ensuring 
adherence to Amendment 13 fishing mortality goals. As another measure 
to ensure that the pilot program is carried out in a manner consistent 
with FW 40-A and Amendment 13 objectives, this interim final rule 
provides that the Regional Administrator may close the pilot program 
for the duration of a fishing year, if it is projected that 
continuation of the pilot program will undermine the achievement of the 
objectives of the FMP or the pilot program. NMFS is soliciting 
additional comments on the Regional Administrator's authority to close 
this program.

4. Combined Trips to the Western U.S./Canada Area

    Amendment 13 regulations restricted groundfish DAS vessels that had 
declared a trip and are fishing in the Western U.S./Canada Area from 
fishing in areas outside of that area during the same trip, in order to 
ensure that there is an accurate attribution of landings to the 
appropriate stock area and to facilitate enforcement of the 
regulations. The FW 40-A proposed rule would have modified this 
restriction in order to provide more flexibility to vessels by allowing 
them to fish both inside and outside the Western U.S./Canada Area on 
the same trip, but not in the Eastern U.S./Canada Area. However, the 
proposed rule would have limited vessels to one entry and exit to the 
Western U.S./Canada Area per trip. Commenters, including the Council, 
noted that this did not accurately reflect the Council's intent to 
address this issue. Therefore, this interim final rule was changed in 
response to these commenters so that vessels are not restricted in the 
number of times they may enter and exit the Western U.S./Canada Area on 
the same trip. In order to attribute landings to the appropriate stock 
accurately and to monitor the U.S. GB yellowtail TAC, in addition to 
the exiting reporting requirements, vessels must report catches 
(landings and discards) of yellowtail flounder, by statistical area, 
when crossing into or out of the Western U.S./Canada Area, and to 
comply with the most restrictive landing limits associated with the 
areas fished, as well as all other Western U.S./Canada Area 
requirements for that trip.

[[Page 67791]]

5. NMFS Modification to Administrative Measures

    This interim final rule modifies two measures that were included in 
the proposed rule that did not originate in FW 40-A, but that were 
proposed by NMFS in order to administer the proposed programs.
    The proposed rule specified a VMS polling rate of twice per hour 
for the proposed CA I Hook Gear Haddock SAP. However, based upon public 
comment that this requirement is costly and not necessary for 
enforcement purposes, this rule removes the polling rate requirement of 
twice per hour for this SAP. This interim final rule modifies the 
mandatory polling language from the proposed rule to state that double 
polling may be initiated by NMFS, at its discretion, for vessels 
fishing in the U.S./Canada Area or in a SAP. If NMFS uses its 
discretion to initiate double polling, NMFS will pay for the cost of 
the second poll each hour.
    Secondly, the restriction in the FW 40-A proposed rule that would 
have prohibited vessels from fishing both a Regular B DAS and a Reserve 
B DAS on the same trip is removed. NMFS initially determined that it 
would not be possible to administer a program with such flexibility, 
but subsequently reconsidered its decision, and determined that it 
would be able to administer a program that allowed switching from a 
Regular B DAS to a Reserve B DAS in a SAP on the same trip. Because the 
proposed rule did not include this provision, NMFS is soliciting 
additional comment on this management measure.

Changes from the Proposed Rule

    NMFS has made several changes to the proposed rule as a result of 
public comment and because of the disapproval of the proposed 
management measures proposed for non-Sector vessels fishing in the CA I 
Hook Gear Haddock SAP, and the disapproval of the flounder net in the 
Eastern U.S./Canada Haddock SAP Pilot Program. Other changes are 
technical or administrative in nature, clarify the new management 
measures, or correct inadvertent omissions in the proposed rule. Due to 
the number of such changes, and the fact that some measures in the 
interim final rule different substantively from the measures of the 
proposed rule, the final rule is published as an interim final rule in 
order to allow further opportunity for public comment on such measures. 
These changes are listed below in the order that they appear in the 
regulations.
    In Sec.  648.82, paragraph (e)(3) is revised in to clarify how, 
under the Regular B DAS Pilot Program, possession limits relate to DAS 
use.
    In Sec.  648.9, paragraph (c)(1)(ii) is revised, in response to 
commenters, to remove the VMS polling rate requirement of twice per 
hour in reference to the CA I Hook Gear Haddock SAP, and to clarify 
that, for vessels fishing in the US./Canada Area specified in Sec.  
648.85(a) and for SAPs specified under Sec.  648.85(b), polling twice 
per hour may be initiated by NMFS. Further explanation of this issue is 
contained in NMFS' response to Comment 13 in this preamble.
    In Sec.  648.14(a)(130), the prohibition regarding fishing inside 
and outside of the Western U.S./Canada Area is revised in response to 
comments and to reflect the changes made to the regulatory text at 
Sec.  648.85(a)(3)(ii)(B) to allow such fishing in an unrestricted 
manner. Further explanation of this issue is contained in NMFS's 
response to Comment 28 in this preamble.
    In Sec.  648.14(c)(52), the prohibition regarding the A DAS balance 
restriction in the Regular B DAS Pilot Program is modified to remove 
redundant text from the prohibition at (c)(63) and to add a prohibition 
to disallow the use of Reserve B DAS under the Regular B DAS Pilot 
Program.
    In Sec.  648.14(c)(79) a prohibition regarding the discard of cod 
in the CA II Yellowtail Flounder SAP and DAS flipping provision is 
added because it was inadvertently omitted in the proposed rule and is 
necessary to be consistent with Council intent. Further explanation of 
this issue is contained in this preamble under Approved Measures.
    In Sec.  648.82, paragraph (d)(2)(i)(A) is revised, as requested by 
commenters, to allow vessels to fish under both a Regular B DAS and a 
Reserve B DAS on the same trip. Further explanation of this issue is 
contained in NMFS's response to Comment 36 in this preamble.
    In Sec.  648.85, paragraph (a)(3)(ii)(B) is revised to allow 
vessels to cross in and out of the Western U.S./Canada Area multiple 
times per trip, as requested by commenters, and in order to be 
consistent with Council intent. The paragraph is also revised to 
clarify that the reference to the most restrictive regulation applies 
to all regulations and not only the yellowtail possession limits, in 
order to be consistent with Council intent. Further explanation of this 
issue is contained in NMFS's response to Comment 28 in this preamble.
    In Sec.  648.85, paragraph (b)(3)(i) is revised to correct an 
inadvertent omission from the regulatory text in the proposed rule in 
order to be consistent with Council intent to include the flipping 
requirement and prohibition on cod discards in the CA II Yellowtail 
Flounder SAP. Further explanation of this issue is contained in this 
preamble under Approved Measures.
    In Sec.  648.85, paragraph (b)(3)(viii) is revised to clarify the 
new CA II Yellowtail Flounder SAP cod trip limits and make such limits 
consistent with the cod trip limits applicable to the Eastern U.S./
Canada Haddock SAP Pilot Program. Further explanation of this issue is 
contained in this preamble under Approved Measures.
    In Sec.  648.85, paragraphs (b)(3)(xi) and (xii) are added to 
correct an inadvertent omission from the regulatory text in the 
proposed rule in order to be consistent with Council intent to include 
the flipping requirement and prohibition on cod discards in the CA II 
Yellowtail Flounder SAP. Further explanation of this issue is contained 
in this preamble under Approved Measures.
    In Sec.  648.85, paragraph (b)(5)(ii) is revised to reallocate the 
GB cod incidental TAC from the CA I SAP to the Regular B DAS Pilot 
Program. Further explanation of this issue is contained in this 
preamble under Disapproved Measures.
    In Sec.  648.85, paragraph (b)(6)(i) is revised, in response to 
comments, to be consistent with Council intent to allow fishing in the 
Regular B DAS Pilot Program and in the U.S./Canada Management Area on 
the same trip, but not in a SAP or in a closed area. Further 
explanation of this issue is contained in NMFS's response to Comment 2 
in this preamble.
    In 648.85, paragraph (b)(6)(iii) is revised to clarify that NMFS 
will notify limited access NE multispecies permit holders of the 
Regular B DAS Pilot Program quarterly incidental TACs through a letter.
    In Sec.  648.85, paragraph (b)(6)(iv)(B) is revised, in response to 
comments, to clarify that the notification of area to be fished is non-
binding.
    In Sec.  648.85, paragraph (b)(6)(iv)(E) is revised, in response to 
comments, to be consistent with Council intent to require flipping 
prior to crossing the demarcation line. Further explanation of this 
issue is contained in NMFS's response to Comment 4 in this preamble. 
This paragraph is also modified in order to allow discarding of 
regulated groundfish in instances where mandatory retention would 
conflict with a prohibition on retention of such species.

[[Page 67792]]

    In Sec.  648.85, paragraph (b)(6)(iv)(I) is revised to clarify that 
NMFS will notify limited access NE multispecies permit holders of the 
stock areas associated with the incidental TACs of the Regular B DAS 
Pilot Program through a letter.
    In Sec.  648.85, paragraph (b)(6)(vi) is modified to clarify the 
basis of the Regional Administrator's authority to close the Regular B 
DAS Pilot Program. Further explanation of this issue is contained in 
NMFS's response to Comment 5 in this preamble.
    In Sec.  648.85, paragraph (b)(7)(i) is revised as a result of 
NMFS's disapproval of the non-Sector portion of the CA I Hook Gear 
Haddock SAP, in order to modify the eligibility criteria of the SAP. 
Further explanation of this issue is contained in this preamble under 
Disapproved Measures.
    In Sec.  648.85, paragraph (b)(7)(iv)(A) is revised as a result of 
NMFS's disapproval of the non-Sector portion of the CA I Hook Gear 
Haddock SAP to modify the DAS use restrictions, and to correct an error 
in the proposed rule that would have prohibited Sector vessels from 
fishing inside and outside of the SAP are on the same trip, and to 
allow vessels to enter and exit the SAP more than once per trip, in 
order to be consistent with the Council's intent. Further explanation 
of this issue is contained in this preamble under Approved Measures.
    In Sec.  648.85, paragraph (b)(7)(iv)(C) is revised to clarify that 
for the 2004 fishing year, NMFS will send a letter to limited access NE 
multispecies permit holders that are members of the Sector to inform 
them of the date of the notification requirement.
    In Sec.  648.85, paragraph (b)(7)(iv)(D) is revised as a result of 
NMFS's disapproval of the non-Sector portion of the CA I Hook Gear 
Haddock SAP to modify the observer program funding authority.
    In Sec.  648.85, paragraph (b)(7)(iv)(F) is revised as a result of 
NMFS's disapproval of the non-Sector portion of the CA I Hook Gear 
Haddock SAP, and to clarify that only longline and tubtrawl gear are 
allowed on board participating vessels.
    In Sec.  648.85, paragraph (b)(7)(iv)(G) is revised as a result of 
NMFS's disapproval of the non-Sector portion of the CA I Hook Gear 
Haddock SAP, and to clarify the haddock landing limit in the SAP. 
Further explanation of this issue is contained in NMFS's response to 
Comment 18 in this preamble.
    In Sec.  648.85, paragraph (b)(7)(iv)(H) is revised to modify the 
reporting requirements, as a result of NMFS's disapproval of the non-
Sector portion of the CA I Hook Gear Haddock SAP.
    In Sec.  648.85, paragraph (b)(7)(iv)(I) is revised as a result of 
NMFS's disapproval of the non-Sector portion of the CA I Hook Gear 
Haddock SAP, and to clarify that all cod caught count against the 
Sector's allocation of GB cod.
    In Sec.  648.85, paragraph (b)(7)(iv)(J) is revised, in response to 
comments and in order to be consistent with Council intent, to specify 
that all haddock caught in the CA I SAP (under either an A or B DAS) 
count against the haddock TAC.
    In Sec.  648.85, paragraph (b)(7)(iv)(K) is revised, in response to 
comments and in order to be consistent with Council intent, to specify 
that closure of the CA I SAP is triggered by any haddock caught in the 
SAP. Paragraph (b)(7)(iv)(K) is also revised as a result of NMFS's 
disapproval of the non-Sector portion of the CA I Hook Gear Haddock SAP 
to remove references to the CA I SAP incidental cod TAC.
    In Sec.  648.85, paragraph (b)(7)(v) is modified to clarify the 
basis of the Regional Administrator's authority to close the CA I Hook 
Gear Haddock SAP. Further explanation of this issue is contained in 
NMFS's response to Comment 5 in this preamble.
    In Sec.  648.85, paragraph (b)(8)(i) is revised as a result of 
NMFS's disapproval of the use of the flounder net in the Eastern U.S./
Canada SAP Pilot Program. Further explanation of this issue is 
contained in NMFS's response to Comment 27 in this preamble.
    In Sec.  648.85, paragraph (b)(8)(v)(E) is revised as a result of 
NMFS's disapproval of the use of the flounder net in the Eastern U.S./
Canada SAP Pilot Program and to limit the gear allowed on board the 
vessel. Further explanation of this issue is contained in NMFS's 
response to Comment 27 in this preamble.
    In Sec.  648.85, paragraph (b)(8)(v)(F) is revised to clarify the 
haddock trip limits that vessels fishing in the Eastern U.S./Canada 
Haddock SAP Pilot Program are subject to.
    In Sec.  648.85, paragraph (b)(8)(v)(I) is revised in response to 
comments and in order to be consistent with Council intent, to require 
flipping prior to crossing the VMS demarcation line, to clarify that 
the B DAS may be Regular or Reserve, and to clarify when the DAS 
accrual begins.
    In Sec.  648.85, paragraph (b)(8)(v)(L) is modified to clarify the 
basis of the Regional Administrator's authority to close the Eastern 
U.S./Canada Haddock SAP Pilot Program. Further explanation of this 
issue is contained in NMFS's response to Comment 5 in this preamble.

