[Federal Register Volume 71, Number 204 (Monday, October 23, 2006)]
[Rules and Regulations]
[Pages 62156-62196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8811]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) Provisions; Fisheries of the Northeastern United States; 
Northeast Multispecies Fishery, Framework Adjustment 42; Monkfish 
Fishery, Framework Adjustment 3; Final Rule

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

[[Page 62156]]


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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.

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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superseded by this final rule and expires at 12:01 a.m. on November 22, 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 <a href="/cdn-cgi/l/email-protection#0b4f6a7d626f545964787f606e794b646669256e647b256c647d"><span class="__cf_email__" data-cfemail="b5f1d4c3dcd1eae7dac6c1ded0c7f5dad8d79bd0dac59bd2dac3">[email protected]</span></a>, 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 (F<INF>2005</INF>), 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 (F<INF>2005</INF>).
    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 
F<INF>2005</INF> for each stock. The PDT determined that, with one 
exception (GB yellowtail flounder), if F<INF>2005</INF> exceeded the 
Amendment 13 target F for 2006, adjustment of management measures was 
necessary. These comparisons indicated that F<INF>2005</INF> for some 
groundfish stocks was less than that estimated for 2004 
(F<INF>2004</INF>), but still higher than the 2006 target F 
(F<INF>2006</INF>) 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)/Mid-Atlantic (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
----------------------------------------------------------------------------------------------------------------
                                                                   Estimated     Amendment 13      F reduction
                         Stock                            F2004      F2005           F2006        necessary (%)
----------------------------------------------------------------------------------------------------------------
GOM Cod................................................     0.58         0.37              0.23               32

[[Page 62157]]

 
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 real-time 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 Magnuson-
Stevens 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 Magnuson-Stevens 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) (B<INF>msy</INF>) 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 F<INF>msy</INF> (0.25), and 
subsequent changes to F required to complete rebuilding by 2014 
(F<INF>rebuild</INF>) 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

[[Page 62158]]

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 Sec.  
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 
Sec.  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.

[[Page 62159]]



  Table 3.--Definition of Incidental Catch TACs (Percent) and Specification of Target TACs for FY 2006 Through
                                                    2008 (mt)
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              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]
----------------------------------------------------------------------------------------------------------------
                                                                                Closed area I     Eastern U.S./
                     Stock of concern                         Regular B DAS       hook gear      Canada haddock
                                                                 program         haddock SAP           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 Sec.  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 Sec.  
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

[[Page 62160]]

Differential DAS Area (defined at Sec.  648.82(e)(2)(i)(A) of the 
regulatory text portion of this document), includes most of the area 
west of 69[deg]30' W. long. and between 41[deg]30' and 43[deg]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 x 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 x 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 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 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 monkfish-only 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 x 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 Sec.  
648.82(e)(2)(i)(B) in the regulatory text portion of this document) is 
an irregular-shaped offshore area extending from 73[deg]40' W. long., 
east to 69[deg]30' W. long. (from south of western Long Island to north 
of the Nantucket Lightship Closed Area). On

[[Page 62161]]

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 x 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

[[Page 62162]]

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
----------------------------------------------------------------------------------------------------------------
                                      If catch is projected to
                                        reach  30% of the TAC     If catch is projected to reach  60% of the TAC
             FY quarter                 during the  specified     during the  specified quarter, the  suggested
                                       quarter, the  suggested              trip limit is as  follows:
                                     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,

[[Page 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

[[Page 62164]]

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 northern-most 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

[[Page 62165]]

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: 
TAC<INF>year x</INF> = (1,130 mt live weight) x (Projected WGB Haddock 
Exploitable Biomass<INF>year x</INF> / WGB Haddock Exploitable 
Biomass<INF>2004</INF>).

