62156 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 060606150–6240–02; I.D. 

053106A] 

RIN 0648–AT24 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) Provisions; 

Fisheries of the Northeastern United 

States; Northeast Multispecies Fishery, 

Framework Adjustment 42; Monkfish 

Fishery, Framework Adjustment 3 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

Framework Adjustment (FW) 42 to the 

Northeast (NE) Multispecies Fishery 

Management Plan (FMP) and FW 3 to 

the Monkfish FMP (Joint Framework). 

FW 42, developed by the New England 

Fishery Management Council (Council), 

is a biennial adjustment to the NE 

Multispecies FMP that sets forth a 

rebuilding program for Georges Bank 

(GB) yellowtail flounder and modifies 

NE multispecies fishery management 

measures to reduce fishing mortality 

rates (F) on six other groundfish stocks 

in order to maintain compliance with 

the rebuilding programs of the FMP. FW 

42 also modifies and continues specific 

measures to mitigate the economic and 

social impacts of Amendment 13 to the 

FMP and to allow harvest levels to 

approach optimum yield (OY). 

DATES: The emergency rule published 

on April 13, 2006 (71 FR 19348), that 

was extended by a temporary rule 

published on October 6, 2006 (71 FR 

59020), which is scheduled to expire on 

April 4, 2007, is instead superseded by 

this final rule and expires at 12:01 a.m. 

on November 22, 2006. The 

amendments in this final rule become 

effective at 12:02 a.m. on November 22, 

2006. 

ADDRESSES: Copies of FW 42 and FW 3, 

the Regulatory Impact Review (RIR), the 

Final Regulatory Flexibility Analysis 

(FRFA), and the Environmental 

Assessment (EA) are available from Paul 

J. Howard, Executive Director, New 

England Fishery Management Council, 

50 Water Street, The Tannery, B-Mill 2, 

Newburyport, MA 01950. 

The FRFA consists of the Initial 

Regulatory Flexibility Analysis (IRFA), 

public comments and responses, and 

the summary of impacts and alternatives 

contained in the Classification section 

of the preamble of this final rule. Copies 

of the small entity compliance guide are 

available from Patricia A. Kurkul, 

Regional Administrator, NMFS, 

Northeast Regional Office, One 

Blackburn Drive, Gloucester, MA 

01930–2298. A copy of the EA/RIR/ 

FRFA is accessible via the Internet at 

http://www.nero.noaa.gov/nero/regs/ 

com.html. 

Comments regarding the burden-hour 

estimates or other aspects of the 

collection of information requirements 

contained in this final rule may be 

submitted in writing to NMFS (see 

ADDRESSES), or to David Rostker, OMB, 

by e-mail at 

David_Rostker@omb.eop.gov, or by fax 

at (202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Douglas W. Christel, Fishery Policy 

Analyst, (978) 281–9141, fax (978) 281– 

9135. 

SUPPLEMENTARY INFORMATION:

Background 

Amendment 13, implemented on 

April 27, 2004 (69 FR 22906), brought 

the FMP into conformance with 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) requirements, 

including measures to end overfishing 

and rebuild all overfished groundfish 

stocks. In addition, Amendment 13 

established a biennial FMP adjustment 

process that requires the Council to 

review the fishery periodically using the 

most current scientific information 

available, recommend target total 

allowable catches (Target TACs), and 

recommend to the Regional 

Administrator any changes to 

management measures necessary to 

achieve the goals and objectives of the 

FMP. 

A proposed rule was published on 

July 26, 2006 (71 FR 42522), that 

included a detailed description of the 

biennial adjustment process, the August 

2005 regional peer-review of stock 

assessment updates (GARM II; Northeast 

Fisheries Science Center Reference 

Document 05–13) completed for the 19 

stocks managed under the FMP, 

proposed management measures, and 

timing issues related to the Joint 

Frameworks. Below is a brief summary 

of information published in the 

proposed rule. 

The Council’s Plan Development 

Team (PDT) performed an evaluation of 

the fishery based upon the results of 

GARM II and other available 

information. The primary goal of the 

PDT review was to determine the stocks 

for which an adjustment in management 

measures is required in order to ensure 

that the current F levels are consistent 

with the F’s required under the 

rebuilding plans for overfished stocks 

managed under the FMP. Based on the 

information from GARM II and catch 

data, the PDT estimated F’s for those 

stocks in need of reductions for calendar 

year (CY) 2005 (F2005), a time period 

during which the fishery operated under 

only one suite of regulations 

(Amendment 13). Specifically, the PDT 

utilized available information for a 

portion of CY 2005, projected landings 

for the remainder of the year (based on 

current and historic information), and 

then estimated the F for the entire CY 

(F2005). 

To determine which of the 19 

groundfish stocks were being fished at 

F’s that were not in compliance with the 

Amendment 13 rebuilding target F’s, the 

PDT compared the required F for 2006 

to estimated F2005 for each stock. The 

PDT determined that, with one 

exception (GB yellowtail flounder), if 

F2005 exceeded the Amendment 13 target 

F for 2006, adjustment of management 

measures was necessary. These 

comparisons indicated that F2005 for 

some groundfish stocks was less than 

that estimated for 2004 (F2004), but still 

higher than the 2006 target F (F2006) 

specified in the rebuilding program 

established under Amendment 13. The 

groundfish stocks in need of additional 

F reductions to achieve the Amendment 

13 F targets for fishing year (FY) 2006 

are: Gulf of Maine (GOM) cod; Cape Cod 

(CC)/GOM yellowtail flounder; 

Southern New England (SNE)/MidAtlantic (MA) yellowtail flounder; SNE/ 

MA winter flounder; GB winter 

flounder; and white hake (see Table 1 

below). 

TABLE 1.—F REDUCTIONS NECESSARY TO ACHIEVE FY 2006 AMENDMENT 13 F TARGETS

Stock F2004 Estimated 

F2005

Amendment 13 

F2006

F reduction 

necessary 

(%) 

GOM Cod ................................................................................................................... 0.58 0.37 0 .23 32 

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TABLE 1.—F REDUCTIONS NECESSARY TO ACHIEVE FY 2006 AMENDMENT 13 F TARGETS—Continued 

Stock F2004 Estimated 

F2005

Amendment 13 

F2006

F reduction 

necessary 

(%) 

CC/GOM Yellowtail Flounder .................................................................................... 0.75 0.48 0 .26 46 

SNE/MA Yellowtail Flounder ..................................................................................... 0.99 0.58 0 .26 55 

SNE/MA Winter Flounder .......................................................................................... 0.38 0.35 0 .32 9 

GB Winter Flounder ................................................................................................... 1.86 NA 1 .0* 46 

White Hake ................................................................................................................ 1.18 NA 1 .03 13 

*Amendment 13 did not establish a 2006 F target for GB winter flounder. Rather, Amendment 13 established the value of Fmsy as 0.32. However, because model estimates of relative F rate are more precise than estimates of actual F rates, GARM II presented the estimate of F rate for 

2004 in relative terms. The threshold value for the relative F rate (F2004/Fmsy) for GB winter flounder is 1.0. 

NA: An estimate of F2005 for the stocks of GB winter flounder and white hake could not be developed because the assessments are index 

based. The necessary F reductions are based upon F2004. 

In addition to responding to the most 

recent information regarding F, the 

proposed measures were intended to 

continue and modify the management 

regime implemented by Amendment 13 

and subsequent framework adjustments 

(FW 40–A, FW 40–B, and FW 41), and 

to replace measures implemented under 

Secretarial emergency authority at the 

beginning of FY 2006 (May 1, 2006, 

through April 30, 2007). The Council 

originally developed FW 42 with the 

intention of implementing the 

management measures on May 1, 2006 

(the start of FY 2006), as specified by 

Amendment 13, and as required by the 

regulations. However, due to a delay in 

completion of FW 42 and the need to 

reduce F on specific groundfish stocks 

by the start of FY 2006, NMFS 

implemented emergency management 

measures (71 FR 19348; April 13, 2006) 

that went into effect on May 1, 2006, 

until such time that approved FW 42 

measures could be implemented. This 

rule supercedes the emergency rule, and 

the regulatory text in this final rule is 

written to amend the regulations in 50 

CFR part 648 as they appeared prior to 

implementation of the emergency rule. 

Disapproved FW 42 Measure 

FW 42 proposed that the Regional 

Administrator be given authority to 

adjust trip limits upward to facilitate 

harvest of the Target TACs, if it were 

projected that less than 90 percent of the 

Target TAC would be caught during the 

FY. Trip limit changes would have been 

allowed at any time during the FY, or 

before the start of the FY, if information 

was sufficient to make the necessary 

projections. This measure was 

disapproved, as explained below, 

because it is inconsistent with National 

Standard 2 and section 303(a)(8) of the 

Magnuson-Stevens Act. 

This proposed measure would have 

expanded the Regional Administrator’s 

authority to increase trip limits for six 

stocks (the regulations already provide 

authority for the Regional Administrator 

to modify the haddock trip limit): GOM 

cod, GB cod, white hake, GB winter 

flounder, CC/GOM yellowtail flounder, 

and SNE/MA yellowtail flounder. 

Administratively, this measure is 

problematic in that data on the catch 

amount and location of affected stocks 

are not available on a real-time basis 

and, depending upon the size of the 

TAC and the rate of harvest, there 

would likely not be enough information 

to make an accurate projection. To 

monitor these stocks, NMFS would need 

to rely on Vessel Trip Report (VTR) data 

and dealer landings data to make 

projections and, although such data 

provide some useful information, 

sufficient information on both catch 

amount and catch location would not be 

available on a real-time basis. 

Furthermore, the composition of Target 

TACs for three of the affected stocks 

(GOM cod, CC/GOM yellowtail 

flounder, and SNE/MA yellowtail 

flounder) also include discard data and/ 

or recreational data, which also would 

not be available on a real-time basis. 

Because of the lack of sufficient realtime data for a number of stocks to 

accurately monitor catch of particular 

species within the fishery, the data 

available to implement this measure 

would not constitute the best available 

scientific information, as required by 

National Standard 2. In addition, 

section 303(a)(8) of the MagnusonStevens Act requires that an FMP 

specify the nature and extent of 

scientific data needed for the effective 

implementation of the FMP. Because of 

the limitations of existing data sources, 

without additional real-time reporting 

requirements to provide reliable and 

timely catch and discard data from both 

the commercial and recreational sectors, 

NMFS does not have sufficient real-time 

data to implement this provision. 

Therefore, this measure is not consistent 

with National Standard 2 or the 

required provisions of the MagnusonStevens Act and NMFS has disapproved 

it. 

Approved Joint Framework Measures 

NMFS has approved the remainder of 

the measures proposed in the Joint 

Frameworks. A description of these 

approved measures follows. 

1. Recreational Restrictions 

Under this final rule, private 

recreational vessels and vessels fishing 

under the charter/party regulations of 

the NE Multispecies FMP are prohibited 

from possessing or retaining any cod 

from the GOM Regulated Mesh Area 

(RMA) from November 1–March 31. 

Also, the minimum size of cod for 

private recreational vessels and charter/ 

party vessels fishing in the GOM is 

increased from 22 inches (56 cm) to 24 

inches (61 cm). Private recreational and 

charter/party vessels may transit the 

GOM RMA with cod caught from 

outside this area, provided all bait and 

hooks are removed from fishing rods 

and all cod are stored in coolers or ice 

chests. These measures are designed to 

achieve a reduction in F for GOM cod 

caught by the recreational sector that is 

similar to the F reduction required of 

the commercial sector. The gear and cod 

stowage requirements are necessary to 

enforce these measures. 

2. GB Yellowtail Flounder Rebuilding 

Plan 

This final rule approves the FW 42 

rebuilding plan for GB yellowtail 

flounder, whereby GB yellowtail 

flounder will be rebuilt from its current 

stock size to the biomass that can 

produce maximum sustainable yield 

(MSY) (Bmsy) using an adaptive strategy 

that rebuilds the stock by 2014 with 

approximately a 75-percent probability 

of success. Under the adaptive strategy, 

the maximum F on the stock through 

2008 will be set at Fmsy (0.25), and 

subsequent changes to F required to 

complete rebuilding by 2014 (Frebuild) 

will be developed in the 2009 biennial 

adjustment required by the FMP. This 

rebuilding strategy and 2014 timeline 

was selected by the Council to be 

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consistent with the rebuilding timelines 

for most of the stocks in the FMP, and 

to take into account uncertainty 

regarding the assessment of the stock. 

This rebuilding strategy is consistent 

with the management strategy agreed to 

under the U.S. cooperative management 

agreement with Canada. 

3. Target TACs 

Target TACs are approved through 

this rule pursuant to § 648.90(a)(2), 

which requires the Council to develop 

new Target TACs, based upon the most 

recent scientific information, as part of 

the biennial adjustment process. Thus, 

this final rule approves the Target TACs 

for all groundfish stocks for FY 2006, 

2007, and 2008. The following Target 

TACs in Table 2 were developed by the 

Council’s PDT and were calculated from 

projections of future catches, using 

recent assessment data and the 

Amendment 13 target F’s. It is important 

to note that during the public comment 

period for this action, it was determined 

that an incorrect F rate was used in the 

calculation of Target TACs for American 

plaice for FY 2006–2008. This error 

resulted in over-estimating the Target 

TAC that would achieve the rebuilding 

F targets for these years, but does not 

require a change in management 

measures needed to achieve the 

rebuilding objectives of this action. The 

Target TACs for American plaice in 

Table 2 reflect the corrected Target 

TACs. 

TABLE 2.—APPROVED TARGET TACS FOR 2006 THROUGH 2008 

[Mt, live weight] 

Species Stock 2006 2007 2008 Composition 

Cod .................................................................................... GB ................................................ 7,458 9,822 11,855 E* 

GOM ............................................. 5,146 10,020 10,491 C* 

Haddock ............................................................................ GB ................................................ 49,829 103,329 121,681 E 

GOM ............................................. 1,279 1,254 1,229 A 

Yellowtail flounder ............................................................. GB ................................................ 2,070 see footnote D* 

SNE/MA ........................................ 146 213 312 B* 

CC/GOM ....................................... 650 1,078 1,406 B* 

American plaice ................................................................ ....................................................... 2,781 3,243 4,135 B* 

Witch flounder ................................................................... ....................................................... 5,511 5,075 4,331 A* 

Winter flounder .................................................................. GB ................................................ 1,424 1,604 1,782 A* 

GOM ............................................. ................ see footnote C 

SNE/MA ........................................ 2,481 3,016 3,577 C* 

Redfish .............................................................................. ....................................................... 1,946 2,075 2,167 A 

White hake ........................................................................ ....................................................... 2,056 1,676 1,367 E* 

Pollock ............................................................................... ....................................................... 12,005 12,005 12,005 E 

Windowpane flounder ....................................................... North ............................................. 389 389 389 A 

South ............................................ 173 166 159 A 

Ocean pout ....................................................................... ....................................................... 38 38 38 A 

Atlantic halibut ................................................................... ....................................................... NA NA NA NA 

A = Commercial Landings. 

B = Commercial Landings and Discards. 

C = Commercial Landings, Discards, and Recreational Harvest. 

D = Commercial Landings and Discards (U.S. portion of U.S./Canada TAC). 

E = Commercial Landings (U.S. and Canada). 

*For Stocks of Concern: Incidental TAC is a subset of Target TAC. 

GARM II did not develop a TAC for GOM winter flounder because of uncertainties in the assessment. 

Note, proposed TACs for GB cod and GB haddock include Canadian landings. 

GB yellowtail flounder TACs are hard TACs, which are determined annually and cannot be specified in advance. 

2006 GB yellowtail flounder TAC was implemented on April 28, 2006 (71 FR 25095). 

4. Incidental Catch TACs 

The values of Incidental Catch TACs 

for FY 2006 through 2008 are 

implemented through this final rule 

pursuant to the regulations at 

§ 648.85(b)(5), which require the 

Council to develop new Incidental 

Catch TACs based upon the most recent 

scientific information, as part of the 

biennial FMP adjustment process. 

Although Incidental Catch TACs for 

2006 were specified in FW 41, this 

action modifies definitions of the 

Incidental Catch TACs with respect to 

the Target TACs, modifies the allocation 

of Incidental Catch TACs among Special 

Management Programs, and specifies 

values of all Incidental Catch TACs, 

based upon the most recent scientific 

information (GARM II). As noted above, 

an error was discovered in the 

calculation of Target TACs for American 

plaice that resulted in over-estimating 

the Target TACs, and, therefore, the 

Incidental Catch TACs for this species. 

The corrected Incidental Catch TACs for 

American plaice are listed in Table 3 

below. 

In addition to the actions described 

above that relate to the Incidental Catch 

TACs for the eight stocks of concern 

noted above, this final rule defines GB 

yellowtail flounder and GB winter 

flounder as additional stocks of concern, 

defines the size of the Incidental Catch 

TACs (with respect to the Target TACs) 

that are likely to be caught in the 

Special Management Programs, specifies 

Incidental Catch TAC values for FYs 

2006 through 2008, and allocates the 

Incidental Catch TACs among Special 

Management Programs. 

This final rule clarifies the 

relationship between Target TACs and 

Incidental Catch TACs; that is, 

Incidental Catch TACs are considered as 

a subset of the pertinent Target TACs 

(rather than as amounts in excess of the 

Target TACs). This clarification is 

intended to increase the utility of Target 

TACs as a tool used to evaluate the 

effectiveness of the management 

measure. 

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TABLE 3.—DEFINITION OF INCIDENTAL CATCH TACS (PERCENT) AND SPECIFICATION OF TARGET TACS FOR FY 2006 

THROUGH 2008 (MT) 

Stock of concern Percentage of 

total target TAC 2006 2007 2008 

GB cod ........................................................................................................................................ Two ................... 122.6 (*) (*) 

GOM cod .................................................................................................................................... One ................... 49.9 99.0 103.9 

GB yellowtail flounder ................................................................................................................. Two ................... 41.4 (*) (*) 

CC/GOM yellowtail flounder ....................................................................................................... One ................... 6.5 10.8 14.1 

SNE/MA yellowtail flounder ........................................................................................................ One ................... 1.5 2.1 3.1 

American plaice .......................................................................................................................... Five ................... 139 162.1 206.7 

Witch flounder ............................................................................................................................. Five ................... 275.6 253.8 216.6 

SNE/MA winter flounder ............................................................................................................. One ................... 24.8 30.2 35.6 

GB winter flounder ...................................................................................................................... Two ................... 28.5 32.1 35.6 

White hake .................................................................................................................................. Two ................... 41.1 33.5 27.3 

*Note: GB cod and GB yellowtail flounder TACs are determined annually and cannot be estimated in advance. 

TABLE 4.—ALLOCATION OF INCIDENTAL CATCH TACS AMONG CATEGORY B DAYS-AT-SEA (DAS) PROGRAMS

[Shown as a percentage of the Incidental Catch TAC] 

Stock of concern Regular B DAS 

program 

Closed area I 

hook gear 

haddock SAP 

Eastern U.S./ 

Canada haddock 

SAP 

GOM cod ......................................................................................................................... 100 NA NA 

GB cod ............................................................................................................................. 50 16 34 

CC/GOM yellowtail flounder ............................................................................................ 100 NA NA

American plaice ............................................................................................................... 100 NA NA 

White hake ....................................................................................................................... 100 NA NA 

SNE/MA yellowtail flounder ............................................................................................. 100 NA NA 

SNE/MA winter flounder .................................................................................................. 100 NA NA 

Witch flounder .................................................................................................................. 100 NA NA 

GB yellowtail flounder ...................................................................................................... 50 NA 50 

GB winter flounder ........................................................................................................... 50 NA 50 

5. Default DAS Allocations 

Amendment 13 established two 

‘‘default’’ measures that would 

automatically reduce F on multiple 

groundfish species, for American plaice 

and SNE/MA yellowtail flounder, 

beginning in FY 2006, unless certain 

criteria are met. Because these criteria 

have not been met, the Amendment 13 

default DAS measure (a change in the 

Category A and B DAS ratio from 60:40 

to 55:45) for FY 2006–2008 remains 

unchanged. This default measure 

represents an 8.3-percent reduction in 

the number of allocated Category A 

DAS. This final rule also modifies the 

default differential DAS counting 

measure in the SNE RMA, as described 

in Section 8 of this preamble. 

6. Vessel Monitoring System (VMS) 

Requirement 

All limited access NE multispecies 

DAS vessels using a groundfish DAS 

must be equipped with an approved 

VMS that meets the requirements of 

§ 648.9. As of the effective date of this 

rule, it is illegal for a limited access NE 

multispecies DAS vessel to begin a 

fishing trip under a groundfish DAS 

without an approved VMS. A vessel 

owner with a limited access NE 

multispecies DAS permit who does not 

intend to and does not fish any 

groundfish DAS during the FY is 

allowed to renew the vessel’s limited 

access permit without having an 

approved VMS, but may not fish any of 

the vessel’s groundfish DAS for that FY. 

A vessel owner that is not already 

equipped with an approved VMS must 

provide pertinent information (e.g., type 

of VMS unit, installation date, dealer, 

etc.) to NMFS prior to beginning a NE 

multispecies fishing trip after the 

effective date of this final rule. NMFS is 

sending letters to all limited access NE 

multispecies DAS permit holders in 

order to provide detailed information on 

the procedures pertaining to VMS 

purchase, installation, and use. If a 

vessel is subject to multiple, conflicting 

VMS regulations of different programs, 

the most restrictive requirement applies. 

For example, a vessel fishing in both the 

Eastern U.S./Canada Area and in one of 

the Differential DAS Areas (described in 

Sections 7 and 8 of this preamble) on 

the same trip is subject to the VMS 

restrictions that pertain to both 

programs (e.g., the requirement to 

declare into the Differential DAS Areas 

prior to leaving port or prior to leaving 

the Eastern U.S./Canada Area and the 

reporting requirements for the Eastern 

U.S./Canada Area specified at 

§ 648.85(a)(3)(v)). 

Despite a mandatory VMS 

requirement, NE multispecies DAS 

vessels are still required to declare 

periods out of the fishery (spawning 

block out and Day Gillnet vessel blocks 

out) through the Interactive Voice 

Response (IVR) call-in system. The 

Regional Administrator may authorize 

limited access NE multispecies vessels 

to utilize the IVR system in lieu of the 

VMS system for the administration of 

DAS requirements should a vessel’s 

VMS become inoperable. In addition, if 

a vessel’s VMS is not operational, the 

Regional Administrator may require 

vessels to obtain a Letter of 

Authorization (LOA) as an alternate 

method of enforcing a possession limit. 

7. Differential DAS Counting in GOM 

Under this final rule, all NE 

multispecies Category A DAS used by a 

vessel that has declared (through VMS, 

or other means approved by the 

Regional Administrator), prior to 

leaving the dock, that it will be fishing 

within the GOM Differential DAS Area 

during any portion of its trip, with the 

exception noted below for a Day gillnet 

vessel, will be charged at a rate of 2:1, 

regardless of area fished. The GOM 

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Differential DAS Area (defined at 

§ 648.82(e)(2)(i)(A) of the regulatory text 

portion of this document), includes 

most of the area west of 69°30′ W. long. 

and between 41°30′ and 43°30′ N. lat. 

(between approximately Monomoy 

Island, MA, and Portland, ME). Day 

gillnet vessels will be charged DAS at a 

rate of 2:1 for the actual hours used for 

any trip of less than 3 hr in duration, 

and for any trip of greater than 7.5 hr. 

For Day gillnet trips between 3 and 7.5 

hr duration, vessels will be charged a 

full 15 hr. To illustrate how DAS are 

charged in the GOM Differential DAS 

Area for different categories of vessels, 

the following examples are provided. A 

trawl vessel that has declared into the 

GOM Differential DAS Area on a trip 

that lasts 10 actual hr would be charged 

20 hr (10 hr × 2) of DAS use, regardless 

of where the vessel fished. Conversely, 

a Day gillnet vessel that has declared 

into the GOM Differential DAS Area on 

a trip that lasts 5 actual hr would be 

charged for 15 hr of DAS use regardless 

of where the vessel fished (between 3 

and 7.5 hr = 15 hr); a Day gillnet vessel 

fishing in the GOM Differential DAS 

Area on a trip that lasts 8 actual hr 

would be charged for 16 hr of DAS use 

regardless of where the vessel fished (8 

hr × 2). On any trip in which a vessel 

declares, prior to leaving the dock, that 

it will be fishing in the GOM 

Differential DAS Area under a Category 

A DAS, the vessel will be charged at the 

differential DAS rate for the entire 

fishing trip, even if only a portion of the 

trip is spent fishing in the GOM 

Differential DAS Area. A vessel may not 

fish under a Category A DAS in the 

GOM Differential DAS Area, unless it 

has declared into this area prior to the 

start of the trip, or unless exempted, as 

described below. A vessel that does not 

declare its intent to fish in the GOM 

Differential DAS Area may still transit 

or be in the area, provided its fishing 

gear is properly stowed according to the 

regulations and, if the vessel is in the 

area for reasons other than transiting 

(e.g., to evade bad weather), the vessel 

immediately notifies NMFS that it is 

within the GOM Differential DAS Area, 

but not fishing through its VMS. This 

provision has been modified from the 

proposed rule, which allowed nonfishing and non-transiting vessels to be 

in the area ‘‘due to bad weather, or other 

circumstances beyond its control,’’

based on Council comment and to 

ensure effective enforcement of this 

provision. 

No changes to the Monkfish FMP 

regulations are implemented to 

accommodate the NE multispecies 

Differential DAS rules, but the following 

is an explanation of how the proposed 

groundfish regulations would work with 

the current Monkfish FMP regulations. 

A vessel issued a limited access 

monkfish Category C or D permit that 

has declared into the GOM Differential 

DAS Area under a monkfish DAS 

(thereby using both a monkfish and NE 

multispecies DAS) will have its NE 

multispecies DAS charged at a rate of 

2:1, but its monkfish DAS will continue 

to be charged at a rate of 1:1. The 

regulations will continue to allow a 

monkfish Category C and D vessel to 

fish under a monkfish-only DAS, when 

groundfish DAS are no longer available, 

to ensure that it can fish its full 

allocation of monkfish DAS. Monkfish 

Category C and D vessels that accrued 

monkfish-only DAS under the recent 

emergency regulations as a result of the 

use of NE multispecies DAS at the 

differential rate of 1.4 to 1 will be able 

to continue to use such monkfish only 

DAS under this final rule, during the 

remainder of this FY. Under this final 

rule, vessels fishing under a monkfishonly DAS will continue to be required 

to fish under the provisions of the 

monkfish Category A or B permit. Such 

a vessel is limited to monkfish-only 

DAS equal to its net monkfish DAS 

allocations (including carry-over DAS) 

minus its net NE multispecies Category 

A DAS allocation (including carry-over 

DAS). A monkfish vessel will continue 

to be allocated ‘‘monkfish only’’ DAS 

based upon its current allocations of 

monkfish and NE multispecies DAS. 

This allocation is not expanded to 

account for the effects on monkfish DAS 

due to the differential DAS measures 

implemented by this final rule. For 

example, if a Category C monkfish 

vessel allocated 40 monkfish DAS has a 

current NE multispecies DAS allocation 

of 15 DAS, the maximum number of 

monkfish-only DAS that the vessel 

would be able to fish would be 25 DAS 

(40 monkfish DAS ¥ 15 NE 

multispecies DAS). However, for a 

vessel fishing under differential DAS, 

the overall amount of monkfish DAS 

that could be used is effectively reduced 

because the NE multispecies DAS are 

used at the differential rate. Using the 

example above, if the vessel fished all 

15 NE multispecies DAS at the 

differential DAS rate, the vessel would 

use up its allocation of NE multispecies 

DAS after 7.5 days of actual time fished 

(7.5 days × 2.0 = 15 DAS). Therefore, 

even though the vessel only fished 7.5 

actual NE multispecies DAS, it would 

be able to fish only up to 25 of its 

monkfish DAS as ‘‘monkfish-only’’

DAS. 

For a vessel that has declared into the 

GOM Differential DAS Area, trip limits 

apply based on the actual days spent 

fishing, and not on the basis of the 

differential DAS that were charged for 

the trip. The cod possession limit rule 

that requires vessels to ‘‘run the clock’’

to fully account for each daily limit of 

cod caught does not apply to trips 

charged at the differential DAS rate (for 

both GOM and GB cod). For example, if 

the trip of a vessel declared into the 

GOM Differential DAS Area lasts for 25 

hr actual time, the vessel would be 

allowed to catch twice the daily limit of 

GOM cod (800 lb (362.9 kg) per DAS), 

and would be charged 50 hr of DAS. 

Because differential DAS apply only to 

Category A DAS, a vessel that begins 

and ends its trip in the GOM Differential 

DAS Area under the Regular B DAS 

Program is not subject to the differential 

DAS counting and is subject to the DAS 

counting rules of the Regular B DAS 

Program. 

A vessel that fishes inside and outside 

of the Eastern U.S./Canada Area on the 

same trip (as described in section 15 of 

this preamble) may also fish in the GOM 

Differential DAS Area on the same trip, 

provided the vessel declares its intent to 

fish in the GOM Differential DAS Area 

via VMS prior to leaving the Eastern 

U.S./Canada Area. A vessel that has 

declared into both the GOM Differential 

DAS Area and the Eastern U.S./Canada 

Area on the same trip will be subject to 

the most restrictive DAS counting, trip 

limits, and reporting requirements 

applicable to the two areas for the entire 

trip. 

The GOM Differential DAS 

restrictions are designed to reduce F on 

GOM/CC yellowtail flounder, GOM cod, 

and white hake. 

8. Differential DAS Counting in SNE 

All NE multispecies Category A DAS 

used by a vessel that has declared 

(through VMS, or other means approved 

by the Regional Administrator), prior to 

leaving the dock, that it will be fishing 

within the SNE Differential DAS Area 

during any portion of its trip, with the 

exception noted below, will be charged 

at a rate of 2:1 when fishing in a specific 

portion of the SNE RMA. A vessel may 

not fish, except as noted below, under 

a Category A DAS in the SNE 

Differential DAS Area, unless it has 

declared into the area prior to the start 

of the trip. The SNE Differential DAS 

Area (defined at § 648.82(e)(2)(i)(B) in 

the regulatory text portion of this 

document) is an irregular-shaped 

offshore area extending from 73°40′ W. 

long., east to 69°30′ W. long. (from south 

of western Long Island to north of the 

Nantucket Lightship Closed Area). On 

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any trip in which a vessel declares, 

prior to leaving the dock, via its VMS 

unit, that it will be harvesting fish in the 

SNE Differential DAS Area under a 

Category A DAS, the vessel will be 

charged at the differential DAS rate for 

that portion of the trip spent in the SNE 

Differential Area (as determined from 

VMS positional data). The time spent 

outside this area will be charged at the 

rate of 1:1. For example, if a trawl vessel 

declares into the SNE Differential DAS 

Area through its VMS unit on a trip that 

lasts 12 actual hr with only 4 hr actually 

spent in the SNE Differential DAS Area, 

the total DAS deducted for that trip 

would equal 16 hr (8 hr of actual time 

outside the SNE Differential DAS Area 

plus 8 hr (4 hr × 2) of differential DAS 

time). A Day gillnet vessel that declares 

into the SNE Differential DAS Area 

through VMS will be charged according 

to the following formula for the actual 

time spent in the SNE Differential DAS 

Area: For hours accrued in the area less 

than 3 hr or greater than 7.5 hr, vessels 

will be charged at a rate of 2:1; for hours 

accrued in the area between 3 and 7.5 

hr, vessels will be charged a full 15 hr. 

The DAS accrued outside of the SNE 

Differential DAS Area will accrue on a 

1:1 basis. For example, if a Day gillnet 

vessel declared into the SNE Differential 

DAS Area on a trip that lasts 12 actual 

hours with only 5 hr actually spent in 

the SNE Differential DAS Area, the total 

DAS deducted for that trip would be 22 

hr (7 hr of actual time outside of the 

SNE Differential DAS Area, plus 15 hr 

according to the above formula). For 

trips where a Day gillnet vessel declares 

into the SNE Differential DAS Area, the 

application of the DAS accrual formula 

described above does not supersede the 

DAS accrual formula that applies to all 

NE multispecies Day gillnet vessels. In 

other words, the net DAS charge for a 

Day gillnet vessel for a trip declared into 

the SNE Differential DAS Area may not 

be less than the DAS that would accrue 

on the same length trip by a Day gillnet 

vessel not declared into the SNE 

Differential DAS Area. 

If the Regional Administrator requires 

the use of the IVR or other non-VMS 

reporting system, a vessel fishing for 

any portion of its trip in the SNE 

Differential DAS Area will be charged at 

the rate of 2:1 for the entire trip, in a 

manner similar to that described for 

differential DAS counting in the GOM 

Differential DAS Area (see section 7 of 

this preamble). Because it is not 

possible to determine the amount of 

time a vessel fishes inside the SNE 

Differential DAS Area using IVR or IVR 

technology, the vessel must be charged 

at the differential rate for the entire trip. 

Further, if a vessel fishes in both the 

GOM and SNE Differential DAS Area on 

the same trip, the vessel will be charged 

at the rate of 2:1 for the entire trip. 

Similar to fishing in the GOM 

Differential DAS Area, a vessel issued a 

limited access monkfish Category C or D 

permit that has declared into the SNE 

Differential DAS Area under a monkfish 

DAS (and therefore is accruing both 

monkfish and NE multispecies DAS) 

will have its NE multispecies DAS 

charged at a rate of 2:1, as described 

above, and its monkfish DAS charged at 

a rate of 1:1. 