Classification

    The Regional Administrator determined that the management measures 
implemented by this rule are necessary for the conservation and 
management of the NE multispecies fishery, and are consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This interim final rule has been determined to be significant for 
the purposes of Executive Order 12866.
    An EA was prepared for this action and analyzed the environmental 
impacts of the measures being implemented, as well as alternatives to 
such measures. The EA considered the extent to which the impacts could 
be mitigated, and considered the objectives of the action in light of 
statutory mandates, including the Magnuson-Stevens Act. NMFS also 
considered public comments received during the comment period on the 
proposed rule. A copy of the Finding of No Significant Impact for FW 
40-A is available from the Regional Administrator (see ADDRESSES).
    Current regulations allow vessels to use B DAS only in the CA II 
Yellowtail Flounder SAP, which has been closed for the duration of the 
2004 fishing year because the maximum number of allowable trips were 
taken (and which was limited to vessels that could fish on eastern GB). 
This interim final rule implements three new programs and relieves the 
current restriction on the use of Regular B DAS so that vessels can 
participate in these programs using B DAS. Various sectors of the 
fishery in diverse geographic areas will benefit from the increased 
opportunity to use B DAS by being able to take additional fishing trips 
and to earn additional revenue that would not otherwise be available. 
The Assistant Administrator for Fisheries, under 5 U.S.C. 553(d)(3), 
finds that the 30-day delayed effectiveness period is not applicable 
because this interim final rule relieves restrictions on the NE 
multispecies fleet.

Public Reporting Burden

    This interim final rule contains 13 new collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA). The 
collection of this information has been approved by OMB. The public's 
reporting burden for the collection-of-information requirements 
includes the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the

[[Page 67793]]

collection-of-information requirements. The new reporting requirements 
and the estimated average time for a response are as follows:
    1. VMS purchase and installation, OMB <greek-i>0648-0202 (1 hr/
response);
    2. VMS proof of installation, OMB <greek-i>0648-0202 (5 min/
response);
    3. Automated VMS polling of vessel position once per hour when 
fishing in the Regular B DAS pilot program, OMB <greek-i>0648-0202 (5 
sec/response);
    4. Automated VMS polling of vessel position once per hour when 
fishing in the U.S./Canada Management Area or the Eastern U.S./Canada 
Haddock SAP Pilot Program OMB <greek-i>0648-0202 (5 sec/response);
    5. Automated VMS polling of vessel position once per hour when 
fishing in the CA I Hookgear Haddock SAP, OMB <greek-i>0648-0202 (5 
sec/response);
    6. SAP area and DAS use declaration via VMS prior to each trip into 
a SAP, OMB <greek-i>0648-0202 (5 min/response);
    7. Revised estimate of the area and DAS use declaration via VMS 
prior to each trip into the CA I Hookgear Haddock SAP, OMB 
<greek-i>0648-0202 (5 min/response);
    8. DAS ``flip'' notification via VMS for the Regular B DAS pilot 
program, OMB <greek-i>0648-0202 (5 min/response);
    9. DAS ``flip'' notification via VMS for the Eastern U.S./Canada 
Haddock SAP Pilot Program, OMB <greek-i>0648-0202 (5 min/response);
    10. Notice requirements for observer deployment prior to every trip 
into the Regular B DAS Pilot Program OMB <greek-i>0648-0202, (2 min/
response);
    11. Revised estimate of the notice requirements for observer 
deployment prior to every trip into the CA I Hookgear Haddock SAP, OMB 
<greek-i>0648-0202 (2 min/response);
    12. Daily electronic catch and discard reports of stocks of concern 
when fishing under the Regular B DAS Pilot Program OMB <greek-i>0648-
0212, (0.25 hr/response);
    13. Daily electronic catch and discard reports of GB yellowtail 
flounder when fishing on a combined trip into the Western U.S./Canada 
Area, OMB <greek-i>0648-0212 (0.25 hr/response).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to a penalty for 
failure to comply with a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Final Regulatory Flexibility Analysis

    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), prepared this FRFA in support of FW 40-A. The FRFA describes the 
economic impacts that this interim final rule will have on small 
entities.
    The FRFA incorporates the economic impacts summarized in the 
Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule to 
implement FW 40-A (69 FR 55388, September 14, 2004) and the 
corresponding economic analysis prepared for FW 40-A (FW 40-A RIR). For 
the most part, those impacts are not repeated here. A copy of the IRFA, 
the FRFA, the RIR and FW 40-A are available from NMFS, Northeast 
Regional Office, and are on the Northeast Regional Office Website (see 
ADDRESSES). A description of the reasons why this action was 
considered, the objectives of, and legal basis for the interim final 
rule is found in the preamble to this interim final rule.

Description of and Estimate of the Number of Small Entities to which 
the Rule would Apply

    This interim final rule implements changes with the potential to 
affect any vessel holding a NE multispecies limited access permit 
(approximately 1,400 active vessels). It is very likely, however, that 
these measures will impact substantially fewer than the total number of 
active limited access multispecies DAS permit holders, based upon 
historic and recent rates of participation in the fishery, and because 
the new programs implemented are voluntary in nature, and have some 
associated regulatory and economic costs. Because the programs are 
voluntary, no small entity is required to bear any additional 
regulatory or economic burden unless it chooses to. It is likely that 
participating vessels will do so on the basis of having decided that 
the benefits of participating in the program will exceed the costs of 
participation.
    Based upon the information in FW 40-A, approximately 118 or more 
vessels may participate in the Regular B DAS Pilot Program, 50 vessels 
may participate in the CA I Hook Haddock SAP, and approximately 86 
vessels may participate in the Eastern U.S./Canada Haddock SAP Pilot 
Program. Up to 236 vessels may choose to fish both inside and outside 
of the Western U.S./Canada Area on the same trip.
    The Small Business Administration (SBA) size standard for small 
commercial fishing entities of $ 3.5 million in gross receipts applies 
to limited access DAS permit holders. Data analyzed for Amendment 13 to 
the FMP indicated that the maximum gross receipts for any single 
commercial fishing vessel for the period 1998 to 2001 was $ 1.3 
million. For this reason, each vessel in this analysis is treated as a 
single entity for purposes of size determination and impact assessment. 
All commercial fishing entities in this fishery fall under the SBA size 
standard for small commercial fishing entities, and there will be no 
disproportionate impacts between small and large entities.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Interim final Rule

    The measures implemented by this interim final rule include the 
following provisions requiring either new or revised reporting and 
recordkeeping requirements: (1) VMS purchase and installation; (2) VMS 
proof of installation; (3) automated VMS polling of vessel position 
when fishing in the Regular B DAS pilot program; (4) automated VMS 
polling of vessel position when fishing in the U.S./Canada Management 
Area or the Eastern U.S./Canada Haddock SAP Pilot Program; (5) 
automated VMS polling of vessel position when fishing in the CA I 
Hookgear Haddock SAP; (6) SAP area and DAS use declaration via VMS 
prior to each trip into a SAP; (7) revised estimate of the area and DAS 
use declaration via VMS prior to each trip into the CA I Hookgear 
Haddock SAP; (8) DAS ``flip'' notification via VMS for the Regular B 
DAS pilot program,; (9) DAS ``flip'' notification via VMS for the 
Eastern U.S./Canada Haddock SAP Pilot Program; (10) notice requirements 
for observer deployment prior to every trip into the Regular B DAS 
Pilot Program); (11) revised estimate of the notice requirements for 
observer deployment prior to every trip into the CA I Hookgear Haddock 
SAP; (12) daily electronic catch and discard reports of stocks of 
concern when fishing under the Regular B DAS Pilot Program; (13) daily 
electronic catch and discard reports of GB yellowtail flounder when 
fishing on a combined trip into the Western U.S./Canada Area.
    It is difficult to estimate accurately the reporting and 
recordkeeping burden associated under this action since the frequency 
of participation in the Category B (regular) DAS pilot program, the CA 
I Hookgear Haddock SAP, the Eastern U.S./Canada SAP Pilot Program, and 
fishing on a combined trip into the Western U.S./Canada Area will be 
determined entirely by the vessel owner.
    All participants in these programs must use VMS. All vessels that 
do not currently possess VMS must obtain one in order to participate in 
the programs implemented in this interim final rule. The cost of 
purchasing and installing

[[Page 67794]]