        Table 7.--CA I Haddock Gear Haddock SAP TACs for FY 2006-2009, and Pertinent Historic Information
----------------------------------------------------------------------------------------------------------------
                                                     Total GB
                                                   haddock stock    WGB haddock   Ratio of total
                       FY                           exploitable     exploitable     GB haddock     TAC  (mt live
                                                  biomass  (mt x  biomass  (mt x   stock to WGB       weight)
                                                      1,000)          1,000)         component
----------------------------------------------------------------------------------------------------------------
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 x 35% = 70.792; 70.792/
  35.317 = 2.004; and 1,130 x 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 (Sec.  
648.87). Requirements under Sec.  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[deg]00' N. lat. and east of 
71[deg]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 Sec.  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

[[Page 62166]]

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. Non-
groundfish 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 Sec.  
648.82(k)(4)(xi), the DAS leasing specifications would revert to those 
specifications prior to the one-time 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

[[Page 62167]]

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 Magnuson-Stevens 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.

[[Page 62168]]

    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 Sec.  
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 F<INF>MSY</INF>, 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

[[Page 62169]]

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 real-time 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 [deg] 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,

[[Page 62170]]

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 Sec.  
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

[[Page 62171]]

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 highest-valued 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 highest-valued 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 non-selective 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 Sec.  
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

[[Page 62172]]

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

[[Page 62173]]

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 x 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.

[[Page 62174]]

    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

[[Page 62175]]

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.

[[Page 62176]]

    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 Magnuson-Stevens 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

[[Page 62177]]

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 real-time 
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 Magnuson-Stevens 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-
unit-effort (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

[[Page 62178]]

changes in exploitation from the proposed measures relative to status-
quo 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

[[Page 62179]]

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 
B<INF>MSY</INF>, 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 Sec.  
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

[[Page 62180]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  648.82, paragraph (l)(1)(ii) has been revised to insert a 
cross reference to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  648.85, paragraph (b)(6)(iv)(E) has been revised order to 
insert cross references to applicable trip limits in Sec.  648.85(a) 
that were omitted from the proposed rule.
    In Sec.  648.85, paragraph (b)(8)(v)(I) has been revised to insert 
cross references to applicable trip limits in Sec.  648.85(a) that were 
omitted from the proposed rule.
    In Sec.  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

[[Page 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

[[Page 62182]]

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 Magnuson-Stevens 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 non-selected 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

[[Page 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<greek-i> 0648-0202 (1 hr/
response);
    2. VMS proof of installation, OMB<greek-i> 0648-0202 (5 min/
response);
    3. Spawning block declaration, OMB<greek-i> 0648-0202 (2 min/
response);
    4. Automated VMS polling of vessel position, OMB<greek-i> 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<greek-i> 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<greek-i> 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<greek-i> 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<greek-i> 
0648-0212 (15 min/response);
    9. Sector Manager daily reports for CA I Hook Gear Haddock SAP, 
OMB<greek-i> 0648-0212 (2 hr/response);
    10. DAS ``flip'' notification via VMS for the Regular B DAS 
Program, OMB<greek-i> 0648-0202 (5 min/response);
    11. DAS Leasing Program application, OMB<greek-i> 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<greek-i> 0648-0202 (5 min/
response);
    13. Vessel baseline downgrade request for the DAS Leasing Program, 
OMB<greek-i> 0648-0202 (1 hr/response);
    14. Annual declaration of participation in the CA I Hook Gear 
Haddock SAP, OMB <greek-i>0648-0202 (2 min/response);
    15. Declaration of area and gear via VMS when fishing under a NE 
multispecies DAS, OMB<greek-i> 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<greek-i> 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 <a href="/cdn-cgi/l/email-protection#a0e4c1d6c9c4fff2cfd3d4cbc5d2e0cfcdc28ec5cfd08ec7cfd6"><span class="__cf_email__" data-cfemail="e4a085928d80bbb68b97908f8196a48b8986ca818b94ca838b92">[email protected]</span></a>, 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.