A vessel that does not declare its 

intent to fish in the SNE Differential 

DAS Area under a Category A DAS, may 

still transit or be in the area, provided 

its fishing gear is properly stowed, 

according to the applicable regulations, 

and if the vessel is not in the area for 

transiting purposes, it immediately 

notifies NMFS through its VMS that it 

is in the SNE Differential DAS Area, but 

not fishing. This provision has been 

modified from the proposed rule, which 

allowed non-fishing and non-transiting 

vessels to be in the area ‘‘due to bad 

weather, or other circumstances beyond 

its control,’’ based on Council comment 

and to ensure effective enforcement of 

this measure. 

Similar to how trip limits are counted 

when fishing in the GOM Differential 

DAS Area, for trips declared into the 

SNE Differential DAS Area, all trip 

limits apply based on the actual days 

spent fishing, and not on the basis of the 

number of DAS charged. A vessel that 

begins and ends a fishing trip under the 

Regular B DAS Program is not be subject 

to differential DAS counting, regardless 

of where it fishes. 

A vessel that fishes inside and outside 

of the U.S./Canada Management Area on 

the same trip (as described in section 15 

of this preamble) may also fish in the 

SNE Differential DAS Area on the same 

trip, provided the vessel declares its 

intent to fish in the SNE Differential 

DAS Area via VMS prior to leaving the 

Eastern U.S./Canada Area. A vessel that 

has declared into both the SNE 

Differential DAS Area and the Eastern 

U.S./Canada Area on the same trip will 

be subject to the more restrictive DAS 

counting, trip limits, and reporting 

requirements applicable to the two areas 

for the entire trip. 

The SNE Differential DAS restrictions 

are designed to reduce F on SNE/MA 

yellowtail flounder, SNE winter 

flounder, and white hake. 

9. Commercial Trip Limits 

This final rule does not change the 

Amendment 13 GOM cod trip limit (800 

lb (362.9 kg) per DAS, up to 4,000 lb 

(1,818.2 kg) per trip). This final rule 

implements new trip limits for white 

hake and GB winter flounder, modifies 

the existing trip limits for the three 

yellowtail flounder stocks (CC/GOM, 

GB, and SNE/MA), and modifies the 

haddock trip limit and the GOM cod 

trip limit exemption and cod overage 

regulations. 

A NE multispecies DAS vessel fishing 

under Category A DAS, or any other 

vessel subject to the NE multispecies 

possession and trip limit regulations, 

may land up 1,000 lb (453.6 kg) of white 

hake per DAS, or any part of a DAS, up 

to 10,000 lb (4,536.2 kg) per trip, unless 

otherwise restricted. A NE multispecies 

DAS vessel fishing under a Category A 

DAS that has declared into the U.S./ 

Canada Management Area, or any other 

vessel subject to the NE multispecies 

possession and trip limit regulations, 

may land up to 5,000 lb (2,268.1 kg) of 

GB winter flounder and 10,000 lb 

(4,536.2 kg) of GB yellowtail flounder 

per trip, unless otherwise restricted. The 

U.S./Canada Management Area is 

defined as the same geographic area as 

the GB winter flounder and the GB 

yellowtail flounder stock areas. 

NE multispecies DAS vessels fishing 

under Category A DAS, or any other 

vessel subject to the NE multispecies 

possession and trip limit regulations, 

may land up to 250 lb (113.6 kg) per 

DAS, or any part of a DAS, up to 1,000 

lb (453.6 kg) per trip of CC/GOM or 

SNE/MA yellowtail flounder for the 

entire FY. Because the trip limits for 

CC/GOM and SNE/MA yellowtail 

flounder are the same, this final rule 

removes the requirement that vessels 

obtain and possess on board a yellowtail 

flounder LOA issued by the Regional 

Administrator in order to land 

yellowtail flounder from the CC/GOM or 

SNE/MA Yellowtail Flounder Areas. 

This final rule expands the Regional 

Administrator’s authority to modify the 

GB yellowtail flounder trip limit, 

removes the requirement that NMFS 

impose a GB yellowtail flounder trip 

limit when 70 percent of the TAC is 

reached, and removes the threshold 

harvest levels of 30 percent and 60 

percent before other management 

measures can be adjusted. Instead, this 

final rule implements an initial GB 

yellowtail flounder trip limit of 10,000 

lb (4,536.2 kg) per trip and allows the 

Regional Administrator to make 

adjustments to the GB yellowtail 

flounder trip limit at any time during 

the FY, and to eliminate or adjust the 

initial 10,000-lb (4,536.2–kg) trip limit 

before the start of the FY, in order to 

prevent exceeding or in order to 

facilitate harvesting the GB yellowtail 

flounder TAC, in a manner consistent 

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62162 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

with the Administrative Procedure Act, 

as more fully described under Section 

22 of this preamble. If no trip limit is 

specified for the beginning of a FY, the 

10,000–lb (4,536.2–kg) yellowtail 

flounder trip limit will remain in effect. 

The Regional Administrator may specify 

a yellowtail flounder trip limit for all of 

the U.S./Canada Management Area or 

for either of its two sub-areas (i.e., the 

Western U.S./Canada Area or the 

Eastern U.S./Canada Area). This final 

rule also recognizes non-binding 

guidance developed by the Council to 

assist the Regional Administrator 

regarding potential in-season 

modifications to the GB yellowtail 

flounder trip limit. Table 5 contains 

catch thresholds and associated trip 

limits offered as non-binding Council 

guidance for consideration. 

TABLE 5.—GB YELLOWTAIL FLOUNDER TRIP LIMIT ADJUSTMENT GUIDANCE

FY quarter 

If catch is projected to reach 

30% of the TAC during the 

specified quarter, the 

suggested trip limit is as 

follows: 

If catch is projected to reach 

60% of the TAC during the 

specified quarter, the 

suggested trip limit is as 

follows: 

Quarter 1 (May–July) .................................................. 7,500 lb (3,402.1 kg) ................................................. 3,000 lb (1,360.9 kg). 

Quarter 2 (August–October) ....................................... 10,000 lb (4,536.2 kg) ............................................... 5,000 lb (2,268.1 kg). 

Quarter 3 (November–January) .................................. 25,000 lb (11,340.4 kg) ............................................. 10,000 lb (4,536.2 kg). 

Quarter 4 (February–April) .......................................... Remove trip limits ...................................................... 25,000 lb (11,340.4 kg). 

This final rule eliminates the current 

initial haddock trip limit provision 

(May–Sept 3,000 lb (1,360.8 kg) per DAS 

up to 30,000 lb (13,608 kg) per trip; Oct–

Apr 5,000 lb (2,268 kg) per DAS up to 

50,000 lb (22,680 kg) per trip) and as 

more fully described under Section 22 

of this preamble, the automatic trip 

limit reduction for Eastern GB haddock 

(1,500 lb (680.4 kg) per DAS or up to 

15,000 lb (6,804.1 kg) per trip) when 70 

percent of the TAC is projected by the 

Regional Administrator. 

The requirement for NE multispecies 

DAS vessels to obtain a GB Cod Trip 

Limit Exemption LOA from the Regional 

Administrator when fishing outside of 

the GOM RMA, if the vessel operator 

desires to be exempt from the more 

restrictive cod trip limit in the GOM, is 

eliminated because this law 

enforcement tool is no longer necessary. 

Instead, with the exception of vessels 

declared into the U.S./Canada 

Management Area, a NE multispecies 

DAS vessel fishing south of the GOM 

RMA must declare through the VMS, 

prior to leaving the dock in accordance 

with instructions to be provided by the 

Regional Administrator, its intent to fish 

south of the GOM RMA in order to be 

subject to the less restrictive GB cod trip 

limits. Such a vessel is exempt from the 

GOM cod landing limit, but may not 

fish in the GOM RMA for the duration 

of the trip. Such a vessel may transit the 

GOM RMA, provided that its gear is 

properly stowed while in the GOM 

RMA. A vessel that has not declared 

through VMS that it will be fishing 

south of the GOM RMA, is subject to the 

most restrictive applicable cod trip 

limit, regardless of area fished for the 

entire trip. 

The Regional Administrator retains 

the authority to require a vessel to 

obtain a GOM Cod Trip Limit 

Exemption LOA (as under pre-FW 42 

regulations), if NMFS’s administration 

of the VMS program is not operational. 

If an LOA is required, such a vessel may 

not fish north of the exemption area for 

a minimum of 7 consecutive days (when 

fishing under the NE multispecies DAS 

program), and must carry the LOA on 

board. 

For a vessel that is not declared into 

and does not fish in either of the two 

differential DAS areas and that catches 

cod in excess of the GOM or GB cod trip 

limits (i.e., the vessel possesses up to 1 

extra day’s worth of cod in relation to 

the amount of DAS that have elapsed), 

the current requirement for vessels to 

‘‘run’’ their clocks upon entering port 

(to account for the amount of cod on 

board) is replaced by a requirement to 

make a declaration via VMS prior to 

crossing the VMS demarcation line. For 

a vessel making this VMS declaration, 

NMFS will make the appropriate 

increase to the DAS accrued (up to 23 

hours and 59 minutes) to round up the 

next 24-hr increment of DAS. 

10. Regular B DAS Program 

This final rule renews the Regular B 

DAS Program, but modifies certain 

aspects in order to further reduce the 

potential risks associated with the use of 

a Regular B DAS and to minimize 

impacts to the monkfish fishery. The 

program will no longer be characterized 

as a ‘‘Pilot,’’ and will remain in effect 

indefinitely. 

The Regular B DAS Program allows 

limited access NE multispecies DAS 

vessels with an allocation of Regular B 

DAS to fish under a Regular B DAS in 

order to harvest relatively healthy 

groundfish stocks (GB haddock, pollock, 

redfish, GOM winter flounder, and 

GOM haddock). GB winter flounder and 

GB yellowtail flounder are now 

considered ‘‘stocks of concern’’ that 

require additional reductions in F. 

Vessels eligible to fish in the Regular B 

DAS Program may not fish in this 

program and in a Special Access 

Program (SAP) (e.g., the Eastern U.S./ 

Canada Haddock SAP, Closed Area (CA) 

I Hook Gear Haddock SAP, or CA II 

yellowtail flounder SAP) on the same 

trip. In order to limit the potential 

biological impacts of the program, only 

500 Regular B DAS may be used during 

the first quarter of the CY (May through 

July), while 1,000 Regular B DAS may 

be used in subsequent quarters (August 

through October, November through 

January, and February through April). 

DAS that are not used in one quarter 

will not be available for use in 

subsequent quarters. As implemented 

previously under FW 40–A, Regular B 

DAS will accrue at the rate of 1 DAS for 

each calendar day, or part of a calendar 

day, fished. 

A vessel participating in this program 

must be equipped with an approved 

VMS and must notify the NMFS 

Observer Program at least 72 hr in 

advance of a trip in order to facilitate 

observer coverage. This notification 

requires reporting of the following 

information: The general area or areas 

that will be fished (GOM, GB, or 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 

does not restrict the vessel’s activity to 

fish only in that area on that trip, but 

will be used to plan observer coverage. 

Prior to departing on the trip, the vessel 

owner or operator must notify NMFS via 

VMS that the vessel intends to 

participate in the Regular B DAS 

Program. Vessels fishing in the Regular 

B DAS Program must report their 

catches of certain groundfish stocks of 

concern (cod, yellowtail flounder, 

winter flounder, witch flounder, 

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Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 62163 

American plaice, and white hake) and 

haddock daily through VMS, including 

the amount of fish kept and discarded. 

These reporting requirements are 

consistent with the standardized 

reporting requirements that, as 

implemented by this final rule, apply to 

all Special Management Programs of the 

FMP, as explained in section 17 of this 

preamble. 

In contrast to the Regular B DAS Pilot 

Program, in which a trawl vessel was 

not required to utilize any particular 

gear type, under this final rule, a trawl 

vessel must use an approved haddock 

separator trawl when participating in 

the Regular B DAS Program. Other trawl 

net configurations may be on board the 

vessel, provided they are properly 

stowed when the vessel is fishing under 

the Regular B DAS Program rules. The 

intent of this restriction is to further 

reduce the potential for vessels to catch 

stocks of concern, notably cod, 

yellowtail flounder, and winter 

flounder. Furthermore, for a trawl vessel 

fishing with the proposed haddock 

separator trawl, possession of flounders 

(all species, combined); monkfish 

(whole weight), unless otherwise 

specified below; and skates is limited to 

500 lb (227 kg) each, and possession of 

lobsters is prohibited, to help promote 

and ensure the proper utilization of the 

haddock separator trawl; a properly 

configured haddock separator trawl 

should not catch large quantities of 

these species. 

A vessel fishing under a Category B 

DAS while in this program is prohibited 

from discarding legal-sized regulated NE 

multispecies, Atlantic halibut, ocean 

pout, and monkfish, and is limited to 

landing 100 lb (45.4 kg) per DAS, or any 

part of a DAS, of each of the following 

groundfish stocks: GOM cod, GB cod, 

GB yellowtail flounder, American 

plaice, witch flounder, white hake, 

SNE/MA winter flounder, GB winter 

flounder, southern windowpane 

flounder, and ocean pout, unless further 

restricted (see below). In addition, a 

vessel fishing in this program is limited 

to landing no more than one Atlantic 

halibut and 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 CC/GOM or 

SNE/MA yellowtail flounder. A limited 

access monkfish DAS vessel fishing 

with gear other than trawl gear that is 

participating in this program under a NE 

multispecies DAS is subject to the 

monkfish Incidental Catch limit 

applicable to the monkfish Incidental 

Catch permit (Category E) (i.e., 400 lb 

(181.4 kg) tail weight/DAS, or 50 

percent of the total weight of fish on 

board, whichever is less, when fishing 

in the monkfish Northern Fishery 

Management Area (NFMA); and 50 lb 

(22.7 kg) tail weight/DAS when fishing 

in the monkfish Southern Fishery 

Management Area (SFMA)). A limited 

access monkfish DAS vessels fishing 

with trawl gear that is participating in 

this program under a NE multispecies 

DAS is subject to the monkfish 

Incidental Catch limit applicable to the 

monkfish Incidental Catch permit 

(Category E), as well as the monkfish 

restrictions associated with the required 

use of the haddock separator trawl (as 

described below). That is, vessels may 

not land more than 500 lb (226.8 kg) 

whole weight of monkfish per trip when 

fishing in the monkfish NFMA; and 500 

lb (226.8 kg) whole weight per trip or 50 

lb (22.7 kg) tail weight per DAS, 

whichever is less, when fishing in the 

monkfish SFMA. 

If a vessel fishing under the Category 

B DAS Program harvests and brings on 

board a stock with an Incidental Catch 

TAC (cod, yellowtail, American plaice, 

witch flounder, white hake, SNE winter 

flounder, GB winter flounder), or 

southern windowpane flounder, ocean 

pout, Atlantic halibut, or monkfish, in 

excess of the landing limits, the vessel 

operator must retain on board the excess 

catch of these species, and immediately 

notify NMFS, via VMS, that it is 

changing its DAS category from a 

Regular B DAS to a Category A DAS 

(i.e., ‘‘DAS flip’’). If a vessel flips from 

a Regular B DAS to a Category A DAS, 

it will be charged Category A DAS, 

which will accrue to the nearest minute, 

for the entire trip (i.e., not to the nearest 

day). Once the vessel flips, it is subject 

to the Category A trip limit restrictions. 

A vessel fishing in the Category B DAS 

Program must abide by all the reporting 

requirements described above for the 

duration of the trip, even if the vessel 

‘‘flips’’ to a Category A DAS. 

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 catch a 

groundfish species of concern in an 

amount that exceeded the trip limit), 

with the exception of vessels fishing in 

one of the differential DAS areas (as 

explained below), 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 Program 

and has 5 Category A DAS available, the 

maximum number of Regular B DAS 

that the vessel could fish on that trip 

under the Regular B DAS Program 

would be 5. If a vessel is fishing in 

either the GOM Differential DAS Area or 

the SNE Differential DAS Area, 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 divided by two. 

For example, if a vessel plans a trip 

under the Regular B DAS Program and 

has 10 Category A DAS available, the 

maximum number of Regular B DAS 

that the vessel could fish on that trip 

under the Regular B DAS Program 

would be 5. 

This action provides the Regional 

Administrator authority to approve the 

use of additional gear specifically for 

this program, based on approved gear 

standards recommended by the Council. 

After consideration of the Groundfish 

Committee’s recommendation on the 

standards that must be met by potential 

gears, the Council may determine what 

standards, if any, will be recommended 

to the Regional Administrator to 

facilitate the determination of whether a 

proposed gear type is acceptable based 

on whether the proposed gear has been 

demonstrated to reduce catch of 

groundfish stocks of concern. Upon 

receipt of the Council’s 

recommendation on gear standards, 

NMFS may implement these standards 

in a manner consistent with the 

Administrative Procedure Act. If NMFS 

decides not to implement the Council’s 

recommendation on gear standards, it 

must provide a written rationale to the 

Council regarding its decision not to do 

so. 

The Pilot Program implemented by 

FW 40–A allowed a vessel issued a 

limited access monkfish Category C or D 

permit to use a NE multispecies Regular 

B DAS to fulfill the requirements of the 

Monkfish FMP, which requires such a 

vessel to use a NE multispecies DAS 

every time a monkfish DAS is used. To 

reduce fishing mortality on monkfish 

resulting from the use of Regular B DAS, 

this final rule implements the Monkfish 

FW 3 provision prohibiting a limited 

access monkfish DAS vessel that also 

possesses a limited access NE 

multispecies DAS permit from using a 

monkfish DAS (in conjunction with a 

NE multispecies Regular B DAS) when 

participating in the Regular B DAS 

Program. This vessel may still 

participate in this program and use a NE 

multispecies Regular B DAS, but it must 

fish under a NE multispecies DAS only 

and is subject to the monkfish trip 

limits. Discarding of legal-sized 

monkfish is prohibited when fishing 

under this program. 

NMFS will administer the Regular B 

DAS Program quarterly DAS cap by 

monitoring the total number of Regular 

B DAS accrued on trips that begin and 

end under a Regular B DAS. Mere 

declaration of a Regular B DAS Program 

trip through VMS does not reserve a 

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62164 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

vessel’s right to fish under this program, 

because the vessel must also cross the 

demarcation line to begin a trip in this 

program. Once the maximum number of 

Regular B DAS are projected to be used 

in a quarter, the Regional Administrator 

will end the Regular B DAS Program for 

that quarter. In order to limit the 

potential impact of the Regular B DAS 

Program on the fishing mortality of 

groundfish stocks of concern, a 

quarterly Incidental Catch TAC will be 

set for certain groundfish stocks of 

concern for this program. Based upon 

the definition of Incidental Catch TACs 

and the allocation of Incidental Catch 

TACs among Special Management 

Programs (Table 3 and 4, respectively), 

the proposed Incidental Catch TACs 

allocated to the Regular B DAS Program 

are calculated and divided into 

quarterly Incidental Catch TACs as 

shown in Table 6. The quarterly 

Incidental Catch TACs are divided 

among quarters in order to correspond 

to the allocation of DAS among quarters. 

The 1st quarter (May–July) will receive 

13 percent of the Incidental Catch TACs, 

and the remaining quarters (August–

October, November–January, and 

February–April) will each receive 29 

percent of the Incidental Catch TACs. 

TABLE 6.—INCIDENTAL CATCH TACS FOR THE REGULAR B DAS PROGRAM

[mt, live weight] 

FY 2006 FY 2007 FY 2008 

Qtr 1 Qtr 2–4 Qtr 1 Qtr 2–4 Qtr 1 Qtr 2–4 

GB cod ..................................................................................................... 8.0 17.8 See Note 

GOM cod .................................................................................................. 6.5 14.5 12.9 28.7 13.5 30.1 

GB yellowtail flounder .............................................................................. 2.7 6.0 See Note 

SNE/MA yellowtail .................................................................................... 0.2 0.4 0.3 0.6 0.4 0.9 

CC/GOM yellowtail ................................................................................... 0.8 1.9 1.4 3.1 1.8 4.1 

American plaice ....................................................................................... 18.1 40.3 21.1 47.0 26.9 60.0 

Witch flounder .......................................................................................... 35.8 79.9 33.0 73.6 28.2 62.8 

White hake ............................................................................................... 5.3 11.9 4.4 9.7 3.6 7.9 

SNE/MA winter flounder .......................................................................... 3.2 7.2 3.9 8.7 4.7 10.4 

GB winter flounder ................................................................................... 1.9 4.1 2.1 4.6 2.2 5.2 

Note: TACs for this stock depend on annual specification of TACs in the U.S./Canada Management Area. TACs are calculated using the definition of Incidental Catch TACs and the allocation of Incidental Catch TACs among Special Management Programs (Table 3 and 4, respectively), 

as well as the quarterly division of the TAC described above. Separate specification of these TACs is not necessary, because they are calculated 

based upon an explicit formula. 

With the exception of white hake, CC/ 

GOM yellowtail flounder, and SNE/MA 

yellowtail flounder, if the Incidental 

Catch TAC for any one of these species 

is caught (landings plus discards) 

during a quarter, use of Regular B DAS 

in the pertinent stock area will be 

prohibited for the remainder of that 

quarter. Vessels can once again use 

Regular B DAS at the beginning of the 

subsequent quarter. When the white 

hake Incidental Catch TAC is caught, 

the possession of white hake when 

fishing under the Regular B DAS 

Program will be prohibited. For the CC/ 

GOM and SNE/MA stocks of yellowtail 

flounder, when the respective Incidental 

Catch TACs are caught, only a portion 

of the stock area where the species is 

predominantly caught will be closed to 

Regular B DAS Program participants. 

Upon attainment of the CC/GOM 

yellowtail flounder incidental Catch 

TAC, the following 30-minute square 

blocks will close: Blocks 98, 114, 123, 

124, 125, 132, and 133. Upon attainment 

of the SNE/MA yellowtail flounder 

Incidental Catch TAC, the following 30- 

minute square blocks will close: Blocks 

70 to 73, 82 to 88, 98, 99, and 101 to 

103. 

Under the Pilot Program, the Regional 

Administrator had the authority to 

prohibit the use of Regular B DAS for 

the duration of a quarter or FY, if it was 

projected that continuation of the 

Regular B DAS Program would 

undermine the achievement of the 

objectives of the FMP or the Regular B 

DAS Program. This final rule continues 

this authority, but provides additional 

reasons for terminating the program. 

Additional reasons for terminating the 

program include, but are not limited to, 

the following: Inability to restrict 

catches to the Incidental Catch TACs; 

evidence of excessive discarding; 

evidence of a significant difference in 

flipping rates between observed and 

unobserved trips; and insufficient 

observer coverage to adequately monitor 

the program, particularly if coverage 

declines below the Council’s 

recommendation of 36 percent (the 

same level of observer coverage as 

occurred during the original Pilot 

Program). 

11. Renewal of DAS Leasing Program 

This final rule continues the DAS 

Leasing Program, without change, to 

help mitigate the economic and social 

impacts resulting from the current FMP 

regulations that strictly limit fishing 

effort. 

12. Renewal and Modification of the 

Eastern U.S./Canada Haddock SAP 

This final rule renews and modifies 

the Eastern U.S./Canada Haddock SAP 

for FY 2006 through 2008 as described 

below, and no longer characterizes this 

SAP as a ‘‘Pilot Program.’’

The Eastern U.S./Canada Haddock 

SAP Program allows limited access NE 

multispecies DAS vessels fishing with 

an authorized haddock separator trawl 

to catch haddock using a Category B 

DAS, in a portion of the Eastern U.S./ 

Canada Area, including the northernmost tip of CA II. The time period for 

the SAP is revised to August 1–

December 31. Delaying the start date 

from May 1 to August 1 is intended to 

help prevent an early closure of this 

area and thereby prolong the period of 

time during which vessels have access 

to the haddock fishery in the area under 

a Category B DAS. 

In a manner similar to the provision 

proposed under the Regular B DAS 

Program, this final rule provides the 

Regional Administrator authority to 

approve the use of additional gear 

specifically for this SAP based on 

approved gear standards recommended 

by the Council. 

This final rule implements new 

restrictions for trips on which use of the 

haddock separator trawl is required 

(including this SAP). For trawl trips, 

possession of flounders (all species, 

combined); monkfish (whole weight), 

unless otherwise specified below; and 

skates is limited to 500 lb (227 kg) each 

per trip; and possession of lobsters is 

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prohibited to help ensure the proper 

utilization of the haddock separator 

trawl. 

In order to limit the potential impact 

on fishing mortality that the use of 

Category B DAS may have on GB cod, 

an annual GB cod Incidental Catch TAC 

is specified for this SAP that represents 

34 percent of the overall Incidental 

Catch TAC for GB cod (19.6 mt for FY 

2006). In addition to an Incidental Catch 

TAC for GB cod, this action also 

establishes an Incidental Catch TAC for 

GB yellowtail flounder and GB winter 

flounder for this SAP. The Incidental 

Catch TACs for these two species in this 

SAP each represent 50 percent of the 

respective overall Incidental Catch 

TACs for these stocks allocated to 

Special Management Programs. The 

2006 GB yellowtail flounder Incidental 

Catch TAC is 20.7 mt, and the GB 

winter flounder Incidental Catch TACs 

for 2006–2008 are 14.3, 16.1, and 17.8 

mt, respectively. The GB yellowtail 

flounder Incidental Catch TAC is 

dependent upon the annual 

specification of the U.S./Canada TACs, 

and therefore will be calculated on an 

annual basis for FYs 2007 and 2008. 

Separate specification of this Incidental 

Catch TAC is not necessary, because it 

is calculated based upon an explicit 

formula. Participation in the SAP by 

vessels using a Category B DAS will be 

prohibited when any one of the three 

Incidental Catch TACs are projected to 

have been caught. 

Under this final rule, many of the 

reporting requirements for this SAP are 

the same as the reporting requirements 

that are applicable to all Special 

Management Programs, as explained 

under Section 17 in this preamble. 

Finally, this rule restricts vessels that 

are fishing in this SAP while under a 

Category B DAS, from discarding 

regulated NE multispecies, Atlantic 

halibut, and ocean pout. All other 

measures for this SAP are consistent 

with the measures previously 

implemented. 

13. Modification to CA I Hook Gear 

Haddock SAP 

This final rule specifies a haddock 

TAC for the CA I Hook Gear Haddock 

SAP for FY 2006 through 2008, and 

provides the Regional Administrator the 

authority to adjust these TACs based on 

future stock assessments using a 

specified formula. The formula is based 

upon the size of the haddock TAC 

allocated for FY 2004 (1,130 mt live 

weight) and, based on new information, 

will be adjusted according to the 

growth/decline of the western GB 

(WGB) haddock exploitable biomass in 

relationship to its size in 2004. The size 

of the WGB component of the stock is 

currently considered to be 35 percent of 

the total stock size (unless modified by 

a new stock assessment). The formula is 

as follows: TACyear x = (1,130 mt live 

weight) × (Projected WGB Haddock 

Exploitable Biomassyear x / WGB 

Haddock Exploitable Biomass2004). 

TABLE 7.—CA I HADDOCK GEAR HADDOCK SAP TACS FOR FY 2006–2009, AND PERTINENT HISTORIC INFORMATION

FY 

Total GB 

haddock stock 

exploitable 

biomass 

(mt × 1,000) 

WGB haddock 

exploitable 

biomass 

(mt × 1,000) 

Ratio of total 

GB haddock 

stock to WGB 

component 

TAC 

(mt live 

weight) 

2004 ................................................................................................................. 100.907 35.317 N/A 1,130 

2005 ................................................................................................................. 137.341 48.069 1.361 1,538 

2006 ................................................................................................................. 202.261 70.791 2.004 2,265 

2007 ................................................................................................................. 442.427 154.849 4.385 4,955 

2008 ................................................................................................................. 560.303 196.106 5.553 6,275 

For example for FY 2006, based on the information in the table and the formula: 202.261 × 35% = 70.792; 70.792/35.317 = 2.004; and 1,130 × 

2.004 = 2,265 mt. 

When the haddock TAC is projected 

to be harvested, the SAP will close. The 

standardized reporting requirements as 

discussed in Section 17 of this preamble 

apply to this SAP. 

14. GB Cod Fixed Gear Sector 

This final rule authorizes the 

formation of a second sector in the FMP, 

the GB Cod Fixed Gear Sector (Fixed 

Gear Sector), in accordance with the 

procedures and requirements 

implemented by Amendment 13 

(§ 648.87). Requirements under 

§ 648.87(b) that apply to all sectors 

apply to the Fixed Gear Sector. This 

final rule implements a requirement that 

the Fixed Gear Sector fish only in the 

geographic area defined as the GB Cod 

Hook Gear Sector Area, which is that 

portion of the GB cod stock area north 

of 39°00′ N. lat. and east of 71°40′ W. 

long. Because the FW 42 document was 

silent with respect to the geographic 

area to be associated with the proposed 

Fixed Gear Sector, NMFS proposed, 

based on the inferred intent of the 

Council, the above geographic area in 

the FW 42 proposed rule, due to the fact 

that the goals of the GB Cod Fixed Gear 

Sector are very similar the goals of the 

GB Cod Hook Gear Sector. However, the 

Fixed Gear Sector’s 2006 Operations 

Plan has proposed that this area be 

expanded. A proposed rule (71 FR 

48903, August 22, 2006) soliciting 

comment on this Operations Plan is 

currently under review. Depending on 

the outcome of that proposed 

rulemaking, this area could be revised 

through a separate final rule. 

The primary purpose of the Fixed 

Gear Sector is to fish in an efficient 

manner, under customized managed 

measures, for the primary purpose of 

harvesting GB cod. A vessel fishing in 

the Fixed Gear Sector is restricted to 

fishing with either jigs, non-automated 

demersal longline, hand gear, or sink 

gillnets. The Fixed Gear Sector, as 

required under § 648.87(b)(2), must 

submit an Operations Plan and Fixed 

Gear Sector Contract to the Regional 

Administrator at least 3 months prior to 

the beginning of each FY. As described 

above, a vessel fishing in the Fixed Gear 

Sector would be restricted to fishing 

with various gear, including jigs; 

however jigs are not defined in the 

regulations. This final rule includes a 

definition of jigging and jig as follows: 

Jigging, with respect to the NE 

multispecies fishery, means fishing for 

groundfish with hook and line gear 

(hand line or rod and reel) using a jig, 

which is a weighted object attached to 

the bottom of the line used to sink the 

line and/or imitate a baitfish, which is 

moved (‘‘jigged’’) with an up and down 

motion. 

This final rule authorizes the 

formation of the Fixed Gear Sector, but 

neither approves nor disapproves the 

2006 Operations Plan of the Fixed Gear 

Sector. Approval or disapproval of the 

Fixed Gear Sector’s 2006 Operation Plan 

will be announced through publication 

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of a separate final rule in the Federal 

Register. 

15. Eastern U.S./Canada Area Flexibility 

This final rule modifies the 

regulations to allow a vessel that fishes 

in the Eastern U.S./Canada Area to 

choose to fish in other areas outside of 

the Eastern U.S./Canada Area on the 

same trip, with an exception noted 

below. If a vessel chooses to fish both 

inside and outside of the Eastern U.S./ 

Canada Area on the same trip, the 

operator must notify NMFS via VMS 

prior to leaving the dock or at any time 

during the trip prior to leaving the 

Eastern U.S./Canada Area, and must 

comply with the most restrictive DAS 

counting, trip limits, and reporting 

requirements for the areas fished, 

regardless of area fished, for the entire 

trip. For example, a vessel electing to 

fish inside and outside of the Eastern 

U.S./Canada Area on the same trip will 

not receive any steaming time credit, 

and all cod, haddock, and yellowtail 

flounder caught on the entire trip will 

be applied against the pertinent U.S./ 

Canada Management Area TACs for 

these species. In addition, the vessel 

must comply with the reporting 

requirements for the Eastern U.S./ 

Canada Area for the entire trip. 

A vessel is prohibited from fishing in 

the CC/GOM or SNE/MA yellowtail 

flounder stock areas if, when fishing in 

the Eastern U.S./Canada Area, it exceeds 

the yellowtail flounder trip limit 

specified for these areas (i.e., 250 lb 

(113.4 kg)/day to 1,000 lb (453.6 kg)/ 

trip). Prohibiting a vessel from fishing 

outside of the Eastern U.S./Canada Area 

on the same trip if it has exceeded the 

CC/GOM or SNE/MA trip limit for 

yellowtail flounder is necessary to 

preclude the possibility of a vessel 

discarding its yellowtail flounder in 

order to fish outside of the area. A 

vessel that fishes inside and outside of 

the Eastern U.S./Canada Area on the 

same trip may also fish in one of the 

Differential DAS Areas (and accrue DAS 

at the higher rate) described in Sections 

7 and 8 of this preamble, provided the 

vessel declares its intent to fish in such 

areas via VMS prior to leaving the 

Eastern U.S./Canada Area. 

16. Modification of the DAS Transfer 

Program 

This final rule modifies several 

aspects of the DAS Transfer Program. 

The intent of these changes are to 

increase the utility of the program, 

provide clarification of program details 

that were not previously considered, 

and support effective administration of 

the program by NMFS. The vessel 

transferring its NE multispecies DAS 

permit (transferor) is no longer required 

to exit all state and Federal fisheries, 

and may acquire other fishing permits 

(i.e., other Federal limited access 

permits, Federal open access permits, 

and/or state permits) after the transfer. 

Secondly, other non-groundfish permits 

that the transferor vessel has no longer 

automatically expire, and may be 

transferred as a bundle to the vessel 

receiving the NE multispecies DAS 

permit (subject to pertinent regulations 

regarding vessel replacement). Duplicate 

permits must expire, and a vessel may 

not consolidate DAS or other allocations 

from non-groundfish permits. Nongroundfish permits are subject to all 

applicable regulations such as vessel 

replacement size restrictions. The 

program maintains the conservation tax 

of 20 percent on Category A and 

Category B DAS, as well as the 

conservation tax of 90 percent on 

Category C DAS, in order to support the 

program’s goal of long-term reduction in 

fishing effort. 