VMS, along with the associated basic operational costs, have already 
been considered in previous analyses submitted in accordance with the 
PRA. Accordingly, the costs associated with the purchase, installation, 
and operation of VMS units are not summarized here. The new 
information-collection provisions associated with FW 40A involve the 
daily electronic reporting of catch and discards of fish by vessels 
electing to fish in the Regular B DAS Pilot Program, the CA I Hookgear 
Haddock SAP, the Eastern U.S./Canada SAP Pilot Program, and vessels 
fishing combined trips in the Western U.S./Canada Area. This 
information is required to be submitted via VMS. The NE VMS Program 
will pay for the cost associated with the submission of form-based data 
(i.e., daily catch reports). As a result, there are no additional costs 
to the public associated with the daily catch reports.
    Only the minimum data to meet the requirements of the above data 
needs are requested from all participants. Since all of the respondents 
are small businesses, separate requirements based on the size of the 
business have not been developed.
A Summary of the Issues Raised by the Public Comments in Response to 
the IRFA, and a Summary of the Assessment of the Agency of Such Issues, 
and a Statement of Any Changes Made in the Proposed Rule as a Result of 
Such Comments
    NMFS received 14 comment letters on the proposed rule. Of these, 
there were no comments on the IRFA, and five issues were noted that 
directly or indirectly dealt with economic impacts to small entities 
(vessels) resulting from the management measures presented in the 
proposed rule. These comments, and NMFS's responses to these comments 
are contained in the Comments and Responses section of this preamble 
(see Comments 2, 6, 28, 29, and 37). A summary of the five economic 
issues raised, and NMFS's responses, follow:
    Issue A: The CA I Hook Gear Haddock SAP may create a derby fishery 
for haddock and may impact the market for haddock.
    Response: The FW 40-A analysis states that the CA I Hook Gear 
Haddock SAP will improve profitability for vessels allowed to access 
haddock, and that all participating vessels will likely show positive 
economic gains. The analysis, however, did not take into account the 
potential effect that a derby may have on the profitability of trips 
into the SAP. Vessels may choose when to fish in the SAP in order to 
minimize the potential for a derby and an impact on haddock prices. 
Specifically, participating vessels may choose to wait to fish, and 
balance the risk of fishing at the start of the SAP (i.e., low prices) 
with the risk of closure of the SAP later (i.e., waiting to fish in 
hopes of a higher price, and risking the closure of the SAP prior to 
fishing). NMFS agrees that the profitability may be reduced if a derby 
fishery results, but it is unknown whether a derby will occur, and what 
the magnitude of the reduction in profitability might be. Because non-
Sector vessels will not be eligible to fish in this SAP as a result of 
NMFS's disapproval of that measure, the risk of a derby fishery and 
price impacts is reduced.
    Issue B: One commenter noted concern that vessels may target cod in 
the CA I Hook Gear Haddock SAP due to the fact that the market price of 
cod is typically higher than the price of haddock, there is a higher 
incentive to target cod. Another commenter was concerned that vessels 
would be encouraged to invest in order to fish for cod in the SAP, 
because, as proposed, there was no restriction on cod harvest in the 
SAP under Category A DAS.
    Response: NMFS agrees with the commenter that there is a price 
differential between the two species that could create some incentive 
to target cod. However, the availability of haddock within the SAP, as 
well as the less restrictive regulations on haddock also should be 
considered when considering the factors that may influence a vessel 
operator's decisions. Disapproval of the ability for non-Sector vessels 
to participate in the SAP reduces the likelihood that vessels will 
target cod in the SAP.
    Issue C: Two commenters supported the proposed regulations allowing 
vessels the opportunity to fish both inside and outside of the Western 
U.S./Canada Area on the same trip, and noted that such flexibility is 
important to the economic survival of the fleet during the rebuilding 
period. The commenters stated that there should be no limit to the 
number of entries and exits per trip.
    Response: NMFS agrees that such flexibility may decrease the 
chances of unprofitable trips due to the unavailability of the target 
species in a particular area, and is implementing unlimited flexbility 
for trips into the Western U.S./Canada Area.
    Issue D: Several commenters stated that all of the programs 
proposed in FW 40-A are important for the economic survival of the 
fleet during rebuilding.
    Response: NMFS agrees that the programs implemented by this interim 
final rule will enhance the potential for vessels to become or remain 
profitable. NMFS approved most of the FW 40-A measures that will allow 
the targeting of healthy stocks while ensuring that the programs are 
consistent with the Amendment 13 conservation objectives.
    Issue E: Seven commenters were concerned that the proposed rule 
prohibited participants in the Regular B DAS Pilot Program from fishing 
in the Eastern U.S./Canada Area on the same trip, and that this 
restriction would overly restrict opportunities to use Regular B DAS. 
The commenters stated that this restriction would contribute toward the 
under-harvest of the U.S./Canada haddock TAC, and prevent realization 
of optimum yield.
    Response: NMFS agrees that allowing vessels to fish in both the 
Regular B DAS Pilot Program and the Eastern U.S./Canada Area on the 
same trip will provide additional flexibility for vessels to fish under 
a Regular B DAS, and enhance economic opportunity.

Economic Impacts Resulting From Disapproved Measures and Changes to the 
Proposed Rule

    As discussed in the preamble of this interim final rule, NMFS has 
disapproved the proposed management measures that would have allowed 
non-sector vessels to participate in the CA I Hook Gear Haddock SAP. 
Although this disapproval will reduce the economic benefits with 
respect to the proposed rule, the FW 40-A analysis estimated that 
relatively few non-sector vessels would participate in the SAP (10 
vessels; $ 299,674 total surplus). The management measures proposed for 
non-Sector vessels did not adequately control fishing mortality on GB 
cod, and the management measures were complex, and therefore difficult 
to administer and enforce. NMFS concluded that the participation of 
non-Sector vessels would have yielded relatively little economic 
benefit in comparison to the high cost of implementation. Such measures 
would have undermined Amendment 13 objectives and would not have met 
the objectives of the Magnuson-Stevens Act. The GB cod incidental TAC 
that was allocated to the SAP is instead allocated to the Regular B DAS 
Pilot Program, and enable additional economic opportunity. Although 
none of this TAC is re-allocated to the Eastern U.S./Canada Haddock SAP 
Pilot Program, vessels participating in the Regular B DAS Pilot Program 
may also fish in the Eastern U.S./Canada Area (outside of a SAP).As a 
result of comments on the proposed rule, this interim final rule 
requires vessels participating in the Eastern U.S./Canada Haddock SAP 
Pilot

[[Page 67795]]

Program to fish with a haddock separator trawl. The haddock separator 
trawl is more likely to minimize the bycatch of yellowtail flounder and 
cod than would the flounder net. Allowing only use of the haddock 
separator trawl is consistent with the objectives of the SAP, as well 
as the Magnuson-Steven Act requirement to reduce bycatch. Based upon 
current information, it is unknown whether this requirement will result 
in additional cost to the potential SAP participants or whether the 
participants already own the haddock separator trawl. Specifically, it 
is unknown whether the vessels that may participate in the SAP will 
need to purchase or construct haddock separator trawls, or whether 
participants already have these nets as a result of the implementation 
of Amendment 13. A potential increase in cost to SAP participants is 
justified based upon the need to reduce bycatch.
    As a result of comments on the proposed rule, this interim final 
rule allows vessels to enter or exit the Western U.S./Canada Area 
multiple times per trip. Because this measure provides vessel operators 
the flexibility to change plans and fish in various locations in order 
to account for changes in the distribution of fish, the measure will 
reduce the likelihood that vessels will have unprofitable trips.
    As a result of comments on the proposed rule, this interim final 
rule allows vessels to use both types of B DAS (Regular and Reserve) on 
the same trip. The opportunity to use both types of B DAS provides 
vessel operators additional flexibility to determine the trip length, 
and may also enhance trip profitability.
    As a result of comments on the proposed rule, this interim final 
rule allows vessels to fish in the Regular B DAS Pilot Program and in 
the Eastern U.S./Canada SAP Pilot Program on the same trip. This will 
provide additional flexibility for vessels to fish under a Regular B 
DAS, and enhance economic opportunity.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Interim final Rule and Why Each One of the Other 
Significant Alternatives to the Rule Considered by the Agency Which 
Affect the Impact on Small Entities Was Rejected

    This interim final rule contains programs that will provide small 
entities with additional fishing opportunities that are intended to 
mitigate some of the negative economic impacts resulting from the 
implementation of Amendment 13. This interim final rule is expected to 
provide this opportunity, while also strictly limiting the increase in 
fishing mortality on multispecies stocks of concern in order to be 
consistent with the Amendment 13 rebuilding program.
    The Regular B DAS pilot program allows limited access NE 
multispecies vessels to target relatively healthy groundfish stocks, 
using Regular B DAS, thereby, relieving some economic constraints 
caused by the Amendment 13 regulations. A total of 1,000 Regular B DAS 
per calendar quarter are allocated to the Regular B DAS Pilot Program, 
beginning November 1, 2004. Incidental TACs for eight groundfish stocks 
of concern will be set on a quarterly basis, and participating vessels 
will be required to use a VMS and report catches (both landings and 
discards) of the stocks of concern via the VMS on a daily basis. The 
economic impact of the program will depend on the types of fisheries 
defined by where, when, and how vessels decide to fish, and the 
resulting catch rates of groundfish stocks of concern. Examination of 
recorded trips taken in fishing year 2001 indicate that there are 
opportunities to fish in several different stock areas with low catches 
of stocks of concern. Average daily revenues from the GB trawl fishery 
are estimated to be at least $ 2,200. Revenue estimates range from a 
low of $ 688 (GOM trawl fishery) to a high of nearly $ 3,000 per day 
(GB trawl fishery). Although these estimates suggest the potential 
value of being able to use B Regular DAS, the actual economic gains may 
be very different if vessels pursue fisheries that were not identified 
in the analysis. In addition, even if these average revenues are 
accurate estimates, the full benefits from the Regular B DAS Pilot 
Program may not be realized for two reasons: (1) The incidental catch 
TACs may limit the duration of the program in each quarter by reducing 
or eliminating the opportunities to use Regular B DAS; and (2) the DAS 
flipping requirement may decrease trip profitability or negatively 
impact the availability of Category A DAS to be used by that vessel 
elsewhere. Even if the full economic benefits of the programs are not 
realized, the programs will probably result in some additional revenue. 
The no action alternative would yield no economic benefits, because 
without the programs implemented by this interim final rule, no 
additional fishing opportunities would be created. Therefore, the 
alternative implemented is favorable when compared to the no action 
alternative.
    The CA I Hook Gear Haddock SAP allows NE multispecies DAS vessels 
that are members of the GB Cod Hook Sector (Sector) fishing with hook 
gear the opportunity to access haddock in a portion of CA I from 
October through December. Approximately 50 Sector vessels may 
participate in this program. Based upon the proposed haddock TAC of 
1,000 mt, and an average of 5,000 lb (2268 kg) of haddock kept per 
trip, approximately 345 trips could be taken into this SAP. At an 
average haddock price of $ 1.05 per lb, and average variable costs of $ 
364 per day, the potential revenue from fishing in the SAP is $ 1.9 
million, with an overall vessel profit of $ 1.2 million (after 
subtracting variable costs and crew share). Dividing this profit among 
50 potential hook vessels results in a vessel profit of $ 24,186. If 
all participating vessels needed to purchase a VMS system at a cost of 
$ 3,995 installed, which is at the high end of the cost range for 
available VMS systems, the profit would be reduced. Regardless of the 
precise amount of the profit, all participating vessels could benefit 
from an economic surplus. The no action alternative would yield no 
economic benefits because no SAP would be implemented, the access to 
the haddock would not occur, and no additional revenues to the Sector 
would accrue. Therefore, the alternative implemented is favorable when 
compared to the no action alternative.
    The CA II Haddock SAP Pilot Program, will allow limited access 
groundfish vessels the opportunity to use Category B DAS to target 
haddock in a designated portion of the Eastern U.S./Canada Area. Most 
of the benefits will be limited to relatively large vessels, due to the 
offshore location of the SAP Pilot Program. Participating vessels will 
be subject to the existing requirements of the Eastern U.S./Canada 
Area, including use of a VMS, and a requirement to use a haddock 
separator trawl. Total revenue will be limited by the GB cod and 
haddock TACs already set for the Eastern U.S./Canada Area. The 
potential revenue of participating vessels under the proposed pilot 
program was calculated based upon historic landings compositions. The 
average estimated revenue per vessel is $ 32,095 per trip, and ranges 
from $ 22,571 to $ 34,586 per trip. Smaller vessels will likely 
generate less revenue than larger vessels. The average vessel revenue 
is estimated to be $ 4,527 per day, and ranges from $ 3,060 to $ 4,751

[[Page 67796]]

per day. These averages are higher than the average revenues on 
groundfish trips reported in the break-even analysis in Amendment 13. 
Because the SAP represents an opportunity for higher revenues, it will 
provide vessels with greater opportunity to remain profitable. The no 
action alternative would not implement the SAP and would not provide 
any opportunity for greater revenues. Therefore, the alternative 
implemented is favorable when compared to the no action alternative.
    This interim final rule will also relieve additional Amendment 13 
restrictions in order to allow vessels to fish both inside and outside 
of the Western U.S./Canada Area on the same trip. Although Vessel Trip 
Report data indicate that fishing in multiple statistical areas is not 
a common occurrence, observer data and fisher's comments indicate that 
some vessels do fish in multiple statistical areas on the same trip. 
Based upon industry comments, this regulatory change will reduce the 
risk of an unprofitable trip into the Western U.S./Canada Area. Without 
such flexibility, if a vessel does not locate a profitable amount of 
fish in the Western U.S./Canada Area it would not have option of 
fishing outside the area on the same trip. The no action alternative 
would prohibit vessels from fishing inside and outside of this area on 
the same trip, and would not reduce the risk of an unprofitable trip. 
Therefore, the alternative implemented is favorable when compared to 
the no action alternative.
    FW 40-A also analyzed the aggregate economic benefits of two non-
selected alternatives that differ from the selected alternative. 
Although it was estimated that Alternative 1, which does not include 
the Regular B DAS Pilot Program, would result in a similar overall 
economic benefit, the vessels that would benefit from the program would 
be very different under this alternative, and exclude those vessels not 
able to fish in the manner required by the two SAPs. The Regular B DAS 
Pilot Program has very different requirements from the two SAPs, and 
the participants may be different vessels than those participating in 
the SAPs. Alternative 2, which proposed the Regular B DAS Pilot Program 
for a duration of only 6 months, would have resulted in lower economic 
benefits for those vessels participating in the Regular B DAS Pilot 
Program when compared to the Pilot Program implemented by this rule, 
due to the shorter duration. The programs implemented by this rule will 
provide more diverse and sustained fishing opportunity than the non-
selected alternatives. The aggregate economic benefits of the 
opportunities implemented by this rule provide will include revenue 
from harvest of the targeted stocks, as well as from harvest under the 
incidental TACs.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) states that for each rule or group of related 
rules for which an agency is required to prepare a FRFA, the agency 
shall publish one or more guides to assist small entities in complying 
with the rule, and shall designate such publications as ``small entity 
compliance guides''. The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. As 
part of this rule making process, a small entity compliance guide was 
prepared. Copies of the guide will be sent to all holders of limited 
access DAS multispecies permits. The guide will be available on the 
Internet at http://www.nero.noaa.gov. Copies of the guide can also be 
obtained from the Regional Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 16, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.2, new definitions for ``DAS flip'' and ``Incidental 
Total Allowable Catch (TAC)'' are added in alphabetical order, to read 
as follows:


Sec.  648.2  Definitions.

