17030 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080521698–9067–02] 

RIN 0648–AW87 

Fisheries of the Northeastern United 

States; Northeast Multispecies 

Fishery; Secretarial Interim Action 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary final rule; interim 

measures; request for comments. 

SUMMARY: NMFS implements this final 

interim rule pursuant to its authority to 

issue interim management measures 

under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). This action is intended to 

immediately reduce overfishing on 

certain stocks managed by the Northeast 

(NE) Multispecies Fishery Management 

Plan (FMP), without jeopardizing the 

likelihood that overfished stocks can 

achieve rebuilding objectives until longterm measures can be implemented 

under Amendment 16 to the FMP. 

Measures for the commercial fishery 

include an expanded differential daysat-sea (DAS) area in Southern New 

England (SNE), where a vessel will be 

charged 2 days for every day fished, and 

modified groundfish trip limits. In 

addition, this action maintains the 

scheduled fishing year (FY) 2009 DAS 

reduction included in the FMP, which 

results in an approximate 18-percent 

reduction in Category A DAS. For 

private recreational vessels fishing in 

the Exclusive Economic Zone (EEZ), 

and for federally permitted charter/party 

vessels, this action extends in time a 

seasonal prohibition on the possession 

of Gulf of Maine (GOM) cod, and 

prohibits the possession of SNE/MidAtlantic (MA) winter flounder. For 

federally permitted charter/party 

vessels, this action implements a trip 

limit for Georges Bank (GB) cod. In 

addition, this action implements 

measures to mitigate some of the 

negative, short-term economic impacts 

of the FMP by expanding the Closed 

Area I (CA I) Hook Gear Haddock 

Special Access Program (SAP); 

modifying the DAS Leasing Program, 

the Regular B DAS Program, and the 

DAS Transfer Program; continuing the 

Eastern U.S./Canada Haddock SAP; and 

implementing a reduction in the 

haddock minimum size to 18 inches (45 

cm) for both commercial and 

recreational vessels. This action also 

specifies management measures for the 

U.S./Canada Management Area for FY 

2009. NMFS anticipates that the interim 

measures will need to be renewed upon 

the rule’s expiration for an additional 

185 days. Therefore, NMFS is requesting 

public comments on these measures; 

comments received will be considered 

during any subsequent action to extend 

this final interim rule. 

DATES: Effective May 1, 2009, through 

October 28, 2009. Comments must be 

received by June 12, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AW87, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-rulemaking portal: http:// 

www.regulations.gov. 

• Mail: Paper, disk, or CD–ROM 

comments should be sent to Patricia A. 

Kurkul, Regional Administrator, 

National Marine Fisheries Service, 55 

Great Republic Drive, Gloucester, MA 

01930–2276. Mark the outside of the 

envelope: ‘‘Comments on NE 

Multispecies Final Interim Rule.’’ 

• Fax: (978) 281–9135. 

Instructions: All comments received 

are part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter ‘‘N/A’’ in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF formats only. 

NMFS prepared a Final Regulatory 

Flexibility Analysis (FRFA), which 

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 the Regional 

Administrator, NMFS, Northeast 

Regional Office, at the address noted 

above. Copies of the Environmental 

Assessment (EA) prepared for this rule 

may be found at the following Internet 

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

nero/regs/frdoc/08/ 

08MultiInterimEA.pdf. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this rule may 

be submitted to the Northeast Regional 

Office and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Warren, Fishery Policy Analyst, 

(978) 281–9347, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: A 

proposed interim rule was published in 

the Federal Register on January 16, 

2009 (74 FR 2959), which includes 

detailed information on the background 

and reasons pertinent to the need to 

reduce fishing effort in the NE 

multispecies fishery for FY 2009. 