Because the execution of a DAS 

transfer is a process whereby two 

limited access NE multispecies permits 

(with two baselines, DAS allocations, 

and histories) become a single permit 

(with a single baseline, DAS allocation, 

and history), this action also specifies 

the rules that pertain to the resultant 

single permit. All history associated 

with the transferred NE multispecies 

DAS permit is acquired by the recipient 

(transferee), and is subsequently 

associated with the permit rights of the 

transferee. The pertinent history 

includes catch history, DAS use history, 

and permit rights history. Neither the 

individual elements of the history 

associated with the transferor vessel, 

nor the total history may be separated 

from the NE multispecies DAS being 

transferred. With respect to vessel 

baseline characteristics, the baseline of 

the transferee vessel will be the smaller 

baseline of the two vessels or, if the 

transferee vessel has not previously 

upgraded under the vessel replacement 

rules, the vessel owner may choose to 

adopt the larger baseline of the two 

vessels, which would constitute the 

vessel’s one-time upgrade, if such 

upgrade is consistent with the vessel 

replacement rules. For a vessel involved 

in a DAS transfer that was granted a 

one-time downgrade of its DAS Leasing 

Program baseline specifications, as 

described in § 648.82(k)(4)(xi), the DAS 

leasing specifications would revert to 

those specifications prior to the onetime downgrade, except in the case 

when the downgrade was made by the 

transferee vessel and the transferee’s 

vessel baseline specifications were 

adopted during the DAS transfer. 

Because limited access NE 

multispecies Hook Gear vessels 

(Category D) are not allowed to change 

permit categories under current permit 

rules, this final rule clarifies that vessels 

with a limited access NE multispecies 

Category D permit will only be allowed 

to transfer their NE multispecies DAS 

(acting as a transferor) to another 

Category D vessel. However, such 

vessels may participate in a DAS 

transfer as a transferee vessel and 

acquire DAS from any limited access NE 

multispecies DAS permit category. That 

is, a Category D Hook Gear vessel may 

transfer DAS only to another Category D 

Hook Gear vessel, but may receive 

transferred DAS from any limited access 

NE multispecies DAS permitted vessel. 

In order to simplify the DAS Transfer 

Program, this final rule clarifies that, for 

the purposes of calculating the DAS 

conservation tax, the transferee vessel 

must specify which vessel’s DAS are 

being acquired and are, therefore, 

subject to the conservation tax. If a 

conservation tax were to apply strictly 

to the DAS acquired from the transferor 

vessel, buyers would have a strong 

incentive to arrange the DAS Transfer 

Program transaction such that it would 

result in the permit with the least 

number of DAS being designated as the 

transferor (seller) permit. Lastly, this 

final rule prohibits a vessel from 

participating in the DAS Leasing 

Program as a lessee or lessor during a 

particular FY and then subsequently 

participating in the DAS Transfer 

Program as a transferor during the same 

FY. A vessel may participate in the DAS 

Leasing Program as a lessor or as a 

lessee and then submit an application 

for a DAS transfer as a transferor, but 

the transfer, if approved, will not be 

effective until the beginning of the 

following FY. Vessels are not prohibited 

from participating in the DAS Leasing 

Program after a DAS transaction has 

occurred. 

17. Standardized Requirements for 

Special Management Programs 

This final rule modifies and 

standardizes the requirements that 

apply to the Special Management 

Programs. The standardized 

requirements are described below, and 

any new requirement, or new 

application of an existing requirement is 

noted. 

The requirement for the use of VMS 

and the advance notice to the observer 

program prior to each trip is continued. 

For all Special Management Programs, 

the species that must be reported daily 

(catch and discards) will be haddock 

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and all species for which a stock of 

concern has been identified as likely to 

be caught in a Special Management 

Program (currently, the species with 

stocks of concern identified as such are: 

Cod, yellowtail flounder, winter 

flounder, witch flounder, white hake, 

and American plaice). 

For all Special Management Programs, 

there is a new requirement for the vessel 

operator to report the date of the catch. 

The vessel operator may report catch for 

a particular day of fishing at any time 

of the day on which it was caught, up 

until 0900 hr. the following day. 

For all Special Management Programs, 

there is a new requirement to report the 

serial number of the VTR. A vessel 

operator must report the serial number 

from the first page of the logbook on the 

daily VMS catch report. Because the 

serial numbers are associated with 

individual vessels, a vessel operator is 

prohibited from sharing logbooks with 

other vessel operators. The VTR serial 

number serves as an important tool that 

enables fishery managers to make better 

use of available data by linking VTR 

data with dealer and DAS data. 

While participating in SAPs and the 

Regular B DAS Program, a vessel is 

prohibited from discarding legal-sized 

regulated NE multispecies, Atlantic 

halibut, and ocean pout while fishing 

under a Category B DAS. This final rule 

also requires a vessel that is 

participating in either the Regular B 

DAS Program or a SAP that exceeds any 

of the NE multispecies trip limits, to 

exit these respective programs. With the 

exception of the CA I Hook Gear 

Haddock SAP, a vessel must exit the 

Special Management Program and ‘‘flip’’

to a Category A DAS as soon as the 

maximum trip limit is exceeded. The 

requirement that vessels participating in 

the Special Management Programs 

report daily via VMS continues, even 

after a vessel is required to exit the 

program. 

18. Gear Performance Incentives for 

Special Management Programs 

In times and areas when a Special 

Management Program requires a vessel 

to use a haddock separator trawl or 

other gear authorized by the program to 

reduce catches of stocks of concern, 

possession of flounders (all species 

combined), monkfish (live/whole 

weight), and skates (live/whole weight) 

is limited to 500 lb (226.8 kg) each, per 

trip, and possession of lobsters is 

prohibited. If a specific program 

includes a possession limit that 

conflicts with these Gear Performance 

Incentives, the most restrictive limit 

will apply. For example, a vessel fishing 

under a NE multispecies Category B 

DAS in the proposed Regular B DAS 

Program in the monkfish SFMA, and 

that has a limited access monkfish 

Category C or D permit (and is therefore 

prohibited from fishing under a 

monkfish DAS), is limited to 50 lb (22.7 

kg) of monkfish per trip. The intent of 

this measure is to increase the incentive 

for vessels to configure the gear 

properly, because only small amounts of 

these species may be landed when using 

the gear. This Gear Performance 

Incentive requirement applies to the 

Regular B DAS Program, NE 

multispecies SAPs, and the Eastern 

U.S./Canada Management Area (if/when 

the haddock separator trawl is the only 

allowable trawl net). 

19. Modification of Cod Landing Limit 

in Eastern U.S./Canada Area 

For vessels fishing in the Eastern 

U.S./Canada Area under a Category A 

DAS, this final rule removes the 

restriction that the amount of cod not 

exceed 5 percent of the total weight of 

fish on board. 

20. SNE/MA RMA Trawl Codend Mesh 

Requirement 

The trawl codend mesh requirement 

applicable to the SNE/MA RMA is 

modified from 6.5-inch (15.2-cm) square 

or 7.0-inch (17.8-cm) diamond mesh to 

6.5-inch (15.2-cm) square or 6.5-inch 

(15.2-cm) diamond mesh. 

21. Regional Administrator Authority To 

Adjust Measures in the U.S./Canada 

Management Area 

This final rule expands the Regional 

Administrator’s authority to adjust 

management measures in the U.S./ 

Canada Management Area at any time 

during the FY, as well as prior to the 

start of the FY for the subsequent FY, if 

information is sufficient to make the 

necessary projections, and after 

consultation with the Council, in order 

to more effectively prevent 

overharvesting or to facilitate harvesting 

of the hard TACs (and achieving OY). 

This final rule eliminates the required 

implementation of a trip limit for 

Eastern GB haddock (i.e., when 70 

percent of the TAC is projected, the 

Regional Administrator must implement 

a possession limit of 1,500 lb (680.4 kg) 

per day, up to 15,000 lb (6,804.1 kg) per 

trip). 

This final rule clarifies that the 

Regional Administrator may implement 

different management measures for 

vessels using Category A DAS and 

Category B DAS, and requires that the 

Regional Administrator, when 

determining in-season adjustments, 

consider Council intent that 

opportunities for fishing on Category A 

DAS should take precedence over 

opportunities to fish under Category B 

DAS. 

Comments and Responses for FW 42 

and FW 3 

Eighty-three comments were received 

during the comment period on the 

proposed rule for this action from 61 

individuals, 10 fishing industry groups, 

1 conservation group, 1 research 

institution, 3 shoreside processors, 5 

elected officials, and 2 state resource 

management agencies (Massachusetts 

Division of Marine Fisheries (DMF) and 

the Maine Department of Marine 

Resources (DMR)). Only comments that 

were applicable to the proposed 

measures, including the analyses used 

to support these measures, are 

addressed in this preamble. It is 

important to note in considering the 

responses to comments herein that, in 

the context of implementing a 

framework adjustment measures such as 

FW 42, NMFS may only approve or 

disapprove substantive measures, and, 

may not unilaterally modify any 

measure in a substantive way pursuant 

to section 304(a)(3) to the MagnusonStevens Act. 

Recreational Restrictions 

Comment 1: One commenter 

questioned the effectiveness of the 

proposed seasonal GOM cod possession 

prohibition for the charter/party sector, 

as few vessels would be affected by this 

measure, suggesting that more effective 

measures are necessary. This 

commenter also doubted that the 

seasonal (i.e., November through March) 

cod possession prohibition would affect 

private anglers as much as indicated in 

the FW 42 document, stating that 

weather and vessel size often limit their 

ability to fish during this period. 

Response: The analysis prepared for 

FW 42 indicates that the seasonal GOM 

cod possession prohibition, in 

conjunction with an increase in the 

minimum size for GOM cod, would 

achieve the reduction in F for GOM cod 

deemed necessary from the charter/ 

party and private recreational fishing 

sector. Therefore, additional 

recreational management measures are 

not necessary. 

GB Yellowtail Flounder Rebuilding Plan 

Comment 2: The DMR strongly 

supported the proposed GB yellowtail 

flounder rebuilding plan due to the high 

probability of rebuilding the stock by 

2014, especially considering the 

negative retrospective patterns observed 

in recent biomass and mortality 

estimates. 

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Response: NMFS agrees and 

implements the proposed rebuilding 

program through this final rule. 

Target TACs 

Comment 3: One commenter 

suggested that all of the groundfish 

Target TACs specified for 2007 and 

2008 should be reduced by 50 percent. 

Another commenter was concerned that 

increased Target TACs in 2007 do not 

reflect observed increases in F on 

particular stocks since 2004. A third 

commenter indicated that the Target 

TAC increases in 2007 and 2008 are 

overly optimistic and suggested that 

NMFS reevaluate Target TACs on a 

yearly basis using updated data. Finally, 

a fourth commenter cautioned that the 

Target TACs should not be reduced too 

quickly and that there should be a 

mechanism to increase these TACs. 

Response: As specified in the EA 

prepared for this action, the PDT 

estimated F rates for CY 2005 using the 

best information available. While 

additional preliminary landings data 

have become available since the 

submission of the FW 42 EA for final 

review and the implementation of 

emergency measures on May 1, 2006, 

these data are not sufficient to 

adequately determine whether drastic 

changes have occurred in the fishery 

that would require revision of the 

objectives and measures proposed by 

FW 42. Specifically, this preliminary 

information is not sufficient to 

determine whether the measures 

implemented to date during CY 2006, 

including the emergency measures, 

have, in fact, achieved the necessary F 

reductions for specific stocks during CY 

2006. Although the analysis prepared 

for FW 42 indicates that reductions in 

the Target TACs for several species are 

necessary, a 50-percent reduction in 

Target TACs is not warranted at this 

time because only six stocks require F 

reductions to maintain the Amendment 

13 rebuilding programs. Finally, 

Amendment 13 established a process 

whereby Target TACs for each species 

are established through the Council’s 

biennial adjustment process. The next 

adjustment is scheduled to be 

developed in 2008, and implemented on 

May 1, 2009. That adjustment will take 

into account the best scientific 

information available at the time, and 

use that information to determine 

whether additional adjustments to F are 

necessary. 

Comment 4: One commenter 

expressed concern that the recent 

revelation that an incorrect F rate was 

used during the calculation of Target 

TACs for American plaice (see 

description of approved measure 3 

above) could affect the determination 

whether FW 42 meets the Amendment 

13 mortality objectives for 2006. This 

commenter suggested that NMFS should 

adjust these TACs to prevent 

overfishing. 

Response: The revised Target TAC 

does not alter the determination that the 

proposed action meets the mortality 

targets for all stocks managed by the 

FMP. The most recent stock assessment 

(GARM II) and analysis prepared for this 

action indicate that American plaice is 

achieving the mortality reductions 

necessary under the Amendment 13 

rebuilding program for this stock 

notwithstanding the error in the 

calculation of the Target TAC for this 

stock. Due to the Amendment 13 default 

DAS reductions, as well as other 

measures proposed to reduce F for 

overfished stocks, the FW 42 analysis 

indicates that F on American plaice will 

be reduced by an additional 11 percent 

which is expected to constrain landings 

from exceeding the revised Target TAC 

specified in this final rule. 

Default DAS Allocations 

Comment 5: Five commenters 

supported the Amendment 13 default 

DAS allocation reductions proposed to 

be continued through FW 42. However, 

six commenters asserted that this 

default measure is unnecessary because 

the triggers for this measure have not 

been met, as F for American plaice is 

below the Amendment 13 target F rate 

for 2006 and existing measures for SNE/ 

MA yellowtail flounder already reduce 

F on this species to comply with the 

Amendment 13 rebuilding program. 

These commenters suggest that an 

evaluation of completed FY 2005 and 

preliminary 2006 data would further 

support this assertion. One commenter 

pointed out that Alternatives 1–5 were 

analyzed without the default DAS 

reduction measure and they still met the 

necessary F reductions for this action. 

One commenter opposed the suggestion 

in the proposed rule that the default 

DAS reduction was necessary for white 

hake. 

Response: The regulations 

implementing Amendment 13 

established three criteria to determine 

whether the default measures are 

necessary; these criteria are specified in 

the current regulations at § 648.82(d)(4): 

(1) Target stocks (SNE/MA yellowtail 

flounder and American plaice) are 

projected to be at the target biomass in 

the year the measures are to be 

implemented, and, overfishing is not 

occurring; or (2) biomass estimates show 

rebuilding is on track and the best 

available estimate of the fishing 

mortality rate for these stocks meets the 

target FMSY, and (3) all other stocks that 

would be affected by the default 

measures are meeting their target F 

rates. Based on the results of GARM II 

and updated information reflecting the 

estimated F rate for these stocks in CY 

2005, American plaice meet both the 

first and the second criteria. However, 

the third criterion for eliminating the 

default measures is not satisfied because 

the target F rates are not being achieved 

for five other stocks that would be 

subject to the default measures. Because 

the stock area defined for American 

plaice includes the stock areas of all 

other stocks managed by the FMP, the 

default measures, in conjunction with 

other measures proposed in FW 42, are 

still needed to reduce F on other stocks 

caught within the broadly defined 

American plaice stock area. Further, in 

2006, SNE/MA yellowtail flounder is 

not projected to achieve its target 

biomass, is not meeting the target F rate, 

and, therefore, continues to experience 

overfishing. Any new data available at 

this time is still preliminary and 

insufficient to change the approved FW 

42 measures. 

It is true that Alternatives 1–5 

considered by the Council in FW 42 did 

not include the Amendment 13 default 

DAS reduction, yet still achieved the 

necessary F reductions for this action. 

However, in order to achieve the 

necessary F reductions for this action, 

these alternatives required a greater 

reduction in the overall DAS allocation 

than the Amendment 13 default 

measure. For example, Alternative 5 

proposed a 40-percent reduction in 

allocated Category A DAS by reducing 

the Category A:B DAS allocation ratio to 

36:64 rather than the 55:45 allocation 

ratio of the default measure. In other 

words, these alternatives would have 

resulted in a greater overall reduction in 

available Category A DAS than the 

Amendment 13 default measure to 

achieve the necessary F reductions for 

this action. 

According to analysis prepared for 

this action, the Amendment 13 default 

DAS reduction, as demonstrated by the 

analysis of the No Action alternative, 

will reduce F on SNE/MA yellowtail 

flounder by 46.6 percent and white hake 

by 2.5 percent. However, F on these 

stocks must be reduced by 55 percent 

and 13 percent, respectively, to 

maintain the Amendment 13 rebuilding 

programs for these stocks. As a result, 

the default measures alone are 

insufficient to achieve the necessary F 

reductions for these stocks. Therefore, 

the additional measures included in this 

final rule, as proposed in FW 42, are 

needed in order to maintain the 

Amendment 13 rebuilding programs for 

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these and other stocks. Further, the EA 

prepared for FW 42 indicates that 

additional F reductions beyond the 

measures proposed in this action and 

the subsequent Amendment 13 default 

measures scheduled for implementation 

in 2009 may be necessary to fully 

rebuild these stocks by the end of the 

rebuilding programs for these stocks. 

The Council had the opportunity to 

revise the Amendment 13 default 

measures and did so by choosing to 

revise the differential DAS counting rate 

for SNE/MA yellowtail flounder to 

achieve the necessary F reduction for 

this stock. Because the Council chose 

not to revise the Amendment default 

DAS reduction, and because criteria to 

eliminate this default measure were not 

met, the default DAS reduction will 

remain effective upon implementation 

of this final rule. Measures proposed by 

FW 42, combined with the default DAS 

reduction, are expected to achieve the 

necessary F reductions for several 

groundfish stocks to maintain the 

Amendment 13 rebuilding programs. 

VMS Requirement 

Comment 6: Seven commenters 

supported the mandatory VMS 

requirement proposed by FW 42, 

recommending that FW 42 be 

implemented before September 30, 

2006, to ensure reimbursement for the 

purchase of VMS units outlined in a 

recent notice in the Federal Register (71 

FR 41425, July 21, 2006). One 

commenter indicated that a mandatory 

VMS requirement would facilitate the 

development of future area-specific 

measures. However, three commenters 

suggested that a VMS requirement offers 

little benefit to the industry and 

recommended deferring implementation 

unless the differential DAS counting 

rate is reduced. 

Response: The increasing complexity 

of the management measures 

implemented or proposed by FW 42, 

including area-specific regulations such 

as differential DAS counting and realtime reporting requirements, necessitate 

an increased reliance on VMS to 

accurately and efficiently monitor vessel 

operations under the FMP. A mandatory 

VMS requirement for vessels fishing 

under a NE multispecies DAS allows 

NMFS to accurately count DAS used in 

the proposed differential DAS counting 

areas and monitor catch from Special 

Management Programs. Without the use 

of VMS, NMFS would be hindered in 

effectively administering many of the 

measures proposed in FW 42, or any of 

the existing Special Management 

Programs. Many of these programs 

provide at least some means of 

mitigating recent effort reductions in the 

fishery by facilitating the use of 

Category B DAS and access to SAPs 

within closed areas. In addition, 

because a vessel’s DAS charge only 

starts once a vessel crosses the VMS 

demarcation line, rather than at the 

dock, as under the previous call-in 

system, a mandatory VMS requirement 

also provides some benefit to the fishing 

industry by reducing the DAS charged 

on most fishing trips. 

Comment 7: One commenter 

requested that NMFS implement a 

power-down mechanism for periods 

when groundfish vessels participate in 

other non-VMS regulated fisheries. This 

commenter suggested a minimum 

participation period of 30 days to 

facilitate enforcement of this provision. 

Response: Although the Council did 

not consider modifying the existing 

VMS power-down provision or 

implementing a new VMS power-down 

provision, NMFS does not support the 

commenter’s request because it would 

compromise efforts to enforce proposed 

and existing regulations by preventing 

NMFS from monitoring vessel activity 

away from the dock. 

Differential DAS Counting in GOM 

Comment 8: Six commenters 

indicated that the proposed GOM 

Differential DAS Area restrictions are 

unjustified, that they do not strike a 

balance between conservation and 

economics, and that such restrictions 

will result in economic failure of the 

fishing industry; while eight other 

commenters expressed general 

opposition to this proposed measure 

and the economic impacts that it will 

cause. 

Response: As discussed in further 

detail in the responses below, NMFS 

believes the GOM Differential DAS 

Counting Area is consistent with all of 

the National Standards, including 

National Standards 1 (measures shall 

prevent overfishing and achieve OY), 2 

(measures shall be based on the best 

scientific information available), 4 

(measures shall not discriminate among 

fishermen), 8 (measures shall minimize 

economic impacts to the extent 

practicable), and 10 (measures shall 

promote safety to the extent 

practicable). The National Standards 

indicate that management measures 

shall minimize adverse economic 

impacts to fishing communities to the 

extent practicable, provided the 

measures meet the conservation 

requirements of the Magnuson-Stevens 

Act. Analysis prepared for this action 

indicates that the GOM Differential DAS 

Area is necessary to achieve the 

required F reductions for GOM cod and 

CC/GOM yellowtail flounder. In 

addition, this analysis also indicates 

that this measure is part of the 

alternative that results in the least 

decrease in fishing revenue compared to 

the other alternatives considered by the 

Council for this action, while still 

achieving the F targets necessary to 

meet the rebuilding objectives of the 

FMP. As a result, this measure achieves 

not only the necessary conservation 

objectives of this action, but it also 

minimizes the economic impacts to 

fishing communities, thereby achieving 

the economic and social objectives of 

this action and balancing, to the extent 

possible and practicable, the 

requirements of the National Standards. 

Comment 9: Nine commenters 

suggested that the GOM Differential 

DAS Area is too big and would exceed 

the necessary F reductions for both 

GOM cod and CC/GOM yellowtail 

flounder. Six of these commenters 

suggested that the area should not 

extend beyond 70 ° W. long. (an area 

that would include approximately 70 

percent of the landings of GOM cod and 

CC/GOM yellowtail flounder), as 

landings from 30′ squares 115, 116, 123, 

138, and 139 account for very little of 

the F for these stocks. 

Response: The proposed size of the 

GOM Differential DAS Area is necessary 

to achieve the required F reductions for 

both GOM cod and CC/GOM yellowtail 

flounder based on the analysis of the 

Northeast Fisheries Science Center’s 

Closed Area Model (CAM). Although 

catch from additional blocks identified 

by the commenters is low, it is expected 

that fishing effort would increase in 

these blocks, should differential DAS 

counting be limited to a smaller area 

within the GOM. The Council 

considered another alternative that 

included differential DAS counting 

within a smaller area of the GOM, but 

chose to adopt the larger area contained 

in the preferred Alternative B2 

(modified) because the proposed area 

included a more substantial portion of 

the GOM cod and CC/GOM yellowtail 

flounder landings (approximately 85 

percent of the landings from both 

stocks) and would effectively achieve 

the conservation objectives of this 

action when combined with the other 

proposed measures. Because the GOM 

Differential DAS Counting Area 

recommended by the commenters was 

not analyzed during the development of 

FW 42, it is uncertain whether this area 

would achieve the necessary F 

reductions for this action. 

Comment 10: Eight commenters 

requested that NMFS only charge DAS 

at the differential counting rate of 2:1 

when vessels are actually fishing within 

the GOM Differential DAS Area, 

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suggesting that the regulations 

governing vessel operations in this area 

should mirror those for the SNE/MA 

Differential DAS Area. 

Response: Unlike the SNE/MA 

Differential DAS Area, the GOM 

Differential DAS Area is situated along 

the coast and vessels must transit 

through this area to return to port. 

During the development of FW 42, 

Council members expressed concern 

that vessels may elect to ‘‘top off’’ their 

trips by fishing within this area on their 

return to port if there were no 

differential DAS rate in effect. This 

would greatly undermine the 

effectiveness of this measure, as detailed 

in an example provided in Section 4.2.2 

of the EA prepared to support FW 42. 

Charging DAS at the differential rate for 

the entire trip minimizes incentives to 

circumvent the intention of the GOM 

Differential DAS Area and increases the 

effectiveness of this measure towards 

reducing F and achieving the rebuilding 

objectives for GOM cod and CC/GOM 

yellowtail flounder by reducing effort in 

the inshore GOM. 

Comment 11: Thirteen commenters 

argued that the proposed GOM 

Differential DAS Area compromises 

safety of fishing vessels by forcing 

vessels to fish farther offshore to avoid 

the higher DAS charge, thereby violating 

National Standard 10. 

Response: The EA prepared for this 

action considered issues relating to 

safety within the alternatives 

considered. Of the alternatives 

considered in FW 42, including a 

minimum 24-hr DAS charge and more 

extensive DAS reductions for all vessels, 

the proposed action is described as 

being the best option for achieving the 

necessary conservation objectives of the 

action while having the least negative 

impact on vessel safety. In terms of 

practicability, this alternative is 

estimated to have the least reduction in 

revenues which, in turn, is thought to 

have the least impact on vessel safety. 

NMFS acknowledges that the GOM 

Differential DAS Area may influence 

vessels to fish farther offshore. However, 

the safe operation of a fishing vessel is 

ultimately the responsibility of the 

master of the vessel. FW 42 proposes a 

provision that allows vessels to be 

within the GOM Differential DAS Area 

without being charged DAS at the 

differential rate, provided the vessel 

notifies NMFS that it is not fishing and 

the gear is properly stowed. This 

provision will allow vessels fishing 

outside of the GOM Differential DAS 

Area to seek the safety of coastal waters 

should weather conditions deteriorate 

and was intended to mitigate the 

impacts to safety from the proposed 

GOM Differential DAS Area without 

compromising the conservation 

objectives of this measure. As a result, 

the Council and NMFS have determined 

that the measure promotes safety to the 

extent practicable, as specified in 

National Standard 10. 

Comment 12: Five commenters 

supported the proposed provision that 

would allow vessels to be within the 

GOM Differential DAS Area without 

being charged DAS at the differential 

rate, provided the vessel notifies NMFS 

that it is in the area and that the gear 

is properly stowed. 

Response: NMFS agrees with the 

Council that it is important to allow 

vessels to be within the GOM 

Differential DAS Area without being 

charged DAS at the differential rate to 

minimize safety concerns associated 

with the size of the differential DAS 

Area (see response to Comment 10 

above) and has approved this provision. 

This final rule also implements a similar 

provision in the SNE/MA Differential 

DAS Area. 

Comment 13: Four commenters 

suggested that the differential DAS 

counting measure was never intended to 

reduce F for white hake. These 

commenters argued that the proposed 

trip limits for this stock are sufficient to 

achieve the necessary F reductions for 

this species, while another commenter 

indicated that such F reductions have 

already taken place, based on 2005/2006 

catch data. Two commenters supported 

the proposed trip limit for white hake. 

Response: NMFS acknowledges that, 

according to the EA prepared for FW 42, 

the proposed GOM Differential DAS 

Area was not intended to specifically 

reduce F on white hake. However, the 

GOM Differential DAS Area is an 

integral component of a suite of 

measures necessary to achieve the 

necessary F reduction for this species 

and other species caught in conjunction 

with white hake. This suite of 

alternatives was selected as part of a 

targeted approach to reduce F on 

specific stocks, in specific areas, 

without unnecessarily reducing catch of 

other healthier stocks by imposing 

across-the-board reductions in DAS 

allocations included in five of the other 

alternatives considered in FW 42. 

Further, because the white hake stock 

area encompasses the stock areas of all 

other stocks managed by the FMP, 

measures necessary to reduce F on other 

overfished stocks, such as the GOM 

Differential DAS Area, also contribute 

towards achieving the necessary F 

reductions for white hake. The primary 

analytical tool used to evaluate the 

impacts of the proposed measures (i.e., 

the CAM) takes into consideration all of 

the proposed measures, including both 

the white hake trip limit and differential 

DAS counting. As a result, it is 

impossible to attribute the expected F 

reductions resulting from one specific 

measure from the CAM results, as vessel 

behavior is influenced by all of the 

proposed measures combined. 

Therefore, all of these measures, 

including differential DAS counting in 

the GOM, are necessary to maintain the 

Amendment 13 rebuilding program for 

this species, as well as other overfished 

stocks. 

It is possible that the emergency 

management measures implemented by 

the April 13, 2006, emergency interim 

final rule could reduce F for white hake 

more than is necessary for the entire FY 

2006. However, data regarding the 

realized effectiveness of the emergency 

measures are not available at this time 

and were not available at the time FW 

42 was submitted by the Council for 

final review by NMFS. Even assuming 

that the emergency measures resulted in 

reducing F for white hake more than is 

required for 2006, similar reductions in 

F would not be realized during FY 2007 

and 2008, because the emergency 

measures are superceded by this final 

rule. As a result, differential DAS 

counting in the GOM, in addition to the 

Amendment 13 default DAS reduction 

and the trip limits in FW 42 are 

necessary to achieve the necessary F 

reductions for white hake for the 

expected duration of this action (i.e., 

through 2009). Because white hake is 

overfished and overfishing is still 

occurring, a precautionary approach 

potentially resulting in a greater 

reduction in F for white hake than is 

necessary in FY 2006 is consistent with 

the National Standard 1 guidelines at 

§ 600.310(f)(5), and would increase the 

likelihood that these stocks would meet 

the Amendment 13 rebuilding 

objectives. 

Comment 14: Eight commenters stated 

that the proposed differential DAS 

counting measure in the GOM is 

inconsistent with National Standard 4 

because it denies reasonable access to 

healthy groundfish stocks for vessels 

operating out of ports in Massachusetts 

and New Hampshire, and discriminates 

against such vessels by 

disproportionally imposing the 

conservation burden on these states. 

Five of these commenters argued that 

this measure is also inconsistent with 

National Standard 8 because it does not 

provide for the sustained participation 

by fishing communities in 

Massachusetts and New Hampshire and 

does not minimize economic impact, as 

vessels cannot afford to lease DAS if 

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fishing within the GOM Differential 

DAS Area. 

Response: The proposed GOM 

Differential DAS Area applies to any 

vessel intending to fish under a NE 

multispecies DAS in this area, 

regardless of principal port or home 

port. Area-specific measures such as 

this are necessary if the management 

strategy in FW 42 is to selectively 

reduce F on overfished stocks, while 

facilitating greater access to healthier 

stocks in an attempt to help achieve OY 

in the fishery. As detailed further in the 

response to Comment 15 below, 

differential DAS counting in the inshore 

GOM is necessary to achieve the 

necessary F reductions for GOM cod 

and CC/GOM yellowtail flounder and to 

maintain the Amendment 13 rebuilding 

programs for these stocks. Vessels that 

fish primarily in this area are 

necessarily more negatively affected 

than vessels that fish outside of this 

area, but there is neither discriminatory 

intent to this measure, nor direct or 

deliberate distribution of DAS or access 

to the fishery among individual vessels 

based on principal or home port. Any 

disproportionate impact is an 

unavoidable consequence of geography, 

not a result of intent to discriminate. As 

specified in the National Standard 4 

guidelines, allocation of fishing 

privileges may disadvantage one group 

over another if it is necessary to achieve 

the objectives of the FMP. As a result, 

the GOM Differential DAS Area is 

reasonably calculated as necessary to 

promote conservation and is consistent 

with the guidelines developed for 

National Standard 4 and the objectives 

of the FMP. 

As required by National Standard 8, 

the EA prepared to support this action 

analyzes and fully takes into account 

the social and economic impacts of the 

proposed GOM Differential DAS Area. 

This analysis indicates that the 

alternative adopted by the Council not 

only meets the conservation objectives 

of this action, but it would also result 

in the least reduction in fishing 

revenues of all of the alternatives 

considered. The proposed measure 

minimizes the adverse economic 

impacts to fishing communities and 

provides the greatest potential for 

sustained participation of such 

communities among the alternatives 

considered. Therefore, the GOM 

Differential DAS Area measure is fully 

consistent with National Standard 8. 

Comment 15: Ten commenters 

suggested that the GOM Differential 

DAS Area in particular, and the suite of 

measures proposed by FW 42, in 

general, are inconsistent with National 

Standard 1 because they fail to achieve 

OY on many healthy stocks or provide 

the greatest overall benefit to the nation. 

They based their claim on the fact that 

recently observed landings are lower 

than the Target TACs established for 

several species. Further, eight 

commenters argued that the GOM 

Differential DAS Area will fail to 

prevent overfishing of GOM cod, but 

will actually increase F on this species 

by providing incentives for vessels that 

traditionally fish within this area to 

concentrate fishing effort on the highestvalued species, primarily GOM cod. 

Finally, four commenters suggested that, 

because some vessels will be unable to 

steam outside of this area due to their 

vessel size, these vessels will be forced 

to fish within this area, therefore, 

increasing discards of GOM cod and CC/ 

GOM yellowtail flounder. 

Response: The model used to evaluate 

the impacts of the differential DAS 

counting areas (i.e., the CAM) attempts 

to predict vessel behavior to maximize 

fishing profit in response to the suite of 

proposed measures. As a result, the 

CAM attempts to capture any change in 

fishing behavior to target the highestvalued species. Therefore, the results of 

the CAM reflect anticipated behavior 

changes in response to the GOM 

Differential DAS Area and indicate that 

the proposed measure still meets the 

mortality objectives of this action. In 

addition, because the CAM incorporates 

trip limits, the model’s results 

incorporate any changes in F 

attributable to discards of GOM cod and 

CC/GOM yellowtail flounder, although 

it is not possible to isolate the direction 

and degree of change with respect to 

discards from these results. 

As acknowledged many times in 

Amendment 13 and FW 42, it is difficult 

to achieve an exact balance of measures 

that will achieve the necessary 

conservation objectives for all stocks 

while ensuring OY at the same time in 

a fishery as diversified and complex as 

the groundfish fishery. Due to the 

comingled nature of the groundfish 

fishery and the reliance upon nonselective measures such as DAS 

reductions to manage the fishery, effort 

and subsequent F reductions on one 

stock will likely result in effort and F 

reductions on other stocks. Because 

several stocks managed by the FMP 

require F reductions to comply with the 

Amendment 13 rebuilding programs, 

the consequence of measures such as 

the GOM Differential DAS Area result in 

decreased catch of other, including 

healthier, groundfish stocks. FW 42 

attempts to balance out and mitigate the 

impacts of such unavoidable reductions 

in catch by proposing the continuation 

of programs that facilitate the harvest of 

healthier stocks. Examples of such 

programs include approved SAPs and 

the Regular B DAS Program. Further, the 

DAS Leasing Program attempts to allow 

vessels to obtain additional DAS to 

pursue other stocks. Should vessels take 

advantage of these programs, it is likely 

that the fishery will better achieve OY 

while overfished stocks rebuild 

according to the Amendment 13 

rebuilding programs. 