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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.2, a new definition for ``Jigging'' is added and the 
definition for ``Regulated species'' is revised to read as follows:


Sec.  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.
* * * * *

0
3. In Sec.  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),

[[Page 62184]]

and paragraphs (c)(5), (d), and (f) are revised to read as follows:


Sec.  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 Sec.  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 
Sec.  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 Sec.  648.85(a)(3)(ii)(A).
    (iv) The Regional Administrator may authorize or require the use of 
the call-in 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 call-in 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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  
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 call-in system of notification specified in paragraph 
(c) of this section, instead of the use of the VMS. If use of the call-

[[Page 62185]]

in system is authorized or required, the Regional Administrator shall 
notify affected permit holders through a letter, notification in the 
Federal Register, e-mail, 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 Sec.  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 Sec.  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.

0
4. In Sec.  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:


Sec.  648.14  Prohibitions.

    (a) * * *
    (130) If declared into one of the areas specified in Sec.  
648.85(a)(1), fish during that same trip outside of the declared area, 
unless in compliance with the applicable restrictions specified under 
Sec.  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 Sec.  
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 Sec.  648.85(b)(8)(ii), unless in compliance with the 
restrictions and conditions specified in Sec.  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 Sec.  648.85(b)(8), in the area 
specified in Sec.  648.85(b)(8)(ii), and during the season specified in 
Sec.  648.85(b)(8)(iv), fail to comply with the restrictions specified 
in Sec.  648.85(b)(8)(v).
* * * * *
    (151) If fishing in the Eastern U.S./Canada Haddock SAP specified 
in Sec.  648.85(b)(8), fail to comply with the reporting requirements 
specified in Sec.  648.85(b)(8)(v)(G).
    (152) If fishing under the Eastern U.S./Canada Haddock SAP 
specified in Sec.  648.85(b)(8), fail to comply with the observer 
notification requirements specified in Sec.  648.85(b)(8)(v)(C).
* * * * *
    (156) If fishing under an approved Sector, as authorized under 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  648.85(a)(3)(ii)(A).
    (176) If fishing under the GB Fixed Gear Sector specified under 
Sec.  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 Sec.  
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 Sec.  
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 Sec.  
648.4(a)(1)(I), unless otherwise specified in Sec.  648.17, to do any 
of the following:
* * * * *
    (7) Possess or land per trip more than the possession or landing 
limits specified under Sec.  648.86(a), (e), (g), (h), and (j), and 
under Sec.  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 Sec.  648.86(b)(1), as required under Sec.  
648.86(b)(4), or fish north of the exemption line if in possession of 
more than the GOM cod trip limit specified under Sec.  648.86(b)(1).
* * * * *
    (25) For vessels fishing in the NE multispecies DAS program under 
the provisions of Sec.  648.10(c), the call-in system, fail to remain 
in port for the appropriate time specified in Sec.  
648.86(b)(1)(ii)(A), except for transiting purposes, provided the 
vessel complies with Sec.  648.86(b)(3). For vessels fishing in the NE 
multispecies DAS program under the provisions of Sec.  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 Sec.  648.86(b)(1)(ii)(B).
* * * * *
    (33) For vessels fishing in the NE multispecies DAS program under 
the provisions of Sec.  648.10(c), the call-in system, fail to remain 
in port for the appropriate time specified in Sec.  
648.86(b)(2)(ii)(A), except for transiting purposes, provided the 
vessel complies with Sec.  648.86(b)(3). For vessels fishing in the NE 
multispecies DAS program under the provisions of Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  
648.85(b)(6)(iv)(E) if the vessel