* * * * *
    DAS flip, with respect to the NE multispecies fishery, means ending 
fishing under a Regular B DAS and begining fishing under a Category A 
DAS.
* * * * *
    Incidental Total Allowable Catch (TAC), with respect to the NE 
multispecies fishery, means the total amount of catch (both kept and 
discarded) of a regulated groundfish stock of concern that can be taken 
by vessels fishing under Category B DAS.
* * * * *

0
3. In Sec.  648.9, paragraph (c)(1)(ii) is revised to read as follows:


Sec.  648.9  VMS requirements.

* * * * *
    (c) * * *
    (1) * * *
    (ii) NMFS may initiate at its discretion, the transmission of a 
signal indicating the vessel's accurate position, at least twice per 
hour, 24 hours a day, for all NE multispecies DAS vessels that elect to 
fish with a VMS specified in Sec.  648.10(b) or that are required to 
fish with a VMS as specified in Sec.  648.85(a), for each groundfish 
DAS trip that the vessel has elected to fish in the U.S./Canada 
Management Areas, and as specified in Sec.  648.85(b) for each 
groundfish trip that the vessel has elected to fish in either the CA II 
Yellowtail Flounder SAP, the CA I Hook Gear Haddock SAP, the Regular B 
DAS Pilot Program, or the Eastern U.S./Canada Haddock SAP Pilot 
Program.
* * * * *

0
4. In Sec.  648.10, paragraphs (b)(1)(vii) and (viii) are added, and 
paragraph (b)(3)(i) is revised to read as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (vii) A vessel electing to fish under the Regular B DAS Pilot 
Program, as specified in Sec.  648.85(b)(6).
    (viii) A vessel electing to fish in the Closed Area I Hook Gear 
Haddock SAP, as specified in Sec.  648.85(b)(7).
* * * * *
    (3) * * *
    (i) A vessel issued a limited access NE multispecies, monkfish, 
occasional scallop, or Combination permit must use the call-in system 
specified in paragraph (c) of this section, unless the owner of such 
vessel has elected to do one or more of the following activities:
    (A) Provide the notifications required by this paragraph (b), 
through VMS as specified under paragraph (b)(3)(iii) of this section; 
or
    (B) Fish in the Eastern U.S./Canada Area or Western U.S./Canada 
Area as described in Sec.  648.85(a)(2)(i); or
    (C) Fish under the Regular B DAS Pilot Program specified at Sec.  
648.85(a)(6); or
    (D) Fish in the CA I Hook Gear Haddock SAP specified in Sec.  
648.85(a)(7).
* * * * *

0
5. In Sec.  648.14, paragraphs (a)(39), (104), (130), and (c)(8) are 
revised; and paragraphs (a)(142)-(152) and (c)(50) through (c)(79) are 
added to read as follows:

[[Page 67797]]

Sec.  648.14  Prohibitions.

    (a) * * *
    (39) Enter or be in the area described in Sec.  648.81(b)(1) on a 
fishing vessel, except as provided in Sec.  648.81(b)(2) and (b)(2)(i).
* * * * *
    (104) Fish for, harvest, possess, or land regulated species in or 
from the closed areas specified in Sec.  648.81(a) through (f), unless 
otherwise specified in Sec.  648.81(c)(2)(iii), (f)(2)(i), (f)(2)(iii), 
or as authorized under Sec.  648.85.
* * * * *
    (130) If declared into one of the areas specified in Sec.  
648.85(a)(1), fish during that same trip outside of the declared area, 
unless in compliance with the restrictions specified under Sec.  
648.85(a)(3)(ii)(B).
* * * * *
    (142) If the vessel has been issued a limited access NE 
multispecies DAS permit and is in the area specified in Sec.  
648.85(b)(8)(ii), fail to comply with the VMS requirements in Sec.  
648.85(b)(8)(v)(B).
    (143) If fishing under a NE multispecies DAS, enter or fish in the 
Eastern U.S./Canada Haddock SAP Pilot Program Area specified in Sec.  
648.85(b)(8)(ii), unless declared into the area in accordance with 
Sec.  648.85(b)(8)(v)(D).
    (144) Enter or fish in the Eastern U.S./Canada Haddock SAP Pilot 
Program outside of the season specified in Sec.  648.85(b)(8)(iv).
    (145) If fishing under a NE multispecies DAS in the Eastern U.S./
Canada Haddock SAP Pilot Program, exceed the possession limits 
specified in Sec.  648.85(b)(8)(v)(H).
    (146) If fishing under the Eastern U.S./Canada Haddock SAP Pilot 
Program, fish for, harvest, possess or land any regulated NE 
multispecies from the area specified in Sec.  648.85(b)(8)(ii), unless 
in compliance with the restrictions and conditions specified in Sec.  
648.85(b)(8)(v)(A) through (G).
    (147) If fishing under a NE multispecies DAS in the Eastern U.S./
Canada Area specified in Sec.  648.85(a)(1), both outside and inside of 
the areas specified for a SAP under Sec.  648.85(b)(3) and (8), fail to 
abide by the DAS and possession restrictions under Sec.  
648.85(b)(8)(v)(A)(2) through (4).
    (148) If fishing under a NE multispecies DAS in the Eastern U.S./
Canada Haddock SAP Area specified in Sec.  648.85(b)(8)(ii), during the 
season specified in Sec.  648.85(b)(8)(iv), fail to comply with the 
restrictions specified in Sec.  648.85(b)(8)(v).
    (149) If fishing under a NE multispecies DAS in the Eastern U.S./
Canada Area specified in Sec.  648.85(a)(1)(ii), and not in a SAP 
specified in Sec.  648.85(b) on the same trip, fail to comply with the 
requirements specified in Sec.  648.85(a)(3).
    (150) If fishing under a NE multispecies DAS in the Eastern U.S./
Canada Area specified in Sec.  648.85(a)(1)(ii), and in one of the SAPs 
specified in Sec.  648.85(b)(3) or (8), fail to comply with the no 
discard and DAS flip provisions specified in Sec.  648.85(b)(8)(v)(I) 
or the minimum Category A DAS requirement specified in Sec.  
648.85(b)(8)(v)(J).
    (151) If fishing in the Eastern U.S./Canada Haddock SAP Pilot 
Program specified in Sec.  648.85(b)(8), fail to comply with the 
reporting requirements specified in Sec.  648.85(b)(8)(v)(G).
    (152) If fishing under the Eastern U.S./Canada Haddock SAP Pilot 
Program specified in Sec.  648.85(b)(8), fail to comply with the 
observer notification requirements specified in Sec.  
648.85(b)(8)(v)(C).
* * * * *
    (c) * * *
    (8) Fail to comply with the restrictions on fishing and gear 
specified in Sec.  648.80(a)(3)(v), (a)(4)(v), (b)(2)(v), and 
(c)(2)(iv) if the vessel has been issued a limited access NE 
multispecies permit and fishes with hook-gear in areas specified in 
Sec.  648.80(a), (b), or (c), unless allowed under Sec.  
648.85(b)(7)(iv)(F).
* * * * *
    (50) Discard legal-sized regulated multispecies while fishing under 
a Regular B DAS in the Regular B DAS Pilot Program, as described in 
Sec.  648.85(b)(6).
    (51) If fishing under a Regular B DAS in the Regular B DAS Pilot 
Program, fail to comply with the DAS flip requirements of Sec.  
648.85(b)(6)(iv)(E) if the vessel harvests and brings on board more 
than the landing limit for a groundfish stock of concern specified in 
Sec.  648.85(b)(6)(iv)(D).
    (52) If fishing in the Regular B DAS Pilot Program, fail to comply 
with the restriction on DAS use as specified in Sec.  
648.82(d)(2)(i)(A).
    (53) If fishing in the Eastern U.S./Canada Haddock SAP Pilot Area, 
and other portions of the Eastern U.S./Canada Area on the same trip, 
fail to comply with the restrictions in Sec.  648.85(b)(8)(v)(A).
    (54) If fishing in the Eastern U.S./Canada Haddock SAP Pilot Area, 
discard legal-sized cod while fishing under a Category B DAS, as 
described in Sec.  648.85(b)(8)(v)(I).
    (55) If fishing in the Eastern U.S./Canada Haddock SAP Pilot Area 
under a Category B DAS, fail to comply with the DAS flip requirements 
of Sec.  648.85(b)(8)(v)(I), if the vessel possesses more than the 
landing limit for cod specified in Sec.  648.85(b)(8)(v)(F).
    (56) If fishing in the Eastern U.S./Canada Haddock SAP Pilot Area 
under a Category B DAS, fail to have the minimum number of Category A 
DAS available as required under Sec.  648.85(b)(8)(v)(J).
    (57) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the requirements and 
restrictions specified in Sec.  648.85(b)(6)(iv)(A) through (F), and 
(I).
    (58) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the VMS requirement specified 
in Sec.  648.85(b)(6)(iv)(A).
    (59) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the observer notification 
requirement specified in Sec.  648.85(b)(6)(iv)(B).
    (60) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the VMS declaration requirement 
specified in Sec.  648.85(b)(6)(iv)(C).
    (61) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the landing limits specified in 
Sec.  648.85(b)(6)(iv)(D).
    (62) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the no discard and DAS flip 
requirements specified in Sec.  648.85(b)(6)(iv)(E).
    (63) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the minimum Category A DAS and 
Category B DAS accrual requirements specified in Sec.  
648.85(b)(6)(iv)(F).
    (64) Use a Regular B DAS in the Regular B DAS Pilot Program 
specified in Sec.  648.85(b)(6), if the program has been closed as 
specified in Sec.  648.85(b)(6)(iv)(H) or (b)(6)(vi).
    (65) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), use a Regular B DAS in a stock area that has been 
closed, as specified in Sec.  648.85(b)(6)(iv)(G).
    (66) If fishing in the Regular B DAS Pilot Program specified in 
Sec.  648.85(b)(6), fail to comply with the reporting requirements 
specified in Sec.  648.85(b)(6)(iv)(I).
    (67) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the requirements and conditions 
specified in Sec.  648.85(b)(7)(iv)(A) through (H).