As highlighted in the response to 

Comment 39 below, it is important to 

point out that Target TACs are an 

imprecise indicator of whether the 

fishery is achieving OY. As originally 

defined by Amendment 9, and 

described in Section 3.1.4 of 

Amendment 13, ‘‘OY for a stock is 

achieved when fishing at the target F for 

a given stock size.’’ Therefore, the 

important factor determining OY is not 

whether the fishery harvests the Target 

TACs for each stock, but whether the 

fishery is achieving the F targets 

established for each stock. The 

rebuilding programs established under 

Amendment 13 were designed to end 

overfishing and achieve OY for the 

fishery. These rebuilding programs 

comply with National Standard 1 and 

other applicable law in that they end 

overfishing on all stocks managed by the 

FMP and rebuild overfished groundfish 

stocks within the required timeframe. 

Measures proposed by FW 42 are 

necessary to end overfishing for some 

stocks and to continue to achieve the F 

targets established by the Amendment 

13 rebuilding programs. This rebuilding 

strategy was designed to achieve OY, as 

reduced by social, economic, and 

ecological factors, in order to provide 

the greatest benefit to the nation, once 

all stocks are rebuilt, consistent with the 

National Standard 1 guidelines at 

§ 600.310. Because the measures 

proposed by FW 42, including the GOM 

Differential DAS Area, ensure that 

several grounfish stocks remain on the 

Amendment 13 rebuilding trajectory, 

they are also consistent with National 

Standard 1. 

Comment 16: One commenter argued 

that vessels within both the gillnet and 

hook gear sectors of the fishery should 

be exempt from the GOM Differential 

DAS Area restrictions, citing the recent 

decision by NMFS to exempt members 

of the GB Cod Hook Sector from 

differential DAS counting because they 

do not land very much yellowtail 

flounder (71 FR 42087, July 25, 2006). 

Response: NMFS does not believe it is 

appropriate to exempt vessels fishing 

with gillnets or hook gear from the 

requirements of the GOM Differential 

DAS Area for several reasons. First, 

these vessels are not required to use 

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gillnets or hook gear for the entire FY 

and may elect to fish with trawl gear at 

any time during the FY. However, 

members of the GB Cod Hook Sector are 

required to fish with hook gear 

throughout the year. Further, the Sector 

demonstrated through catch reports that 

Sector vessels caught only minimal 

amounts of flatfish, including yellowtail 

flounder. It has not been demonstrated 

that gillnets are capable of avoiding 

yellowtail flounder; in fact, some gillnet 

gear specifically targets flatfish. Second, 

members of the GB Cod Hook Sector are 

restricted by a hard TAC on the amount 

of cod that such vessels can land, 

whereas non-Sector vessels, including 

non-Sector vessels using hook gear, 

would have no such limitation on the 

amount of cod catch and would only be 

restricted by DAS use and daily 

possession limits. Thus, the intent of the 

GOM Differential DAS Area could be 

easily undermined and F could actually 

increase on GOM cod. Third, the GB 

Cod Hook Sector Area is entirely 

outside of the GOM cod stock area and 

these vessels target GB cod, not GOM 

cod. Therefore, it would be 

inappropriate and inconsistent with the 

goals and objectives of this action and 

the FMP to allow vessels using gillnet 

gear and hook gear outside of the GB 

Cod Hook Sector to be exempt from the 

requirements of the GOM Differential 

DAS Area. 

Comment 17: Eight commenters 

suggested that the differential DAS 

counting rate should be kept at 1.4:1 

within the GOM Differential DAS Area. 

Some claimed that incorrect data for 

CC/GOM yellowtail flounder was used 

in the analysis for FW 42 and that, if 

corrected data were used for this stock, 

the need to implement a differential 

DAS rate of 2:1 to reduce F would be 

eliminated. Others claimed that updated 

data describing the effects of the 

emergency measures implemented by 

the April 13, 2006, emergency interim 

final rule will indicate that the fishery 

has already met the necessary F 

reductions for CC/GOM yellowtail 

flounder for 2006, eliminating the need 

for additional F reductions for this 

stock. One other commenter claimed 

that updated data for FY 2005 will 

reveal that the Amendment 13 measures 

were more effective at reducing F for 

most stocks than previously estimated. 

Commenters suggested that differential 

DAS counting within the GOM should 

be limited to FY 2006 only, and that the 

Council should substitute this with 

another measure for FY 2007 and 2008, 

including either eliminating differential 

DAS counting entirely or by substituting 

differential DAS counting with the 

industry proposal offered by the 

Northeast Seafood Coalition during the 

development of FW 42. 

Response: Data used to evaluate 

whether additional measures proposed 

by FW 42 are necessary to meet the F 

targets for 2006 represent the best 

scientific information available. 

Additional catch data identified by the 

commenters were not available at the 

time the Council adopted FW 42 and 

submitted it to NMFS for final review. 

The National Standard 2 guidelines 

indicate that new information that 

becomes available between the initial 

drafting of the action and its submission 

for final review should be incorporated 

into the final action where practicable, 

but only if the information indicates 

that drastic changes have occurred in 

the fishery that could require the 

revision of the proposed action. The 

catch data identified by the commenters 

did not become available until after the 

Council submitted FW 42 to NMFS for 

final review. As a result, no analysis 

was conducted to determine the effects 

of incorporating this information into 

the analysis of the FW 42 measures. 

Because no analysis of the impact of this 

information was provided by the 

commenters, it is uncertain whether this 

additional information would be 

sufficient to indicate that the existing 

management measures, including those 

implemented by the April 13, 2006, 

emergency interim final rule, achieved 

the necessary F reductions for all stocks. 

Further, because the catch data referred 

to by the commenters is preliminary 

information, these data are not sufficient 

to evaluate whether drastic changes 

have occurred in the fishery that could 

require revision of the measures 

proposed by FW 42. However, NMFS 

has no reason to believe that drastic 

changes in the fishery have occurred. 

Because F is evaluated on a CY basis 

instead of a FY basis, it is not 

appropriate to use final landings from 

FY 2005, or even preliminary landings 

from FY 2006, to evaluate whether the 

F targets for CY 2005 were achieved, or 

whether the measures implemented by 

the emergency action were sufficient to 

reduce F for particular stocks for CY 

2006, respectively. Although additional 

data may provide a more accurate 

depiction of catch and effort in the 

fishery during the entire FY 2005 and 

the first portion of FY 2006, as it would 

be in hindsight of any action, 

consideration of such preliminary data 

would further delay FW 42. Because 

measures in the emergency action do 

not fully achieve the necessary F 

reductions in FY 2006 for CC/GOM 

yellowtail flounder, it is critical that FW 

42 be implemented as soon as possible 

in order to prevent overfishing on this 

stock and other stocks and prevent 

delaying the Amendment 13 rebuilding 

programs for all stocks. For a discussion 

regarding the validity of the data used 

to support measures proposed by FW 

42, see the response to Comment 42 

below. Therefore, FW 42 measures are 

based on the best scientific information 

available, consistent with National 

Standard 2. 

The Council never considered a 

differential DAS counting rate of 1.4:1 

within the GOM Differential DAS Area, 

but rather adopted a differential DAS 

counting rate of 2:1 because it met the 

mortality objectives of this action for FY 

2006 through 2008 within a small 

geographic area. In contrast to the 

emergency action that implemented a 

differential DAS counting rate of 1.4:1 

throughout the entire GOM RMA, FW 

42 proposed to implement a higher 

differential DAS counting rate of 2:1 

within a smaller inshore GOM 

Differential DAS Area as part of a 

targeted approach to reduce F on 

overfished stocks while minimizing 

reductions in F for other healthier 

stocks. Under the emergency action, a 

differential DAS counting rate of 1.4:1 

was able to meet the necessary F 

reductions for GOM cod because it was 

applied to the entire GOM RMA, not 

just the inshore portion of the area. 

However, even over this expanded area, 

this lower differential rate was unable to 

achieve the necessary F reduction for 

CC/GOM yellowtail flounder. Therefore, 

it is unlikely that such a revision would 

achieve the necessary F reductions for 

GOM cod and CC/GOM yellowtail 

flounder over the much smaller area 

proposed by the GOM Differential DAS 

Area. The Council did not specify an 

end date for this measure, implying that 

this measure would remain in place 

until changed by a subsequent action. 

The Council may elect to modify or 

revise this measure through a future 

management action. Substituting the 

GOM Differential DAS measure 

proposed in FW 42 with the Northeast 

Seafood Coalition’s proposal, as 

submitted at the March 2006 Council 

meeting, would not be approvable since 

the PDT found that the proposal, as 

proposed, would not achieve the 

necessary F reductions for several 

stocks. 

Comment 18: One commenter 

suggested that NMFS allow vessels to 

declare into the GOM Differential DAS 

Area while at sea in a manner similar to 

the ‘‘flex’’ options. 

Response: In general, NMFS requires 

that vessels declare their intent to fish 

in a particular area via VMS prior to 

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leaving port to ensure effective 

administration, monitoring, and 

enforcement of the area-specific 

provisions such as DAS counting and 

trip limits. Because FW 42 would allow 

a vessel fishing in the Eastern U.S./ 

Canada Area to elect to fish outside of 

this area on the same trip via declaring 

a ‘‘flex’’ trip, NMFS has determined that 

it would be appropriate to also provide 

the industry with an option to declare 

their intent to fish in the GOM 

Differential DAS Area via the ‘‘flex’’

options, as recommended by this 

commenter. Therefore, a vessel could 

elect to ‘‘Flex into the GOM Differential 

DAS Area’’ while at sea to enable it to 

fish in the Eastern U.S./Canada Area 

and the GOM Differential DAS Area on 

the same trip. Alternatively, the vessel 

could declare into this area prior to 

leaving port. More information 

regarding area declarations and 

available ‘‘flex’’ options will be detailed 

in a permit holder letter sent to all 

groundfish vessels. 

Commercial Trip Limits 

Comment 19: Eight commenters 

supported the proposed GB yellowtail 

flounder trip limit. 

Response: NMFS also supports the 

proposed trip limit for GB yellowtail 

flounder and implements this limit 

through this final rule. 

Comment 20: Four commenters 

supported the proposed trip limits for 

CC/GOM and SNE/MA yellowtail 

flounder, while one other commenter 

suggested that such trip limits would 

increase discards. 

Response: FW 42 indicates that, 

although the proposed trip limits may 

increase discard rates for CC/GOM and 

SNE/MA yellowtail flounder, the 

amount of discards should actually 

decrease due to effort reductions in the 

form of the default DAS reduction and 

GOM and SNE Differential DAS Areas 

also proposed in FW 42. Further, the 

proposed mesh revision in the SNE/MA 

RMA should also decrease discards of 

SNE/MA yellowtail flounder. The 

proposed trip limits for CC/GOM and 

SNE/MA yellowtail flounder may also 

decrease discards by standardizing the 

trip limits between the two stock areas 

and throughout the FY. Analysis 

conducted for this action accounts for 

discard mortality when evaluating the 

efficacy of the proposed trip limits on F. 

Based on this analysis, the proposed trip 

limits are necessary to achieve the 

rebuilding objectives of this action. 

Comment 21: Three commenters 

supported the proposed trip limit of 

5,000 lb/trip (2,268 kg/trip) for GB 

winter flounder, while four commenters 

supported a trip limit of 7,500 lb/trip 

(3,402 kg/trip) and one commenter 

thought it should be 10,000 lb/trip 

(4,536 kg/trip) instead. Those 

supporting a higher trip limit suggest 

that the higher trip limit is supported by 

the FW 42 analysis. 

Response: Two of the alternatives 

considered by the Council during the 

development of FW 42, Alternative B2 

and E (modified), included a GB winter 

flounder trip limit of 750 lb/DAS (340 

kg/DAS), up to 7,500 lb/trip (3,402 kg/ 

trip). However, the Council modified 

the GB winter flounder trip limit in 

Alternative B2 to 5,000 lb/trip (2,268 kg/ 

trip) by unanimous consent and 

subsequently adopted this revised 

alternative as its preferred alternative 

for FW 42. Council members expressed 

concern that excessive discards would 

result under a daily possession limit for 

this stock, suggesting that an overall trip 

limit of 5,000 lb/trip (2,268 kg/trip) 

would more effectively reduce discards 

by minimizing the time necessary to 

catch the GB winter flounder trip limit. 

The proposed trip limit of 5,000 lb/trip 

(2,268 kg/trip) was selected based on the 

average trip duration of seven DAS 

multiplied by the proposed daily trip 

limit of 750 lb/DAS (340 kg/DAS) (7 

DAS × 750 lb/DAS (340 kg/DAS) = 5,250 

lb/trip (2,381.4 kg/trip)). Because the 

Council did not analyze the 10,000 lb/ 

trip (4,536 kg/trip) limit suggested by 

one commenter, it is unknown whether 

this trip limit would achieve the 

necessary F reductions for this stock, 

given the other measures proposed by 

FW 42. Therefore, implementation of 

the proposed GB winter flounder trip 

limit of 5,000 lb/trip (2,268 kg/trip), 

which was demonstrated to achieve the 

necessary F reductions, is justified. 

Regular B DAS Program 

Comment 22: Seven commenters, 

including the DMR, supported the 

proposed revisions to the Regular B 

DAS Program. One of these commenters 

stated that this program was important 

to help mitigate the economic impacts 

of recent effort reductions. 

Response: NMFS agrees that this 

program is an important way for vessels 

to mitigate the economic impacts of 

recent effort reductions and that the 

proposed revisions to this program 

would allow vessels to use Regular B 

DAS to target healthy stocks without 

compromising the rebuilding efforts of 

overfished stocks. 

Comment 23: Two commenters 

suggested that NMFS should maximize 

the observer coverage to improve the 

effectiveness of this program. One 

commenter indicated that the 3-day 

Observer Program notice is 

unreasonable and unfairly limits the 

flexibility of vessel operations. 

Response: A relatively high rate of 

observer coverage (a target observer 

coverage rate of approximately 36 

percent based on previous observer 

coverage) is specified for this program. 

During the recent pilot phase of this 

program, approximately 36 percent of 

trips into this program were observed. 

NMFS believes the current observer 

coverage rate is sufficient to effectively 

monitor this program without 

compromising efforts to observe vessel 

operations in the rest of the fishery. A 

3-day notice is necessary to allow the 

Observer Program to deploy observers 

and ensure that the proper amount of 

coverage for this program is achieved 

throughout the FY. 

Comment 24: One commenter 

observed that the overall Target TACs 

and resulting Incidental Catch TACs for 

several species are too small to support 

an active Regular B DAS Program in the 

GOM. Three other commenters 

contended that the program offers little 

value to vessels unless they are capable 

of fishing on GB for haddock. 

Response: Because of the need to 

reduce F for several stocks in the GOM 

and SNE RMAs, the Target TACs and 

Incidental Catch TACs for several 

species are necessary to achieve the F 

objectives in FW 42. Therefore, 

participation in the Regular B DAS 

Program will likely be limited by the 

availability of the incidental catch TACs 

for specific stocks of concern, in 

particular GOM cod and CC/GOM 

yellowtail flounder, which have 

quarterly Incidental Catch TACs as low 

as 6.7 mt (14,771 lb, or 6,700 kg) and 0.8 

mt (1,764 lb, or 800 kg), respectively. 

FW 42 identifies several healthy 

groundfish stocks that may be targeted 

by vessels participating in the Regular B 

DAS Program: GB haddock, redfish, 

pollock, GOM winter flounder, and 

GOM haddock. Therefore, although 

limited, this program offers benefits to 

participating vessels in both the GOM 

and GB, to the extent practicable, 

provided vessels can selectively target 

these stocks without catching large 

quantities of the stocks of concern. 

Comment 25: Three commenters, 

including the DMF, stated that it is 

impossible for gillnet vessels and small 

trawl vessels to effectively participate in 

this program, given the proposed small 

possession limits and the haddock 

separator trawl requirement. One 

commenter specifically requested a 

special Regular B DAS Program for 

gillnet vessels, stating that these vessels 

cannot fish with the haddock separator 

trawl. 

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Response: The proposed measures 

outlined for the Regular B DAS Program 

only require trawl vessels to fish with a 

haddock separator trawl when 

participating in this program. Gillnet 

vessels may fish with gillnet gear under 

this program. Gillnet vessels will be 

limited to 100 lb/DAS (45.4 kg/DAS) for 

each stock of concern and will not be 

limited to the restrictive trip limits for 

monkfish, flounders, skates, and 

lobsters required by the haddock 

separator trawl performance standards 

proposed for trawl vessels fishing in the 

Regular B DAS Program. The intent of 

this program is to selectively target 

healthy stocks (primarily haddock) 

while avoiding stocks of concern. The 

restrictive possession limits are 

necessary to reduce incentives to catch 

stocks of concern, which would 

compromise the effectiveness of the 

haddock separator trawl. 

Comment 26: Three commenters 

requested that NMFS make several 

revisions to the proposed requirements 

for the Regular B DAS Program, as 

follows: (1) Remove the haddock 

separator trawl requirement; (2) 

eliminate the restrictive trip limits of 

500 lb/trip (227 kg/trip) for flatfish and 

monkfish outlined in the Gear 

Performance Incentives; (3) increase the 

possession limits of groundfish stocks of 

concern proportionate to the Incidental 

Catch TACs for these stocks; and (4) 

increase the number of Regular B DAS 

allocated in each quarter, using catch 

rates from the Regular B DAS Pilot 

Program. These commenters stated that 

the proposed gear requirement would 

eliminate the incentive to test and 

improve the effectiveness of other gear 

under this program. Further, they 

question the effectiveness of the 

haddock separator trawl. These 

commenters contend that the proposed 

trip limits are confusing, are not 

supported by any identified 

conservation or management objectives, 

and that the quarterly Incidental Catch 

TACs and DAS limits provide sufficient 

protection for stocks of concern. 

Although the commenters supported the 

concept of gear performance standards, 

they contested that the proposed 

standards are arbitrary since the 

performance of the separator trawl to 

date indicates that this gear is not 

capable of achieving these standards. 

Three other commenters, including the 

DMR, supported the proposed Gear 

Performance Incentives for Special 

Management Programs, stating that they 

minimize incentives to compromise the 

effectiveness of the haddock separator 

trawl. 

Response: The intent of the proposed 

haddock separator trawl requirement 

was to facilitate the harvest of healthy 

stocks such as haddock and pollock, 

while reducing the catch of overfished 

stocks such as cod, yellowtail flounder, 

and winter flounder. When properly 

configured, the haddock separator trawl 

is capable of effectively reducing the 

catches of cod, flounders, and other 

bottom-dwelling species such as 

monkfish, skates, and lobsters when 

targeting haddock. However, when 

improperly configured, the net is 

capable of catching larger amounts of 

these species, as observed in the recent 

performance of the haddock separator 

trawl in the NE multispecies fishery. 

The proposed Gear Performance 

Incentives, reflected in the trip limits 

associated with the use of the haddock 

separator trawl in the Regular B DAS 

Program and the Eastern U.S./Canada 

Haddock SAP, were developed by the 

Council to increase incentives to 

configure the gear properly to avoid 

catching cod, flounder, skates, 

monkfish, and lobsters, thereby 

minimizing bycatch and time sorting 

catch on deck. These performance 

incentives were first proposed by the 

Groundfish Advisory Panel and later 

modified by the Groundfish Oversight 

Committee to provide a minimal 

allowance of bycatch of these other 

species. The proposed performance 

incentives are similar to the results 

achieved by a 1992 experiment by the 

Canadian Department of Fisheries and 

Oceans to test the performance of a 

haddock separator trawl. These 

standards are necessary to help promote 

and help ensure that the haddock 

separator trawl is used as intended in 

order to reduce catches of stocks of 

concern and prolong the availability of 

Incidental Catch TACs and access to 

this program. FW 42 does provide a 

mechanism whereby additional gears 

can be authorized in this program. The 

Council did not increase the number of 

Regular B DAS allocated to each quarter, 

as suggested by the commenter, but 

instead chose to reduce the number of 

Regular B DAS allocated to the first 

quarter to reduce the impact of this 

program on spawning fish. NMFS finds, 

therefore, that the suggested revisions to 

the Regular B DAS Program are not 

justified. 

Comment 27: The Council 

recommended that NMFS consider 

requiring vessels participating in the 

Regular B DAS Program within the 

proposed differential DAS Areas to 

declare their intent to fish in these areas 

prior to leaving port to accurately count 

DAS, should the vessel is required to 

flip its DAS, in order to simplify 

enforcement and administration of this 

measure. 

Response: As proposed, vessels would 

only be charged DAS at the differential 

DAS counting rate of 2:1 when declared 

into either the GOM or the SNE 

Differential DAS Areas and fishing 

under a Category A DAS. Because a 

vessel participating in this program is 

not subject to differential DAS counting 

while under a Regular B DAS, NMFS is 

requiring vessels to declare their intent 

to fish within the differential DAS Areas 

only when flipping to a Category A 

DAS. NMFS believes that the measure, 

as proposed, is sufficient to simplify 

administration and enforcement of this 

provision. 

Renewal of DAS Leasing Program 

Comment 28: Nine commenters, 

including the DMR, supported the 

extension of the DAS Leasing Program, 

as it mitigates the economic impacts of 

recent and continuing effort reductions. 

Six commenters, including the DMF, 

contest this belief and suggest that the 

leasing program will not mitigate the 

economic impacts of recent effort 

reductions, but will instead increase 

effort, and therefore F, on GOM cod, and 

result in further effort reductions and 

economic impacts in the future. 

Response: The DAS Leasing Program 

provides benefits to fishermen that help 

offset some of the economic and social 

impacts resulting from continued effort 

reductions in the fishery. Analysis of 

the impacts of the DAS Leasing Program 

indicates that it is difficult to isolate the 

impacts of the DAS Leasing Program 

from the impacts of other management 

measures. However, an estimation of the 

impact from this program indicated that 

landings of most stocks by lessee vessels 

increased during CY 2004 when 

compared to their landings in CY 2003, 

suggesting that the leasing program is 

responsible for nominal increases in 

landings and F for these stocks. 

Although landings of GOM cod 

increased by approximately 3 percent, 

the stocks for which the DAS Leasing 

Program contributed the highest 

increase in landings (GB haddock, 

pollock, redfish, witch flounder, and 

American plaice) are all considered 

healthy stocks that do not need F 

reductions to maintain the Amendment 

13 rebuilding program. This suggests 

that the DAS Leasing Program actually 

increases landings of these healthy 

species, thereby increasing the 

likelihood that the fishery will harvest 

OY from these stocks. The analysis 

further indicated that the DAS Leasing 

Program provided regulatory relief that 

allowed lessee vessels, on average, to 

fish enough DAS to cover their overhead 

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and crew expenses, resulting in 

economic benefits to the fishery. As a 

result, the DAS Leasing Program does, 

in fact, help mitigate the economic 

impacts of recent effort reductions. 

National Standards 5 and 8 require that 

management measures consider 

efficiency in the utilization of fishery 

resources, where practicable, and 

provide for the sustained participation 

of fishing communities, respectively, 

consistent with the conservation 

objectives of the FMP. Consistent with 

these national standards, this final rule 

continues the DAS Leasing Program in 

order to increase the efficient utilization 

of fishery resources and help provide a 

means of mitigating some of the 

economic impacts of effort reductions in 

the fishery to promote continued 

participation. FW 42 concludes that the 

DAS Leasing Program, in light of other 

measures in FW 42, will not undermine 

conservation objectives of this action or 

the FMP. 

Comment 29: Five commenters, 

including the DMF, asserted that the 

DAS Leasing Program is discriminatory 

because it consolidates DAS onto fewer 

vessels, preventing other vessels from 

gaining access to the fishery, suggesting 

an inconsistency with National 

Standard 4. Further, they claimed that 

smaller vessels that fish within the 

GOM are effectively restricted from 

participating in the DAS Leasing 

Program due to the proposed differential 

DAS counting in the inshore GOM and 

the higher cost to lease DAS to fish in 

this area. 

Response: The DAS Leasing Program 

was designed with several provisions 

that limit the potential for consolidation 

of DAS within the fleet, including a cap 

on the number of DAS that a vessel 

could lease and limiting leases to 

vessels that are within specific size 

restrictions of the lessor vessel. As 

specified above, the DAS Leasing 

Program allows active groundfish 

vessels to continue to participate in the 

fishery by acquiring additional DAS 

from other vessels. An evaluation of the 

DAS Leasing Program reveals that this 

program allowed lessee vessels, 

including small trawl vessels, to fish 

enough DAS to cover overhead and 

crew expenses. This analysis also points 

out that the DAS Leasing Program 

resulted in a net increase in DAS for 

vessels operating out of Massachusetts, 

a state bordering the GOM. The FW 42 

analysis acknowledges that vessels that 

have traditionally fished within the 

GOM Differential DAS Area may have a 

difficult time acquiring sufficient DAS 

through the DAS Leasing Program to 

fish in this area due to differential DAS 

counting. However, as noted above, 

differential DAS counting is necessary 

to achieve the conservation objectives of 

this action. Should a vessel determine 

that it is not profitable to fish within the 

GOM, given the impact of differential 

DAS counting, the DAS Leasing 

Program would enable such vessels to 

earn some revenue by leasing DAS to 

other vessels. Because the DAS Leasing 

Program does not contain any provision 

that discriminates among participants 

based on state of residence or any other 

criteria and makes no direct or 

deliberate distribution of DAS among 

individuals, the continuation of the 

DAS Leasing Program is consistent with 

the guidelines developed for National 

Standard 4 and contributes towards 

achieving goals 4 and 5 and objective 7 

of the FMP as defined in Amendment 

13. 

Renewal and Modification of the 

Eastern U.S./Canada Haddock SAP 

Comment 30: Six commenters, 

including the DMR, expressed general 

support for the renewal and proposed 

modifications to the Eastern 

U.S./Canada Area Haddock SAP. 

Response: NMFS has also approved 

the proposed modifications to this SAP 

and continues it through FY 2008. 

GB Cod Fixed Gear Sector 

Comment 31: Thirty commenters 

expressed support for the proposed GB 

Cod Fixed Gear Sector, as it facilitates 

responsibility and accountability in the 

fishery, protects cod, and limits effort 

shifts within the fishery. Twenty-five 

commenters suggested that NMFS 

should correct the Fixed Gear Sector 

Area to reflect the larger area proposed 

by the Sector Operations Plan, rather 

than the existing GB Cod Hook Gear 

Sector Area, as this could facilitate 

pursuit of an offshore monkfish fishery 

while accounting for GB cod caught. 

Response: NMFS agrees that the 

proposed Sector facilitates 

responsibility and accountability within 

the fishery. In addition, NMFS agrees 

that the proposed measure limits effort 

shifts within the fishery by requiring 

that Sector vessels fish with specific 

gear within a specific area. Further, by 

limiting catches of cod to a hard TAC, 

the proposed Sector ensures that F on 

GB cod from this Sector will not exceed 

its F targets. Because the catches of 

other species are regulated by DAS, 

NMFS believes that the proposed Sector 

is consistent with the F objectives of 

this action for other species and the 

overall objectives of the FMP. 

Because the FW 42 document did not 

identify a geographic area associated 

with the proposed GB Cod Fixed Gear 

Sector, NMFS proposed that the GB Cod 

Fixed Gear Sector Area be the same as 

the GB Cod Hook Gear Sector Area, 

based on the fact that the goals of the 

GB Cod Fixed Gear Sector are very 

similar to those of the GB Cod Hook 

Gear Sector. The GB Cod Fixed Gear 

Sector submitted an Operations Plan 

requesting that Sector participants be 

allowed to fish in an area larger than the 

GB Cod Hook Sector Area identified in 

the FW 42 proposed rule in order to 

pursue an offshore gillnet fishery for 

monkfish. A proposed rule (August 22, 

2006, 71 FR 48903) soliciting public 

comment on this Operations Plan is 

currently under review. 

Comment 32: One commenter 

opposed the proposed Fixed Gear 

Sector, stating that NMFS should not 

encourage distribution of public 

resources into the control of private 

groups for their exclusive use. This 

commenter indicated that the proposed 

Sector neither advances rebuilding 

objectives, nor mitigates economic or 

social impacts of Amendment 13, and 

recommends that NMFS should expand 

participation in the fishery consistent 

with the 14th Amendment to the U.S. 

Constitution. Two commenters 

expressed concern that an exemption 

from the gillnet limits for the proposed 

Sector will allow vessels to exclusively 

target cod and then shift effort to other 

species, thereby reducing the 

effectiveness of the existing limit on the 

number of gillnets that may be fished by 

Day gillnet vessels and increasing effort 

on pollock and monkfish. 

Response: Amendment 13 created the 

mechanism by which sectors can be 

formed. The objective of sectors is to 

provide incentives for groups of similar 

vessels (by port, gear type, size, etc.) to 

regulate themselves in an efficient and 

effective manner (see Section 3.4.16 of 

Amendment 13). Sectors also provide a 

mechanism for capacity reduction 

through consolidating effort onto fewer 

vessels, thereby ‘‘reducing the cost of 

operations and possibly facilitating the 

profitable exit of some individual vessel 

owners from the fishery.’’ The creation 

of a sector does not deprive other 

vessels from participating in the fishery, 

or from other fishing opportunities. 

Rather, it limits the fishing activities of 

a specific group of vessels to their 

historic participation in the fishery. 

Amendment 13 also requires that a 

sector stay within its allocation of GB 

cod and/or other hard TACs, which 

ensure that the sectors achieve the goals 

of the FMP for these species. Further, 

sectors provide substantial benefits to 

participants by creating incentives to 

regulate themselves in an effective and 

efficient manner. 

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The proposed Sector is limited by 

both a hard TAC on GB cod and by DAS 

for all other species. Therefore, Sector 

vessels would be required to use a NE 

multispecies DAS and/or monkfish DAS 

on every fishing trip and would be 

required to abide by all other 

regulations, unless specifically 

exempted by the Regional 

Administrator. As a result, the concern 

that Sector vessels could reduce the 

effectiveness of the gillnet limitation on 

pollock and monkfish by shifting effort 

onto these species appears unfounded. 

Section 303(b) of the MagnusonStevens Act allows the establishment of 

a limited access system in a fishery to 

achieve OY. NMFS believes that it 

would be inappropriate to expand 

participation in the fishery beyond its 

current capacity, as this would 

compromise the Amendment 13 

rebuilding programs and prevent the 

groundfish fishery from achieving OY. 

Comment 33: Seven commenters 

recommended that NMFS only approve 

the proposed Sector if it would be 

allocated hard TACs for all stocks. 

Another commenter indicated that the 

proposed Sector should have hard TACs 

for bycatch species and monkfish. One 

other commenter opposed the approval 

of Sectors with a combination of both 

DAS and hard TACs as the primary 

management measures and indicated 

that the proposed Sector could cause 

effort to be redirected, having a 

significant impact on the rest of the 

fleet. 

Response: Section 3.4.16 of 

Amendment 13 describes the 

mechanism by which sectors may be 

formed, indicating that ‘‘Allocations to 

each sector may be based on catch (hard 

TACs) or effort (DAS) with target TACs 

specified for each sector.’’ Although 

there has been some debate whether 

new sectors should be managed 

exclusively by either hard TACs or DAS 

restrictions, NMFS approved the GB 

Cod Hook Sector Operations Plan with 

a combination of both hard TACs and 

DAS limits after determining that DAS 

limits provide sufficient protection of 

stocks not subject to the hard TACs 

specified for a particular sector. In FW 

42, the Council approved the GB Cod 

Fixed Gear Sector, which explicitly 

included a combination of hard TAC 

management for GB cod and DAS to 

manage all other groundfish stocks. It 

was unclear from the comment received 

how such sectors could cause effort to 

be redirected and what impact it would 

have on the rest of the fleet. As 

discussed in the response to Comment 

32, the proposed Sector should not 

result in significant effort shifts, as 

Sector vessels would be limited to 

specific gear and area restrictions. By 

staying within these restrictions, Sector 

operations should not affect whether the 

rest of the fishery achieves the 

conservation objectives for GB cod and 

would have a minimal impact on 

potential future effort reductions in the 

fishery. 

Eastern U.S./Canada Area Flexibility 

Comment 34: Ten commenters, 

including the DMR, supported the 

proposed measure to allow vessels to 

fish inside and outside of the Eastern 

U.S./Canada Area on the same trip, as 

it provides important flexibility in 

vessel operations in the event of bad 

weather or poor fishing opportunities. 

Response: NMFS has approved this 

measure and implements it through this 

final rule. 

Modification of the DAS Transfer 

Program 

Comment 35: Eleven commenters, 

including the DMR, expressed support 

for the proposed modifications to the 

DAS Transfer Program, as they would 

increase the utility and effectiveness of 

the program. One commenter opposed 

allowing vessels to fish commercially 

after transferring its DAS, believing 

instead that the vessel should be 

permanently removed from all fisheries. 

Response: Previous requirements to 

permanently exit all fisheries upon 

transferring DAS contributed to 

dissuading any vessel from participating 

in this program. This undermined the 

purpose and effectiveness of the 

program and neither reduced capacity 

in the NE multispecies fishery, nor 

increased the efficiency of the fleet, as 

intended. NMFS believes that the 

proposed modifications would provide 

incentives for vessels to participate in 

the program, thereby permanently 

reducing capacity and increasing 

efficiency in the NE multispecies fishery 

and has, therefore, approved this 

program as proposed in FW 42. 