Comments on the proposed rule were 

accepted through February 17, 2009, 

which are summarized and responded 

to below. The FMP specifies the 

management measures for 12 species, 

and a total of 19 stocks of groundfish in 

Federal waters off the New England and 

Mid-Atlantic coasts. Species managed 

by the FMP are Atlantic cod, haddock, 

yellowtail flounder, pollock, American 

plaice, witch flounder, white hake, 

windowpane flounder, Atlantic halibut, 

winter flounder, ocean pout, and 

redfish. In 2008, the effectiveness of the 

management measures and the validity 

of the status determination criteria 

(biological reference points) were fully 

evaluated. This planned assessment of 

the biological reference points 

(Groundfish Assessment Review 

Meeting (GARM III)) was part of the 

FMP’s biennial adjustment process to be 

used for setting fishery measures for FY 

2009 (May 1, 2009–April 30, 2010), and 

was also part of the rebuilding strategy, 

which sought to evaluate the more 

fundamental scientific information midway through the rebuilding period for 

most stocks. Although the Council 

intended to meet a required May 1, 

2009, implementation date for 

Amendment 16, due to the timing and 

the somewhat unanticipated results 

from GARM III (September 2008), the 

Council developed a revised 

Amendment 16 schedule, which, if 

approved, is now expected to be 

implemented on May 1, 2010. In 

addition, the Council voted on 

September 4, 2008, to request that 

NMFS implement an interim action for 

the duration of FY 2009, and 

recommended a specific suite of 

management measures for the interim 

action. As explained fully in Measure 12 

under ‘‘Proposed Commercial 

Measures’’ of the proposed rule, NMFS 

did not propose the Council’s 

recommendations in the proposed rule 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17031 

because NMFS believed that the 

Council’s recommended alternative 

would allow overfishing to continue for 

several stocks and not achieve 

rebuilding objectives. 

A summary of the GARM III results 

that formed the basis for the proposed 

interim rule is in Table 1 below. 

Overfishing is occurring on stocks when 

the ratio of the fishing mortality rate (F) 

to the F that results in the maximum 

sustainable yield (MSY) (Fmsy) is 

greater than 1.0, and a stock is 

overfished if the ratio of the biomass 

level (B) to the B that produces MSY 

(Bmsy) is equal to or less than 0.5. 

TABLE 1—GARM III STOCK STATUS DETERMINATION CRITERIA AND 2007 STATUS

Species Stock Fmsy Bmsy (mt) 

2007 

Fishing 

mortality 

(2007 

F/Fmsy) 

2007 

Biomass 

(2007 

B/Bmsy) 

Estimated 

2008 fishing 

mortality 

Cod ............................................................................ GB .................... 0.2466 148,084 1.2 0.12 0.41 

GOM ................. 0.237 58,248 1.9 0.58 0.300 

Haddock .................................................................... GB .................... 0.350 158,873 0.49 2.05 0.083 

GOM ................. 0.430 5,900 0.8 0.99 0.250 

Yellowtail flounder ..................................................... GB .................... 0.254 43,200 1.1 0.22 0.130 

SNE/MA ............ 0.254 27,400 1.6 0.13 0.120 

CC/GOM ........... 0.239 7,790 1.7 0.25 0.289 

American plaice ........................................................ ........................... 0.190 21,940 0.5 0.51 0.099 

Witch flounder ........................................................... ........................... 0.200 11,447 1.5 0.30 0.296

Winter flounder .......................................................... GB .................... 0.260 16,000 1.1 0.31 0.131 

GOM ................. 0.283 3,792 1.5 0.29 0.317 

SNE/MA ............ 0.248 38,761 2.6 0.09 0.265 

Redfish ...................................................................... ........................... 0.038 271,000 0.1 0.64 0.008 

White hake ................................................................ ........................... 0.125 56,254 1.2 0.35 0.065 

Pollock* ..................................................................... ........................... 5.660 2.0 1.9 0.45 10.975 

Windowpane* ............................................................ North ................. 0.500 1.4 3.9 0.38 1.96 

South ................ 1.470 0.34 1.3 0.62 1.85 

Ocean pout ............................................................... ........................... 0.760 4.94 0.5 0.10 N/A 

Atlantic halibut ........................................................... ........................... 0.073 49,000 0.9 0.03 0.06 

* Pollock and windowpane flounder information was revised subsequent to GARM III in order to utilize 3-yr averages, and incorporate the fall 

survey data for pollock; pollock Fmsy is listed in terms of relative exploitation index (catch per centered 3-yr survey index).

N/A indicates an estimate of F in 2008 was unavailable for this stock. 

Although NMFS’ initial fishing 

mortality rate goals for the FY 2009 

interim period are unchanged, based on 

public comment, NMFS is modifying 

several of the measures proposed in the 

proposed interim rule, and asking for 

public comment on the modified final 

rule. This decision to modify measures 

means that, even though substantial 

reductions in F will be achieved by this 

rule, overfishing will continue on 

certain stocks—notably GB cod, witch 

flounder, pollock, and northern 

windowpane flounder—during the 

duration of this interim action. Under 

section 305(c) of the Magnuson-Stevens 

Act, NMFS may implement an interim 

rule that reduces overfishing on 

overfished stocks, without necessarily 

ending overfishing. In this instance, the 

purpose of the interim rule is to reduce 

or end overfishing and help ensure that 

stocks rebuild consistent with 

Amendment 13 objectives for FY 2009, 

and to reduce overfishing on the three 

other stocks, which were recently 

identified as being overfished. The 

measures implemented through this rule 

will satisfy these objectives, while at the 

same time mitigating, to the extent 

practicable, the impacts on the fishing 

community. As indicated by the EA and 

the comments received on the proposed 

rule, ending overfishing on all 

multispecies stocks in this interim rule 

would result in substantial negative 

consequences to the fishing industry. 