[[Page 67798]]

    (68) If fishing in the CA I Hook Gear Haddock Access Area specified 
in Sec.  648.85(b)(7)(ii), fail to comply with the requirements and 
conditions specified in Sec.  648.85(b)(7)(i) and (b)(7)(iv)(A) through 
(H).
    (69) Fish in the CA I Hook Gear Haddock SAP specified in Sec.  
648.85(b)(7), outside of the season specified in Sec.  
648.85(b)(7)(iii).
    (70) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the DAS use restrictions 
specified in Sec.  648.85(b)(7)(iv)(A).
    (71) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the VMS requirements specified 
in Sec.  648.85(b)(7)(iv)(B).
    (72) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the observer notification 
requirements specified in Sec.  648.85(b)(7)(iv)(C).
    (73) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the VMS declaration requirement 
specified in Sec.  648.85(b)(7)(iv)(E).
    (74) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the gear restrictions specified 
in Sec.  648.85(b)(7)(iv)(F).
    (75) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the landing limits specified in 
Sec.  648.85(b)(7)(iv)(G).
    (76) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the reporting requirement 
specified in Sec.  648.85(b)(7)(iv)(H).
    (77) Fish in the CA I Hook Gear Haddock Access Area specified in 
Sec.  648.85(b)(7)(ii), if that area is closed as specified in Sec.  
648.85(b)(7)(iv)(K) or (b)(7)(v).
    (78) Fish in the U.S./Canada Haddock SAP Pilot Program specified in 
Sec.  648.85(b)(8), if the SAP Pilot Program is closed as specified in 
Sec.  648.85(b)(8)(v)(K) or (L).
    (79) If fishing in the Closed Area II Yellowtail Flounder SAP 
specified in Sec.  48.85(b)(3), fail to comply with the no discard and 
DAS flip provision specified under Sec.  648.85(b)(3)(xi).
* * * * *

0
6. In Sec.  648.81, paragraphs (b)(2)(iii), (b)(2)(iv) and (i) are 
revised to read as follows:


Sec.  648.81  NE multispecies closed areas and measures to protect EFH.

* * * * *
    (b) * * *
    (2) * * *
    (iii) Fishing in the CA II Yellowtail Flounder SAP or the Eastern 
U.S./Canada Haddock SAP Pilot Program as specified in Sec.  
648.85(b)(3) and (8), respectively; or
    (iv) Transiting the area, provided the vessel's fishing gear is 
stowed in accordance with the provisions of Sec.  648.23(b); and
    (A) The operator has determined, and a preponderance of available 
evidence indicates, that there is a compelling safety reason; or
    (B) The vessel has declared into the Eastern U.S./Canada Area as 
specified in Sec.  648.85(a)(3)(ii) and is transiting CA II in 
accordance with the provisions of Sec.  648.85(a)(3)(vii).
* * * * *
    (i) Transiting. A vessel may transit CA I, the Nantucket Lightship 
Closed Area, the Cashes Ledge Closed Area, the Western GOM Closure 
Area, the GOM Rolling Closure Areas, the GB Seasonal Closure Area, and 
the EFH Closure Areas, as defined in paragraphs (a)(1), (c)(1), (d)(1), 
(e)(1), (f)(1), (g)(1), and (h)(1), respectively, of this section, 
unless otherwise restricted, provided that its gear is stowed in 
accordance with the provisions of Sec.  648.23(b). A vessel may transit 
CA II, as defined in paragraph (b)(2) of this section, in accordance 
with paragraph (b)(2)(iv) of this section.
* * * * *

0
7. In Sec.  648.82, paragraphs (d)(2)(i)(A) and (j)(1)(iii) are 
revised, and paragraph (e)(3) is added to read as follows:


Sec.  648.82  Effort-control program for NE multispecies limited access 
vessels.

* * * * *
    (d) * * *
    (2) * * *
    (i) * * *
    (A) Restrictions on use. Regular B DAS can only be used by NE 
multispecies vessels in an approved SAP or in the Regular B DAS Pilot 
Program as specified in Sec.  648.85(a)(6). Unless otherwise restricted 
under the Regular B DAS Pilot Program as described in Sec.  
648.85(b)(6)(i), vessels may fish under both a Regular B DAS and a 
Reserve B DAS on the same trip (i.e., when fishing in an approved SAP 
as described in Sec.  648.85(b) of this section). Vessels that are 
required by another fishery management plan (i.e., not the NE 
multispecies FMP) to utilize a NE multispecies DAS, e.g., as specified 
under Sec.  648.92(b)(2), may elect to use a NE multispecies Category B 
DAS to satisfy that requirement.
* * * * *
    (e) * * *
    (3) For vessels electing to fish in the Regular B DAS Pilot 
Program, as specified at Sec.  648.85(a)(6), and that remain fishing 
under a Regular B DAS for the entire fishing trip (without a DAS flip), 
DAS used will accrue at the rate of 1 full DAS for each calendar day, 
or part of a calendar day, fished. For example, a vessel that fished on 
one calendar day from 6 a.m. to 10 p.m. would be charged 24 hours of 
Regular B DAS, not 16 hours; a vessel that left on a trip at 11 p.m. on 
the first calendar day and returned at 10 p.m. on the second calendar 
day would be charged 48 hours of Regular B DAS instead of 23 hours, 
because the fishing trip would have spanned 2 calendar days. For the 
purpose of calculating trip limits specified under Sec.  648.86, the 
amount of DAS deducted from a vessel's DAS allocation will determine 
the amount of fish the vessel could legally land.
* * * * *
    (j) * * *
    (1) * * *
    (iii) Method of counting DAS. Unless electing to fish in the 
Regular B DAS Pilot Program specified in Sec.  648.85(a)(6), and 
therefore subject to the DAS accrual provisions of Sec.  648.82(e)(3), 
Day gillnet vessels fishing with gillnet gear under a NE multispecies 
DAS will accrue 15 hours of DAS for each trip of more than 3 hours, but 
less than or equal to 15 hours. Such vessels will accrue actual DAS 
time at sea for trips less than or equal to 3 hours, or more than 15 
hours.
* * * * *

0
8. In Sec.  648.85, paragraphs (a)(3)(ii), (a)(3)(iv)(A), (a)(3)(v), 
(b)(3)(i) and (b)(3)(viii) are revised; paragraphs (b)(3)(xi) and (xii) 
are added, and paragraphs (a)(3)(iv)(C)(4), (a)(3)(v)(A) and (B), 
(a)(3)(vii), and (b)(5) through (8) are added to read as follows:


Sec.  648.85  Special management programs.

    (a) * * *
    (3) * * *
    (ii) Declaration. To fish in the U.S./Canada Management Area under 
a groundfish DAS, a NE multispecies DAS vessel, prior to leaving the 
dock, must declare through the VMS, in accordance with instructions to 
be provided by the Regional Administrator, which specific U.S./Canada 
Management Area described in paragraphs (a)(1)(i) or (ii) of this 
section, or which specific SAP, described in paragraph (b) of this 
section, within the U.S./Canada Management Area the vessel will fish 
in, and comply with the restrictions and conditions in paragraphs 
(a)(3)(ii)(A) through (C) of this section. Vessels other than NE 
multispecies DAS vessels are

[[Page 67799]]

not required to declare into the U.S./Canada Areas.
    (A) A vessel fishing under a NE multispecies DAS in the Eastern 
U.S./Canada Area may not fish, during the same trip, outside of the 
Eastern U.S./Canada Area, and may not enter or exit the Eastern U.S./
Canada Area more than once on any trip.
    (B) A vessel fishing under a NE multispecies DAS in the Western 
U.S./Canada Area may fish inside and outside the Western U.S./Canada 
Area on the same trip, provided it complies with the more restrictive 
regulations applicable to the area fished for the entire trip (e.g., 
the possession restrictions specified in paragraph (a)(3)(iv)(C)(4) of 
this section), and the reporting requirements specified in Sec.  
648.85(a)(3)(v).
    (C) For the purposes of selecting vessels for observer deployment, 
a vessel fishing in either of the U.S./Canada Management Areas 
specified in paragraph (a)(1) of this section must provide notice to 
NMFS of the vessel name; contact name for coordination of observer 
deployment; telephone number for contact; and the date, time, and port 
of departure, at least 72 hours prior to the beginning of any trip that 
it declares into the U.S./Canada Management Area as required under this 
paragraph (a)(3)(ii).
* * * * *
    (iv) * * *
    (A) Cod landing limit restrictions. Notwithstanding other 
applicable possession and landing restrictions under this part, a NE 
multispecies vessel fishing in the Eastern U.S./Canada Area described 
in paragraph (a)(1)(ii) of this section may not land more than 500 lb 
(226.8 kg) of cod per DAS, or any part of a DAS, up to 5,000 lb (2,268 
kg) per trip, not to exceed 5 percent of the total catch on board, 
whichever is less, unless otherwise restricted under this part. A 
vessel fishing in both the Eastern U.S./Canada Area and either the CA 
II Yellowtail Flounder SAP or the Eastern U.S./Canada Haddock SAP Pilot 
Program on the same trip must comply with the cod possession 
restrictions for those programs for the entire trip, as specified in 
paragraphs (b)(3) and (8) of this section, respectively.
* * * * *
    (C) * * *
    (4) Yellowtail flounder landing limit for vessels fishing both 
inside and outside the Western U.S./Canada Area on the same trip. A 
vessel fishing both inside and outside of the Western U.S./Canada Area 
on the same trip, as allowed under paragraph (a)(3)(ii)(B) of this 
section, is subject to the most restrictive landing limits that apply 
to any of the areas fished, for the entire trip.
* * * * *
    (v) Reporting. The owner or operator of a NE multispecies DAS 
vessel must submit reports via the VMS, in accordance with instructions 
to be provided by the Regional Administrator, for each day fished when 
declared into either of the U.S./Canada Management Areas. The reports 
must include at least the information specified in paragraphs 
(a)(3)(v)(A) and (B) of this section, depending on area fished. The 
reports must be submitted in 24-hr intervals for each day, beginning at 
0000 hr and ending at 2400 hr, and must be submitted by 0900 hr of the 
following day.
    (A) Eastern U.S./Canada Area. For a vessel declared into the 
Eastern U.S./Canada Area in accordance with paragraph (a)(3)(ii) of 
this section, the reports must include at least the following 
information: Total pounds of cod, haddock and yellowtail flounder kept; 
and total pounds of cod, haddock, and yellowtail flounder discarded.
    (B) Western U.S./Canada Area. For a vessel declared into the 
Western U.S./Canada Area in accordance with paragraph (a)(3)(ii) of 
this section, the reports must include at least the following 
information: Total pounds of yellowtail flounder kept and total pounds 
of yellowtail flounder discarded. In addition to these reporting 
requirements, a vessel that has declared that it intends to fish both 
inside and outside of the Western U.S./Canada Area on the same trip, in 
accordance with paragraph (a)(3)(ii) of this section, must report via 
VMS the following information when crossing the boundary into or out of 
the Western U.S./Canada Area: Total pounds of yellowtail flounder kept, 
by statistical area, and total pounds of yellowtail flounder discarded, 
by statistical area, since the last daily catch report.
* * * * *
    (vii) Transiting. A multispecies DAS vessel declared into the 
Eastern U.S./Canada Area as defined in paragraph (a)(1)(ii) of this 
section, and not fishing in the CA II Yellowtail Flounder SAP described 
in paragraph (b)(3) of this section, may transit the CA II Yellowtail 
Flounder SAP as described in paragraph (b)(3)(ii) of this section, 
provided all fishing gear is stowed in accordance with the regulations 
at Sec.  648.23(b).
    (b) * * *
    (3) * * *
    (i) Eligibility. Vessels issued a valid limited access NE 
multispecies DAS permit are eligible to participate in the Closed Area 
II Yellowtail Flounder SAP, and may fish in the Closed Area II 
Yellowtail Flounder Access Area, as described in paragraph (b)(3)(ii) 
of this section, for the period specified in paragraph (b)(3)(iii) of 
this section, when fishing under a NE multispecies DAS, provided such 
vessels comply with the requirements of this section, and provided the 
Eastern U.S./Canada Area described in paragraph (a)(1)(ii) is not 
closed according to the provisions specified under paragraph (a)(1)(iv) 
of this section. Vessels are required to comply with the no discarding 
and DAS flip requirements specified in paragraph (b)(3)(xi) of this 
section, and the DAS balance requirements specified in paragraph 
(b)(3)(xii) of this section.
* * * * *
    (viii) Trip limits. Unless otherwise authorized by the Regional 
Administrator as specified in paragraph (a)(3)(iv)(D) of this section, 
a vessel fishing in the CA II Yellowtail Flounder SAP may fish for, 
possess, and land up to 30,000 lb (13,608 kg) of yellowtail flounder 
per trip. Unless otherwise restricted, a NE multispecies vessel fishing 
any portion of a trip in the CA II Yellowtail Flounder SAP may not fish 
for, possess, or land more than 1,000 lb (453.6 kg) of cod per trip, 
regardless of trip length. A NE multispecies vessel fishing in the CA 
II Yellowtail Flounder SAP is subject to the haddock requirements 
described under Sec.  648.86(a), unless further restricted under 
paragraph (a)(3)(iv).
* * * * *
    (xi) No-discard provision and DAS flips. A vessel fishing in the 
Closed Area II Yellowtail Flounder SAP, under a B DAS (Regular or 
Reserve) may not discard legal-sized cod. If such a vessel harvests and 
brings on board more legal sized cod than the applicable maximum 
landing limit per trip specified under paragraph (b)(3)(viii) of this 
section, the vessel operator must notify NMFS prior to crossing the 
demarcation line via VMS on its return trip to port to initiate a DAS 
flip. Once this notification has been received by NMFS, the vessel will 
automatically be switched by NMFS to fishing under a Category A DAS. 
For a vessel that notified NMFS of a DAS flip, the Category B DAS that 
have accrued between the time the vessel started accruing Category B 
DAS at the beginning of the trip (i.e., at the time the vessel crossed 
into the Eastern U.S./Canada Area) and the time the vessel declared its 
DAS flip will be accrued as Category A DAS, and not Category B DAS. 
Once such vessel has initiated the DAS flip and is fishing under a 
Category