Standardized Requirements for Special 

Management Programs 

Comment 36: Three commenters, 

including the DMR and the Council, 

believe that NMFS should continue to 

require vessels to declare the statistical 

area in which fish were caught via VMS. 

These commenters state that there has 

been no analysis to demonstrate that 

VMS location can be reliably used to 

assign catch to a particular statistical 

area, especially considering that some 

stocks are not uniformly distributed 

within all stock areas. In addition, the 

DMR suggested that NMFS require 

vessels to report catch by 30′ squares. 

Response: The proposed elimination 

of this reporting requirement was 

intended to reduce the reporting burden 

on vessels participating in the Regular B 

DAS Program and for vessels fishing 

inside and outside of the Western U.S./ 

Canada Area on the same trip. However, 

NMFS acknowledges that because some 

stocks are not uniformly distributed 

within all stock areas, it would be 

difficult to utilize VMS to accurately 

assign catch to a particular statistical 

area and reinserts this requirement into 

the final rule, thereby maintaining the 

requirement to report the statistical area 

in which fish were caught when 

participating in these programs. If 

appropriate, the Council may 

recommend that vessels report catch by 

30′ squares by proposing such 

requirements in a subsequent action. 

Modification of Cod Landing Limit in 

Eastern U.S./Canada Area 

Comment 37: Nine commenters 

supported the modification to the GB 

cod trip limit in the Eastern U.S./ 

Canada Area. 

Response: NMFS has approved the 

proposed trip limit modification for GB 

cod and implements it through this final 

rule. 

SNE/MA RMA Trawl Codend Mesh 

Requirement 

Comment 38: Four commenters 

supported the proposed revision of the 

SNE/MA RMA trawl mesh requirements 

because it maintains consistency with 

mesh requirements in other areas and 

provides an incentive to use diamond 

mesh to reduce discards of yellowtail 

flounder. 

Response: NMFS has approved the 

proposed measure and implements it 

through this final rule. 

Regional Administrator Authority To 

Adjust Trip Limits for Target TAC 

Stocks 

Comment 39: Eleven commenters, 

including the Council, expressed 

support for the proposed Regional 

Administrator authority to adjust trip 

limits upwards to facilitate the harvest 

of the Target TACs specified for six 

species, stating that it would facilitate 

the harvest of OY in these fisheries. Two 

of these commenters contested concerns 

expressed in the proposed rule that this 

measure would be problematic to 

administer, stating that the Regional 

Administrator has sufficient real-time 

data to effectively project whether the 

Target TAC would be harvested to allow 

trip limits to be increased. One 

commenter opposed this provision, 

indicating that the proposed Target 

TACs are set too high, that there is 

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limited real-time monitoring capability, 

that the proposed measure does not also 

include a provision to reduce Target 

TACs, and that Target TACs are not 

effective for determining whether the 

management program is meeting F 

targets. 

Response: Contrary to assertions made 

by several commenters, sufficient data 

are not available to adequately assess 

total catch for these six species on a 

real-time basis. The Target TAC for 

GOM cod is based on commercial 

landings, discards, and recreational 

harvest. Data on the recreational harvest 

of GOM cod are not available on a realtime basis and are only available at the 

end of the FY. Because recreational 

harvest of GOM cod is a substantial 

component of the overall catch of this 

stock (approaching 43 percent of the 

total catch in 2004) and has varied 

considerably within the past 10 years, it 

is not possible to accurately project the 

total harvest of this stock throughout the 

fishery on a real-time basis. Further, 

discard estimates are generated in 

several ways. For some stocks (e.g., 

GOM cod), discard estimates are derived 

from observer data on a quarterly basis. 

However, the availability of these data 

would be inadequate for real-time 

projections of total catch. For other 

stocks (e.g., CC/GOM and SNE/MA 

yellowtail flounder, in particular), 

discards are estimated using VTRs. 

However, discard data from VTRs are 

not considered reliable and are subject 

to change. Therefore, there is 

considerable uncertainty regarding the 

data available to project total harvest of 

particular stocks on a real-time basis. 

Because of these limitations, the data 

available to implement this measure 

would not constitute the best available 

scientific information, as required by 

National Standard 2. In addition, 

section 303(a)(8) of the MagnusonStevens Act requires that an FMP 

specify the nature and extent of 

scientific data needed for the effective 

implementation of the FMP. As detailed 

above, without additional real-time 

reporting requirements to provide 

reliable and timely catch and discard 

data from both the commercial and 

recreational sectors, NMFS would not 

have sufficient real-time data to 

accurately monitor catch of particular 

species within the fishery. Therefore, 

this measure is not consistent with 

National Standard 2 or the required 

provisions of the Magnuson-Stevens Act 

and NMFS has disapproved it. 

Regional Administrator Authority To 

Adjust Measures in the U.S./Canada 

Management Area 

Comment 40: Five commenters 

expressed general support for the 

Regional Administrator authority to 

adjust measures in the U.S./Canada 

Management Area. 

Response: NMFS believes that this 

measure increases the flexibility of the 

Regional Administrator to adjust the 

measures regulating vessel operations in 

the U.S./Canada Management Area to 

facilitate harvesting or prevent the 

fishery from exceeding specified U.S./ 

Canada Management Area TACs for GB 

cod, GB haddock, and GB yellowtail 

flounder, or to prevent these TACs from 

being exceeded at any time during the 

FY. Such flexibility eases the 

administration and monitoring of these 

TACs and allows more effective and 

efficient management of the resources 

within this area without compromising 

the conservation objectives of the FMP. 

General Comments 

Comment 41: One commenter 

suggested that NMFS extend the 

emergency action and eight commenters 

requested that NMFS implement the 

measures proposed by FW 42 as soon as 

possible, arguing that the measures 

implemented by the April 13, 2006, 

emergency interim final rule do not 

meet the conservation objectives, but 

that FW 42 would meet these objectives. 

Four of these commenters expressed 

their preference for another alternative 

considered by the Council during the 

development of FW 42, Alternative E 

(modified). 

Response: The emergency measures 

implemented by the April 13, 2006, 

emergency interim final rule were 

meant as a stop-gap measure to 

immediately reduce F on specific 

stocks, but they were never meant to 

achieve the full conservation objectives 

for 2006 without subsequent 

implementation of additional measures 

proposed by FW 42. Because the 

emergency measures are not intended to 

achieve the necessary F reductions in 

2006 for all stocks, it is not appropriate 

to continue these measures. Therefore, 

NMFS agrees that it is important to 

implement approved FW 42 measures as 

quickly as possible to ensure that the 

conservation objectives are fully met for 

2006. Alternative E was considered, but 

not adopted by the Council during the 

development of FW 42 because the 

underlying conservation measure to 

reduce F was based on charging DAS 

used in 24-hr increments. Several 

Council members expressed concern 

that this alternative would pose greater 

risk to vessel safety than the alternative 

adopted in FW 42. 

Comment 42: Two individuals 

questioned the validity of the science 

used to support measures proposed by 

FW 42. Sixteen other commenters, 

including the DMF, argued that the 

analysis supporting FW 42 is 

inconsistent with National Standard 2. 

They assert that the CAM used to 

evaluate the proposed measures is not 

considered the best available science 

because it assumes a ‘‘linear 

relationship between catch-per-uniteffort (CPUE) and effort’’ without 

sufficient supporting evidence that such 

a relationship exists. Also, they suggest 

that the assumptions used by the CAM 

are invalid, including overestimating 

the CPUE for CC/GOM yellowtail 

flounder, and that the model does not 

have sufficient resolution to predict 

individual vessel behavior. 

Response: The CAM is the primary 

tool used to evaluate the effectiveness of 

the proposed measures at achieving the 

necessary F reductions for this action. In 

2001, the fundamental structure of the 

CAM was reviewed and endorsed by the 

Social Sciences Advisory Committee of 

the Council. In addition, a second 

review of this model was conducted by 

a panel of independent experts in 

January 2004. Based upon this second 

review, slight modifications to the CAM 

were performed to enhance the 

effectiveness of the model. Comparing 

the results of the CAM to the change in 

F between CY 2001 and CY 2004 

observed by GARM II indicates that the 

CAM results were a reasonable 

approximation of the effectiveness of 

the Amendment 13 measures in terms of 

realized F for most stocks. Although the 

commenters highlight additional and 

ongoing evaluations of the performance 

and adequacy of the CAM, to date these 

reviews have yet to be completed and 

submitted to the Northeast Fisheries 

Science Center for review. 

Commenters offered several criticisms 

of the CAM that have been determined 

to be inaccurate. First, the CAM is a 

non-linear model based on profit, not 

catch. The marginal profit of a particular 

vessel is considered non-linear, 

affecting where and when the vessel is 

expected to fish to maximize profit. 

However, CPUE is assumed to be 

constant and does not change regardless 

of how much effort is attributed to a 

particular block fished in an effort to 

maximize profit. 

Assertions that changes in the CC/ 

GOM yellowtail flounder CPUE used in 

the model would affect whether the 

proposed measures are able to achieve 

the necessary F reductions are also 

inaccurate. The CAM evaluates the 

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changes in exploitation from the 

proposed measures relative to statusquo measures. Therefore, if the same 

CPUE for CC/GOM yellowtail flounder 

is used to evaluate exploitation for both 

status-quo and proposed measures, then 

the relative change in exploitation 

between the two sets of measures would 

be the same, regardless of the value of 

the CC/GOM yellowtail flounder CPUE 

used by the model. The end result is 

that the fishery requires a 40-percent 

reduction in exploitation (or 46-percent 

reduction in F) to maintain the 

Amendment 13 rebuilding program for 

this stock. In addition, applying the 

same logic used to argue that the CPUE 

for CC/GOM yellowtail flounder was 

overestimated in the evaluation of FW 

42 (that the absence of trip limits for 

this stock during the 2001–2004 period 

used to calculate the average CPUE for 

the CAM overestimate the actual CPUE 

for this stock) would suggest that the 

CPUE for GOM cod was underestimated 

in the evaluation of FW 42, as the 

proposed trip limit of 800 lb/DAS (363 

kg/DAS) is substantially higher than the 

400–800 lb/DAS (181 kg–363 kg/DAS) 

trip limits implemented between 2001–

2004 and used as the average CPUE in 

the CAM. 

The commenters repeatedly infer that 

catch is an adequate measure of the 

performance of the fishery. They state 

that the small reductions in Target TAC 

signify that only small F reductions are 

necessary, eliminating the need for 

draconian management measures. 

However, the reason the Target TACs 

are not as large as the required F 

reductions is because the projection 

model used to calculate Target TACs 

assumes that biomass increases because 

F is reduced to the necessary levels 

upon implementation of the proposed 

measures. As discussed in the response 

to Comment 39, the true indicator of the 

performance of the fishery is F, not 

catch. Even though the fishery may 

underharvest the Target TAC for a 

particular stock during the FY, the F 

may still be too high for that CY. The 

CAM does not evaluate the proposed 

measures based on expected catch, but 

rather relative changes in exploitation, 

which is then converted into F. Because 

F is evaluated on a CY basis and not a 

FY basis, it is inaccurate to compare 

catch from a particular FY with F for a 

particular CY. 

One of the commenters stated that the 

CAM only evaluates the impacts on 10 

of the 20 stocks managed by the FMP. 

This is not correct, as the CAM assesses 

the impacts of proposed measures on 19 

of the 20 stocks managed by the fishery 

(Atlantic halibut is not included in the 

CAM). 

Finally, contrary to assertions made 

by the commenters, the CAM uses the 

fishing locations of similarly-configured 

vessels from their fishing ports to 

determine whether vessels would shift 

effort into areas that they had never 

fished previously. Because the CAM 

uses data from VTRs, the CAM is 

limited in its resolution regarding time 

and area fished. However, the CAM is 

able to sufficiently predict individual 

vessel behavior to maximize profits 

based on the available data. Additional 

reporting requirements would need to 

be implemented to improve the data 

available to, and the resolution of, the 

existing model. The commenters did not 

question the validity of the economic 

analysis conducted for FW 42, despite 

the fact that the economic analysis relies 

upon the output from the CAM to 

estimate impacts on the fleet and fishing 

communities. In summary, NMFS has 

determined that the information relied 

on, and the analysis conducted, 

including analysis using the CAM, 

represents the best scientific 

information available, consistent with 

National Standard 2. 

Comment 43: One commenter 

recommended that the GOM cod 

possession limit remain at 600 lb/DAS 

(272 kg/DAS) during FY 2006 to 

minimize incentives to target GOM cod 

and then increase the trip limit to 800 

lb/DAS (363 kg/DAS) in FY 2007, once 

the stock starts to improve. 

Response: Emergency measures 

implemented by the April 13, 2006, 

emergency interim final rule established 

a GOM cod trip limit of 600 lb/DAS (272 

kg/DAS) to minimize incentives to 

target GOM cod in the short term under 

that action. However, in light of the 

other measures proposed in FW 42, the 

Council decided that it was not 

necessary to change the proposed trip 

limit of 800 lb/DAS (363 kg/DAS) in FW 

42. The analysis for FW 42 concluded 

that a change in the trip limit was not 

necessary to achieve the necessary F 

reductions for GOM cod, given the suite 

of measures proposed by FW 42, 

including the default DAS reduction 

and the GOM Differential DAS Area. By 

leaving the trip limit at 800 lb/DAS (363 

kg/DAS) bycatch is reduced and 

economic impacts on the fishing 

industry is mitigated. 

Comment 44: Some commenters 

believed that the development of FW 42 

was rushed and that the Council was 

not given enough time to develop a 

workable solution to address the 

conservation objectives of the action. 

Fifteen commenters argued that the 

public were not given adequate 

opportunity to evaluate the alternatives 

considered by Council because the 

social and economic analysis of two of 

the alternatives developed by the PDT 

(Alternative E (modified) and 

Alternative B2—the preferred 

alternative adopted by the Council) was 

not available for public review prior to 

the Council’s vote to adopt a preferred 

alternative in FW 42. Twelve 

commenters believed that the social and 

economic impacts of the proposed 

measures were not given meaningful 

consideration during the development 

of FW 42, while four other commenters 

specifically stated that a full 

environmental impact statement (EIS) 

should have been prepared for this 

action because socio-economic impacts 

and sacrificed OY resulted from an 

inadequate range of alternatives. 

Finally, two commenters advocated that 

NMFS should disapprove FW 42 and 

remit it to the Council for further 

evaluation and consideration in order to 

reconsider whether effort controls are 

adequate in this fishery. 

Response: The timeline available to 

develop FW 42 was based on the 

Amendment 13 requirement to 

implement any modifications to the 

management measures necessary to 

achieve the Amendment 13 F targets for 

each species and maintain the 

Amendment 13 rebuilding programs by 

the start of FY 2006 on May 1, 2006. The 

development of FW 42 began in January 

2005 and involved more than 10 public 

meetings, including 5 Groundfish 

Oversight Committee and 5 Council 

meetings. In addition, the PDT held 

more than 19 conference calls and 

meetings that were often attended by 

members of the public. To ensure that 

these rebuilding programs remain on 

track, the Council needed to complete 

FW 42 by its November 2005 meeting to 

ensure a May 1, 2006, implementation 

date. Unfortunately, the Council was 

unable to adopt FW 42 at its November 

meeting, prompting NMFS to 

implement emergency measures through 

the April 13, 2006, emergency interim 

final rule in time for the start of FY 

2006. This delay afforded the Council 2 

additional months to develop and refine 

measures included in FW 42. In 

addition, the emergency interim final 

rule provided another mechanism to 

comment on the measures implemented 

by the April 13, 2006, emergency 

interim final rule. Therefore, there was 

ample opportunity for public input 

during the development of a workable 

solution to the management issues 

addressed by FW 42. 

The commenters are correct that 

analysis of two additional alternatives 

(Alternatives B2 and E (modified)) were 

first presented to the public at the 

January 26, 2006, Groundfish Oversight 

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Committee meeting. These alternatives 

were originally developed by the PDT at 

the request of the Council at its 

November 15–17, 2006, meeting to 

analyze two separate areas for 

differential DAS counting. In fact, the 

PDT developed nine other alternatives 

in response to the Council’s request, but 

only forwarded Alternatives B2 and E to 

the Groundfish Oversight Committee for 

further consideration, as they more 

effectively achieved the conservation 

objectives of the action. A table 

summarizing the measures included 

within these new alternatives, as well as 

tables comparing the biological and 

economic impacts of these new 

alternatives with the other alternatives 

fully analyzed within the draft FW 42 

document (Alternatives 1–5), were 

presented to the Groundfish Oversight 

Committee on January 26, 2006, and 

later to the Council at its February 1, 

2006, meeting. The full economic and 

social impacts analyses of these two 

new alternatives were still being written 

and, therefore, were not available at this 

meeting, however. Although more 

detailed information regarding the 

economic impacts of the other 

alternatives in the draft document 

(Alternatives 1–5) was available for the 

Council’s February 1, 2006, meeting, the 

Council focused its discussion on the 

new Alternatives B2 and E because they 

would avoid the sweeping reductions in 

DAS allocations proposed in 

Alternatives 1–5. The public and the 

Council were provided with a summary 

of the primary biological and economic 

impacts (expected F and exploitation 

rates for each stocks along with changes 

in revenues by port) for each alternative 

at the earliest opportunity and could 

compare the alternatives under 

consideration prior to the Council vote 

to adopt a preferred alternative for FW 

42. Therefore, the public and the 

Council had all of the necessary 

information and time to make an 

informed decision about the overall 

impacts of the alternatives considered. 

Once completed, the final EA was 

posted on the NMFS Northeast Regional 

Office Web site and made available to 

the public. Moreover, the public has had 

the benefit of fully considering FW 42 

measures and their analysis since the 

proposed rule was published in July. 

According to the NOAA guidelines for 

complying with the National 

Environmental Policy Act (NEPA) 

(NOAA Administrative Order 216–6), an 

EA must consider a reasonable range of 

alternatives, including the preferred 

action and the no action alternative. The 

eight alternatives considered in the EA 

prepared for FW 42 represent a 

reasonable range of alternatives. These 

alternatives included a wide range of 

options to reduce F in the fishery, 

including DAS allocation reductions, a 

minimum DAS charge, and differential 

DAS counting. In addition, as specified 

in the response to Comment 17, the 

Council considered an additional 

alternative, the industry proposal, that 

was offered for the first time at the 

February 1, 2006, Council meeting. The 

Council requested that the PDT evaluate 

the impacts of this industry proposal 

and debated whether to substitute it for 

the preferred alternative in FW 42 if 

analysis suggested that it would meet 

the necessary F reductions. Subsequent 

analysis presented at the April 5, 2006, 

Council meeting revealed that this 

alternative would not achieve the 

necessary F reductions for this action 

and the alternative was not considered 

further. All of the alternatives 

considered were designed to meet the 

purpose and need identified for this 

action. Other alternatives that did not 

meet the purpose and need for this 

action were not pursued. Therefore, 

NMFS asserts that a reasonable range of 

alternatives were considered for this 

action, consistent with the requirements 

of the NAO 216–6 and the NEPA. 

Both NAO 216–6 and NEPA specify 

that significant economic and social 

impacts, by themselves, do not trigger 

the need to prepare an EIS. Further, the 

biological analysis prepared for this 

action indicates that the proposed FW 

42 measures would not result in a 

significant impact to the human 

environment. Thus, an EA is 

appropriate and sufficient to support 

FW 42. Finally, this action is necessary 

to ensure that overfishing is stopped 

and that the stocks continue to rebuild 

according to the Amendment 13 

rebuilding programs. The Council may 

reconsider whether DAS controls are 

effective in the groundfish fishery, or 

whether alternative management 

regimes would better meet the 

objectives of the FMP during the 

development of a subsequent action. 

Comment 45: Three commenters 

specifically questioned whether FW 42 

is consistent with National Standard 3 

requirements to manage a group of 

interrelated stocks as a unit or in 

sufficiently close coordination. These 

commenters suggested that the fishery is 

instead managed through a series of 

individual stock-specific F targets and 

management measures that attempt to 

achieve MSY from each stock 

simultaneously, which may not be 

possible due to the interrelation of 

stocks in an ecosystem. 

Response: All of the 19 groundfish 

stocks in the FMP are managed in close 

coordination with one another and as 

one unit to the extent practicable, as 

required by National Standard 3. Many 

of the primary management measures of 

this fishery are shared across the entire 

stock complex, including DAS limits, 

gear restrictions, limited access, and 

size limits. The National Standard 3 

guidelines indicate management 

measures do not need to be identical for 

each geographic area within the 

management unit, provided that the 

FMP justifies these differences. Both the 

proposed GOM and SNE Differential 

DAS Area include different regulations 

that would only apply to portions of the 

entire geographic range of a individual 

stock and the stock complex as a whole. 

The EA prepared for FW 42 justifies 

these proposed measures by indicating 

that a targeted approach was taken to 

reduce F on GOM cod and CC/GOM and 

SNE/MA yellowtail flounder by 

charging DAS at a higher rate within 

discrete areas responsible for the 

majority of the catch of these stocks. 

This was intended to effectively reduce 

F on these stocks while maintaining 

opportunities to harvest other stocks 

within the GOM and SNE RMAs. While 

it is true that the FMP establishes 

individual stock-specific F targets, these 

targets are necessary to maintain the 

rebuilding programs established under 

Amendment 13, as each individual 

stock is at a different point along its 

rebuilding trajectory. These rebuilding 

programs are intended to rebuild the 

stocks to BMSY, as required by the 

Magnuson-Stevens Act. 

Comment 46: Four commenters, 

including the DMF, requested that 

NMFS use the mixed-stock exemption 

provided in the guidelines for National 

Standard 1 to allow the fishery to 

overfish CC/GOM yellowtail flounder in 

order to avoid unnecessarily sacrificing 

OY from other healthy stocks through 

the implementation of drastic effort 

reductions such as the proposed GOM 

Differential DAS Area. 

Response: The guidelines for National 

Standard 1 at § 600.310(d)(6) indicate 

that a Council may construct an FMP 

such that it allows overfishing of one 

stock in a multispecies complex to 

achieve OY for another stock in the 

multispecies complex, provided three 

criteria are met: (1) Analysis indicates 

that overfishing one stock to achieve OY 

for another stock will result in net 

benefits to the Nation; (2) analysis 

indicates that similar long-term net 

benefits cannot be achieved by 

modifying fleet behavior, gear selection/ 

configuration, or other technical 

characteristic in a manner that no 

overfishing would occur; and (3) the F 

rate would not cause any stock to 

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require protection under the 

Endangered Species Act. The 

commenters have not provided any 

analysis that suggest that the three 

criteria necessary to implement this 

exemption would be met. Although this 

alternative was discussed by the 

Council in developing FW 42, it was not 

seriously considered and not analyzed, 

given the time constraints necessary to 

complete FW 42 and uncertainty that 

the necessary criteria could be met. 

Moreover, the mixed-stock exemption 

alternative would be such a radical 

departure from the current management 

regime that an amendment to the FMP, 

rather than a framework adjustment, 

would be necessary to implement it. 

Comment 47: One commenter was 

concerned that the proposed measures 

may cause redirection of effort onto GB. 

Response: Based on the CAM, the 

proposed measures are not predicted to 

cause effort shifts that would result in 

increases in F on GB stocks. Analysis 

prepared for FW 42 indicates that the 

proposed measures will meet the 

necessary F reductions for all stocks, 

including those on GB. In addition, 

because most of GB is governed by the 

provisions of the U.S./Canada 

Management Area, the Regional 

Administrator has the authority to 

revise specific measures to ensure that 

vessel operations within this area do not 

exceed specified TACs for GB yellowtail 

flounder, and GB cod and GB haddock 

in the Eastern U.S./Canada Area. Any 

revisions to management measures to 

protect these stocks will likely also 

result in protection for other groundfish 

stocks. 

Changes From the Proposed Rule 

NMFS has made several changes to 

the proposed rule, including changes as 

a result of public comment and the 

disapproval of the measure that would 

have provided the Regional 

Administrator with the authority to 

adjust trip limits for specific stocks. 

Some of these changes are 

administrative in nature, clarify the new 

or existing management measures, or 

correct inadvertent omissions in the 

proposed rule. These changes are listed 

below in the order that they appear in 

the regulations. 

The Council indicated that the PDT 

recently discovered that there was a 

mistake in the projection for American 

plaice that over-estimated the Target 

TACs and Incidental Catch TACs for 

this species for FYs 2006–2008. The 

Target TACs and Incidental Catch TACs 

specified in Tables 2 and 3 above, 

respectively, were corrected to rectify 

this error. 

In § 648.14, paragraph (a)(174) has 

been revised to clarify that the most 

restrictive measures pertain to DAS 

counting, trip limits, and reporting 

requirements. 

In § 648.82, paragraph (e)(2)(iii)(A) 

has been revised, in response to 

comment and in order to be consistent 

with Council intent, by removing 

language specifying that a vessel may be 

in the GOM Differential DAS Area due 

to bad weather or circumstances beyond 

a vessel’s control. 

In § 648.82, paragraph (e)(2)(iii)(B) has 

been revised, in response to comment 

and in order to be consistent with 

Council intent and FW 42, by adding 

language that allows a vessel to be in the 

SNE Differential DAS Area when not 

fishing or transiting. 

In § 648.82, paragraph (e)(2)(iv) has 

been revised to clarify that the most 

restrictive measures pertain to DAS 

counting, trip limits, and reporting 

requirements. 

In § 648.82, paragraph (e)(3) has been 

revised to clarify that, for vessels fishing 

in both the Eastern U.S./Canada Area 

and the Regular B DAS Program on the 

same trip, the applicable DAS 

accounting rules for both areas apply. 

In § 648.82, paragraph (k)(4)(xi)(B) has 

been revised to clarify the rules 

regarding the DAS Leasing Program 

baseline downgrade in the context of a 

DAS Transfer. 

In § 648.82, paragraph (l)(1)(ii) has 

been revised to insert a cross reference 

to § 648.82(k)(4)(xi)(B) pertaining to the 

rules regarding the DAS Leasing 

Program baseline downgrade in the 

context of a DAS Transfer. 

In § 648.85, paragraph (a)(3)(ii)(A) has 

been revised to clarify that the most 

restrictive measures pertain to DAS 

counting, trip limits, and reporting 

requirements. 

In § 648.85, paragraph (a)(3)(iv)(C)(2) 

has been revised, in response to 

comment and in order to be consistent 

with Council intent, by inserting 

language specifying that the Regional 

Administrator may also adjust the GB 

yellowtail flounder landing limit to 

facilitate harvesting the GB yellowtail 

flounder TAC. 

In § 648.85, paragraph (a)(3)(v)(B) has 

been revised, in response to comment 

and in order to be consistent with 

Council intent, to reinsert language 

requiring vessels to report the statistical 

area in which fish were caught. 

In § 648.85, paragraph (b)(6)(iv)(E) has 

been revised order to insert cross 

references to applicable trip limits in 

§ 648.85(a) that were omitted from the 

proposed rule. 

In § 648.85, paragraph (b)(8)(v)(I) has 

been revised to insert cross references to 

applicable trip limits in § 648.85(a) that 

were omitted from the proposed rule. 

In § 648.87, paragraph (d)(2)(ii)(C), 

has been revised to replace a reference 

to the GB Cod Hook Gear Sector with 

the GB Cod Fixed Gear Sector. 

Classification 

The Regional Administrator 

determined that the management 

measures implemented by this final 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 final rule has been 

determined to be significant for the 

purposes of Executive Order (E.O.) 

12866. 

This final rule does not contain 

policies with federalism or ‘‘takings’’

implications as those terms are defined 

in E.O. 13132 and E.O. 12630, 

respectively. 

NMFS, pursuant to section 604 of the 

Regulatory Flexibility Act (RFA), 

prepared this FRFA in support of the 

approved measures in FW 42. The FRFA 

incorporates the economic impacts 

summarized in the IRFA and the 

corresponding RIR in the FW 42 

document, and this final rule document. 

The IRFA was published in the 

proposed rule for this action and is not 

repeated here. A description of why this 

action was considered, the objectives of, 

and the legal basis for this rule are 

contained in the preamble to the 

proposed and this final rule and are not 

repeated here. 

Summary of the Issues Raised by Public 

Comments in Response to the IRFA. A 

Summary of the Assessment of the 

Agency of Such Issues, and a Statement 

of Any Changes Made From the 

Proposed Rule as a Result of Such 

Comments 

Comment A: One commenter 

disputed the determination in the IRFA 

that the economic loss to groundfish 

fishery will only be $21 million. This 

commenter claimed that the economic 

impact will be much more. This 

commenter suggested that the estimate 

of lost groundfish revenue is not 19 

percent of groundfish revenue, as 

claimed in the IRFA, but rather 25–30 

percent of 2005 groundfish revenue, as 

he suspected that the total fishing 

revenue for FY 2005 was only $80 

million. 

Response: The commenter did not 

provide any specific information to 

explain the basis for the disputed level 

of impacts and, therefore, as 

summarized below, NMFS supports the 

conclusion of the FRFA. The impacts on 

revenue in the IRFA are detailed in 

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Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 62181 

Section 7.2.4 of the EA prepared for this 

action. As noted in the EA, the 

economic impacts were compared to FY 

2004, not FY 2005, because complete FY 

2005 data were not available at the time 

the analysis was completed. During FY 

2004, the value of the total catch of 

groundfish, not total fishing revenue, 

was approximately $78 million. Of the 

estimated loss of $21 million 

attributable to measures proposed by 

FW 42, $15 million is due to a reduction 

in groundfish landings, while the 

remaining $6 million is due to reduced 

landings of other species. As a result, 

compared to the estimated $78 million 

in groundfish revenue landed in FY 

2004, the estimated revenue loss of $15 

million from FW 42 reflects a 19-percent 

reduction in groundfish revenue from 

FY 2004. It should be noted, however, 

that these economic impacts are the 

result of modeled impacts and may not 

accurately reflect the realized impacts of 

measures proposed by FW 42. Realized 

impacts may be higher or lower than 

these estimates, depending on how 

vessels adapt to the regulations 

implemented and how markets adjust to 

the resulting changes in seafood supply. 

Description of and Estimate of the 

Number of Small Entities to Which the 

Proposed Rule Would Apply 

Any vessel that possesses a NE 

multispecies permit would be required 

to comply with the proposed regulatory 

action. However, for the purposes of 

determination of impacts, only vessels 

that actually participated in an activity 

during FY 2004 that would be affected 

by the proposed action were considered 

for analysis. Vessels that were inactive 

were not considered because it is not 

likely that the participation level will 

increase in the future under the 

proposed regulatory regime. During FY 

2004, 1,002 permit holders had an 

allocation of Category A DAS. Limited 

access NE multispecies permit holders 

may participate in both commercial and 

charter/party activity without having an 

open access NE multispecies charter/ 

party permit. In FY 2004, 705 entities 

participated in the limited access 

commercial groundfish fishery, and 6 

participated in the open access charter/ 

party fishery for GOM cod. Four of these 

entities participated in both commercial 

and charter/party activities, leaving a 

total of 707 unique vessels with an 

allocation of Category A DAS that may 

be affected by the proposed action. 

Based on FY 2004 data, the proposed 

action would have a potential impact on 

a total of 3,216 limited and open access 

groundfish permit holders, of which less 

than one-third (976) actually 

participated in either a commercial or 

charter/party activity that would be 

affected by the proposed action. Of 

these, 858 commercial fishing vessels 

would be affected by this proposed 

action, including 132 limited access 

monkfish Category C or D vessels that 

fished in the Regular B DAS Pilot 

Program during FY 2004–2005. 

The Small Business Administration 

(SBA) size standard for small 

commercial fishing entities is $4 million 

in gross sales, and the size standard for 

small charter/party operators is $6.5 

million. Available data for FY 2004 

gross sales show that the maximum 

gross sales for any single commercial 

fishing vessel was $1.8 million, and the 

maximum gross sales for any affected 

charter/party vessel was $1.0 million. 

While an entity may own multiple 

vessels, available data make it difficult 

to determine which vessels may be 

controlled by a single entity. For this 

reason, each vessel is treated as a single 

entity for purposes of size determination 

and impact assessment. This means that 

all commercial and charter/party fishing 

entities would fall under the SBA size 

standard for small entities and, 

therefore, there is no differential impact 

between large and small entities. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Final Rule 

The reporting requirements for this 

final rule are as follows: This final rule 

contains a collection-of-information 

requirement subject to the Paperwork 

Reduction Act (PRA) that has been 

previously approved by OMB under 

control numbers 0648–0202, and 0648–

0212. Public reporting burdens for these 

collections of information are as 

follows: (1) VMS purchase and 

installation; (2) VMS proof of 

installation; (3) spawning block 

declaration; (4) automated VMS polling 

of vessel position; (5) declaration of 

intent to participate in the Regular B 

DAS Program or fish in the U.S./Canada 

Management Areas, associated SAPs, 

and CA I SAP, and DAS to be used via 

VMS prior to each trip into the Regular 

B DAS Program or a particular SAP; (6) 

notice requirements for observer 

deployment prior to every trip into the 

Regular B DAS Program or the U.S./ 

Canada Management Areas, associated 

SAPs, and CA I SAP; (7) standardized 

catch reporting requirements while 

participating in the Regular B DAS 

Program or fishing in the U.S./Canada 

Management Area, associated SAPs, and 

CA I SAP, respectively; (8) standardized 

reporting of Universal Data I.D. while 

participating in the Regular B DAS 

Program or fishing in the U.S./Canada 

Management Area, associated SAPs, and 

CA I SAP; (9) Sector Manager daily 

reports for CA I SAP; (10) DAS ‘‘flip’’

notification via VMS for the Regular B 

DAS Program; (11) DAS Leasing 

Program application; (12) declaration of 

intent to fish inside and outside of the 

Eastern U.S./Canada Area on the same 

trip; (13) vessel baseline downgrade 

request for the DAS Leasing Program; 

(14) annual declaration of participation 

in the CA I Hook Gear Haddock SAP; 

(15) declaration of area and gear via 

VMS when fishing under a NE 

multispecies DAS; and (16) declaration 

of entry into the GOM and SNE 

Differential DAS Areas when not fishing 

or transiting. The burdens associated 

with these information collections 

include the time required for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Description of Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statues 

The alternative selected will continue 

the Amendment 13 default DAS 

allocations that took effect on May 1, 

2006, under the emergency action; 

specify Target TACs and Incidental 

Catch TACs for FYs 2006, 2007, and 

2008; implement a VMS requirement for 

limited access groundfish DAS vessels; 

implement differential DAS counting in 

specific areas of the GOM and SNE; 

modify the recreational possession 

restrictions and size limits for GOM cod; 

modify current and implement new 

commercial trip limits for several 

species; renew and modify the Regular 

B DAS Program, including the rules 

pertaining to monkfish vessels; renew 

and modify the Eastern U.S./Canada 

Haddock SAP; renew the DAS Leasing 

Program; modify the CA I Hook Gear 

Haddock SAP; authorize the formation 

of the Fixed Gear Sector; provide 

flexibility for vessels to fish inside and 

outside of the Eastern U.S./Canada Area 

on the same trip; modify reporting 

requirements for Special Management 

Programs; modify the DAS Transfer 

Program; modify the cod trip limit for 

the Eastern U.S./Canada Area; 

implement Gear Performance Incentives 

for the haddock separator trawl; and 

modify the trawl codend mesh size 

requirement in the SNE RMA. 