The Council is developing mitigating 

measures in Amendment 16, primarily 

through sector proposals, that should 

help to offset these negative 

consequences. The full range of possible 

mitigation measures cannot be 

implemented in this interim rule 

because they have not been fully 

developed and analyzed. While there is 

some decrease in the likelihood that GB 

cod and other stocks will rebuild within 

the time prescribed by the Amendment 

13 rebuilding plan as a result of this 

final rule, the action should not 

significantly jeopardize the likelihood 

that Amendment 13’s rebuilding 

objectives will be met, particularly 

given the short-term nature of this 

interim rule and the fact that additional 

measures will be implemented through 

Amendment 16. Therefore, in exercising 

the flexibility provided by section 

305(c) of the Magnuson-Stevens Act, 

NMFS has determined that the 

modifications to the proposed rule as 

described below are justifiable because 

they are necessary to mitigate impacts 

on the fishing industry to the extent 

practicable, without fatally jeopardizing 

the likelihood that overfished 

multispecies stocks will achieve their 

rebuilding objectives through 

Amendment 16 measures. The rationale 

for determining the extent of acceptable 

changes to the proposed rule follows. 

Generally speaking, these final 

interim measures reduce overfishing to 

a lesser degree than the proposed 

interim action, as explained later in this 

preamble. This action includes several 

elements of the Council’s proposed 

alternative, but contains additional 

measures to further protect stocks that 

are in the most critical condition, such 

as SNE/MA winter flounder. 

Management measures implemented 

under this action include: An expansion 

of the status quo 2:1 SNE Differential 

DAS Area measures; a witch flounder 

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

up to 5,000 lb (2,268 kg) per trip; zero 

retention limits for SNE winter flounder 

(for both commercial and recreational 

vessels), northern windowpane 

flounder, and ocean pout; a 2-week 

extension of the seasonal prohibition on 

the retention of GOM cod for both 

private recreational and party/charter 

vessels, (i.e., revised to encompass 

17032 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

November through April 15); a bag limit 

of 10 GB cod per person per day for 

party/charter vessels operating in all 

areas; and mitigation measures that 

include modifications to the DAS 

Leasing, Transfer, and Regular B DAS 

Programs, expansion in area and season 

of the CA I Hook Gear Haddock SAP, 

renewal of the Eastern U.S./Canada 

Haddock SAP, and reduction of the 

haddock minimum fish size from 19 

inches (48.3 cm) to 18 inches (45.7 cm) 

for both commercial and recreational 

vessels. This action does not implement 

the proposed expansion of the GOM 

Differential DAS Area (i.e., the Interim 

Differential DAS Area), or the proposed 

SNE Closure Area. In addition, this 

action maintains the Amendment 13 

default measure for FY 2009, whereby 

Category A DAS are reduced by 18.2 

percent, and maintains the status quo 

2:1 GOM Differential DAS Area 

measures. 

For reasons explained in the preamble 

to the proposed interim rule, the 

proposed fishing mortality targets were 

either Fmsy (for windowpane flounder, 

GOM winter flounder, GB winter 

flounder, witch flounder, pollock, GB 

haddock, GOM haddock, GOM cod, GB 

cod, American plaice, redfish, and 

ocean pout), or Frebuild (GB cod, GB 

yellowtail flounder, SNE/MA yellowtail 

flounder, Cape Cod (CC)/GOM 

yellowtail flounder, SNE/MA winter 

flounder, white hake, and Atlantic 

halibut). The proposed interim 

measures would not have achieved 

Frebuild for GB cod; however, they 

would have achieved Fmsy for this 

stock. The proposed measures also 

would not have achieved the Fmsy 

target for northern windowpane 

flounder, or the Frebuild target for SNE/ 

MA winter flounder. 