[[Page 62186]]

harvests and brings on board more than the landing limit for a 
groundfish stock of concern specified in Sec.  648.85(b)(6)(iv)(D), 
other groundfish specified under Sec.  648.86, or monkfish under Sec.  
648.94.
    (52) If fishing in the Regular B DAS Program, fail to comply with 
the restriction on DAS use specified in Sec.  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 Sec.  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 Sec.  
648.85(b)(8)(v)(I), if the vessel possesses more than the applicable 
landing limit specified in Sec.  648.85(b)(8)(v)(F) or under Sec.  
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 Sec.  648.85(b)(8)(v)(J).
    (57) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the requirements and restrictions 
specified in Sec.  648.85(b)(6)(iv)(A) through (F), (I), and (J).
    (58) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the VMS requirement specified in 
Sec.  648.85(b)(6)(iv)(A).
    (59) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the observer notification requirement 
specified in Sec.  648.85(b)(6)(iv)(B).
    (60) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the VMS declaration requirement 
specified in Sec.  648.85(b)(6)(iv)(C).
    (61) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the landing limits specified in Sec.  
648.85(b)(6)(iv)(D).
    (62) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the no discard and DAS flip 
requirements specified in Sec.  648.85(b)(6)(iv)(E).
    (63) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to comply with the minimum Category A DAS and 
Category B DAS accrual requirements specified in Sec.  
648.85(b)(6)(iv)(F).
    (64) Use a Regular B DAS in the Regular B DAS Program specified in 
Sec.  648.85(b)(6), if the program has been closed as specified in 
Sec.  648.85(b)(6)(iv)(H) or (b)(6)(vi).
    (65) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), use a Regular B DAS after the program has closed, as 
required under Sec.  648.85(b)(6)(iv)(G) or (H).
* * * * *
    (78) Fish in the Eastern U.S./Canada Haddock SAP specified in Sec.  
648.85(b)(8), if the SAP is closed as specified in Sec.  
648.85(b)(8)(v)(K) or (L).
    (79) [Reserved]
* * * * *
    (81) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to use a haddock separator trawl as described under 
Sec.  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 Sec.  648.82(e)(2)(i), fail to declare into the area through VMS 
as required under Sec.  648.82(e)(2)(ii).
    (83) If fishing under a NE multispecies Category A DAS in one of 
the Differential DAS Areas defined in Sec.  648.82(e)(2)(i), and under 
the restrictions of one or more of the Special Management Programs 
under Sec.  648.85, fail to comply with the most restrictive 
regulations.
    (84) Fail to comply with the GB yellowtail flounder trip limit 
specified under Sec.  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 Sec.  
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 Sec.  648.85(a)(3)(ii)(A)(1).
    (87) Possess or land more white hake than allowed under Sec.  
648.86(e).
    (88) Possess or land more GB winter flounder than allowed under 
Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  648.80, paragraph (b)(2)(i) is revised to read as 
follows:


Sec.  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 Sec.  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 Sec.  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:


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

* * * * *
    (d) * * *
    (2) * * *
    (i) * * *
    (A) Restrictions on use. Regular B DAS can only be used by NE 
multispecies vessels in an approved SAP or in the Regular B DAS Program 
as specified in Sec.  648.85(b)(6). Unless otherwise restricted under 
the Regular B DAS Program as described in Sec.  648.85(b)(6)(i), 
vessels may fish under both a Regular B DAS and a Reserve B DAS on the 
same trip (i.e., when fishing in an approved SAP as described in Sec.  
648.85(b)). Vessels that are required by the Monkfish Fishery 
Management Plan

[[Page 62187]]

