67780 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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.

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:

• E-mail: FW40A@NOAA.gov. 

Include in the subject line the following: 

‘‘Comments on the Proposed Rule for 

Groundfish Framework 40–A.’’

• Federal E–Rulemaking Portal: http:/

/www.regulations.gov.

• 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.’’

• 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-ofinformation requirements contained in 

this rule should be submitted to the 

Regional Administrator by e-mail to 

David Rostker, 

DavidlRostker@omb.eop.gov 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.

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

67782 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 

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

67784 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 nonSector 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 

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

67786 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 nonSector 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 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 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 nonSector 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 nonSector 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 nonSector 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 reallocation (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 MagnusonStevens 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, firstserved 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 

67788 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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) 

Stocks of Concern Nov 2004 to 

Jan 2005

Feb 2005 to 

Apr 2005

May 2005 to 

Jul 2005

Aug 2005 to 

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 flounder ................................. 17.5 17.5 49.5 49.5

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 

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

67790 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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.

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 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 § 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 § 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 § 648.85(a) and for SAPs 

specified under § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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.

67792 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

In § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 MagnusonStevens 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 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 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 #0648–0202 (1 hr/response);

2. VMS proof of installation, OMB 

#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 

#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 #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 

#0648–0202 (5 sec/response);

6. SAP area and DAS use declaration 

via VMS prior to each trip into a SAP, 

OMB #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 #0648–0202 (5 

min/response);

8. DAS ‘‘flip’’ notification via VMS for 

the Regular B DAS pilot program, OMB 

#0648–0202 (5 min/response);

9. DAS ‘‘flip’’ notification via VMS for 

the Eastern U.S./Canada Haddock SAP 

Pilot Program, OMB #0648–0202 (5 

min/response);

10. Notice requirements for observer 

deployment prior to every trip into the 

Regular B DAS Pilot Program OMB 

#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 #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 #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 

#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 

67794 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 formbased 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 nonSector 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 nonsector 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 nonSector 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 

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

67796 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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.

■ For the reasons stated in the preamble, 

50 CFR part 648 is amended as follows:

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES

■ 1. The authority citation for part 648 

continues to read as follows:

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

■ 2. In § 648.2, new definitions for ‘‘DAS 

flip’’ and ‘‘Incidental Total Allowable 

Catch (TAC)’’ are added in alphabetical 

order, to read as follows:

§ 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.

* * * * *

■ 3. In § 648.9, paragraph (c)(1)(ii) is 

revised to read as follows:

§ 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 

§ 648.10(b) or that are required to fish 

with a VMS as specified in § 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 § 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.

* * * * *

■ 4. In § 648.10, paragraphs (b)(1)(vii) 

and (viii) are added, and paragraph 

(b)(3)(i) is revised to read as follows:

§ 648.10 DAS notification requirements.

* * * * *

(b) * * *

(1) * * *

(vii) A vessel electing to fish under 

the Regular B DAS Pilot Program, as 

specified in § 648.85(b)(6). 

(viii) A vessel electing to fish in the 

Closed Area I Hook Gear Haddock SAP, 

as specified in § 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 § 648.85(a)(2)(i); or

(C) Fish under the Regular B DAS 

Pilot Program specified at § 648.85(a)(6); 

or

(D) Fish in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(a)(7).

* * * * *

■ 5. In § 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:

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67797

§ 648.14 Prohibitions.

(a) * * *

(39) Enter or be in the area described 

in § 648.81(b)(1) on a fishing vessel, 

except as provided in § 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 § 648.81(a) 

through (f), unless otherwise specified 

in § 648.81(c)(2)(iii), (f)(2)(i), (f)(2)(iii), 

or as authorized under § 648.85.

* * * * *

(130) If declared into one of the areas 

specified in § 648.85(a)(1), fish during 

that same trip outside of the declared 

area, unless in compliance with the 

restrictions specified under 

§ 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 

§ 648.85(b)(8)(ii), fail to comply with the 

VMS requirements in 

§ 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 

§ 648.85(b)(8)(ii), unless declared into 

the area in accordance with 

§ 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 

§ 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 § 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 

§ 648.85(b)(8)(ii), unless in compliance 

with the restrictions and conditions 

specified in § 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 § 648.85(a)(1), 

both outside and inside of the areas 

specified for a SAP under § 648.85(b)(3) 

and (8), fail to abide by the DAS and 

possession restrictions under 

§ 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 

§ 648.85(b)(8)(ii), during the season 

specified in § 648.85(b)(8)(iv), fail to 

comply with the restrictions specified in 

§ 648.85(b)(8)(v).