GARM III provided example estimates 

of Frebuild for overfished stocks, 

making assumptions about the rebuild 

period end-dates and the starting stock 

conditions at the beginning of the 

rebuilding periods. In doing so, GARM 

III assumed that the catch in FY 2008 

will be the same as the catch in FY 

2007. In contrast, for this interim action, 

an estimated catch in FY 2008 was used 

to recalculate the starting stock 

conditions in FY 2008, and the 

associated Frebuilds. For Amendment 

16, the Council’s Plan Development 

Team (PDT) estimated catch for the 

entire FY 2008 based upon an 

extrapolation of landings data for 

calendar year (CY) 2008 through June 

2008. As explained further in the 

proposed interim rule preamble, this 

interim action relies on the PDT’s 

estimated landings for FY 2008, and 

derived estimates of fishing mortality 

rates for CY 2008 and the recalculated 

Frebuilds. Because the measures 

implemented by this action will be 

effective in FY 2009, an estimate of 

fishing mortality in CY 2008 more 

closely represents the starting 

conditions of the remainder of the 

rebuilding periods. For GB yellowtail 

flounder, Frebuild was calculated 

utilizing an assumed catch in CY 2008 

of 2,500 mt. 

The target reductions for pollock and 

the two windowpane flounder stocks 

were revised from the proposed rule in 

order to be consistent with the other 

stocks. In the proposed rule, the target 

reductions for all stocks except these 

three were based upon an estimate of 

fishing mortality in 2008. In contrast, 

the target reductions for pollock and the 

two stocks of windowpane flounder 

were based upon the fishing mortality in 

2007. Thus, this final rule utilizes a 

starting fishing mortality estimate in 

2008 for all stocks. Because the estimate 

of fishing mortality in 2008 was greater 

than that observed in 2007 for these 

three stocks, the effect of this change is 

an increase in the percentage reduction 

necessary to reduce fishing mortality to 

Fmsy. For the calculation of F in 2008, 

for pollock, the PDT calculated an 

assumed catch in 2008 and for the 

windowpane flounder stocks, catch in 

2008 was assumed to be equal to the 

catch in 2007. 

In contrast to the proposed interim 

rule, which would not have attained the 

proposed interim goals for two stocks 

(i.e., SNE/MA winter flounder and 

Northern windowpane flounder), nor 

the updated Fmsy goal for pollock 

(which was updated after the proposed 

interim rule was published), 

management measures implemented 

through this final rule do not attain the 

stated goals for five stocks (SNE/MA 

winter flounder, Northern windowpane 

flounder, pollock, GB cod, and witch 

flounder). However, for four of these 

five stocks, the rebuilding timeline 

extends beyond 2014 (a 2026 

Amendment 13 end date for GB cod; 

and a 2017 Amendment 16 proposed 

end date for Northern windowpane 

flounder, witch flounder, and pollock). 

Because these four stocks have longer 

rebuilding timelines associated with 

them, additional time is available to 

ensure that the rebuilding goals of the 

FMP are met. However, to maintain the 

FMP rebuilding trajectories and to meet 

the statutory rebuild dates, the Council 

will need to consider whether further 

adjustments in fishing mortality are 

needed. If further adjustments are 

needed, the Council will need to 

account for this in future actions, 

possibly even in Amendment 16. Given 

the likely rebuilding schedules and the 

original justification for the expanded 

differential DAS counting area in the 

GOM and northern GB in the proposed 

interim rule (primarily to protect 

pollock and witch flounder), NMFS is 

not implementing the proposed 

expanded differential DAS counting 

area in this final rule, and is 

maintaining the status quo inshore GOM 

Differential DAS Area. The SNE Closure 

Area was included in the proposed 

interim rule primarily to protect SNE/ 

MA winter flounder. Although this 

stock has a rebuilding timeline of 2014, 

given the concern raised by the public 

regarding the severe economic impacts 

that would be imposed by this closure 

area and the potential for this closure to 

lead to shifts in effort to other areas and 

other stocks, NMFS is instead 

implementing in this same area, slightly 

modified, a requirement for 2:1 

differential DAS counting. To strictly 

control effort on SNE/MA winter 

flounder, NMFS is implementing a zero 

landing limit for SNE/MA winter 

flounder for both commercial and 

recreational vessels throughout the 

range of the stock. Table 2 identifies the 

2009 target Fs as published in the 

proposed interim rule, and provides a 

comparison of the estimated fishing 

mortality reductions achieved for 

measures proposed in the proposed 

interim rule, and the measures 

implemented by this final interim rule. 