[[Page 67800]]

A DAS, the prohibition on discarding legal-sized cod no longer applies.
    (xii) Minimum Category A DAS. For vessels fishing under a Category 
B DAS, the number of Category B DAS that can be used on a trip cannot 
exceed the number of available Category A DAS the vessel has at the 
start of the trip.
* * * * *
    (5) Incidental TACs. Unless otherwise specified in this paragraph 
(b)(5), incidental TACs will be specified through the periodic 
adjustment process described in Sec.  648.90, and allocated as 
described in paragraph (b)(5) of this section, for each of the 
following stocks: GOM cod, GB cod, CC/GOM yellowtail flounder, American 
plaice, white hake, SNE/MA yellowtail flounder, SNE/MA winter flounder, 
and witch flounder. NMFS will send letters to limited access NE 
multispecies permit holders notifying them of such TACs.
    (i) Stocks other than GB cod. With the exception of GB cod, the 
incidental TACs specified under this paragraph (b)(5) shall be 
allocated to the Regular B DAS Pilot Program described in paragraph 
(b)(6) of this section.
    (ii) GB cod. The incidental TAC for GB cod specified in this 
paragraph (b)(5), shall be subdivided as follows: 66 percent to the 
Regular B DAS Pilot Program, described in paragraph (b)(6) of this 
section; and 34 percent to the Eastern U.S./Canada Haddock SAP Pilot 
Program, described in paragraph (b)(8) of this section.
    (6) Regular B DAS Pilot Program--(i) Eligibility. Vessels issued a 
valid limited access NE multispecies DAS permit and allocated Regular B 
DAS are eligible to participate in the Regular B DAS Pilot Program for 
the period specified in paragraph (b)(6)(ii) of this section, and may 
elect to fish under a Regular B DAS, provided they comply with the 
requirements and restrictions of this paragraph (b)(6), and provided 
the use of Regular B DAS is not restricted according to paragraphs 
(b)(6)(iv)(G) or (H), or paragraph (b)(6)(vi) of this section. Vessels 
are required to comply with the no discarding and DAS flip requirements 
specified in paragraph (b)(6)(iv)(E) of this section, and the DAS 
balance and accrual requirements specified in paragraph (b)(6)(iv)(F) 
of this section. Vessels may fish under the B Regular DAS Pilot Program 
and in the U.S./Canada Management Area on the same trip, but may not 
fish under the Regular B DAS Pilot Program and in a SAP on the same 
trip.
    (ii) Duration of program. Fishing under this program may only occur 
from November 19, 2004 through October 31, 2005.
    (iii) Quarterly incidental catch TACs. The incidental catch TACs 
specified in accordance with paragraph (b)(5) of this section shall be 
divided into quarterly catch TACs. NMFS will send letters to limited 
access multispecies permit holders notifying them of such TACs.
    (iv) Program requirements--(A) VMS requirement. A NE multispecies 
DAS vessel fishing in the Regular B DAS Pilot Program described in 
paragraph (b)(6)(i) of this section must have installed on board an 
operational VMS unit that meets the minimum performance criteria 
specified in Sec. Sec.  648.9 and 648.10.
    (B) Observer notification. For the purposes of selecting vessels 
for observer deployment, a vessel must provide notice to NMFS of the 
vessel name; contact name for coordination of observer deployment; 
telephone number for contact; the date, time, and port of departure; 
and the planned fishing area or areas (GOM, GB, or SNE/MA) at least 72 
hr prior to the beginning of any trip that it declares into the Regular 
B DAS Pilot Program as required under paragraph (b)(6)(iv)(C) of this 
section, and in accordance with instructions provided by the Regional 
Administrator. Providing notice of the area that the vessel intends to 
fish does not restrict the vessel's activity to only that area on that 
trip (i.e., the vessel operator may change his/her plans regarding 
planned fishing area).
    (C) VMS declaration. To participate in the Regular B DAS Pilot 
Program under a Regular B DAS, a vessel must declare into the Program 
via the VMS, prior to departure from port, in accordance with 
instructions provided by the Regional Administrator. A vessel declared 
into the Regular B DAS Pilot Program cannot fish in an approved SAP 
described under this section on the same trip.
    (D) Landing limits. A NE multispecies vessel fishing in the Regular 
B DAS Pilot Program described in this paragraph (b)(6), and fishing 
under a Regular B DAS, may not land more than 100 lb (45.5 kg) per DAS, 
or any part of a DAS, up to a maximum of 1,000 lb (454 kg) per trip, of 
any of the following species: Cod, American plaice, white hake, witch 
flounder, ocean pout, winter flounder and windowpane flounder. Such 
vessels may not land more than 25 lb (11.3 kg) per DAS, or any part of 
a DAS, up to a maximum of 250 lb (113 kg) per trip of yellowtail 
flounder, unless fishing the entire trip in the U.S./Canada Management 
Area as specified under paragraph (a)(1) of this section.
    (E) No-discard provision and DAS flips. A vessel fishing in the 
Regular B DAS Pilot Program under a Regular B DAS may not discard 
legal-sized regulated groundfish. This prohibition on discarding does 
not apply in areas or times where the possession or landing of such 
groundfish is prohibited. If such a vessel harvests and brings on board 
more legal sized regulated groundfish than the applicable maximum 
landing limit per trip specified under paragraph (b)(6)(iv)(D) of this 
section, the vessel operator must notify NMFS prior to crossing the 
demarcation line via VMS on its return trip to port to initiate a DAS 
flip. Once this notification has been received by NMFS, the vessel will 
automatically be switched by NMFS to fishing under a Category A DAS. 
For a vessel that notifies NMFS of a DAS flip, the Category B DAS that 
have accrued between the time the vessel started accruing Regular B DAS 
at the beginning of the trip (i.e., at the time the vessel crossed the 
demarcation line at the beginning of the trip) and the time the vessel 
declared its DAS flip will be accrued as Category A DAS, and not 
Regular B DAS. Once such vessel has initiated the DAS flip and is 
fishing under a Category A DAS, the prohibition on discarding legal-
sized regulated groundfish no longer applies. A vessel that has 
declared a DAS flip will be subject to the landing restrictions 
specified under Sec.  648.86.
    (F) Minimum Category A DAS and B DAS accrual. For a vessel fishing 
under the Regular B DAS Pilot Program, the number of Regular B DAS that 
can be used on a trip cannot exceed the number of Category A DAS the 
vessel has available at the start of the trip. The vessel will accrue 
DAS in accordance with Sec.  648.82(e)(3).
    (G) Restrictions when 100 percent of the incidental catch TAC is 
harvested. With the exception of white hake, when the Regional 
Administrator provides notification through rulemaking consistent with 
the Administrative Procedure Act, that 100 percent of one or more of 
quarterly incidental TACs specified under paragraph (b)(6)(iii) of this 
section has projected to have been harvested, the use of Regular B DAS 
shall be prohibited in the pertinent stock area(s) as defined under 
paragraph (b)(6)(v) of this section for the duration of the calendar 
quarter. The closure of a stock area to all Regular B DAS use will 
occur even if the quarterly incidental catch TACs for other stocks in 
that stock area have not been completely harvested. When the Regional 
Administrator projects that 100 percent of the quarterly white hake 
incidental catch TAC specified under paragraph (b)(6)(iii) of this 
section has been harvested, vessels fishing under a Regular B DAS, or 
that complete a trip

[[Page 67801]]

under a Regular B DAS, will be prohibited from retaining white hake.
    (H) Closure of Regular B DAS program and quarterly DAS limit. 
Unless otherwise closed as a result of the harvest of all incidental 
TACs as described in paragraph (b)(6)(iv)(G) of this section, or as 
result of an action by the Regional Administrator under paragraph 
(b)(6)(vi) of this section, the use of Regular B DAS shall, through 
rulemaking consistent with the Administrative Procedure Act, be 
prohibited when 1,000 Regular B DAS have been used during the calendar 
quarter, in accordance with Sec.  648.82(e)(3).
    (I) Reporting requirements. The owner or operator of a NE 
multispecies DAS vessel must submit catch reports via VMS in accordance 
with instructions provided by the Regional Administrator, for each day 
fished when declared into the Regular B DAS Pilot Program. The reports 
must be submitted in 24-hr intervals for each day, beginning at 0000 hr 
and ending at 2400 hr. The reports must be submitted by 0900 hr of the 
following day. For vessels that have declared into the Regular B DAS 
Pilot Program in accordance with paragraph (b)(6)(iv)(C) of this 
section, the reports must include at least the following information: 
Statistical area fished, total weight (lb/kg) of cod, yellowtail 
flounder, American plaice, white hake, winter flounder, and witch 
flounder kept; and total weight (lb/kg) of cod, yellowtail flounder, 
American plaice, white hake, winter flounder, and witch flounder 
discarded. All NE multispecies permit holders will be sent a letter 
informing them of the statistical areas.
    (v) Definition of incidental TAC stock areas. For the purposes of 
the Regular B DAS Pilot Program, the species stock areas associated 
with the incidental TACs are defined below. Copies of a chart depicting 
these areas are available from the Regional Administrator upon request.
    (A) GOM cod stock area. The GOM cod stock area is the area defined 
by straight lines connecting the following points in the order stated:

                      GULF OF MAINE COD STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
GOM1..................................           \(1)\      70[deg] 00'
GOM2..................................     42[deg] 20'      70[deg] 00'
GOM3..................................     42[deg] 20'      67[deg] 40'
GOM4..................................     43[deg] 50'      67[deg] 40'
GOM5..................................     43[deg] 50'      66[deg] 50'
GOM6..................................     44[deg] 20'      66[deg] 50'
GOM7..................................     44[deg] 20'      67[deg] 00'
GOM8..................................           \(2)\      67[deg] 00'
------------------------------------------------------------------------
\(1)\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg] 00' W. Long.
\(2)\ Intersection of the south-facing Maine coastline and 67[deg] 00'
  W. Long.

    (B) GB cod stock area. The GB cod stock area is the area defined by 
straight lines connecting the following points in the order stated:

                       GEORGES BANK COD STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
GB1...................................           \(1)\      70[deg] 00'
GB2...................................     42[deg] 20'      70[deg] 00'
GB3...................................     42[deg] 20'      66[deg] 00'
GB4...................................     42[deg] 10'      66[deg] 00'
GB5...................................     42[deg] 10'      65[deg] 50'
GB6...................................     42[deg] 00'      65[deg] 50'
GB7...................................     42[deg] 00'      65[deg] 40'
GB8...................................     40[deg] 30'      65[deg] 40'
GB9...................................     39[deg] 00'      65[deg] 40'
GB10..................................     39[deg] 00'      70[deg] 00'
GB11..................................     35[deg] 00'       70[deg] 0'
GB12..................................     35[deg] 00'            \(2)\
------------------------------------------------------------------------
\(1)\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg] 00' W. Long.
\(2)\ Intersection of east-facing coastline of Outer Banks, NC, and
  35[deg] 00' N. Lat.