(149) If fishing under a NE 

multispecies DAS in the Eastern U.S./

Canada Area specified in 

§ 648.85(a)(1)(ii), and not in a SAP 

specified in § 648.85(b) on the same trip, 

fail to comply with the requirements 

specified in § 648.85(a)(3).

(150) If fishing under a NE 

multispecies DAS in the Eastern U.S./

Canada Area specified in 

§ 648.85(a)(1)(ii), and in one of the SAPs 

specified in § 648.85(b)(3) or (8), fail to 

comply with the no discard and DAS 

flip provisions specified in 

§ 648.85(b)(8)(v)(I) or the minimum 

Category A DAS requirement specified 

in § 648.85(b)(8)(v)(J).

(151) If fishing in the Eastern U.S./

Canada Haddock SAP Pilot Program 

specified in § 648.85(b)(8), fail to 

comply with the reporting requirements 

specified in § 648.85(b)(8)(v)(G).

(152) If fishing under the Eastern 

U.S./Canada Haddock SAP Pilot 

Program specified in § 648.85(b)(8), fail 

to comply with the observer notification 

requirements specified in 

§ 648.85(b)(8)(v)(C).

* * * * *

(c) * * *

(8) Fail to comply with the 

restrictions on fishing and gear specified 

in § 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 § 648.80(a), (b), or (c), 

unless allowed under 

§ 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 

§ 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 § 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 

§ 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 

§ 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 

§ 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 

§ 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 

§ 648.85(b)(8)(v)(I), if the vessel 

possesses more than the landing limit 

for cod specified in § 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 

§ 648.85(b)(8)(v)(J).

(57) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

requirements and restrictions specified 

in § 648.85(b)(6)(iv)(A) through (F), and 

(I).

(58) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

VMS requirement specified in 

§ 648.85(b)(6)(iv)(A).

(59) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

observer notification requirement 

specified in § 648.85(b)(6)(iv)(B).

(60) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

VMS declaration requirement specified 

in § 648.85(b)(6)(iv)(C).

(61) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

landing limits specified in 

§ 648.85(b)(6)(iv)(D).

(62) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

no discard and DAS flip requirements 

specified in § 648.85(b)(6)(iv)(E).

(63) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

minimum Category A DAS and Category 

B DAS accrual requirements specified in 

§ 648.85(b)(6)(iv)(F).

(64) Use a Regular B DAS in the 

Regular B DAS Pilot Program specified 

in § 648.85(b)(6), if the program has 

been closed as specified in 

§ 648.85(b)(6)(iv)(H) or (b)(6)(vi).

(65) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), use a Regular B DAS in 

a stock area that has been closed, as 

specified in § 648.85(b)(6)(iv)(G).

(66) If fishing in the Regular B DAS 

Pilot Program specified in 

§ 648.85(b)(6), fail to comply with the 

reporting requirements specified in 

§ 648.85(b)(6)(iv)(I).

(67) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

requirements and conditions specified 

in § 648.85(b)(7)(iv)(A) through (H).

67798 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

(68) If fishing in the CA I Hook Gear 

Haddock Access Area specified in 

§ 648.85(b)(7)(ii), fail to comply with the 

requirements and conditions specified 

in § 648.85(b)(7)(i) and (b)(7)(iv)(A) 

through (H).

(69) Fish in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), outside of the season 

specified in § 648.85(b)(7)(iii).

(70) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

DAS use restrictions specified in 

§ 648.85(b)(7)(iv)(A).

(71) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

VMS requirements specified in 

§ 648.85(b)(7)(iv)(B).

(72) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

observer notification requirements 

specified in § 648.85(b)(7)(iv)(C).

(73) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

VMS declaration requirement specified 

in § 648.85(b)(7)(iv)(E).

(74) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

gear restrictions specified in 

§ 648.85(b)(7)(iv)(F).

(75) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

landing limits specified in 

§ 648.85(b)(7)(iv)(G).

(76) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(7), fail to comply with the 

reporting requirement specified in 

§ 648.85(b)(7)(iv)(H).

(77) Fish in the CA I Hook Gear 

Haddock Access Area specified in 

§ 648.85(b)(7)(ii), if that area is closed as 

specified in § 648.85(b)(7)(iv)(K) or 

(b)(7)(v).

(78) Fish in the U.S./Canada Haddock 

SAP Pilot Program specified in 

§ 648.85(b)(8), if the SAP Pilot Program 

is closed as specified in 

§ 648.85(b)(8)(v)(K) or (L).