The primary purpose of this action is 

to implement a rebuilding program for 

GB yellowtail flounder and modify NE 

multispecies fishery management 

measures to reduce F on six other 

groundfish stocks in order to maintain 

compliance with the rebuilding program 

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62182 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

of the FMP. FW 42 also modifies and 

continues specific measures to mitigate 

the economic and social impacts of the 

FMP and allow harvest levels to 

approach OY. 

The alternative that was adopted and 

implemented achieves the biological 

goals of FW 42, while minimizing the 

negative economic and social impacts. 

The principal feature that distinguishes 

one alternative from another is the 

strategy each alternative proposes to 

reduce F. As such, this discussion 

focuses on the measures designed to 

reduce F. Although all alternatives, with 

the exception of the No Action 

alternative, would have complied with 

the legal requirement to reduce F, the 

alternatives were not equal with respect 

to their compliance with the mandate to 

minimize negative social and economic 

impacts. The FW 42 analyses (Table 193 

in the FW 42 document) indicate that 

the selected alternative will result in the 

least amount of reduction in total 

revenue for affected vessels (in dollars), 

and result in the least percentage 

decline in groundfish revenue, when 

compared with other alternatives. In 

addition, based on public testimony, the 

selected alternative was believed to 

promote safety better than another 

alternative that also had relatively low 

economic impacts when compared with 

all of the alternatives. The conclusion 

that the selected alternative was 

superior with respect to the potential 

estimated negative economic impacts 

was the primary reason this particular 

alternative was selected and approved. 

Implementation of the selected 

alternative will result in minimization 

of negative impacts on small entities. 

Although the No Action alternative 

would have resulted in less negative 

economic impact, the No Action 

alternative does not comply with the 

legal requirements of the MagnusonStevens Act regarding conservation 

since F would not be sufficiently 

reduced. 

The GB yellowtail flounder rebuilding 

program implements a strategy and 

timeline for rebuilding this stock and 

complies with the legal requirements of 

the Magnuson-Stevens Act. Because the 

current regulations implementing the 

U.S./Canada Resource Sharing 

Understanding (Understanding) 

effectively control F on this stock, the 

rebuilding program does not represent a 

new restriction that has a negative 

impact on small entities. However, the 

rebuilding program is binding, in a 

manner in which the Understanding is 

not. The No Action alternative would 

not be in compliance with the 

Magnuson-Stevens Act. The GB 

yellowtail flounder rebuilding strategy 

implemented through this final rule was 

preferred over the non-selected 

alternatives because it is consistent with 

the rebuilding time periods of most of 

the stocks in the FMP, and has a higher 

probability associated with rebuilding. 

This is an adaptive rebuilding plan, 

effectively balancing the need to 

minimize impacts to the fishing 

industry while rebuilding the stock, and 

therefore minimizing impacts to small 

entities to the extent practicable. 

Implementation of Target and 

Incidental TACs provide important tools 

for the functioning of the FMP by 

enabling harvest of various stocks in a 

manner consistent with the goals of the 

FMP. The No Action alternative would 

not enable the revised Target and 

Incidental TACs based on the best 

scientific information available to be 

used to informally evaluate the fishery. 

Furthermore, because revised Incidental 

Catch TACs were not proposed under 

the No Action alternative, that 

alternative would not have provided the 

necessary protection for stocks of 

concern. Without Incidental Catch 

TACs, either the Special Management 

Programs would not be allowed to open 

(and the associated revenue would be 

lost), or such programs would operate 

without the necessary restrictions that 

ensure compliance with the biological 

objectives of the FMP. 

The implemented measure that allows 

flexibility for vessels to fish both inside 

and outside of the Eastern U.S./Canada 

Area on the same trip decreases the 

chance that vessels fishing in the 

Eastern U.S./Canada Area will have an 

unprofitable trip and, therefore, serves 

to further minimize negative impacts on 

small entities. 

The requirement that all limited 

access groundfish DAS vessels using a 

groundfish DAS must be equipped with 

an approved VMS was selected in order 

to support the monitoring, reporting, 

and enforcement of the increasingly 

complex measures under the FMP. 

Although implementation of the VMS 

requirement will result in additional 

costs to the active members of the 

groundfish fleet (all of which are small 

entities), one of the primary reasons the 

regulations are so complex is to 

accommodate the extremely diverse 

characteristics and interests of the 

fishery. For example, in the SNE and 

GOM RMAs the use of VMS enables 

NMFS to administer and enforce 

complex rules that charge vessels DAS 

at different rates depending upon where 

the vessel fishes. Vessels that do not fish 

in the geographic areas associated with 

the stocks that require the largest 

reduction in fishing effort are not 

subject to the same restrictions as those 

vessels that do fish in such areas. The 

differential DAS system is designed to 

reduce F on several fish stocks, while 

allowing vessel owners choices 

regarding where to fish and the amount 

of DAS costs to incur. Although it is not 

possible to precisely quantify economic 

gains that result from the use of VMS, 

selection of the VMS alternative 

supports the complex regulations that 

are designed to allow the fishery to 

approach OY. For example, it may have 

been possible to implement Alternative 

5 without a VMS requirement, because 

Alternative 5 does not include 

differential DAS counting by areas, but 

relies instead on a larger reduction in 

allocated Category A DAS. However, 

economic impacts of Alternative 5 are 

greater than those associated with either 

of the differential DAS alternatives. 

Although all the alternatives for 

recreational and charter/party measures 

were designed to achieve the same 

percentage in F reductions for GOM cod 

as for the commercial sector, the 

preferred alternative was selected in 

order to minimize impacts on the 

recreational and charter/party fisheries. 

Although impacts on charter/party 

operators depend on how their potential 

clients react to the regulatory changes, 

the analysis suggests that the selected 

alternative will have less harmful 

economic impacts then the two nonselected alternatives. Part of the reason 

for the different economic impacts is the 

different months encompassed by the 

alternatives and the traditional 

seasonality of the recreational and 

charter/party fisheries. The No Action 

alternative is not justified because the 

recreational and charter/party fisheries 

have contributed to the excessive F rate 

on GOM cod, and therefore must 

contribute to the necessary reductions 

in F under FW 42. If the No Action 

alternative were selected, the 

commercial sector would have had to 

adopt even more restrictive regulations 

to reduce fishing mortality on GOM cod 

than those implemented by the final 

rule. 

All of the alternatives, with the 

exception of the No-Action alternative, 

include various trip limits for some of 

the stocks in need of F reductions. Such 

trip limits, in conjunction with the DAS 

strategies in the various alternatives, 

serve to mitigate the amount of DAS 

restrictions necessary. The no action 

alternative, which proposes no change 

to the trip limits, would not have met 

the biological requirements of the FMP. 

All of the alternatives, with the 

exception of the No-Action alternative, 

include the renewal and/or modification 

of the Special Management Programs 

(CA I Hook Gear Haddock SAP, Eastern 

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Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 62183 

U.S./Canada Haddock SAP, Regular B 

DAS Program). These programs were 

renewed and/or modified in order to 

continue to mitigate the negative 

economic impacts of the FMP and 

enable the fishery to approach OY. By 

renewing and modifying these Special 

Management Programs, vessels are 

allowed to access fish stocks in a 

restricted manner that protects stocks of 

concern. In contrast, yield and revenue 

from the fishery would have been 

reduced under the No Action alternative 

because that alternative would not have 

provided enhanced access to various 

stocks. The DAS Leasing Program 

provides additional economic 

opportunity for vessels, as it may have 

an important role in maintaining 

profitability for small entities, and the 

revision of the DAS Transfer Program 

provides additional incentive to 

participate in the program and, 

therefore, provides different types of 

economic opportunities for vessel 

owners. Both of these programs 

minimize the negative impacts of FW 42 

by providing economic opportunities for 

the groundfish fleet, which the No 

Action alternative would not provide. 

Other management measures 

implemented by this final rule, such as 

standardization of reporting 

requirements, modification of Regional 

Administrator Authority, Gear 

Performance Incentives, modification to 

the cod trip limit for the Eastern U.S./ 

Canada Area, and the change in the 

minimum trawl mesh requirement when 

fishing in the SNE RMA, serve to 

improve and facilitate the functioning of 

the FMP and increase the likelihood 

that the regulations will have the 

intended effects. As such, the 

alternative selected and implemented 

has a beneficial economic impact on 

small entities when compared with the 

No Action Alternative. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Final Rule 

1. VMS purchase and installation, 

OMB# 0648–0202 (1 hr/response); 

2. VMS proof of installation, OMB# 

0648–0202 (5 min/response); 

3. Spawning block declaration, OMB# 

0648–0202 (2 min/response); 

4. Automated VMS polling of vessel 

position, OMB# 0648–0202 (5 sec/ 

response); 

5. Declaration of intent to participate 

in the Regular B DAS Program or fish in 

the U.S./Canada Management Area, 

associated SAPs, and CA I SAP, and 

DAS to be used via VMS prior to each 

trip into the Regular B DAS Program or 

a particular SAP, OMB# 0648–0202 (5 

min/response); 

6. Notice requirements for observer 

deployment prior to every trip into the 

Regular B DAS Program or the U.S./ 

Canada Management Area, associated 

SAPs, and CA I SAP, OMB# 0648–0202 

(2 min/response); 

7. Standardized catch reporting 

requirements while participating in the 

Regular B DAS Program or fishing in the 

U.S./Canada Management Area, 

associated SAPs, and CA I SAP, 

respectively, OMB# 0648–0212 (15 min/ 

response); 

8. Standardized reporting of Universal 

Data I.D. while participating in the 

Regular B DAS Program or fishing in the 

U.S./Canada Management Area, 

associated SAPs, and CA I SAP, OMB# 

0648–0212 (15 min/response); 

9. Sector Manager daily reports for CA 

I Hook Gear Haddock SAP, OMB# 0648–

0212 (2 hr/response); 

10. DAS ‘‘flip’’ notification via VMS 

for the Regular B DAS Program, OMB# 

0648–0202 (5 min/response); 

11. DAS Leasing Program application, 

OMB# 0648–0475 (10 min/response); 

12. Declaration of intent to fish inside 

and outside of the Eastern U.S./Canada 

Area on the same trip, OMB# 0648–0202 

(5 min/response); 

13. Vessel baseline downgrade request 

for the DAS Leasing Program, OMB# 

0648–0202 (1 hr/response); 

14. Annual declaration of 

participation in the CA I Hook Gear 

Haddock SAP, OMB #0648–0202 (2 

min/response); 

15. Declaration of area and gear via 

VMS when fishing under a NE 

multispecies DAS, OMB# 0648–0202 (5 

min/response); and 

16. Declaration of entry into the GOM 

and SNE Differential DAS Area when 

not fishing or transiting via VMS, OMB# 

0648–0202 (5 min/response). 

These estimates include the time 

required for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. Send 

comments regarding these burden 

estimates or any other aspect of this data 

collection, including suggestions for 

reducing the burdern, to NMFS (see 

ADDRESSES) and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to 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. 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 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 

rulemaking process, a letter to permit 

holders that also serves as small entity 

compliance guide (the guide) was 

prepared. Copies of this final rule are 

available from the Northeast Regional 

Office, and the guide, i.e., permit holder 

letter, will be sent to all holders of 

permits for the multispecies and 

monkfish fisheries. The guide and this 

final rule will be available upon request. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: October 16, 2006. 

William T. Hogarth, 

Assistant Administrator for Fisheries, 

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, a new definition for 

‘‘Jigging’’ is added and the definition for 

‘‘Regulated species’’ is revised to read as 

follows: 

§ 648.2 Definitions. 

* * * * * 

Jigging, with respect to the NE 

multispecies fishery, means fishing for 

regulated species with handgear, 

handline, or rod and reel using a jig, 

which is a weighted object attached to 

the bottom of the line used to sink the 

line and/or imitate a baitfish, which is 

moved (‘‘jigged’’) with an up and down 

motion. 

* * * * * 

Regulated species, means the subset 

of NE multispecies that includes 

Atlantic cod, witch flounder, American 

plaice, yellowtail flounder, haddock, 

pollock, winter flounder, windowpane 

flounder, redfish, and white hake, also 

referred to as regulated NE multispecies. 

* * * * * 

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

and (viii) are removed and reserved; 

paragraphs (b)(1)(v), (vi), (b)(2) and (3), 

the introductory text to paragraph (c), 

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62184 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

and paragraphs (c)(5), (d), and (f) are 

revised to read as follows: 

§ 648.10 DAS and VMS notification 

requirements. 

* * * * * 

(b) * * * 

(1) * * * 

(v) A vessel issued a limited access 

monkfish, Occasional scallop, or 

Combination permit, whose owner 

elects to provide the notifications 

required by this paragraph (b), unless 

otherwise authorized or required by the 

Regional Administrator under paragraph 

(d) of this section; and 

(vi) A vessel issued a limited access 

NE multispecies permit that fishes 

under a NE multispecies Category A or 

B DAS. 

* * * * * 

(2) The owner of such a vessel 

specified in paragraph (b)(1) of this 

section, with the exception of a vessel 

issued a limited access NE multispecies 

permit as specified in paragraph 

(b)(1)(vi) of this section, must provide 

documentation to the Regional 

Administrator at the time of application 

for a limited access permit that the 

vessel has an operational VMS unit 

installed on board that meets the 

minimum performance criteria, unless 

otherwise allowed under this paragraph 

(b). If a vessel has already been issued 

a limited access permit without the 

owner providing such documentation, 

the Regional Administrator shall allow 

at least 30 days for the vessel to install 

an operational VMS unit that meets the 

criteria and for the owner to provide 

documentation of such installation to 

the Regional Administrator. The owner 

of a vessel issued a limited access NE 

multispecies permit that fishes or 

intends to fish under a Category A or B 

DAS as specified in paragraph (b)(1)(vi) 

of this section, must provide 

documentation to the Regional 

Administrator that the vessel has an 

operational VMS unit installed on board 

that meets those criteria prior to fishing 

under a groundfish DAS. NMFS shall 

send letters to all limited access NE 

multispecies DAS permit holders and 

provide detailed information on the 

procedures pertaining to VMS purchase, 

installation, and use. 

(i) A vessel that has crossed the VMS 

Demarcation Line specified under 

paragraph (a) of this section is deemed 

to be fishing under the DAS program, 

unless the vessel’s owner or authorized 

representative declares the vessel out 

(i.e., not fishing under the applicable 

DAS program) of the scallop, NE 

multispecies, or monkfish fishery, as 

applicable, for a specific time period by 

notifying the Regional Administrator 

through the VMS prior to the vessel 

leaving port, or unless the vessel’s 

owner or authorized representative 

declares the vessel will be fishing 

exclusively in the Eastern U.S./Canada 

Area, as described in § 648.85(a)(3)(ii), 

under the provisions of that program. 

(ii) Notification that the vessel is not 

under the DAS program must be 

received prior to the vessel leaving port. 

A vessel may not change its status after 

the vessel leaves port or before it returns 

to port on any fishing trip. 

(iii) DAS counting for a vessel that is 

under the VMS notification 

requirements of this paragraph (b), with 

the exception of vessels that have 

elected to fish exclusively in the Eastern 

U.S./Canada Area on a particular trip, as 

described in this paragraph (b), begins 

with the first location signal received 

showing that the vessel crossed the 

VMS Demarcation Line after leaving 

port. DAS counting ends with the first 

location signal received showing that 

the vessel crossed the VMS Demarcation 

Line upon its return to port. For those 

vessels that have elected to fish 

exclusively in the Eastern U.S./Canada 

Area pursuant to § 648.85(a)(3)(ii), the 

requirements of this paragraph (b) begin 

with the first 30-minute location signal 

received showing that the vessel crossed 

into the Eastern U.S./Canada Area and 

end with the first location signal 

received showing that the vessel crossed 

out of the Eastern U.S./Canada Area 

upon beginning its return trip to port, 

unless the vessel elects to also fish 

outside the Eastern U.S./Canada Area on 

the same trip, in accordance with 

§ 648.85(a)(3)(ii)(A). 

(iv) The Regional Administrator may 

authorize or require the use of the callin system instead of using the use of 

VMS, as described under paragraph (d) 

of this section. Furthermore, the 

Regional Administrator may authorize 

or require the use of letters of 

authorization as an alternative means of 

enforcing possession limits, if VMS 

cannot be used for such purposes. 

(3)(i) A vessel issued a limited access 

monkfish, occasional scallop, or 

Combination permit must use the callin system specified in paragraph (c) of 

this section, unless the owner of such 

vessel has elected to provide the 

notifications required by this paragraph 

(b), through VMS as specified under 

paragraph (b)(3)(iii) of this section. 

(ii) [Reserved]. 

(iii) A vessel issued a limited access 

monkfish or Occasional scallop permit 

may be authorized by the Regional 

Administrator to provide the 

notifications required by this paragraph 

(b) using the VMS specified in this 

paragraph (b). For the vessel to become 

authorized, the vessel owner must 

provide documentation to the Regional 

Administrator at the time of application 

for a limited access permit that the 

vessel has installed on board an 

operational VMS as provided under 

§ 648.9(a). A vessel that is authorized to 

use the VMS in lieu of the call-in 

requirement for DAS notification shall 

be subject to the requirements and 

presumptions described under 

paragraphs (b)(2)(i) through (v) of this 

section. Vessels electing to use the VMS 

do not need to call in DAS as specified 

in paragraph (c) of this section. A vessel 

that calls in is exempt from the 

prohibition specified in § 648.14(c)(2). 

* * * * * 

(c) Call-in notification. The owner of 

a vessel issued a limited access 

monkfish or red crab permit who is 

participating in a DAS program and who 

is not required to provide notification 

using a VMS, and a scallop vessel 

qualifying for a DAS allocation under 

the Occasional category and who has 

not elected to fish under the VMS 

notification requirements of paragraph 

(b) of this section, and any vessel that 

may be required by the Regional 

Administrator to use the call-in program 

under paragraph (d) of this section, are 

subject to the following requirements: 

* * * * * 

(5) Any vessel that possesses or lands 

per trip more than 400 lb (181 kg) of 

scallops; any vessel issued a limited 

access NE multispecies permit subject to 

the NE multispecies DAS program 

requirements that possesses or lands 

regulated NE multispecies, except as 

provided in §§ 648.10(b)(2)(iii), 648.17, 

and 648.89; any vessel issued a limited 

access monkfish permit subject to the 

monkfish DAS program and call-in 

requirement that possess or lands 

monkfish above the incidental catch trip 

limits specified in § 648.94(c); and any 

vessel issued a limited access red crab 

permit subject to the red crab DAS 

program and call-in requirement that 

possesses or lands red crab above the 

incidental catch trip limits specified in 

§ 648.263(b)(1) shall be deemed to be in 

its respective DAS program for purposes 

of counting DAS, regardless of whether 

the vessel’s owner or authorized 

representative provides adequate 

notification as required by paragraphs 

(b) or (c) of this section. 

* * * * * 

(d) Temporary authorization for use 

of the call-in system. The Regional 

Administrator may authorize or require, 

on a temporary basis, the use of the callin system of notification specified in 

paragraph (c) of this section, instead of 

the use of the VMS. If use of the callmstockstill on PROD1PC76 with RULES2

Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 62185 

in system is authorized or required, the 

Regional Administrator shall notify 

affected permit holders through a letter, 

notification in the Federal Register, email, or other appropriate means. 

* * * * * 

(f) Additional NE multispecies call-in 

requirements—(1) Spawning season 

call-in. With the exception of a vessel 

issued a valid Small Vessel category 

permit or the Handgear A permit 

category, vessels subject to the 

spawning season restriction described 

in § 648.82 must notify the Regional 

Administrator of the commencement 

date of their 20-day period out of the NE 

multispecies fishery through the IVR 

system (or through VMS, if required by 

the Regional Administrator) and provide 

the following information: Vessel name 

and permit number, owner and caller 

name and phone number, and the 

commencement date of the 20-day 

period. 

(2) Gillnet call-in. A vessel subject to 

the gillnet restriction described in 

§ 648.82 must notify the Regional 

Administrator of the commencement of 

its time out of the NE multispecies 

gillnet fishery using the procedure 

described in paragraph (f)(1) of this 

section. 

■ 4. In § 648.14, paragraphs (a)(130), 

(145), (146), (148), (151), (152), and 

(156); the introductory text of paragraph 

(c); paragraphs (c)(7), (25), (33), (49) 

through (53), (55) through (65) and (78) 

are revised; paragraphs (c)(48), (c)(54), 

and (c)(79) are removed and reserved; 

and paragraphs (a)(173) through (177), 

(c)(23), (c)(81) through (88), (g)(4), and 

(g)(5) are added to read as follows: 

§ 648.14 Prohibitions. 

(a) * * * 

(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 

applicable restrictions specified under 

§ 648.85(a)(3)(ii)(A) or (B). 

* * * * * 

(145) If fishing under a NE 

multispecies DAS in the Eastern U.S./ 

Canada Haddock SAP, exceed the 

possession limits specified in 

§ 648.85(b)(8)(v)(F). 

(146) If fishing under the Eastern 

U.S./Canada Haddock SAP, 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 (I). 

* * * * * 

(148) If fishing under a NE 

multispecies DAS in the Eastern U.S./ 

Canada Haddock SAP specified in 

§ 648.85(b)(8), in the area specified in 

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

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

comply with the restrictions specified in 

§ 648.85(b)(8)(v). 

* * * * * 

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

Canada Haddock SAP 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 specified in 

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

observer notification requirements 

specified in § 648.85(b)(8)(v)(C). 

* * * * * 

(156) If fishing under an approved 

Sector, as authorized under § 648.87, 

fish in the NE multispecies DAS 

program in a given fishing year or, if 

fishing under a NE multispecies DAS, 

fish in an approved Sector in a given 

fishing year, unless otherwise provided 

under § 648.87(b)(1)(xii). 

* * * * * 

(173) Fail to notify NMFS via VMS 

prior to departing the Eastern U.S./ 

Canada Area, when fishing inside and 

outside of the area on the same trip, in 

accordance with § 648.85(a)(3)(ii)(A)(1). 

(174) When fishing inside and outside 

of the Eastern U.S./Canada Area on the 

same trip, fail to abide by the most 

restrictive DAS counting, trip limits, 

and reporting requirements that apply, 

as described in § 648.85(a)(3)(ii)(A) and 

the other applicable area fished. 

(175) If fishing inside the Eastern 

U.S./Canada Area and in possession of 

fish in excess of what is allowed under 

more restrictive regulations that apply 

outside of the Eastern U.S./Canada Area, 

fish outside of the Eastern U.S./Canada 

Area on the same trip, as prohibited 

under § 648.85(a)(3)(ii)(A). 

(176) If fishing under the GB Fixed 

Gear Sector specified under 

§ 648.87(d)(2), fish with gear other than 

jigs, non-automated demersal longline, 

handgear, or sink gillnets. 

(177) Fail to comply with the 

reporting requirements under 

§ 648.85(a)(3)(ii)(A)(2) when fishing 

inside and outside of the Eastern U.S./ 

Canada Area on a trip. 

* * * * * 

(c) In addition to the general 

prohibitions specified in § 600.725 of 

this chapter and in paragraphs (a) and 

(b) of this section, it is unlawful for any 

owner or operator of a vessel issued a 

valid limited access NE multispecies 

permit or letter under § 648.4(a)(1)(I), 

unless otherwise specified in § 648.17, 

to do any of the following: 

* * * * * 

(7) Possess or land per trip more than 

the possession or landing limits 

specified under § 648.86(a), (e), (g), (h), 

and (j), and under § 648.82(b)(5) or (6), 

if the vessel has been issued a limited 

access NE multispecies permit or open 

access NE multispecies permit, as 

applicable. 

* * * * * 

(23) Fail to declare through VMS its 

intent to be exempt from the GOM cod 

trip limit under § 648.86(b)(1), as 

required under § 648.86(b)(4), or fish 

north of the exemption line if in 

possession of more than the GOM cod 

trip limit specified under § 648.86(b)(1). 

* * * * * 

(25) For vessels fishing in the NE 

multispecies DAS program under the 

provisions of § 648.10(c), the call-in 

system, fail to remain in port for the 

appropriate time specified in 

§ 648.86(b)(1)(ii)(A), except for 

transiting purposes, provided the vessel 

complies with § 648.86(b)(3). For vessels 

fishing in the NE multispecies DAS 

program under the provisions of 

§ 648.10(b), the VMS system, fail to 

declare through VMS that insufficient 

DAS have elapsed in order to account 

for the amount of cod on board the 

vessel as required under 

§ 648.86(b)(1)(ii)(B). 

* * * * * 

(33) For vessels fishing in the NE 

multispecies DAS program under the 

provisions of § 648.10(c), the call-in 

system, fail to remain in port for the 

appropriate time specified in 

§ 648.86(b)(2)(ii)(A), except for 

transiting purposes, provided the vessel 

complies with § 648.86(b)(3). For vessels 

fishing in the NE multispecies DAS 

program under the provisions of 

§ 648.10(b), the VMS system, fail to 

declare through VMS that insufficient 

DAS have elapsed in order to account 

for the amount of cod on board the 

vessel as required under 

§ 648.86(b)(2)(ii)(B). 

* * * * * 

(48) [Reserved] 

(49) Discard legal-sized NE regulated 

multispecies, ocean pout, or Atlantic 

halibut while fishing under a Special 

Access Program, as described in 

§§ 648.85(b)(3)(xi), 648.85(b)(7)(iv)(H) or 

648.85(b)(8)(v)(I). 

(50) Discard legal-sized NE regulated 

multispecies, ocean pout, Atlantic 

halibut, or monkfish while fishing 

under a Regular B DAS in the Regular 

B DAS Program, as described in 

§ 648.85(b)(6)(iv)(E). 

(51) If fishing under a Regular B DAS 

in the Regular B DAS Program, fail to 

comply with the DAS flip requirements 

of § 648.85(b)(6)(iv)(E) if the vessel 

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62186 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

harvests and brings on board more than 

the landing limit for a groundfish stock 

of concern specified in 

§ 648.85(b)(6)(iv)(D), other groundfish 

specified under § 648.86, or monkfish 

under § 648.94. 

(52) If fishing in the Regular B DAS 

Program, fail to comply with the 

restriction on DAS use specified in 

§ 648.82(d)(2)(i)(A). 

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

Canada Haddock SAP Area, and other 

portions of the Eastern U.S./Canada 

Haddock SAP Area on the same trip, fail 

to comply with the restrictions in 

§ 648.85(b)(8)(v)(A). 

(54) [Reserved] 

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

Canada Haddock SAP 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 applicable 

landing limit specified in 

§ 648.85(b)(8)(v)(F) or under § 648.86. 

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

Canada Haddock SAP 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 

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), (I), and 

(J). 

(58) If fishing in the Regular B DAS 

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 

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 

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 

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 

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 

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 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 

Program specified in § 648.85(b)(6), use 

a Regular B DAS after the program has 

closed, as required under 

§ 648.85(b)(6)(iv)(G) or (H). 

* * * * * 

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

Haddock SAP specified in 

§ 648.85(b)(8), if the SAP is closed as 

specified in § 648.85(b)(8)(v)(K) or (L). 

(79) [Reserved] 

* * * * * 

(81) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(6), fail 

to use a haddock separator trawl as 

described under § 648.85(a)(3)(iii)(A). 

(82) If fishing under a NE 

multispecies Category A DAS in either 

the GOM Differential DAS Area, or the 

SNE Differential DAS Area defined 

under § 648.82(e)(2)(i), fail to declare 

into the area through VMS as required 

under § 648.82(e)(2)(ii). 

(83) If fishing under a NE 

multispecies Category A DAS in one of 

the Differential DAS Areas defined in 

§ 648.82(e)(2)(i), and under the 

restrictions of one or more of the Special 

Management Programs under § 648.85, 

fail to comply with the most restrictive 

regulations. 

(84) Fail to comply with the GB 

yellowtail flounder trip limit specified 

under § 648.85(a)(3)(iv)(C). 

(85) For vessels fishing inside and 

outside the Eastern U.S./Canada Area on 

the same trip, fail to comply with the 

most restrictive regulations that apply 

on the trip as required under 

§ 648.85(a)(3)(ii)(A). 

(86) For vessels fishing inside and 

outside the Eastern U.S./Canada Area on 

the same trip, fail to notify NMFS via 

VMS that it is electing to fish in this 

manner, as required by 

§ 648.85(a)(3)(ii)(A)(1). 

(87) Possess or land more white hake 

than allowed under § 648.86(e). 

(88) Possess or land more GB winter 

flounder than allowed under § 648.86(j). 

* * * * * 

(g) * * * 

(4) If the vessel is a private 

recreational fishing vessel, fail to 

comply with the seasonal GOM cod 

possession prohibition described in 

§ 648.89(c)(1)(v) or, if the vessel has 

been issued a charter/party permit or is 

fishing under charter/party regulations, 

fail to comply with the prohibition on 

fishing under § 648.89(c)(2)(v). 

(5) If fishing under the recreational or 

charter/party regulations, fish for or 

possess cod caught in the GOM 

Regulated Mesh Area during the 

seasonal GOM cod possession 

prohibition under § 648.89(c)(1)(v) or 

(c)(2)(v) or, fail to abide by the 

appropriate restrictions if transiting 

with cod on board. 

* * * * * 

5. In § 648.80, paragraph (b)(2)(i) is 

revised to read as follows: 

§ 648.80 NE multispecies regulated mesh 

areas and restrictions on gear and methods 

of fishing. 

* * * * * 

(b) * * * 

(2) * * * 

(i) Vessels using trawls. Except as 

provided in paragraphs (b)(2)(i) and (vi) 

of this section, and unless otherwise 

restricted under paragraph (b)(2)(iii) of 

this section, the minimum mesh size for 

any trawl net, not stowed and not 

available for immediate use in 

accordance with § 648.23(b), except 

midwater trawl, on a vessel or used by 

a vessel fishing under a DAS in the NE 

multispecies DAS program in the SNE 

Regulated Mesh Area is 6-inch (15.2-cm) 

diamond mesh or 6.5-inch (16.5-cm) 

square mesh, applied throughout the 

body and extension of the net, or any 

combination thereof, and 6.5-inch (16.5- 

cm) square or diamond mesh applied to 

the codend of the net, as defined under 

paragraph (a)(3)(i) of this section. This 

restriction does not apply to nets or 

pieces of nets smaller than 3 ft (0.9 m) 

x 3 ft (0.9 m), (9 sq ft (0.81 sq m)), or 

to vessels that have not been issued a 

NE multispecies permit and that are 

fishing exclusively in state waters. 

* * * * * 

6. In § 648.82, paragraph (c)(1)(iv) is 

removed; paragraphs (d)(2)(i)(A), the 

introductory text to paragraph (d)(4), 

paragraphs (e), (j)(1)(iii), (k)(1), (k)(3), 

(k)(4)(iv), (k)(4)(xi)(B), (l) introductory 

text, and paragraphs (l)(1)(i) through (v) 

are revised; and paragraphs (l)(1)(viii), 

and (l)(1)(ix) are 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 Program 

as specified in § 648.85(b)(6). Unless 

otherwise restricted under the Regular B 

DAS 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)). Vessels that are required by 

the Monkfish Fishery Management Plan 

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to utilize a NE multispecies DAS, as 

specified under § 648.92(b)(2), may not 

elect to use a NE multispecies Category 

B DAS to satisfy that requirement. 

* * * * * 

(4) Criteria and procedure for not 

reducing DAS allocations. The schedule 

of reductions in NE multispecies DAS 

shall not occur if the Regional 

Administrator: 

* * * * * 

(e) Accrual of DAS. (1) DAS shall 

accrue to the nearest minute, and with 

the exceptions described under this 

paragraph (e) and paragraph (j)(1)(iii) of 

this section, shall be counted as actual 

time called, or logged into the DAS 

program, consistent with the DAS 

notification requirements specified at 

§ 648.10(c)(5). 

(2) Differential DAS. For a NE 

multispecies DAS vessel that intends to 

fish some or all of its trip, or fishes, 

some or all of its trip other than for 

transiting purposes, under a Category A 

DAS in the GOM Differential DAS Area, 

as defined in paragraph (e)(2)(i)(A) of 

this section, or in the SNE Differential 

DAS Area, as defined in paragraph 

(e)(2)(i)(B) of this section, with the 

exception of Day gillnet vessels, which 

accrue DAS in accordance with 

paragraph (j)(1)(iii) of this section, each 

Category A DAS, or part thereof, shall be 

counted at the differential DAS rate 

described in paragraph (e)(2)(iii) of this 

section, and be subject to the 

restrictions defined in this paragraph 

(e). 