    (C) CC/GOM yellowtail flounder stock area. The CC/GOM yellowtail 
flounder stock area is the area defined by straight lines connecting 
the following points in the order stated:

          CAPE COD/GULF OF MAINE YELLOWTAIL FLOUNDER STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
CCGOM1................................           \(1)\      70[deg] 00'
CCGOM2................................     41[deg] 20'            \(2)\
CCGOM3................................     41[deg] 20'      69[deg] 50'
CCGOM4................................     41[deg] 10'      69[deg] 50'
CCGOM5................................     41[deg] 10'      69[deg] 30'
CCGOM6................................     41[deg] 00'      69[deg] 30'
CCGOM7................................     41[deg] 00'      68[deg] 50'
CCGOM8................................     42[deg] 20'      68[deg] 50'
CCGOM9................................     42[deg] 20'      67[deg] 40'
CCGOM10...............................     43[deg] 50'      67[deg] 40'
CCGOM11...............................     43[deg] 50'      66[deg] 50'
CCGOM12...............................     44[deg] 20'      66[deg] 50'
CCGOM13...............................     44[deg] 20'      67[deg] 00'
CCGOM14...............................           \(3)\     67[deg] 00'
------------------------------------------------------------------------
(1) Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
  00' W. Long.
(2) Intersection of east-facing coastline of Nantucket, MA, and 41[deg]
  20' N. Lat.
(3) Intersection of south-facing Maine coastline and 67[deg] 00' W.
  Long.

    (D) American plaice stock area. The American plaice stock area is 
the area defined by straight lines connecting the following points in 
the order stated:

                       AMERICAN PLAICE STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
AMP1..................................           \(1)\      67[deg] 00'
AMP2..................................     44[deg] 20'      67[deg] 00'
AMP3..................................     44[deg] 20'      66[deg] 50'
AMP4..................................     43[deg] 50'      66[deg] 50'
AMP5..................................     43[deg] 50'      67[deg] 40'
AMP6..................................     42[deg] 30'      67[deg] 40'
AMP7..................................     42[deg] 30'      66[deg] 00'
AMP8..................................     42[deg] 10'      66[deg] 00'
AMP9..................................     42[deg] 10'      65[deg] 50'
AMP10.................................     42[deg] 00'      65[deg] 50'
AMP11.................................     42[deg] 00'      65[deg] 40'
AMP12.................................     40[deg] 30'      65[deg] 40'
AMP13.................................     39[deg] 00'      65[deg] 40'
AMP14.................................     39[deg] 00'      70[deg] 00'
AMP15.................................     35[deg] 00'      70[deg] 00'
AMP16.................................     35[deg] 00'           \(2)\
------------------------------------------------------------------------
\(1)\ Intersection of south-facing Maine coastline and 67[deg] 00' W.
  Long.
\(2)\ Intersection of east-facing coastline of Outer Banks, NC, and
  35[deg] 00' N. Lat.

    (E) SNE/MA yellowtail flounder stock area. The SNE/MA yellowtail 
flounder stock area is the area defined by straight lines connecting 
the following points in the order stated:

    SOUTHERN NEW ENGLAND/MID-ATLANTIC YELLOWTAIL FLOUNDER STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
SNE1..................................     35[deg] 00'            \(1)\
SNE2..................................     35[deg] 00'      70[deg] 00'
SNE3..................................     39[deg] 00'      70[deg] 00'
SNE4..................................     39[deg] 00'      71[deg] 40'
SNE5..................................     39[deg] 50'      71[deg] 40'
SNE6..................................     39[deg] 50'      68[deg] 50'
SNE7..................................     41[deg] 00'      68[deg] 50'
SNE8..................................     41[deg] 00'      69[deg] 30'
SNE9..................................     41[deg] 10'      69[deg] 30'
SNE10.................................     41[deg] 10'      69[deg] 50'
SNE11.................................     41[deg] 20'      69[deg] 50'
SNE12.................................           \(2)\      70[deg] 00'
SNE13.................................           \(3)\      70[deg] 00'
SNE14.................................           \(4)\     70[deg] 00'
------------------------------------------------------------------------
\(1)\ Intersection of east-facing coastline of Outer Banks, NC, and
  35[deg] 00' N. Lat.
\(2)\ Intersection of south-facing coastline of Nantucket, MA, and
  70[deg] 00' W. Long.
\(3)\ Intersection of north-facing coastline of Nantucket, MA, and
  70[deg] 00' W. Long.
\(4)\Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
  00' W. Long.

    (F) SNE/MA winter flounder stock area. The SNE/MA winter flounder 
stock area is the area defined by straight lines connecting the 
following points in the order stated:

[[Page 67802]]



      SOUTHERN NEW ENGLAND/MID-ATLANTIC WINTER FLOUNDER STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
SNEW1.................................           \(1)\      70[deg] 00'
SNEW2.................................     42[deg] 20'      70[deg] 00'
SNEW3.................................     42[deg] 20'      68[deg] 50'
SNEW4.................................     39[deg] 50'      68[deg] 50'
SNEW5.................................     39[deg] 50'      71[deg] 40'
SNEW6.................................     39[deg] 50'      70[deg] 00'
SNEW7.................................     35[deg] 00'      70[deg] 00'
SNEW8.................................     35[deg] 00'           \(2)\
------------------------------------------------------------------------
\(1)\ Intersection of north-facing coastline of Cape Cod, MA, and
  70[deg] 00' W. Long.
\(2)\ Intersection of east-facing coastline of Outer Banks, NC, and
  35[deg] 00' N. Lat.

    (G) Witch flounder stock area. The witch flounder stock area is the 
area defined by straight lines connecting the following points in the 
order stated:

                        WITCH FLOUNDER STOCK AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
WF1...................................           \(1)\      67[deg] 00'
WF2...................................     44[deg] 20'      67[deg] 00'
WF3...................................     44[deg] 20'      66[deg] 50'
WF4...................................     43[deg] 50'      66[deg] 50'
WF5...................................     43[deg] 50'      67[deg] 40'
WF6...................................     42[deg] 20'      67[deg] 40'
WF7...................................     42[deg] 20'      66[deg] 00'
WF8...................................     42[deg] 10'      66[deg] 00'
WF9...................................     42[deg] 10'      65[deg] 50'
WF10..................................     42[deg] 00'      65[deg] 50'
WF11..................................     42[deg] 00'      65[deg] 40'
WF12..................................     40[deg] 30'      65[deg] 40'
WF13..................................     40[deg] 30'      66[deg] 40'
WF14..................................     39[deg] 50'      66[deg] 40'
WF15..................................     39[deg] 50'      70[deg] 00'
WF16..................................           \(2)\      70[deg] 00'
WF17..................................           \(3)\      70[deg] 00'
WF18..................................           \(4)\     70[deg] 00'
------------------------------------------------------------------------
\(1)\ Intersection of south-facing Maine coastline and 67[deg] 00' W.
  Long.
\(2)\ Intersection of south-facing coastline of Nantucket, MA, and
  70[deg] 00' W. Long.
\(3)\ Intersection of north-facing coastline of Nantucket, MA, and
  70[deg] 00' W. Long.
\(4)\Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
  00' W. Long.

    (vi) Closure of the Regular B DAS Pilot Program. The Regional 
Administrator, based upon information required under Sec. Sec.  648.7, 
648.9, 648.10, or 648.85, and any other relevant information, may, 
through rulemaking consistent with the Administrative Procedure Act, 
prohibit the use of Regular B DAS for the duration of a quarter or 
fishing year, if it is projected that continuation of the Regular B DAS 
Pilot Program would undermine the achievement of the objectives of the 
FMP or Regular B DAS Pilot Program.
    (7) CA I Hook Gear Haddock SAP--(i) Eligibility. Vessels that have 
been issued a valid limited access NE multispecies DAS permit and that 
are members of the GB Cod Hook Sector (Sector) are eligible to 
participate in the CA I Hook Gear Haddock SAP, and may fish in the CA I 
Hook Gear Haddock Access Area, as described in paragraph (b)(7)(ii) of 
this section, for the season specified in paragraph (b)(7)(iii) of this 
section, provided such vessels comply with the requirements of this 
section, and provided the SAP is not closed according to the provisions 
specified under paragraphs (b)(7)(iv)(K) or (b)(7)(v) of this section. 
Copies of a chart depicting this area are available from the Regional 
Administrator upon request.
    (ii) CA I Hook Gear Haddock Access Area. The CA I Hook Gear Haddock 
Access Area is the area defined by straight lines connecting the 
following points in the order stated:

               CLOSED AREA I HOOK GEAR HADDOCK ACCESS AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
Hook 1................................   41[deg] 25.6'    69[deg] 20.2'
Hook 2................................   41[deg] 29.2'    69[deg] 08.1'
Hook 3................................   41[deg] 08.5'    68[deg] 50.2'
Hook 4................................   41[deg] 06.4'    69[deg] 03.3'
------------------------------------------------------------------------

    (iii) Season. Eligible vessels may fish in the CA I Hook Gear 
Haddock SAP from October 1 through December 31.
    (iv) Program restrictions--(A) DAS use restrictions. Vessels 
fishing in the CA I Hook Gear Haddock SAP may use Category A, Regular B 
or Reserve B DAS, in accordance with Sec.  648.82(d)(2), unless 
otherwise restricted in paragraph (b)(7)(iv) of this section. A vessel 
fishing in the CA I Hook Gear Haddock SAP may not initiate a DAS flip. 
A vessel fishing both inside and outside of the SAP on the same trip 
may only use a Category A DAS on such a trip, and is subject to the 
gear and reporting requirements specified in paragraphs (b)(7)(iv)(F) 
and (H), respectively.
    (B) VMS requirement. An eligible NE multispecies DAS vessel fishing 
in the CA I Hook Gear Haddock SAP specified in this paragraph (b)(7) 
must have installed on board an operational VMS unit that meets the 
minimum performance criteria specified in Sec. Sec.  648.9 and 648.10.
    (C) Observer notifications. With the exception of the 2004 fishing 
year, to be eligible to participate in the CA I Hook Gear Haddock SAP, 
a vessel must notify the NMFS Observer Program by September 1 of its 
intent to participate. This notification need not include specific 
information about the date of the trip. For the 2004 fishing year, a 
vessel must notify NMFS by a date set by the Regional Administrator. 
All eligible NE multispecies permit holders will be sent a letter 
informing them of the date of this requirement. For the purposes of 
selecting vessels for observer deployment, a vessel must provide notice 
to NMFS of the vessel name; contact name for coordination of observer 
deployment; telephone number for contact; and date, time, and port of 
departure at least 72 hr prior to the beginning of any trip that it 
declares into the CA I Hook Gear Haddock SAP, as required in paragraph 
(b)(7)(iv)(B) of this section, and in accordance with instructions 
provided by the Regional Administrator.
    (D) Observer program funding. A Sector vessel shall pay for an 
observer required by NMFS to be taken to participate in the CA I Hook 
Gear Haddock SAP, if the Regional Administrator determines that the 
funding of observers by NMFS is inadequate to provide sufficient 
observer coverage for the total number of vessels participating in the 
SAP.
    (E) VMS declaration. To participate in the CA I Hook Gear Haddock 
SAP, a vessel must declare into the SAP via VMS, prior to departure 
from port and provide information on the type of DAS (Category A, 
Regular B, or Reserve B) that it intends to fish, and whether it 
intends to fish outside of the SAP on the same trip, in accordance with 
instructions provided by the Regional Administrator. A vessel declared 
into the CA I Hook Gear Haddock SAP cannot fish in another SAP 
specified under this section on the same trip.
    (F)  Gear restrictions. A vessel fishing in the CA I Hook Gear 
Haddock SAP may fish with and possess on board demersal longline gear 
or tub trawl gear only, and is subject to the gear requirements of the 
Sector Operations Plan as approved under Sec.  648.87(d).
    (G) Landing limits. A vessel fishing in the CA I Hook Gear Haddock 
Access Area described in paragraph (b)(7)(ii) of this section is 
subject to the cod landing limit in effect under the Sector's 
Operations Plan as approved under Sec.  648.87(d), and the haddock 
limits described under 648.86(a).
    (H) Reporting requirements. The owner or operator of a vessel 
participating in the Sector, as described under Sec.  648.87(d)(1), and 
declared into the CA I Hook Gear Haddock Area, must submit daily 
reports to the Sector Manager, with instructions to be provided by the 
Sector Manager, for each day fished, when declared into the CA I Hook 
Gear Haddock Area. For all vessels that have declared into the CA I 
Hook Gear Haddock Access Area in accordance with paragraph 
(b)(7)(iv)(B) of this section, the reports must include at least the 
following information: Total