(79) If fishing in the Closed Area II 

Yellowtail Flounder SAP specified in 

§ 48.85(b)(3), fail to comply with the no 

discard and DAS flip provision 

specified under § 648.85(b)(3)(xi).

* * * * *

■ 6. In § 648.81, paragraphs (b)(2)(iii), 

(b)(2)(iv) and (i) are revised to read as 

follows:

§ 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 § 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 

§ 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 § 648.85(a)(3)(ii) and is transiting CA 

II in accordance with the provisions of 

§ 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 § 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.

* * * * *

■ 7. In § 648.82, paragraphs (d)(2)(i)(A) 

and (j)(1)(iii) are revised, and paragraph 

(e)(3) is added to read as follows:

§ 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 § 648.85(a)(6). 

Unless otherwise restricted under the 

Regular B DAS Pilot Program as 

described in § 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 § 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 § 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 § 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 § 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 § 648.85(a)(6), 

and therefore subject to the DAS accrual 

provisions of § 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.

* * * * *

■ 8. In § 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:

§ 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 

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

§ 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 § 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 

§ 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 

67800 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 § 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 

§§ 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 § 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 § 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 

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

§ 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° 00’

GOM2 ....... 42° 20′ 70° 00′

GOM3 ....... 42° 20′ 67° 40′

GOM4 ....... 43° 50′ 67° 40′

GOM5 ....... 43° 50′ 66° 50′

GOM6 ....... 44° 20′ 66° 50′

GOM7 ....... 44° 20′ 67° 00′

GULF OF MAINE COD STOCK 

AREA—Continued

Point N. Lat. W. Long. 

GOM8 ....... (2) 67° 00′

(1) Intersection of the north-facing coastline 

of Cape Cod, MA, and 70° 00′ W. Long.

(2) Intersection of the south-facing Maine 

coastline and 67° 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° 00′

GB2 ........... 42° 20′ 70° 00′

GB3 ........... 42° 20′ 66° 00′

GB4 ........... 42° 10′ 66° 00′

GB5 ........... 42° 10′ 65° 50′

GB6 ........... 42° 00′ 65° 50′

GB7 ........... 42° 00′ 65° 40′

GB8 ........... 40° 30′ 65° 40′

GB9 ........... 39° 00′ 65° 40′

GB10 ......... 39° 00′ 70° 00′

GB11 ......... 35° 00′ 70° 0′

GB12 ......... 35° 00′ (2)

(1) Intersection of the north-facing coastline 

of Cape Cod, MA, and 70° 00′ W. Long.

(2) Intersection of east-facing coastline of 

Outer Banks, NC, and 35° 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° 00′

CCGOM2 .. 41° 20′ (2)

CCGOM3 .. 41° 20′ 69° 50′

CCGOM4 .. 41° 10′ 69° 50′

CCGOM5 .. 41° 10′ 69° 30′

CCGOM6 .. 41° 00′ 69° 30′

CCGOM7 .. 41° 00′ 68° 50′

CCGOM8 .. 42° 20′ 68° 50′

CCGOM9 .. 42° 20′ 67° 40′

CCGOM10 43° 50′ 67° 40′

CCGOM11 43° 50′ 66° 50′

CCGOM12 44° 20′ 66° 50′

CCGOM13 44° 20′ 67° 00′

CCGOM14 (3) 67° 00′

(1) Intersection of south-facing coastline of 

Cape Cod, MA, and 70° 00′ W. Long.

(2) Intersection of east-facing coastline of 

Nantucket, MA, and 41° 20′ N. Lat.

(3) Intersection of south-facing Maine coastline and 67° 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° 00′

AMP2 ........ 44° 20′ 67° 00′

AMP3 ........ 44° 20′ 66° 50′

AMP4 ........ 43° 50′ 66° 50′

AMP5 ........ 43° 50′ 67° 40′

AMP6 ........ 42° 30′ 67° 40′

AMP7 ........ 42° 30′ 66° 00′

AMP8 ........ 42° 10′ 66° 00′

AMP9 ........ 42° 10′ 65° 50′

AMP10 ...... 42° 00′ 65° 50′

AMP11 ...... 42° 00′ 65° 40′

AMP12 ...... 40° 30′ 65° 40′

AMP13 ...... 39° 00′ 65° 40′

AMP14 ...... 39° 00′ 70° 00′

AMP15 ...... 35° 00′ 70° 00′

AMP16 ...... 35° 00′ (2)

(1) Intersection of south-facing Maine coastline and 67° 00′ W. Long.