(i) Differential DAS Areas. (A) GOM 

Differential DAS Area. The GOM 

Differential DAS Area is defined by 

straight lines connecting the following 

points in the order stated: 

GOM DIFFERENTIAL DAS AREA

Point N. lat. W. long. 

GMD1 .......... 43°30′ Intersection with 

Maine Coastline. 

GMD2 .......... 43°30′ 69°30′. 

GMD3 .......... 43°00′ 69°30′. 

GMD4 .......... 43°00′ 69°55′ eastern 

boundary, 

WGOM Closed 

Area. 

GMD5 .......... 42°30′ 69°55′. 

GMD6 .......... 42°30′’ 69°30′. 

GMD7 .......... 41°30′ 69°30′. 

GMD8 .......... 41°30′ 70°00′. 

GMD9 .......... North to intersection with 

Cape Cod, Massachusetts, 

coast and 70°00′ W. 

(B) SNE Differential DAS Area. The 

SNE Differential DAS Area is defined by 

straight lines connecting the following 

points in the order stated: 

SNE DIFFERENTIAL DAS AREA

Point N. lat. W. long. 

SNED1 ...................... 41°05′ 71°45′ 

SNED2 ...................... 41°05′ 70°00′ 

SNED3 ...................... 41°00′ 70°00′ 

SNED4 ...................... 41°00′ 69°30′ 

SNED5 ...................... 40°50′ 69°30′ 

SNED6 ...................... 40°50′ 70°20′ 

SNED7 ...................... 40°40′ 70°20′ 

SNED8 ...................... 40°40′ 70°30′ 

SNED9 ...................... 40°30′ 72°30′ 

SNED10 .................... 40°10′ 73°00′ 

SNED11 .................... 40°00′ 73°15′ 

SNED12 .................... 40°00′ 73°40′ 

SNED13 .................... 40°15′ 73°40′ 

SNED14 .................... 40°30′ 73°00′ 

SNED15 .................... 40°55′ 71°45′ 

SNED16 .................... 41°05′ 71°45′ 

(ii) Declaration. With the exception of 

vessels fishing in the Eastern U.S./ 

Canada Area, as described in 

§ 648.85(a)(3)(ii)(A), a NE multispecies 

DAS vessel that intends to fish, or fishes 

under a Category A DAS in the GOM 

Differential DAS Area or the SNE 

Differential DAS Area, as described in 

paragraph (e)(2)(i) of this section, must, 

prior to leaving the dock, declare 

through the VMS, in accordance with 

instructions to be provided by the 

Regional Administrator, which specific 

differential DAS area the vessel will fish 

in on that trip. A DAS vessel that fishes 

in the Eastern U.S./Canada Area and 

intends to fish, or fishes, subsequently 

in the GOM Differential DAS Area or the 

SNE Differential DAS Area under 

Category A DAS Area must declare its 

intention to do so through its VMS prior 

to leaving the Eastern U.S./Canada Area, 

as specified in § 648.85(a)(3)(ii)(A)(3). 

(iii) Differential DAS counting—(A) 

Differential DAS counting when fishing 

in the GOM Differential DAS Area. For 

a NE multispecies vessel that intends to 

fish, or fishes for some or all of its trip 

other than for transiting purposes under 

a Category A DAS in the GOM 

Differential DAS Area, each Category A 

DAS, or part thereof, shall be counted at 

the ratio of 2 to1 for the entire trip, even 

if only a portion of the trip is spent 

fishing in the GOM Differential DAS 

Area. A vessel that has not declared its 

intent to fish in the GOM Differential 

DAS Area and that is not transiting, as 

specified in paragraph (e)(2)(v) of this 

section, may be in the GOM Differential 

DAS Area, provided the vessel’s fishing 

gear is stowed in accordance with the 

provisions of § 648.23(b) for the entire 

time the vessel is in the area, and the 

vessel declares immediately upon 

entering the GOM Differential DAS 

Area, via VMS, that it is in the area. A 

vessel that fishes in both the GOM 

Differential Area and the SNE 

Differential DAS Area on the same trip 

will be charged DAS at the rate of 2 to1 

for the entire trip. 

(B) Differential DAS counting when 

fishing in the SNE Differential DAS 

Area. For a NE multispecies DAS vessel 

that intends to fish or fishes some or all 

of its trip other than for transiting 

purposes under a Category A DAS in the 

SNE Differential DAS Area, each 

Category A DAS, or part thereof, shall be 

counted at the ratio of 2 to 1 for the 

duration of the time spent in the SNE 

Differential DAS Area, as determined 

from VMS positional data. A vessel that 

has not declared its intent to fish in the 

SNE Differential DAS Area and that is 

not transiting, as specified in paragraph 

(e)(2)(v) of this section, may be in the 

SNE Differential DAS Area, provided 

the vessel’s fishing gear is stowed in 

accordance with the provisions of 

§ 648.23(b) for the entire time the vessel 

is in the area and the vessel declares 

immediately upon entering the SNE 

Differential DAS Area, via VMS, that it 

is in the area. A vessel that fishes in 

both the GOM Differential Area and the 

SNE Differential DAS Area on the same 

trip will be charged DAS at the rate of 

2:1 for the entire trip. If the Regional 

Administrator requires the use of the 

DAS call-in, as described under 

§ 648.10(b)(2)(iv), a vessel that fishes 

any portion of its trip in the SNE 

Differential DAS Area will be charged 

DAS at the rate of 2 to1 for the entire 

trip. 

(iv) Restrictions. A NE multispecies 

vessel fishing under a Category A DAS 

in one of the Differential DAS Areas 

defined in paragraph (e)(2)(i) of this 

section, under the restrictions of 

paragraph (e)(2) of this section and 

under the restrictions of one or more of 

the Special Management Programs 

under § 648.85 must comply with the 

most restrictive DAS counting, trip 

limits, and reporting requirements, 

specified in this paragraph (e)(2) and in 

§ 648.85, under the pertinent Special 

Management Program. 

(v) Transiting. A vessel may transit 

the GOM Differential DAS Area and the 

SNE Differential DAS Area, as defined 

in paragraph (e)(2)(i) of this section, 

provided the gear is stowed in 

accordance with the provisions of 

§ 648.23(b). 

(3) Regular B DAS Program 24-hr 

clock. For a vessel electing to fish in the 

Regular B DAS Program, as specified at 

§ 648.85(b)(6), and that remains fishing 

under a Regular B DAS for the entire 

fishing trip (without a DAS flip), DAS 

used shall 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 

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from 6 a.m. to 10 p.m. would be charged 

24 hr of Regular B DAS, not 16 hr; 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 hr of Regular B DAS 

instead of 23 hr, 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 shall determine the amount of 

fish the vessel can legally land. For a 

vessel electing to fish in the Regular B 

DAS Program, as specified at 

§ 648.85(b)(6), while also fishing in one 

of the Differential DAS Areas, defined in 

(e)(2)(i) of this section, Category B DAS 

shall accrue at the rate described in this 

paragraph (e)(3), unless the vessel flips 

to a Category A DAS, in which case the 

vessel is subject to the pertinent DAS 

accrual restrictions of paragraph 

(e)(2)(iii) of this section for the entire 

trip. For vessels electing to fish in both 

the Regular B DAS Program, as specified 

in § 648.85(b)(8), and in the Eastern 

U.S./Canada Area, as specified in 

§ 648.85(a), DAS counting will begin 

and end according to the DAS 

accounting rules specified in 

§ 648.10(b)(2)(iii). 

* * * * * 

(j) * * * 

(1) * * * 

(iii) Method of counting DAS. A Day 

gillnet vessel fishing with gillnet gear 

under a NE multispecies DAS shall 

accrue DAS as follows: 

(A) A Day gillnet vessel fishing with 

gillnet gear that has elected to fish in the 

Regular B DAS Program, as specified in 

§ 648.85(b)(6), under a Category B DAS, 

is subject to the DAS accrual provisions 

of paragraph (e)(3) of this section. 

(B) A Day gillnet vessel fishing with 

gillnet gear under a NE multispecies 

Category A DAS, when not subject to 

differential DAS counting as specified 

under paragraph (e)(2) of this section, 

shall accrue 15 hr of DAS for each trip 

of more than 3 hr, but less than or equal 

to 15 hr. Such vessel shall accrue actual 

DAS time at sea for trips less than or 

equal to 3 hr, or more than 15 hr. 

(C) A Day gillnet vessel fishing with 

gillnet gear under a NE multispecies 

Category A DAS that is fishing in the 

GOM Differential DAS Area and, 

therefore, subject to differential DAS 

counting as specified under paragraph 

(e)(2)(iii)(A) of this section, shall accrue 

DAS at a differential DAS rate of 2 to 1 

for the actual hours used for any trip of 

0–3 hr in duration, and for any trip of 

greater than 7.5 hr. For such vessels 

fishing from 3 to 7.5 hr duration, vessels 

will be charged a full 15 hr. For 

example, a Day gillnet vessel fishing in 

the GOM Differential Area for 8 actual 

hr would be charged 16 hours of DAS, 

or if fishing for 5 actual hr would be 

charged 15 hr of DAS. 

(D) A Day gillnet vessel fishing with 

gillnet gear under a NE multispecies 

Category A DAS that is fishing in the 

SNE Differential DAS Area and, 

therefore, subject to differential DAS 

counting as specified under paragraph 

(e)(2)(iii)(B) of this section, shall accrue 

DAS at a differential DAS rate of 2 to 1 

for the actual hours that are in the SNE 

Differential DAS Area that are from 

0–3 hr in duration and greater than 7.5 

hr. For hours in the SNE Differential 

DAS Area that are over 3 hr and less 

than or equal to 7.5 hr duration, a vessel 

shall be charged a full 15 hr. For a Day 

gillnet vessel that fishes both inside and 

outside of the SNE Differential DAS 

Area on the same trip, time fished 

outside the area shall accrue on the 

basis of actual time, unless otherwise 

specified in this paragraph (j)(1)(iii). A 

Day gillnet vessel fishing inside and 

outside of the SNE Differential DAS 

Area on the same trip shall not accrue 

less DAS for the entire trip than would 

a Day gillnet vessel fishing the same 

amount of time outside of the SNE 

Differential DAS Area for the entire trip 

(accruing DAS as specified under 

paragraph (j)(1)(iii)(B) of this section). 

* * * * * 

(k) * * * 

(1) Program description. Eligible 

vessels, as specified in paragraph (k)(2) 

of this section, may lease Category A 

DAS to and from other eligible vessels, 

in accordance with the restrictions and 

conditions of this section. The Regional 

Administrator has final approval 

authority for all NE multispecies DAS 

leasing requests. 

* * * * * 

(3) Application to lease NE 

multispecies DAS. To lease Category A 

DAS, the eligible Lessor and Lessee 

vessel must submit a completed 

application form obtained from the 

Regional Administrator. The application 

must be signed by both Lessor and 

Lessee and be submitted to the Regional 

Office at least 45 days before the date on 

which the applicants desire to have the 

leased DAS effective. The Regional 

Administrator will notify the applicants 

of any deficiency in the application 

pursuant to this section. Applications 

may be submitted at any time prior to 

the start of the fishing year or 

throughout the fishing year in question, 

up until the close of business on March 

1. Eligible vessel owners may submit 

any number of lease applications 

throughout the application period, but 

any DAS may only be leased once 

during a fishing year. 

(4) * * * 

(iv) Maximum number of DAS that 

can be leased. A Lessee may lease 

Category A DAS in an amount up to 

such vessel’s 2001 fishing year 

allocation (excluding carry-over DAS 

from the previous year, or additional 

DAS associated with obtaining a Large 

Mesh permit). For example, if a vessel 

was allocated 88 DAS in the 2001 

fishing year, that vessel may lease up to 

88 Category A DAS. The total number of 

Category A DAS that the vessel could 

fish would be the sum of the 88 leased 

DAS and the vessel’s current allocation 

of Category A DAS. 

* * * * * 

(xi) * * * 

(B) Duration and applicability of onetime DAS Leasing Program baseline 

downgrade. The downgraded DAS 

Leasing Program baseline remains in 

effect until the DAS Leasing Program 

expires or the permit is transferred to 

another vessel via a vessel replacement, 

or through a DAS transfer unless 

otherwise specified in this paragraph 

(k)(4)(xi)(B). Once the permit is 

transferred to another vessel, the DAS 

Leasing Program baseline reverts to the 

baseline horsepower and length overall 

specifications associated with the 

permit prior to the one-time downgrade, 

unless otherwise specified. Once the 

DAS Leasing Program baseline is 

downgraded for a particular permit, no 

further downgrades may be authorized 

for that permit. The downgraded DAS 

Leasing Program baseline may only be 

used to determine eligibility for the DAS 

Leasing Program and does not affect or 

change the baseline associated with the 

DAS Transfer Program specified in 

paragraph (l)(1)(ii) of this section, or the 

vessel replacement or upgrade 

restrictions specified at 

§ 648.4(a)(1)(i)(E) and (F), or any other 

provision respectively. For vessels 

involved in a DAS Transfer Program 

transaction as described in paragraph (l) 

of this section, if the transferee vessel 

baseline is adopted, consistent with the 

regulations under paragraph (l)(1)(ii) of 

this section, and the DAS Leasing 

Program baseline of the transferee vessel 

was previously downgraded, consistent 

with the regulations under this 

paragraph (k)(4)(xi), the downgraded 

DAS Leasing Program baseline 

specifications remain valid. 

(l) DAS Transfer Program. Except for 

vessels fishing under a sector allocation 

as specified in § 648.87, or a vessel that 

acted as a lessee or lessor in the DAS 

Leasing Program transaction, a vessel 

issued a valid limited access NE 

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multispecies permit may transfer all of 

its NE multispecies DAS for an 

indefinite time to another vessel with a 

valid NE multispecies permit, in 

accordance with the conditions and 

restrictions described under this 

section. The Regional Administrator has 

final approval authority for all NE 

multispecies DAS transfer requests. 

(1) DAS transfer conditions and 

restrictions. (i) The transferor vessel 

must transfer all of its DAS. Upon 

approval of the DAS transfer, all history 

associated with the transferred NE 

multispecies DAS (moratorium right 

history, DAS use history, and catch 

history) shall be associated with the 

permit rights of the transferee. Neither 

the individual permit history elements, 

nor total history associated with the 

transferred DAS may be retained by the 

transferor. 

(ii) NE multispecies DAS may be 

transferred only to a vessel with a 

baseline main engine horsepower rating 

that is no more than 20 percent greater 

than the baseline engine horsepower of 

the transferor vessel. NE multispecies 

DAS may be transferred only to a vessel 

with a baseline length overall that is no 

more than 10 percent greater than the 

baseline length overall of the transferor 

vessel. For the purposes of this program, 

the baseline horsepower and length 

overall are those associated with the 

permit as of January 29, 2004. Upon 

approval of the transfer, the baseline of 

the transferee vessel would be the 

smaller baseline of the two vessels or, if 

the transferee vessel had not previously 

upgraded under the vessel replacement 

rules, the vessel owner could choose to 

adopt the larger baseline of the two 

vessels, which would constitute the 

vessel’s one-time upgrade, if such 

upgrade is consistent with the vessel 

replacement rules. A vessel that has 

executed a one-time downgrade of a 

DAS Leasing Program baseline in 

accordance with paragraph (k)(4)(xi) is 

subject to the restrictions of paragraph 

(k)(4)(xi)(B) of this section. 

(iii) The transferor vessel must 

transfer all of its Federal limited access 

permits for which it is eligible to the 

transferee vessel in accordance with the 

vessel replacement restrictions under 

§ 648.4, or permanently cancel such 

permits. When duplicate permits exist, 

i.e, those permits for which both the 

transferor and transferee vessel are 

eligible, one of the duplicate permits 

must be permanently cancelled. 

(iv) For the purpose of calculating the 

DAS conservation tax as described in 

this paragraph (l), the applicants must 

specify which DAS (the transferor’s 

DAS or the transferee’s DAS) are subject 

to the DAS reduction. NE multispecies 

Category A and Category B DAS, as 

defined under paragraphs (d)(1) and (2) 

of this section, shall be reduced by 20 

percent upon transfer. Category C DAS, 

as defined under paragraph (d)(3) of this 

section, shall be reduced by 90 percent 

upon transfer. 

(v) In any particular fishing year, a 

vessel may not execute a DAS transfer 

as a transferor if it previously 

participated in the DAS Leasing 

Program as either a lessee or a lessor, as 

described under paragraph (k) of this 

section. A vessel may participate in 

DAS lease transaction (as a lessee or a 

lessor) and submit an application for a 

DAS transfer (as a transferor) during the 

same fishing year, but the transfer, if 

approved, would not be effective until 

the beginning of the following fishing 

year. Other combinations of activities 

under the DAS Leasing and DAS 

Transfer programs are permissible 

during the same fishing year (i.e., act as 

a transferee, or act as transferor and 

subsequently conduct a DAS lease). 

* * * * * 

(viii) A vessel with a NE multispecies 

limited access Category D permit may 

transfer DAS only to a vessel with a NE 

multispecies limited access Category D 

permit, but may receive transferred DAS 

from any eligible NE multispecies 

vessel. 

(ix) A vessel with a DAS allocation 

resulting from a DAS Transfer in 

accordance with this paragraph (l) may 

acquire, through leasing, up to the sum 

of the DAS allocations for the 2001 

fishing year, associated with the 

transferred and original DAS (excluding 

carry-over DAS from the previous year, 

or additional DAS associated with 

obtaining a Large Mesh permit), in 

accordance with the restrictions of 

paragraph (k) of this section. 

* * * * * 

7. In § 648.85, paragraphs (a)(3)(ii)(A); 

(a)(3)(iv)(A); (a)(3)(iv)(C)(1) and (2); 

(a)(3)(iv)(D); (a)(3)(v); (b)(3)(xi); (b)(5); 

(b)(6)(iii); (b)(6)(iv)(C) through (F), (H), 

and (I); (b)(6)(v)(C) and (E); (b)(6)(vi); 

(b)(7)(iv)(F) through (H); (b)(7)(v)(D); 

(b)(7)(vi)(D); the introductory text of 

paragraph (b)(8); (b)(8)(i) and (iv); 

introductory text of paragraph 

(b)(8)(v)(A); (b)(8)(v)(A)(2) through (4); 

and (b)(8)(v)(E), (F), (H), (I) and (K) are 

revised; paragraphs (b)(6)(ii) and 

(b)(8)(iii) are removed and reserved; and 

paragraph (b)(6)(iv)(J) is added to read 

as follows: 

§ 648.85 Special Management Programs. 

* * * * * 

(a) * * * 

(3) * * * 

(ii) * * * 

(A) A vessel fishing under a NE 

multispecies DAS in the Eastern U.S./ 

Canada Area may fish both inside and 

outside of the Eastern U.S./Canada Area 

on the same trip, provided it complies 

with the most restrictive DAS counting, 

trip limits, and reporting requirements 

for the areas fished for the entire trip, 

and provided it complies with the 

restrictions specified in paragraphs 

(a)(3)(ii)(A)(1) through (4) of this 

section. On a trip when the vessel 

operator elects to fish both inside and 

outside of the Eastern U.S./Canada Area, 

all cod, haddock, and yellowtail 

flounder caught on the trip shall count 

toward the applicable hard TAC 

specified for the U.S./Canada 

Management Area. 

(1) The vessel operator must notify 

NMFS via VMS any time prior to 

leaving the Eastern U.S./Canada Area 

(including at the time of initial 

declaration into the Eastern U.S./Canada 

Area) that it is also electing to fish 

outside the Eastern U.S./Canada Area. 

With the exception of vessels 

participating in the Regular B DAS 

Program and fishing under a Regular B 

DAS, once a vessel that has elected to 

fish outside of the Eastern U.S./Canada 

Area leaves the Eastern U.S./Canada 

Area, Category A DAS shall accrue from 

the time the vessel crosses the VMS 

demarcation line at the start of its 

fishing trip until the time the vessel 

crosses the demarcation line on its 

return to port, in accordance with 

§ 648.10(b)(2)(iii). 

(2) The vessel must comply with the 

reporting requirements of the U.S./ 

Canada Management Area specified 

under § 648.85(a)(3)(v) for the duration 

of the trip. 

(3) If the vessel fishes or intends to 

fish in one of the Differential DAS Areas 

defined under § 648.82(e)(2)(i), it must 

declare its intent to fish in the specific 

Differential DAS Area prior to leaving 

the Eastern U.S./Canada Area, and must 

not have exceeded the CC/GOM or SNE/ 

MA yellowtail flounder trip limits, 

specified in § 648.86(g), for the 

respective areas. 

(4) If a vessel possesses yellowtail 

flounder in excess of the trip limits for 

CC/GOM yellowtail flounder or SNE/ 

MA yellowtail flounder, as specified in 

§ 648.86(g), the vessel may not fish in 

either the CC/GOM or SNE/MA 

yellowtail flounder stock area during 

that trip (i.e., may not fish outside of the 

U.S./Canada Management Area). 

* * * * * 

(iv) * * * 

(A) Cod landing limit restrictions. 

Notwithstanding other applicable 

possession and landing restrictions 

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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. A vessel fishing 

in the Eastern U.S./Canada Area may be 

further restricted by participation in 

other Special Management Programs as 

required under this section. 

* * * * * 

(C) * * * 

(1) Initial yellowtail flounder landing 

limit. Unless further restricted under 

paragraph (a)(3)(iv)(D) of this section 

(gear performance incentives), or 

modified pursuant to paragraph 

(a)(3)(iv)(D), the initial yellowtail 

flounder landing limit for each fishing 

year is 10,000 lb (4,536.2 kg) per trip. 

(2) Regional Administrator authority 

to adjust the yellowtail flounder landing 

limit mid-season. If, based upon 

available information, the Regional 

Administrator projects that the 

yellowtail flounder catch may exceed 

the yellowtail flounder TAC for a 

fishing year, the Regional Administrator 

may implement, adjust, or remove the 

yellowtail flounder landing limit at any 

time during that fishing year in order to 

prevent yellowtail flounder catch from 

exceeding the TAC or to facilitate 

harvesting the TAC, in a manner 

consistent with the Administrative 

Procedure Act. If, based upon available 

information, the Regional Administrator 

projects that the yellowtail flounder 

catch is less than 90 percent of the TAC, 

the Regional Administrator may adjust 

or remove the yellowtail flounder 

landing limit at any time during the 

fishing year in order to facilitate the 

harvest of the TAC, in a manner 

consistent with the Administrative 

Procedure Act. The Regional 

Administrator may specify yellowtail 

flounder trip limits that apply to the 

whole U.S./Canada Management Area or 

to either the Western or Eastern Area. 

* * * * * 

(D) Other restrictions or in-season 

adjustments. In addition to the 

possession restrictions specified in 

paragraph (a)(3)(iv) of this section, the 

Regional Administrator, in a manner 

consistent with the Administrative 

Procedure Act, may modify the gear 

requirements, modify or close access to 

the U.S./Canada Management Areas, 

modify the trip limits specified under 

paragraphs (a)(3)(iv)(A) through (C) of 

this section, or modify the total number 

of trips into the U.S./Canada 

Management Area, to prevent overharvesting or facilitate achieving the 

TAC. Such adjustments may be made at 

any time during the fishing year, or 

prior to the start of the fishing year. If 

necessary to give priority to using 

Category A DAS versus using Category 

B DAS, the Regional Administrator may 

implement different management 

measures for vessels using Category A 

DAS than for vessels using Category B 

DAS. If the Regional Administrator, 

under this authority, requires use of a 

particular gear type in order to reduce 

catches of stocks of concern, unless 

further restricted elsewhere in this part, 

the following gear performance 

incentives will apply: Possession of 

flounders (all species combined), 

monkfish, and skates is limited to 500 

lb (226.8 kg)(whole weight) each (i.e., no 

more than 500 lb (226.8 kg) of all 

flounders, no more than 500 lb (226.8 

kg) of monkfish, and no more than 500 

lb (226.8 kg) of skates), and possession 

of lobsters is prohibited. 

* * * * * 

(v) Reporting. The owner or operator 

of a NE multispecies DAS vessel must 

submit reports via VMS, in accordance 

with instructions provided by the 

Regional Administrator, for each day of 

the fishing trip when declared into 

either of the U.S./Canada Management 

Areas. The vessel must continue to 

report daily, even after exiting the U.S./ 

Canada Management Area. 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, or as instructed by the Regional 

Administrator. The reports must include 

at least the following information: 

(A) Total pounds of cod, haddock, 

yellowtail flounder, winter flounder, 

witch flounder, American plaice, and 

white hake kept; and total pounds of 

cod, haddock, yellowtail flounder, 

winter flounder, witch flounder, 

American plaice, and white hake 

discarded; 

(B) Date fish were caught and 

statistical area in which fish were 

caught; and 

(C) Vessel Trip Report (VTR) serial 

number, as instructed by the Regional 

Administrator. 

* * * * * 

(b) * * * 

(3) * * * 

(xi) No-discard provision and DAS 

flips. A vessel fishing in the CA II 

Yellowtail Flounder SAP, may not 

discard legal-sized regulated NE 

multispecies, Atlantic halibut, or ocean 

pout. If a vessel fishing in the CA II 

Yellowtail Flounder SAP exceeds an 

applicable trip limit, the vessel must 

exit the SAP. If a vessel operator fishing 

in the CA II Yellowtail Flounder SAP 

under a Category B DAS harvests and 

brings on board more legal-sized 

regulated NE multispecies, ocean pout, 

or Atlantic halibut than the maximum 

landing limits allowed per trip, 

specified under paragraph (b)(3)(iv) or 

(viii) of this section, or under § 648.86, 

the vessel operator must immediately 

notify NMFS via VMS to initiate a DAS 

flip (from a Category B DAS to a 

Category A DAS). Once this notification 

has been received by NMFS, the vessel’s 

entire trip will accrue as a Category A 

DAS trip. 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 (i.e., either at the beginning of the 

trip, or 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. 

* * * * * 

(5) Incidental Catch TACs. Unless 

otherwise specified in this paragraph 

(b)(5), Incidental Catch TACs shall be 

specified through the periodic 

adjustment process described in 

§ 648.90, and allocated as described in 

this paragraph (b)(5), for each of the 

following stocks: GOM cod, GB cod, GB 

yellowtail flounder, GB winter flounder, 

CC/GOM yellowtail flounder, American 

plaice, white hake, SNE/MA yellowtail 

flounder, SNE/MA winter flounder, and 

witch flounder. NMFS shall send letters 

to limited access NE multispecies 

permit holders notifying them of such 

TACs. 

(i) Stocks other than GB cod, GB 

yellowtail flounder, and GB winter 

flounder. With the exception of GB cod, 

GB yellowtail flounder, and GB winter 

flounder, the Incidental Catch TACs 

specified under this paragraph (b)(5) 

shall be allocated to the Regular B DAS 

Program described in paragraph (b)(6) of 

this section. 

(ii) GB cod. The Incidental Catch TAC 

for GB cod specified under this 

paragraph (b)(5) shall be subdivided as 

follows: 50 percent to the Regular B 

DAS Program described in paragraph 

(b)(6) of this section; 16 percent to the 

CA I Hook Gear Haddock SAP described 

in paragraph (b)(7) of this section; and 

34 percent to the Eastern U.S./Canada 

Haddock SAP described in paragraph 

(b)(8) of this section. 

(iii) GB yellowtail flounder and GB 

winter flounder. Each of the Incidental 

Catch TACs for GB yellowtail flounder 

and GB winter flounder specified under 

this paragraph (b)(5) shall be subdivided 

as follows: 50 percent to the Regular B 

DAS Program described in paragraph 

(b)(6) of this section; and 50 percent to 

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the Eastern U.S./Canada Haddock SAP 

described in paragraph (b)(8) of this 

section. 

* * * * * 

(6) * * * 

(ii) [Reserved]. 

(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 as follows: The first quarter 

shall receive 13 percent of the 

Incidental Catch TACs and the 

remaining quarters shall each receive 29 

percent of the Incidental Catch TACs. 

NMFS shall send letters to all limited 

access NE multispecies permit holders 

notifying them of such TACs. 

(iv) * * * 

(C) VMS declaration. To participate in 

the Regular B DAS Program under a 

Regular B DAS, a vessel must declare 

into the Program via VMS prior to 

departure from port, in accordance with 

instructions provided by the Regional 

Administrator. A vessel declared into 

the Regular B DAS Program cannot fish 

in an approved SAP described under 

this section on the same trip. Mere 

declaration of a Regular B DAS Program 

trip does not reserve a vessel’s right to 

fish under the Program, if the vessel has 

not crossed the VMS demarcation line. 

(D) Landing limits. Unless otherwise 

specified in this paragraph (b)(6)(iv)(D), 

a NE multispecies vessel fishing in the 

Regular B DAS 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/stocks: Cod, American 

plaice, white hake, witch flounder, 

SNE/MA winter flounder, GB winter 

flounder, GB yellowtail flounder, 

southern windowpane flounder, and 

ocean pout, and 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 CC/GOM or SNE/MA 

yellowtail flounder. In addition, trawl 

vessels, which are required to fish with 

a haddock separator trawl as specified 

under paragraph (b)(6)(iv)(J) of this 

section, and other gear that may be 

required in order to reduce catches of 

stocks of concern as described under 

paragraph (b)(6)(iv)(J) of this section, are 

restricted to the following trip limits: 

500 lb (227 kg) of all flatfish species 

(American plaice, witch flounder, 

winter flounder, windowpane flounder, 

and GB yellowtail flounder), combined; 

500 lb (227 kg) of monkfish (whole 

weight); 500 lb (227 kg) of skates (whole 

weight); and zero possession of lobsters, 

unless otherwise restricted by 

§ 648.94(b)(7). 

(E) No-discard provision and DAS 

flips. A vessel fishing in the Regular B 

DAS Program under a Regular B DAS 

may not discard legal-sized regulated 

species, ocean pout, Atlantic halibut, or 

monkfish. This prohibition on 

discarding does not apply in areas or 

times where the possession or landing 

of regulated species is prohibited. If 

such a vessel harvests and brings on 

board legal-sized regulated NE 

multispecies, or Atlantic halibut in 

excess of the allowable landing limits 

specified in paragraph (b)(6)(iv)(D) of 

this section or § 648.86, the vessel 

operator must notify NMFS immediately 

via VMS to initiate a DAS flip from a B 

DAS to an A DAS. Once this notification 

has been received by NMFS, the vessel 

shall automatically be switched by 

NMFS to fishing under a Category A 

DAS for its entire fishing trip. Thus, any 

Category B DAS that accrued between 

the time the vessel declared into the 

Regular B DAS Program 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 shall be 

accrued as Category A DAS, and not 

Regular B DAS. After flipping to a 

Category A DAS, the vessel is subject to 

the applicable trip limits specified 

under § 648.86 or § 648.85(a) and may 

discard fish in excess of the applicable 

trip limits. 

(F) Minimum Category A DAS and B 

DAS accrual. For a vessel fishing under 

the Regular B DAS Program, the number 

of Regular B DAS that may be used on 

a trip cannot exceed the number of 

Category A DAS that the vessel has at 

the start of the trip. If a vessel is fishing 

in the GOM Differential DAS Area or the 

SNE Differential DAS Area, as described 

in § 648.82(e)(2)(i), the number of 

Regular B DAS that may be used on a 

trip cannot exceed the number of 

Category A DAS that the vessel has at 

the start of the trip divided by 2. For 

example, if a vessel plans a trip under 

the Regular B DAS Program into the 

GOM Differential DAS Area and has 10 

Category A DAS available at the start of 

the trip, the maximum number of 

Regular B DAS that the vessel may fish 

under the Regular B Program is 5. A 

vessel fishing in the Regular B DAS 

Program for its entire trip shall accrue 

DAS in accordance with § 648.82(e)(3). 

* * * * * 

(H) Closure of Regular B DAS Program 

and quarterly DAS limits. Unless 

otherwise closed as a result of the 

harvest of an Incidental Catch TAC as 

described in paragraph (b)(6)(iv)(G) of 

this section, or as a result of an action 

by the Regional Administrator under 

paragraph (b)(6)(vi) of this section, the 

use of Regular B DAS shall, in a manner 

consistent with the Administrative 

Procedure Act, be prohibited when 500 

Regular B DAS have been used during 

the first quarter of the fishing year (MayJuly), or when 1,000 Regular B DAS 

have been used during any of the 

remaining quarters of the fishing year, 

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 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 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 pounds of 

haddock, yellowtail flounder, winter 

flounder, witch flounder, American 

plaice, and white hake kept; total 

pounds of haddock, yellowtail flounder, 

winter flounder, witch flounder, 

American plaice, and white hake 

discarded; date fish were caught; and 

VTR serial number, as instructed by the 

Regional Administrator. Daily reporting 

must continue even if the vessel 

operator is required to flip, as described 

under paragraph (b)(6)(iv)(E) of this 

section. 

(J) Gear requirement—(1) Vessels 

fishing with trawl gear in the Regular B 

DAS Program must use a haddock 

separator trawl as described under 

paragraph (a)(3)(iii)(A) of this section, or 

other type of gear if approved as 

described under this paragraph 

(b)(6)(iv)(J). Other gear may be on board 

the vessel, provided it is stowed when 

the vessel is fishing under the Regular 

B DAS Program. 

(2) The Regional Administrator may 

authorize additional gear if the Council 

first recommends to the Regional 

Administrator, and the Regional 

Administrator approves, gear standards 

in a manner consistent with the 

Administrative Procedure Act. If the 

Regional Administrator does not 

approve any gear standards 

recommended by the Council for use in 

the Regular B DAS Program, NMFS 

must provide a written rationale to the 

Council regarding its decision not to do 

so. 