to utilize a NE multispecies DAS, as specified under Sec.  
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 Sec.  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[deg]30  Intersection with Maine
                                        '   Coastline.
GMD2..........................  43[deg]30  69[deg]30'.
                                        '
GMD3..........................  43[deg]00  69[deg]30'.
                                        '
GMD4..........................  43[deg]00  69[deg]55' eastern boundary,
                                        '   WGOM Closed Area.
GMD5..........................  42[deg]30  69[deg]55'.
                                        '
GMD6..........................  42[deg]30  69[deg]30'.
                                       ''
GMD7..........................  41[deg]30  69[deg]30'.
                                        '
GMD8..........................  41[deg]30  70[deg]00'.
                                        '
GMD9..........................    North to intersection with Cape Cod,
                                 Massachusetts, coast and 70[deg]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[deg]05  71[deg]45
                                                            '          '
SNED2.............................................  41[deg]05  70[deg]00
                                                            '          '
SNED3.............................................  41[deg]00  70[deg]00
                                                            '          '
SNED4.............................................  41[deg]00  69[deg]30
                                                            '          '
SNED5.............................................  40[deg]50  69[deg]30
                                                            '          '
SNED6.............................................  40[deg]50  70[deg]20
                                                            '          '
SNED7.............................................  40[deg]40  70[deg]20
                                                            '          '
SNED8.............................................  40[deg]40  70[deg]30
                                                            '          '
SNED9.............................................  40[deg]30  72[deg]30
                                                            '          '
SNED10............................................  40[deg]10  73[deg]00
                                                            '          '
SNED11............................................  40[deg]00  73[deg]15
                                                            '          '
SNED12............................................  40[deg]00  73[deg]40
                                                            '          '
SNED13............................................  40[deg]15  73[deg]40
                                                            '          '
SNED14............................................  40[deg]30  73[deg]00
                                                            '          '
SNED15............................................  40[deg]55  71[deg]45
                                                            '          '
SNED16............................................  41[deg]05  71[deg]45
                                                            '          '
------------------------------------------------------------------------

    (ii) Declaration. With the exception of vessels fishing in the 
Eastern U.S./Canada Area, as described in Sec.  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 Sec.  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 Sec.  
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 Sec.  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 
Sec.  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 Sec.  648.85 must comply 
with the most restrictive DAS counting, trip limits, and reporting 
requirements, specified in this paragraph (e)(2) and in Sec.  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 Sec.  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 Sec.  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

[[Page 62188]]

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 Sec.  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 Sec.  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 
Sec.  648.85(b)(8), and in the Eastern U.S./Canada Area, as specified 
in Sec.  648.85(a), DAS counting will begin and end according to the 
DAS accounting rules specified in Sec.  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 Sec.  
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 one-time 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 Sec.  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 Sec.  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

[[Page 62189]]

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 
Sec.  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 Sec.  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:


Sec.  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 Sec.  
648.10(b)(2)(iii).
    (2) The vessel must comply with the reporting requirements of the 
U.S./Canada Management Area specified under Sec.  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 Sec.  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 Sec.  
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 Sec.  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

[[Page 62190]]

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 over-harvesting 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 Sec.  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 Sec.  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

[[Page 62191]]

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 Sec.  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 Sec.  
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 Sec.  648.86 or Sec.  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 
Sec.  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 Sec.  
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 (May-July), or when 1,000 Regular B DAS have been used 
during any of the remaining quarters of the fishing year, in accordance 
with Sec.  648.82(e)(3).
    (I) Reporting requirements. The owner or operator of a NE 
multispecies DAS vessel must submit catch reports via VMS in accordance 
with instructions provided by the Regional Administrator, for each day 
fished when declared into the Regular B DAS 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

[[Page 62192]]