(2) Intersection of east-facing coastline of 

Outer Banks, NC, and 35° 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/MIDATLANTIC YELLOWTAIL FLOUNDER STOCK AREA 

Point N. Lat. W. Long. 

SNE1 ........ 35° 00′ (1)

SNE2 ........ 35° 00′ 70° 00′

SNE3 ........ 39° 00′ 70° 00′

SNE4 ........ 39° 00′ 71° 40′

SNE5 ........ 39° 50′ 71° 40′

SNE6 ........ 39° 50′ 68° 50′

SNE7 ........ 41° 00′ 68° 50′

SNE8 ........ 41° 00′ 69° 30′

SNE9 ........ 41° 10′ 69° 30′

SNE10 ...... 41° 10′ 69° 50′

SNE11 ...... 41° 20′ 69° 50′

SNE12 ...... (2) 70° 00′

SNE13 ...... (3) 70° 00′

SNE14 ...... (4) 70° 00′

(1) Intersection of east-facing coastline of 

Outer Banks, NC, and 35° 00′ N. Lat.

(2) Intersection of south-facing coastline of 

Nantucket, MA, and 70° 00′ W. Long.

(3) Intersection of north-facing coastline of 

Nantucket, MA, and 70° 00′ W. Long.

(4)Intersection of south-facing coastline of 

Cape Cod, MA, and 70° 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:

67802 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

SOUTHERN NEW ENGLAND/MIDATLANTIC WINTER FLOUNDER 

STOCK AREA 

Point N. Lat. W. Long. 

SNEW1 ..... (1) 70° 00′

SNEW2 ..... 42° 20′ 70° 00′

SNEW3 ..... 42° 20′ 68° 50′

SNEW4 ..... 39° 50′ 68° 50′

SNEW5 ..... 39° 50′ 71° 40′

SNEW6 ..... 39° 50′ 70° 00′

SNEW7 ..... 35° 00′ 70° 00′

SNEW8 ..... 35° 00′ (2)

(1) Intersection of north-facing coastline of 

Cape Cod, MA, and 70° 00′ W. Long.

(2) Intersection of east-facing coastline of 

Outer Banks, NC, and 35° 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° 00′

WF2 .......... 44° 20′ 67° 00′

WF3 .......... 44° 20′ 66° 50′

WF4 .......... 43° 50′ 66° 50′

WF5 .......... 43° 50′ 67° 40′

WF6 .......... 42° 20′ 67° 40′

WF7 .......... 42° 20′ 66° 00′

WF8 .......... 42° 10′ 66° 00′

WF9 .......... 42° 10′ 65° 50′

WF10 ........ 42° 00′ 65° 50′

WF11 ........ 42° 00′ 65° 40′

WF12 ........ 40° 30′ 65° 40′

WF13 ........ 40° 30′ 66° 40′

WF14 ........ 39° 50′ 66° 40′

WF15 ........ 39° 50′ 70° 00′

WF16 ........ (2) 70° 00′

WF17 ........ (3) 70° 00′

WF18 ........ (4) 70° 00′

(1) Intersection of south-facing Maine coastline and 67° 00′ W. Long.

(2) Intersection of south-facing coastline of 

Nantucket, MA, and 70° 00′ W. Long.

(3) Intersection of north-facing coastline of 

Nantucket, MA, and 70° 00′ W. Long.

(4)Intersection of south-facing coastline of 

Cape Cod, MA, and 70° 00′ W. Long.

(vi) Closure of the Regular B DAS 

Pilot Program. The Regional 

Administrator, based upon information 

required under §§ 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° 25.6′ 69° 20.2′

Hook 2 ...... 41° 29.2′ 69° 08.1′

Hook 3 ...... 41° 08.5′ 68° 50.2′

Hook 4 ...... 41° 06.4′ 69° 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 § 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 

§§ 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 § 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 

§ 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 § 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 

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

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° 22′ 67° 20′ (1)

SAP1 ......... 42° 20′ 67° 20′

SAP2 ......... 42° 20′ 67° 40′

SAP3 ......... 41° 10′ 67° 40′

SAP4 ......... 41° 10′ 67° 20′

SAP5 ......... 42° 10′ 67° 20′

SAP6 ......... 42° 10′ 67° 10′

CAII3 ......... 42° 22′ 67° 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 § 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 §§ 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 § 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 

67804 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

requirements described under 

§ 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 §§ 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