(v) * * * 

(C) CC/GOM yellowtail flounder stock 

area. The CC/GOM yellowtail flounder 

stock area for the purposes of the 

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62192 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

Regular B DAS Program is the area 

defined by straight lines connecting the 

following points in the order stated: 

CC/GOM YELLOWTAIL FLOUNDER

STOCK AREA

Point N. lat. W. long. 

CCGOM1 .... 43°00′ Intersection with 

New Hampshire 

Coastline. 

CCGOM2 .... 43°00′ 70°00′. 

CCGOM3 .... 42°30′ 70°00′. 

CCGOM4 .... 42°30′ 69°30′. 

CCGOM5 .... 41°30′ 69°30′. 

CCGOM6 .... 41°30′ 69°00′. 

CCGOM7 .... 41°00′ 69°00′. 

CCGOM8 .... 41°00′ 69°30′. 

CCGOM5 .... 41°30′ 69°30′. 

CCGOM9 .... 41°30′ 70°00′. 

CCGOM10 .. (1) 70°00′. 

CCGOM11 .. 42°00′ Intersection with 

east facing 

shoreline of 

Cape Cod, 

Massachusetts. 

CCGOM12 .. 42°00′ Intersection with 

west facing 

shoreline of 

Massachusetts. 

CCGOM13 .. (2) 70°00′ 

1 Intersection with south facing shoreline of 

Cape Cod, Massachusetts. 2 Intersection with east facing shoreline of 

Cape Cod, Massachusetts. 

* * * * * 

(E) SNE/MA yellowtail flounder stock 

area. The SNE/MA yellowtail flounder 

stock area for the purposes of the 

Regular B DAS Program is the area 

bounded on the north, east, and south 

by straight lines connecting the 

following points in the order stated: 

SNE/MA YELLOWTAIL FLOUNDER

STOCK AREA

Point N. lat. W. long. 

SNEMA1 ................... 40°00′ 74°00′ 

SNEMA2 ................... 40°00′ 72°00′ 

SNEMA3 ................... 40°30′ 72°00′ 

SNEMA4 ................... 40°30′ 69°30′ 

SNEMA5 ................... 41°00′ 69°30′ 

SNEMA6 ................... 41°00′ 69°00′ 

SNEMA7 ................... 41°30′ 69°00′ 

SNEMA8 ................... 41°30′ 70°00′ 

SNEMA9 ................... 41°00′ 70°00′ 

SNEMA10 ................. 41°00′ 70°30′ 

SNEMA11 ................. 41°30′ 70°30′ 

SNEMA12 ................. (1) 72°00′ 

SNEMA13 ................. (2) 72°00′ 

SNEMA14 ................. (3) 73°00′ 

SNEMA15 ................. 40°30′ 73°00′ 

SNEMA16 ................. 40°30′ 74°00′ 

SNEMA17 ................. 40°00′ 74°00′ 

1South facing shoreline of Connecticut. 

2 North facing shoreline of Long Island, New 

York. 3South facing shoreline of Long Island, New 

York. 

* * * * * 

(vi) Closure of the Regular B DAS 

Program. The Regional Administrator, 

based upon information required under 

§§ 648.7, 648.9, 648.10, or 648.85, and 

any other relevant information may, in 

a manner 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 Program would 

undermine the achievement of the 

objectives of the FMP or Regular B DAS 

Program. Reasons for terminating the 

program include, but are not limited to 

the following: Inability to constrain 

catches to the Incidental Catch TACs; 

evidence of excessive discarding; a 

significant difference in flipping rates 

between observed and unobserved trips; 

or insufficient observer coverage to 

adequately monitor the program. 

(7) * * * 

(iv) * * * 

(F) Haddock TAC. The maximum 

total amount of haddock that may be 

caught (landings and discards) in the 

Closed Area I Hook Gear SAP Area in 

any fishing year is based upon the size 

of the TAC allocated for the 2004 fishing 

year (1,130 mt live weight), adjusted 

according to the growth or decline of the 

western GB (WGB) haddock exploitable 

biomass (in relationship to its size in 

2004), according to the following 

formula: BiomassYEAR X = (1,130 mt live 

weight) x (Projected WGB Haddock 

Exploitable BiomassYEAR X / WGB 

Haddock Exploitable Biomass2004). The 

size of the western component of the 

stock is considered to be 35 percent of 

the total stock size, unless modified by 

a stock assessment. The Regional 

Administrator shall specify the haddock 

TAC for the SAP, in a manner consistent 

with the Administrative Procedure Act. 

(G) Trip restrictions. A vessel is 

prohibited from deploying fishing gear 

outside of the Closed Area I Hook Gear 

Haddock SAP Area on the same fishing 

trip on which it is declared into the 

Closed Area I Hook Gear Haddock SAP, 

and must exit the SAP if the vessel 

exceeds the applicable landing limits 

described in paragraph (b)(7)(iv)(H) of 

this section. 

(H) Landing limits. For all eligible 

vessels declared into the Closed Area I 

Hook Gear Haddock SAP described in 

paragraph (b)(7)(i) of this section, 

landing limits for NE multispecies other 

than cod, which are specified at 

paragraphs (b)(7)(v)(C) and (b)(7)(vi)(C) 

of this section, are as specified at 

§ 648.86. Such vessels are prohibited 

from discarding legal-sized regulated NE 

multispecies, Atlantic halibut, and 

ocean pout, and must exit the SAP and 

cease fishing if any trip limit is achieved 

or exceeded. 

* * * * * 

(v) * * * 

(D) Reporting requirements. The 

owner or operator of a Sector vessel 

declared into the Closed Area I Hook 

Gear Haddock SAP must submit reports 

to the Sector Manager, with instructions 

to be provided by the Sector Manager, 

for each day fished in the Closed Area 

I Hook Gear Haddock SAP Area. The 

Sector Manager will provide daily 

reports to NMFS, including at least the 

following information: Total pounds of 

haddock, cod, yellowtail flounder, 

winter flounder, witch flounder, 

American plaice, and white hake kept; 

total pounds of haddock, cod, yellowtail 

flounder, winter flounder, witch 

flounder, American plaice, and white 

hake discarded; date fish were caught; 

and VTR serial number, as instructed by 

the Regional Administrator. Daily 

reporting must continue even if the 

vessel operator is required to exit the 

SAP as required under paragraph 

(b)(7)(iv)(G) of this section. 

* * * * * 

(vi) * * * 

(D) Reporting requirements. The 

owner or operator of a non-Sector vessel 

declared into the Closed Area I Hook 

Gear Haddock SAP must submit reports 

via VMS, in accordance with 

instructions to be provided by the 

Regional Administrator, for each day 

fished in the Closed Area I Hook Gear 

Haddock SAP Area. The reports must be 

submitted in 24-hr intervals for each 

day fished, beginning at 0000 hr and 

ending at 2400 hr. The reports must be 

submitted by 0900 hr of the day 

following fishing. The reports must 

include at least the following 

information: Total pounds of haddock, 

cod, yellowtail flounder, winter 

flounder, witch flounder, American 

plaice, and white hake kept; total 

pounds of haddock, cod, yellowtail 

flounder, winter flounder, witch 

flounder, American plaice, and white 

hake discarded; date fish were caught; 

and VTR serial number, as instructed by 

the Regional Administrator. Daily 

reporting must continue even if the 

vessel operator is required to exit the 

SAP as required under paragraph 

(b)(7)(iv)(G) of this section. 

* * * * * 

(8) Eastern U.S./Canada Haddock 

SAP—(i) Eligibility. A vessel 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, is eligible to participate in 

the Eastern U.S./Canada Haddock SAP, 

and may fish in the Eastern U.S./Canada 

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Haddock SAP Area, as described in 

paragraph (b)(8)(ii) of this section, 

during the season specified in paragraph 

(b)(8)(iv) of this section, provided such 

vessel complies 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, or the Eastern U.S./ 

Canada Area is not closed as described 

under paragraph (a)(3)(iv)(E) of this 

section. 

* * * * * 

(iii) [Reserved]. 

(iv) Season. An eligible vessel may 

fish in the Eastern U.S./Canada 

Haddock SAP from August 1 through 

December 31. 

(v) * * * 

(A) DAS use restrictions. A vessel 

fishing in the Eastern U.S./Canada 

Haddock SAP 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). 

* * * * * 

(2) A vessel that is declared into the 

Eastern U.S./Canada Haddock SAP 

described in paragraph (b)(8)(i) of this 

section may fish, on the same trip, in 

the Eastern U.S./Canada Haddock SAP 

Area and in the Closed Area 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 Program and 

the Closed Area II Yellowtail Flounder 

Access Area, and in the 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. 

Such a vessel may also elect to fish 

outside of the Eastern U.S./Canada Area 

on the same trip, in accordance with the 

restrictions of paragraph (a)(3)(ii)(A) of 

this section. 

(4) A vessel that elects to fish in 

multiple areas, as described in this 

paragraph (b)(8)(v)(A), must fish under 

the most restrictive DAS counting, trip 

limits, and reporting requirements of the 

areas fished for the entire trip, including 

those in paragraph (a)(3)(ii)(A)(3) of this 

section. 

* * * * * 

(E) Gear restrictions—(1) A NE 

multispecies vessel fishing in the 

Eastern U.S./Canada Haddock SAP must 

use the haddock separator trawl nets 

authorized for the Eastern U.S./Canada 

Area, as specified in paragraph 

(a)(3)(iii)(A) of this section, or other type 

of gear, if approved as described under 

this paragraph (b)(8)(v)(E). No other type 

of fishing gear may be on the vessel 

when on a trip in the Eastern U.S./ 

Canada Haddock SAP, with the 

exception of a flounder net, as described 

in paragraph (a)(3)(iii) of this section, 

provided that the flounder net is stowed 

in accordance with § 648.23(b). 

(2) The Regional Administrator may 

authorize additional gear if the Council 

first recommends to the Regional 

Administrator, and the Regional 

Administrator approves, gear standards 

in a manner consistent with the 

Administrative Procedure Act. If the 

Regional Administrator does not 

approve any gear standards 

recommended by the Council for use in 

the Eastern U.S./Canada Haddock SAP, 

NMFS must provide a written rationale 

to the Council regarding its decision not 

to do so. 

(F) Landing limits. Unless otherwise 

restricted, a vessel fishing any portion of 

a trip in the Eastern U.S./Canada 

Haddock 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 

Eastern U.S./Canada Haddock SAP is 

subject to the haddock requirements 

described under § 648.86(a), unless 

further restricted under paragraph 

(a)(3)(iv) of this section. A NE 

multispecies vessel fishing in the 

Eastern U.S./Canada Haddock SAP 

under a Category B DAS may not land 

more than 100 lb (45.5 kg) per DAS, or 

any part of a DAS, of GB yellowtail 

flounder and 100 lb (45.5 kg) of GB 

winter flounder, up to a maximum of 

500 lb (227 kg) of all flatfish species, 

combined. Possession of monkfish 

(whole weight), and skates (whole 

weight) is limited to 500 lb (227 kg) 

each, and possession of lobsters is 

prohibited. 

* * * * * 

(H) Incidental TACs. The maximum 

amount of GB cod, and the amount of 

GB yellowtail flounder and GB winter 

flounder, both landings and discards, 

that may be caught when fishing in the 

Eastern U.S./Canada Haddock SAP 

Program in a fishing year by vessels 

fishing under a Category B DAS, as 

authorized in paragraph (b)(8)(v)(A), is 

the amount specified in paragraphs 

(b)(5)(ii) and (iii), respectively. 

(I) No discard provision and DAS 

flips. A vessel fishing in the Eastern 

U.S./Canada Haddock SAP Program 

may not discard legal-sized regulated 

NE multispecies, Atlantic halibut, and 

ocean pout. If a vessel fishing in the 

Eastern U.S./Canada Haddock SAP 

under a Category B DAS exceeds the 

applicable maximum landing limit per 

trip specified under paragraph 

(b)(8)(v)(F) of this section, or under 

§ 648.86, the vessel operator must retain 

the fish and immediately notify NMFS 

via VMS to initiate a DAS flip (from a 

Category B DAS to a Category A DAS). 

After flipping to a Category A DAS, the 

vessel is subject to all applicable 

landing limits specified under 

§ 648.85(a) or § 648.86. If a vessel 

fishing in this SAP while under a 

Category B DAS or a Category A DAS 

exceeds a trip limit specified under 

paragraph (b)(8)(v)(F) of this section or 

§ 648.86, or other applicable trip limit, 

the vessel must immediately exit the 

SAP area defined under paragraph 

(b)(8)(ii) of this section for the 

remainder of the trip. 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 and the time 

the vessel declared its DAS flip will be 

accrued as Category A DAS, and not 

Category B DAS. 

* * * * * 

(K) Mandatory closure of Eastern 

U.S./Canada Haddock SAP. When the 

Regional Administrator projects that one 

or more of the TAC allocations 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, through 

publication 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 

Program. 

* * * * * 

■ 8. In § 648.86, the section heading and 

paragraphs (a)(1), (b)(1), (b)(2), (b)(4), 

(e), and (g) are revised; and paragraph (j) 

is added, to read as follows: 

§ 648.86 NE Multispecies possession 

restrictions. 

* * * * * 

(a) * * * 

(1) NE multispecies DAS vessels—(i) 

Implementation and adjustments to the 

haddock trip limit to prevent exceeding 

the Target TAC. At any time prior to or 

during the fishing year, if the Regional 

Administrator projects that the Target 

TAC for haddock will be exceeded in 

that fishing year, NMFS may implement 

or adjust, in a manner consistent with 

the Administrative Procedure Act, a per 

DAS possession limit and/or a 

maximum trip limit in order to prevent 

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62194 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

exceeding the Target TAC in that fishing 

year. 

(ii) Implementation and adjustments 

to the haddock trip limit to facilitate 

harvest of the Target TAC. At any time 

prior to or during the fishing year, if the 

Regional Administrator projects that 

less than 90 percent of the Target TAC 

for that fishing year will be harvested, 

NMFS may remove or adjust, in a 

manner consistent with the 

Administrative Procedure Act, a per 

DAS possession limit and/or a 

maximum trip limit in order to facilitate 

a haddock harvest and enable the total 

catch to approach the Target TAC for 

that fishing year. 

* * * * * 

(b) * * * 

(1) GOM cod landing limit. (i) Except 

as provided in paragraphs (b)(1)(ii) and 

(b)(4) of this section, or unless otherwise 

restricted under § 648.85, a vessel 

fishing under a NE multispecies DAS 

may land only up to 800 lb (362.9 kg) 

of cod during the first 24-hr period after 

the vessel has started a trip on which 

cod were landed (e.g., a vessel that starts 

a trip at 6 a.m. may call out of the DAS 

program at 11 a.m. and land up to 800 

lb (362.9 kg), but the vessel cannot land 

any more cod on a subsequent trip until 

at least 6 a.m. on the following day). For 

each trip longer than 24 hr, a vessel may 

land up to an additional 800 lb (362.9 

kg) for each additional 24-hr block of 

DAS fished, or part of an additional 

24-hr block of DAS fished, up to a 

maximum of 4,000 lb (1,818.2 kg) per 

trip (e.g., a vessel that has been called 

into the DAS program for more than 24 

hr, but less than 48 hr, may land up to, 

but no more than, 1,600 lb (725.7 kg) of 

cod). A vessel that has been called into 

only part of an additional 

24-hr block of a DAS (e.g., a vessel that 

has been called into the DAS program 

for more than 24 hr, but less than 48 hr) 

may land up to an additional 800 lb 

(362.9 kg) of cod for that trip, provided 

the vessel complies with the provisions 

of paragraph (b)(1)(ii) of this section. 

Cod on board a vessel subject to this 

landing limit must be separated from 

other species of fish and stored so as to 

be readily available for inspection. 

(ii) A vessel that has been called into 

or declared into only part of an 

additional 24-hr block may come into 

port with and offload cod up to an 

additional 800 lb (362.9 kg), provided 

that the vessel operator, with the 

exception of vessels fishing in one of the 

two Differential DAS Areas under the 

restrictions of § 648.82(e)(2)(i), complies 

with the following: 

(A) For a vessel that is subject to the 

VMS provisions specified under 

§ 648.10(b), the vessel declares through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod onboard and, after returning to port, 

does not depart from a dock or mooring 

in port, unless transiting as allowed 

under paragraph (b)(3) of this section, 

until the rest of the additional 24-hr 

block of the DAS has elapsed, regardless 

of whether all of the cod on board is 

offloaded (e.g., a vessel that has been in 

the DAS program for 25 hr prior to 

crossing the VMS demarcation line on 

the return to port) may land only up to 

1,600 lb (725.6 kg) of cod, provided the 

vessel does not declare another trip or 

leave port until 48 hr have elapsed from 

the beginning of the trip). 

(B) For a vessel that has been 

authorized by the Regional 

Administrator to utilize the DAS call-in 

system, as specified under § 648.10(c), 

in lieu of VMS, the vessel does not call 

out of the DAS program as described 

under § 648.10(c)(3) and does not depart 

from a dock or mooring in port, unless 

transiting as allowed in paragraph (b)(3) 

of this section, until the rest of the 

additional 24-hr block of DAS has 

elapsed, regardless of whether all of the 

cod on board is offloaded (e.g., a vessel 

that has been called into the DAS 

program for 25 hr at the time of landing 

may land only up to 1,600 lb (725.6 kg) 

of cod, provided the vessel does not call 

out of the DAS program or leave port 

until 48 hr have elapsed from the 

beginning of the trip. 

(2) GB cod landing and maximum 

possession limits. (i) Unless otherwise 

restricted under § 648.85 or the 

provisions of paragraph (b)(2)(ii) of this 

section, or unless exempt from the 

landing limit under paragraph (b)(1) of 

this section as authorized under the 

Sector provisions of § 648.87, a NE 

multispecies DAS vessel may land up to 

1,000 lb (453.6 kg) of cod per DAS, or 

part of a DAS, provided it complies with 

the requirements specified at paragraph 

(b)(4) of this section and this paragraph 

(b)(2). A NE multispecies DAS vessel 

may land up to 1,000 lb (453.6 kg) of 

cod during the first 24-hr period after 

such vessel has started a trip on which 

cod were landed (e.g., a vessel that starts 

a trip at 6 a.m. may call out of the DAS 

program at 11 a.m. and land up to 1,000 

lb (453.6 kg) of cod, but the vessel 

cannot land any more cod on a 

subsequent trip until at least 6 a.m. on 

the following day). For each trip longer 

than 24 hr, a vessel may land up to an 

additional 1,000 lb (453.6 kg) of cod for 

each additional 24-hr block of DAS 

fished, or part of an additional 24-hr 

block of DAS fished, up to a maximum 

of 10,000 lb (4,536 kg) of cod per trip 

(e.g., a vessel that has been called into 

the DAS program for more than 24 hr, 

but less than 48 hr, may land up to, but 

no more than, 2,000 lb (907.2 kg) of 

cod). A vessel that has been called into 

only part of an additional 24-hr block of 

a DAS (e.g., a vessel that has been called 

into the DAS program for more than 24 

hr, but less than 48 hr) may land up to 

an additional 1,000 lb (453.6 kg) of cod 

for that trip, provided the vessel 

complies with the provisions of 

paragraph (b)(2)(ii) of this section. Cod 

on board a vessel subject to this landing 

limit must be separated from other 

species of fish and stored so as to be 

readily available for inspection. 

(ii) A vessel that has been called into 

or declared into only part of an 

additional 24-hr block may come into 

port with and offload cod up to an 

additional 1,000 lb (453.6 kg), provided 

that the vessel operator, with the 

exception of vessels fishing in one of the 

two Differential DAS Areas under the 

restrictions of § 648.82(e)(2)(i), complies 

with the following: 

(A) For a vessel that has been 

authorized by the Regional 

Administrator to utilize the DAS call-in 

system as specified under § 648.10(c), in 

lieu of VMS, the vessel does not call out 

of the DAS program as described under 

§ 648.10(c)(3) and does not depart from 

a dock or mooring in port, unless 

transiting, as allowed in paragraph (b)(3) 

of this section, until the rest of the 

additional 24-hr block of DAS has 

elapsed, regardless of whether all of the 

cod on board is offloaded (e.g., a vessel 

that has been called into the DAS 

program for 25 hr at the time of landing 

may land only up to 2,000 lb (907.2 kg) 

of cod, provided the vessel does not call 

out of the DAS program or leave port 

until 48 hr have elapsed from the 

beginning of the trip.) 

(B) For a vessel that is subject to the 

VMS provisions specified under 

§ 648.10(b), the vessel declares through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod onboard, and after returning to port 

does not depart from a dock or mooring 

in port, unless transiting, as allowed 

under paragraph (b)(3) of this section, 

until the rest of the additional 24-hr 

block of the DAS has elapsed, regardless 

of whether all of the cod on board is 

offloaded (e.g., a vessel that has been in 

the DAS program for 25 hr prior to 

crossing the VMS demarcation line on 

the return to port may land only up to 

2,000 lb (907.2 kg) of cod, provided the 

vessel does not declare another trip or 

leave port until 48 hr have elapsed from 

the beginning of the trip.) 

* * * * * 

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(4) Exemption. A vessel fishing under 

a NE multispecies DAS is exempt from 

the landing limit described in paragraph 

(b)(1) of this section when fishing south 

of the Gulf of Maine Regulated Mesh 

Area, defined in § 648.80(a)(1), provided 

that it complies with the requirement of 

this paragraph (b)(4). 

(i) Declaration. With the exception of 

vessels declared into the U.S./Canada 

Management Area, as described under 

§ 648.85(a)(3)(ii), a NE multispecies 

DAS vessel that fishes or intends to fish 

south of the line described in paragraph 

(b)(4) of this section, under the cod trip 

limits described under paragraph (b)(2) 

of this section, must, prior to leaving the 

dock, declare its intention to do so 

through the VMS, in accordance with 

instructions to be provided by the 

Regional Administrator. In lieu of a 

VMS declaration, the Regional 

Administrator may authorize such 

vessels to obtain a letter of 

authorization. If a letter of authorization 

is required, such vessel may not fish 

north of the exemption area for a 

minimum of 7 consecutive days (when 

fishing under the multispecies DAS 

program), and must carry the 

authorization letter on board. 

(ii) A vessel exempt from the GOM 

cod landing limit may not fish north of 

the line specified in paragraph (b)(4) of 

this section for the duration of the trip, 

but may transit the GOM Regulated 

Mesh Area, provided that its gear is 

stowed in accordance with the 

provisions of § 648.23(b). A vessel 

fishing north and south of the line on 

the same trip is subject to the most 

restrictive applicable cod trip limit. 

* * * * * 

(e) White hake. Unless otherwise 

restricted under this part, a vessel 

issued a NE multispecies DAS permit, a 

limited access Handgear A permit, an 

open access Handgear B permit, or a 

monkfish limited access permit and 

fishing under the monkfish Category C 

or D permit provisions may land up to 

500 lb (226.8 kg) of white hake per DAS, 

or any part of a DAS, up to 5,000 lb 

(2,268.1 kg) per trip. 

* * * * * 

(g) Yellowtail flounder. (1) CC/GOM 

and SNE/MA yellowtail flounder 

landing limit. Unless otherwise 

restricted under this part, a vessel 

issued a NE multispecies DAS permit, a 

limited access Handgear A permit, an 

open access Handgear B permit, or a 

monkfish limited access permit and 

fishing under the monkfish Category C 

or D permit provisions, and fishing 

exclusively outside of the U.S./Canada 

Management Area, as defined under 

§ 648.85(a)(1), may land or possess on 

board only up to 250 lb (113.6 kg) of 

yellowtail flounder per DAS, or any part 

of a DAS, up to a maximum possession 

limit of 1,000 lb (453.6 kg) per trip. A 

vessel fishing outside and inside of the 

U.S./Canada Management Area on the 

same trip is subject to the more 

restrictive yellowtail flounder trip limit 

(i.e., that specified by this paragraph (g)) 

or § 648.85(a)(3)(iv)(C). 

(2) GB yellowtail flounder landing 

limit. Unless otherwise restricted under 

this part, a vessel issued a NE 

multispecies DAS permit, a limited 

access Handgear A permit, an open 

access Handgear B permit, or a 

monkfish limited access permit and 

fishing under the monkfish Category C 

or D permit provisions, and fishing in 

the U.S./Canada Management Area 

defined under § 648.85(a)(1) is subject to 

the GB yellowtail flounder limit 

described under paragraph 

§ 648.85(a)(3)(iv)(c). 

* * * * * 

(j) GB winter flounder. Unless 

otherwise restricted under this part, a 

vessel issued a NE multispecies DAS 

permit, a limited access Handgear A 

permit, an open access Handgear B 

permit, or a monkfish limited access 

permit and fishing under the monkfish 

Category C or D permit provisions, and 

fishing in the U.S./Canada Management 

Area defined under § 648.85(a)(1), may 

not possess or land more than 5,000 lb 

(2,268.1 kg) of GB winter flounder per 

trip. 

* * * * * 

■ 9. In § 648.87, paragraph (d)(2) is 

added to read as follows: 

§ 648.87 Sector allocation. 

* * * * * 

(d) * * * 

(2) GB Cod Fixed Gear Sector. Eligible 

NE multispecies DAS vessels, as 

specified in paragraph (d)(2)(i) of this 

section, may participate in the GB Cod 

Fixed Gear Sector within the area 

defined as the GB Cod Hook Sector 

Area, as specified under paragraph 

(d)(1)(i) of this section, under the GB 

Cod Fixed Gear Sector’s Operations 

Plan, provided the Operations Plan is 

approved by the Regional Administrator 

in accordance with paragraph (c) of this 

section, and provided that each 

participating vessel and vessel operator 

and/or vessel owner complies with the 

requirements of the Operations Plan, the 

requirements and conditions specified 

in the Letter of Authorization issued 

pursuant to paragraph (c) of this section, 

and all other requirements specified in 

this section. 

(i) Eligibility. All vessels issued a 

limited access NE multispecies DAS 

permit are eligible to participate in the 

GB Cod Fixed Gear Sector, provided 

they have documented landings through 

valid dealer reports submitted to NMFS 

of GB cod during the fishing years 1996 

to 2001, regardless of gear fished. 

(ii) TAC allocation. For each fishing 

year, the Sector’s allocation of that 

fishing year’s GB cod TAC, up to a 

maximum of 20 percent of the GB cod 

TAC, will be determined as follows: 

(A) Sum of the total accumulated 

landings of GB cod by vessels identified 

in the Sector’s Operations Plan specified 

under paragraph (b)(2) of this section, 

for the fishing years 1996 through 2001, 

regardless of gear used, as reported in 

the NMFS dealer database. 

(B) Sum of total accumulated landings 

of GB cod made by all NE multispecies 

vessels for the fishing years 1996 

through 2001, as reported in the NMFS 

dealer database. 

(C) Divide the sum of total landings of 

Sector participants calculated in 

paragraph (d)(2)(ii)(A) of this section by 

the sum of total landings by all vessels 

calculated in paragraph (d)(2)(ii)(B) of 

this section. The resulting number 

represents the percentage of the total GB 

cod TAC allocated to the GB Cod Fixed 

Gear Sector for the fishing year in 

question. 

(iii) Requirements. A vessel fishing 

under the GB Cod Fixed Gear Sector 

may not fish with gear other than jigs, 

non-automated demersal longline, hand 

gear, or sink gillnets. 

■ 10. In § 648.88, paragraph (c) is 

revised to read as follows: 

§ 648.88 NE multispecies open access 

permit restrictions. 

* * * * * 

(c) Scallop NE multispecies 

possession limit permit. With the 

exception of vessels fishing in the Sea 

Scallop Access Areas as specified in 

§ 648.59(b) through (d), a vessel that has 

been issued a valid open access scallop 

NE multispecies possession limit permit 

may possess and land up to 300 lb 

(136.1 kg) of regulated NE multispecies 

when fishing under a scallop DAS 

allocated under § 648.53, provided the 

vessel does not fish for, possess, or land 

haddock from January 1 through June 

30, as specified under § 648.86(a)(2)(i), 

and provided that the amount of 

regulated NE multispecies on board the 

vessel does not exceed any of the 

pertinent trip limits specified under 

§ 648.86, and provided the vessel has at 

least one standard tote on board. A 

vessel fishing in the Sea Scallop Access 

Areas as specified in § 648.59(b) through 

(d) is subject to the possession limits 

specified in § 648.60(a)(5)(ii). 

* * * * * 

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62196 Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / Rules and Regulations 

■ 11. In § 648.89, paragraphs (b)(1), 

(c)(1)(i), and (c)(2)(i) are revised, and 

paragraphs (b)(3), (c)(1)(v), and (c)(2)(v) 

are added to read as follows: 

§ 648.89 Recreational and charter/party 

vessel restrictions. 

* * * * * 

(b) * * * 

(1) Minimum fish sizes. Unless further 

restricted under paragraph (b)(3) of this 

section, persons aboard charter or party 

vessels permitted under this part and 

not fishing under the NE multispecies 

DAS program, and recreational fishing 

vessels in or possessing fish from the 

EEZ, may not possess fish smaller than 

the minimum fish sizes, measured in 

total length (TL), as follows: 

MINIMUM FISH SIZES (TL) FOR CHARTER, PARTY, AND PRIVATE RECREATIONAL VESSELS

Species Sizes 

Cod .................................... 22′′ (58.4 cm) 

Haddock ............................. 19′′ (48.3 cm) 

Pollock ............................... 19′′ (48.3 cm) 

Witch flounder (gray sole) 14′′ (35.6 cm) 

Yellowtail flounder ............. 13′′ (33.0 cm) 

Atlantic halibut ................... 36′′ (91.4 cm) 

American plaice (dab) ....... 14′′ (35.6 cm) 

Winter flounder (blackback) 12′′ (30.5 cm) 

Redfish ............................... 9′′ (22.9 cm) 

* * * * * 

(3) GOM cod. Private recreational 

vessels and charter party vessels 

described in paragraph (b)(1) of this 

section may not possess cod smaller 

than 24 inches (63.7 cm) in total length 

when fishing in the GOM Regulated 

Mesh Area specified under 

§ 648.80(a)(1). 

* * * * * 

(c) * * * 

(1) * * * 

(i) Unless further restricted by the 

Seasonal GOM Cod Possession 

Prohibition specified under paragraph 

(c)(1)(v) of this section, each person on 

a private recreational vessel may 

possess no more than 10 cod per day in, 

or harvested from, the EEZ. 

* * * * * 

(v) Seasonal GOM cod possession 

prohibition. Persons aboard private 

recreational fishing vessels fishing in 

the GOM Regulated Mesh Area specified 

under § 648.80(a)(1) may not fish for or 

possess any cod from November 1 

through March 31. Private recreational 

vessels in possession of cod caught 

outside the GOM Regulated Mesh Area 

may transit this area, provided all bait 

and hooks are removed from fishing 

rods and any cod on board has been 

gutted and stored. 

(2) * * * 

(i) Unless further restricted by the 

Seasonal GOM Cod Possession 

Prohibition, specified under paragraph 

(c)(2)(v) of this section, each person on 

a private recreational vessel may 

possess no more than 10 cod per day. 

* * * * * 

(v) Seasonal GOM cod possession 

prohibition. Persons aboard charter/ 

party fishing vessels fishing in the GOM 

Regulated Mesh Area specified under 

§ 648.80(a)(1) may not fish for or possess 

any cod from November 1 through 

March 31. Charter/party vessels in 

possession of cod caught outside the 

GOM Regulated Mesh Area may transit 

this area, provided all bait and hooks 

are removed from fishing rods and any 

cod on board has been gutted and 

stored. 

* * * * * 

■ 12. In § 648.92, paragraph (b)(2)(i) is 

revised to read as follows: 

§ 648.92 Effort-control program for 

monkfish limited access vessels. 

* * * * * 

(b) * * * 

(2) * * * 

(i) Unless otherwise specified in 

paragraph (b)(2)(ii) of this section, each 

monkfish DAS used by a limited access 

NE multispecies or scallop DAS vessel 

holding a Category C, D, F, G, or H 

limited access monkfish permit shall 

also be counted as a NE multispecies or 

scallop DAS, as applicable, except when 

a Category C, D, F, G, or H vessel with 

a limited access NE multispecies DAS 

permit has an allocation of NE 

multispecies Category A DAS, specified 

under § 648.82(d)(1), that is less than 

the number of monkfish DAS allocated 

for the fishing year May 1 through April 

30. Under this circumstance, the vessel 

may fish under the monkfish limited 

access Category A or B provisions, as 

applicable, for the number of DAS that 

equal the difference between the 

number of its allocated monkfish DAS 

and the number of its allocated NE 

multispecies Category A DAS. For such 

vessels, when the total allocation of NE 

multispecies Category A DAS has been 

used, a monkfish DAS may be used 

without concurrent use of a NE 

multispecies DAS. For example, if a 

monkfish Category D vessel’s NE 

multispecies Category A DAS allocation 

is 30, and the vessel fished 30 monkfish 

DAS, 30 NE multispecies Category A 

DAS would also be used. However, after 

all 30 NE multispecies Category A DAS 

are used, the vessel may utilize its 

remaining 10 monkfish DAS to fish on 

monkfish, without a NE multispecies 

DAS being used, provided that the 

vessel fishes under the regulations 

pertaining to a Category B vessel and 

does not retain any regulated NE 

multispecies. A vessel holding a 

Category C, D, F, G, or H limited access 

monkfish permit may not use a NE 

multispecies Category B DAS in order to 

satisfy the requirement of this paragraph 

(b)(2)(i) to use a NE multispecies DAS 

concurrently with a monkfish DAS. 

* * * * * 

[FR Doc. 06–8811 Filed 10–17–06; 4:22 pm] 

BILLING CODE 3510–22–P 

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