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[deg]00  Intersection with New
                                        '   Hampshire Coastline.
CCGOM2........................  43[deg]00  70[deg]00'.
                                        '
CCGOM3........................  42[deg]30  70[deg]00'.
                                        '
CCGOM4........................  42[deg]30  69[deg]30'.
                                        '
CCGOM5........................  41[deg]30  69[deg]30'.
                                        '
CCGOM6........................  41[deg]30  69[deg]00'.
                                        '
CCGOM7........................  41[deg]00  69[deg]00'.
                                        '
CCGOM8........................  41[deg]00  69[deg]30'.
                                        '
CCGOM5........................  41[deg]30  69[deg]30'.
                                        '
CCGOM9........................  41[deg]30  70[deg]00'.
                                        '
CCGOM10.......................      (\1\)  70[deg]00'.
CCGOM11.......................  42[deg]00  Intersection with east facing
                                        '   shoreline of Cape Cod,
                                            Massachusetts.
CCGOM12.......................  42[deg]00  Intersection with west facing
                                        '   shoreline of Massachusetts.
CCGOM13.......................      (\2\)  70[deg]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[deg]00  74[deg]00
                                                            '          '
SNEMA2............................................  40[deg]00  72[deg]00
                                                            '          '
SNEMA3............................................  40[deg]30  72[deg]00
                                                            '          '
SNEMA4............................................  40[deg]30  69[deg]30
                                                            '          '
SNEMA5............................................  41[deg]00  69[deg]30
                                                            '          '
SNEMA6............................................  41[deg]00  69[deg]00
                                                            '          '
SNEMA7............................................  41[deg]30  69[deg]00
                                                            '          '
SNEMA8............................................  41[deg]30  70[deg]00
                                                            '          '
SNEMA9............................................  41[deg]00  70[deg]00
                                                            '          '
SNEMA10...........................................  41[deg]00  70[deg]30
                                                            '          '
SNEMA11...........................................  41[deg]30  70[deg]30
                                                            '          '
SNEMA12...........................................      (\1\)  72[deg]00
                                                                       '
SNEMA13...........................................      (\2\)  72[deg]00
                                                                       '
SNEMA14...........................................      (\3\)  73[deg]00
                                                                       '
SNEMA15...........................................  40[deg]30  73[deg]00
                                                            '          '
SNEMA16...........................................  40[deg]30  74[deg]00
                                                            '          '
SNEMA17...........................................  40[deg]00  74[deg]00
                                                            '         '
------------------------------------------------------------------------
\1\ South facing shoreline of Connecticut.
\2\ North facing shoreline of Long Island, New York.
\3\ South facing shoreline of Long Island, New York.

* * * * *
    (vi) Closure of the Regular B DAS Program. The Regional 
Administrator, based upon information required under Sec. Sec.  648.7, 
648.9, 648.10, or 648.85, and any other relevant information may, 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: Biomass<INF>YEAR X</INF> = (1,130 mt live weight) x (Projected 
WGB Haddock Exploitable Biomass<INF>YEAR X</INF> / WGB Haddock 
Exploitable Biomass<INF>2004</INF>). 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 Sec.  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

[[Page 62193]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  648.85(a) or Sec.  
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 Sec.  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.
* * * * *

0
8. In Sec.  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:


Sec.  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

[[Page 62194]]

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 Sec.  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 Sec.  648.82(e)(2)(i), complies 
with the following:
    (A) For a vessel that is subject to the VMS provisions specified 
under Sec.  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 
Sec.  648.10(c), in lieu of VMS, the vessel does not call out of the 
DAS program as described under Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  648.10(c), in lieu of VMS, the vessel does not call out of the 
DAS program as described under Sec.  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 Sec.  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.)
* * * * *

[[Page 62195]]

    (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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  648.85(a)(1) is subject to 
the GB yellowtail flounder limit described under paragraph Sec.  
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 Sec.  648.85(a)(1), may not possess or land more than 
5,000 lb (2,268.1 kg) of GB winter flounder per trip.
* * * * *
0
9. In Sec.  648.87, paragraph (d)(2) is added to read as follows:


Sec.  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.

0
10. In Sec.  648.88, paragraph (c) is revised to read as follows:


Sec.  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 Sec.  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 Sec.  648.53, provided 
the vessel does not fish for, possess, or land haddock from January 1 
through June 30, as specified under Sec.  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 Sec.  
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 
Sec.  648.59(b) through (d) is subject to the possession limits 
specified in Sec.  648.60(a)(5)(ii).
* * * * *

[[Page 62196]]


0
11. In Sec.  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:


Sec.  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 Sec.  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 Sec.  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 Sec.  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.
* * * * *

0
12. In Sec.  648.92, paragraph (b)(2)(i) is revised to read as follows:


Sec.  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 Sec.  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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