[[Page 67803]]

weight (lb/kg) of cod and haddock kept, and total weight (lb/kg) of cod 
and haddock discarded. The Sector Manager will provide daily reports to 
NMFS containing the including at least the following information: Total 
weight (lb/kg) of cod and haddock kept, and total weight (lb/kg) of cod 
and haddock discarded.
    (I) Incidental cod TAC. There is no incidental cod TAC specified 
for Sector vessels fishing in the CA I Hook Gear Haddock SAP. All cod 
caught by Sector vessels fishing in the SAP count toward the Sector's 
annual GB cod TAC, specified in Sec.  648.87(d)(1)(iii).
    (J) Haddock TAC. The maximum amount of haddock (landings and 
discards) that may be harvested in a fishing year from the CA I Hook 
Gear Haddock Access Area by eligible vessels is 1,000 mt. Haddock 
harvested under either a Category A or a Category B DAS count toward 
this TAC.
    (K) Mandatory closure of CA I Hook Gear Haddock Access Area. When 
the Regional Administrator projects that the haddock TAC specified in 
paragraph (b)(7)(iv)(J) of this section has been caught by vessels 
fishing in this SAP, NMFS shall close, through rulemaking consistent 
with the Administrative Procedure Act, the CA I Hook Gear Haddock 
Access Area to all eligible NE multispecies vessels.
    (v) General Closure of the CA I Hook Gear Haddock Access Area. The 
Regional Administrator, based upon information required under 
Sec. Sec.  648.7, 648.9, 648.10, or 648.85, and any other relevant 
information, may, through rule-making consistent with the 
Administrative Procedure Act, close the CA I Hook Gear Haddock Access 
Area for the duration of the season, if it is projected that 
continuation of the SAP would undermine the achievement of the 
objectives of the FMP or the CA I Hook Gear Haddock SAP.
    (8) Eastern U.S./Canada Haddock SAP Pilot Program--(i) Eligibility. 
Vessels issued a valid limited access NE multispecies DAS permit, and 
fishing with trawl gear as specified in paragraph (b)(8)(v)(E) of this 
section, are eligible to participate in the Eastern U.S./Canada Haddock 
SAP Pilot Program, and may fish in the Eastern U.S./Canada Haddock SAP 
Area, as described in paragraph (b)(8)(ii) of this section, during the 
program duration and season specified in paragraphs (b)(8)(iii) and 
(iv) of this section, provided such vessels comply with the 
requirements of this section, and provided the SAP is not closed 
according to the provisions specified in paragraphs (b)(8)(v)(K) or (L) 
of this section. Copies of a chart depicting this area are available 
from the Regional Administrator upon request.
    (ii) Eastern U.S./Canada Haddock SAP Area. The Eastern U.S./Canada 
Haddock SAP Area is the area defined by straight lines connecting the 
following points in the order stated:

                  EASTERN U.S./CANADA HADDOCK SAP AREA
------------------------------------------------------------------------
                 Point                      N. Lat.          W. Long.
------------------------------------------------------------------------
CAII3.................................     42[deg] 22'      67[deg] 20'
                                                                  \(1)\
SAP1..................................     42[deg] 20'      67[deg] 20'
SAP2..................................     42[deg] 20'      67[deg] 40'
SAP3..................................     41[deg] 10'      67[deg] 40'
SAP4..................................     41[deg] 10'      67[deg] 20'
SAP5..................................     42[deg] 10'      67[deg] 20'
SAP6..................................     42[deg] 10'      67[deg] 10'
CAII3.................................     42[deg] 22'      67[deg] 20'
                                                                 \(1)\
------------------------------------------------------------------------
\(1)\ U.S./Canada maritime boundary.

    (iii) Duration of program. The Eastern U.S./Canada Haddock SAP 
Pilot Program is in effect from November 19, 2004 through November 20, 
2006.
    (iv) Season. Eligible vessels may fish in the Eastern U.S./Canada 
Haddock SAP Pilot Program from May 1 through December 31.
    (v) Program restrictions--(A) DAS use restrictions. A vessel 
fishing in the Eastern U.S./Canada Haddock SAP Pilot Program may elect 
to fish under a Category A, or Category B DAS, in accordance with Sec.  
648.82(d)(2)(i)(A) and the restrictions of this paragraph (b)(8)(v)(A).
    (1) If fishing under a Category B DAS, a vessel is required to 
comply with the no discarding and DAS flip requirements specified in 
paragraph (b)(8)(v)(I) of this section, and the minimum Category A DAS 
requirements of paragraph (b)(8)(v)(J) of this section.
    (2) A vessel that is declared into the Eastern U.S./Canada Haddock 
SAP Pilot Area, described in paragraph (b)(8)(ii) of this section, may 
fish, on the same trip, in the Eastern U.S./Canada Haddock SAP Area and 
in the CA II Yellowtail Flounder Access Area, described in paragraph 
(b)(3)(ii) of this section, under either a Category A DAS or a Category 
B DAS.
    (3) A vessel may choose, on the same trip, to fish in either/both 
the Eastern U.S./Canada Haddock SAP Area and the CA II Yellowtail 
Flounder Access Area, and in that portion of the Eastern U.S./Canada 
Area described in paragraph (a)(1)(ii) of this section that lies 
outside of these two SAPs, provided the vessel fishes under a Category 
A DAS and abides by the VMS restrictions of paragraph (b)(8)(v)(D) of 
this section. The use of a Category A DAS is required because the use 
of Category B DAS is not allowed in that portion of the Eastern U.S./
Canada Area that lies outside of SAPs.
    (4) Vessels that elect to fish in multiple areas, as described in 
this paragraph (b)(8)(v)(A), must fish under the most restrictive trip 
provisions of any of the areas fished for the entire trip.
    (B) VMS requirement. A NE multispecies DAS vessel fishing in the 
Eastern U.S./Canada Haddock SAP Area specified under paragraph 
(b)(8)(ii) of this section, must have installed on board an operational 
VMS unit that meets the minimum performance criteria specified in 
Sec. Sec.  648.9 and 648.10.
    (C) Observer notifications. For the purposes of selecting vessels 
for observer deployment, a vessel must provide notice to NMFS of the 
vessel name; contact name for coordination of observer deployment; 
telephone number for contact; areas to be fished; and date, time, and 
port of departure at least 72 hr prior to the beginning of any trip 
which it declares into the Eastern U.S./Canada Haddock SAP Area 
specified in paragraph (b)(8)(ii) of this section, as required under 
paragraph (b)(8)(v)(D) of this section, and in accordance with 
instructions provided by the Regional Administrator.
    (D) VMS declaration. Prior to departure from port, a vessel 
intending to participate in the Eastern U.S./Canada Haddock SAP must 
declare into the SAP via VMS and provide information on the type of DAS 
(Category A, Regular B, or Reserve B) that it intends to fish, and on 
the areas within the Eastern U.S./Canada Area that it intends to fish, 
in accordance with paragraph (b)(8)(v)(A) of this section and 
instructions provided by the Regional Administrator.
    (E) Gear restrictions. A NE multispecies vessel fishing in the 
Eastern U.S./Canada Haddock SAP Pilot Program must use one of the 
haddock separator trawl nets authorized for the Eastern U.S./Canada 
Area, as specified in paragraph (a)(3)(iii)(A) of this section. No 
other type of fishing gear may be on the vessel during a trip to the 
Eastern U.S./Canada Haddock SAP Area, with the exception of a flounder 
net as described in paragraph (a)(3)(iii) of this section, provided the 
flounder net is stowed in accordance with Sec.  648.23(b).
    (F) Landing limits. Unless otherwise restricted, NE multispecies 
vessel fishing any portion of a trip in the Eastern U.S./Canada Haddock 
SAP Pilot Program may not fish for, possess, or land more than 1,000 lb 
(453.6 kg) of cod per trip, regardless of trip length. A NE 
multispecies vessel fishing in the Eastern U.S./Canada Haddock SAP 
Pilot Program is subject to the haddock

[[Page 67804]]

requirements described under Sec.  648.86(a), unless further restricted 
under paragraph (a)(3)(iv) of this section.
    (G) Reporting requirements. The owner or operator of a vessel 
declared into the Eastern U.S./Canada Haddock SAP, as described in 
paragraph (b)(8) of this section, must submit reports in accordance 
with the reporting requirements described in paragraph (a)(3)(v) of 
this section.
    (H) Incidental cod TAC. The maximum amount of GB cod (landings and 
discards) that may be caught from the Eastern U.S./Canada Haddock SAP 
Area in a fishing year, by vessels fishing under a Category B DAS, as 
authorized in paragraph (b)(8)(v)(A) of this section, is the amount 
specified in paragraph (b)(5)(i)(B) of this section.
    (I) No discard provision and DAS flips. A vessel fishing in the 
Eastern U.S./Canada Haddock SAP Pilot Program under a Category B DAS 
may not discard legal-sized cod. If a vessel fishing under a Category B 
DAS harvests and brings on board more legal-sized cod than the landing 
limit specified under paragraph (b)(8)(v)(F) of this section, the 
vessel operator must notify NMFS prior to crossing the demarcation line 
via VMS on its return trip to port to initiate a DAS flip to Category A 
DAS. Once this notification has been received by NMFS, the vessel will 
automatically be switched to fishing under a Category A DAS. For a 
vessel that notifies NMFS of a DAS flip, the Category B DAS that have 
accrued between the time the vessel started accruing Category B DAS at 
the beginning of the trip (i.e., at the time the vessel crossed into 
the Eastern U.S./Canada Area at the beginning of the trip) and the time 
the vessel declared its DAS flip will be accrued as Category A DAS, and 
not Category B DAS. Once such vessel has initiated the DAS flip and is 
fishing under a Category A DAS, the prohibition on discarding legal-
sized cod no longer applies.
    (J) Minimum Category A DAS. To fish under a Category B DAS, the 
number of Category B DAS that can be used on a trip cannot exceed the 
number of available Category A DAS the vessel has at the start of the 
trip.
    (K) Mandatory closure of Eastern U.S./Canada Haddock SAP Pilot 
Program. When the Regional Administrator projects that the TAC 
allocation specified in paragraph (b)(8)(v)(H) of this section has been 
caught by vessels fishing under Category B DAS, NMFS shall prohibit the 
use of Category B DAS in the Eastern U.S./Canada Haddock SAP Pilot 
Program, through notice in the Federal Register, consistent with the 
Administrative Procedure Act. In addition, the closure regulations 
described in paragraph (a)(3)(iv)(E) of this section shall apply to the 
Eastern U.S./Canada Haddock SAP Pilot Program.
    (L) General closure of the Eastern U.S./Canada Haddock SAP Area. 
The Regional Administrator, based upon information required under 
Sec. Sec.  648.7, 648.9, 648.10, or 648.85, and any other relevant 
information may, through rulemaking consistent with the Administrative 
Procedure Act, close the Eastern U.S./Canada Haddock SAP Area for the 
duration of the season, if it is projected that continuation of the 
Eastern U.S./Canada Haddock SAP Pilot Program would undermine the 
achievement of the objectives of the FMP or the Eastern U.S./Canada 
Haddock SAP Pilot Program.
* * * * *
[FR Doc. 04-25722 Filed 11-17-04; 10:42 am]
BILLING CODE 3510-22-S


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