TABLE 2—COMPARISON OF FISHING MORTALITY REDUCTIONS FOR THE PROPOSED AND FINAL INTERIM RULES

Species Stock 

2009 

proposed 

F target 

F reduction 

objective 

F value for 

proposed 

interim 

action 

F reduction 

achieved 

F value for 

final interim 

action 

F reduction 

achieved 

Cod .................................................... GB .................... 0.247 

(Fmsy) 

¥40% 0.208 ¥49% 0.295 ¥28% 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17033 

TABLE 2—COMPARISON OF FISHING MORTALITY REDUCTIONS FOR THE PROPOSED AND FINAL INTERIM RULES— 

Continued 

Species Stock 

2009 

proposed 

F target 

F reduction 

objective 

F value for 

proposed 

interim 

action 

F reduction 

achieved 

F value for 

final interim 

action 

F reduction 

achieved 

GOM ................. 0.237 

(Fmsy) 

¥21% 0.203 ¥32% 0.247 ¥18% 

Haddock ............................................ GB .................... 0.350 

(Fmsy) 

322% 0.049 ¥38% 0.062 ¥25% 

GOM ................. 0.430 

(Fmsy) 

72% 0.159 ¥36% 0.205 ¥18% 

Yellowtail Flounder ............................ GB .................... 0.109 (Freb) ¥16% 0.109 ¥16% 0.109 ¥16% 

SNE/MA ............ 0.072 (Freb) ¥38% 0.017 ¥86% 0.073 ¥39% 

CC/GOM ........... 0.238 (Freb) ¥18% 0.174 ¥40% 0.167 ¥42% 

American Plaice ................................ ........................... 0.190 

(Fmsy) 

92% 0.056 ¥43% 0.084 ¥15% 

Witch Flounder .................................. ........................... 0.200 

(Fmsy) 

¥32% 0.167 ¥44% 0.247 ¥17% 

Winter Flounder ................................ GB .................... 0.260 

(Fmsy) 

98% 0.108 ¥18% 0.114 ¥13% 

GOM ................. 0.283 

(Fmsy) 

¥11% 0.286 ¥10% 0.265 ¥16% 

SNE/MA ............ 0.000 (Freb) ¥100% 0.052 ¥80% 0.100 ¥62% 

Redfish .............................................. ........................... 0.038 

(Fmsy) 

375% 0.004 ¥50% 0.007 ¥13% 

White Hake ....................................... ........................... 0.084 (Freb) 29% 0.033 ¥49% 0.054 ¥17% 

Pollock ............................................... ........................... 5.660 

(Fmsy) 

¥51% 6.520 NA 9.342 ¥19% 

Windowpane Flounder ...................... North ................. 0.500 

(Fmsy) 

¥83% .................... NA 2.229 ¥22% 

South ................ 1.470 

(Fmsy) 

¥29% .................... NA 1.392 ¥32% 

Ocean Pout ....................................... ........................... 7.600 

(Fmsy) 

NA .................... NA .................... ....................

Atlantic halibut ................................... ........................... 0.044 (Freb) ¥27% .................... NA .................... ....................

Because of the substantial changes 

made to the proposed interim measures, 

and the resulting changes in the 

expected Fs as a consequence of these 

changes, this final rule also implements 

revised target TACs and Incidental 

Catch TACs. The target TACs, and the 

Incidental TACs that are based on these 

targets, are specified as follows: For 

those stocks where the measures 

implemented by this rule are expected 

to reduce F to below the F target, the 

target TACs are set based on the 

estimated F achieved from the 

management measures in this action; for 

those stocks with Fs that are less than 

the proposed rule F targets, the target 

TACs will be set based on the proposed 

F targets. See Measure 3 under 

‘‘Approved Commercial Measures’’ for 

further details on these final target 

TACs. 

Management Measures 

All measures in effect prior to May 1, 

2009, including the scheduled default 

DAS reduction measures, that are not 

amended by this final interim rule, will 

remain in effect on and after May 1, 

2009. This interim action implements 

management measures to reduce fishing 

mortality on the commercial and 

recreational fisheries without 

compromising rebuilding objectives, 

and revises several management 

programs to mitigate the negative 

economic and social impacts. The 

interim action is intended to ensure 

consistency, to the extent practicable in 

an interim rule, with the national 

standards and required provisions of the 

Magnuson-Stevens Act. This action also 

specifies target TACs for all managed 

stocks, and annual specifications for 

stocks managed by the U.S./Canada 

Resource Sharing Understanding 

(Understanding). As is more fully 

discussed later in this document, these 

measures will result in both quantifiable 

and non-quantifiable reductions in 

fishing mortality for all of the NE 

multispecies stocks managed under the 

FMP. 

The interim measures are designed to 

work in conjunction with the FMP to 

reduce fishing mortality and continue to 

maintain progress toward achieving the 

rebuilding requirements of the FMP. 

The analysis of this action presumes 

that the measures will be in effect 

throughout FY 2009, and that a 

subsequent management action 

(Amendment 16) will be implemented 

on May 1, 2010. The FMP management 

measures include an FY 2009 default 

measure that will change the allocation 

ratio of Category A:B DAS from 55:45 to 

45:55. This measure, because it is not an 

action implemented by this interim 

action, is not discussed specifically in 

the description of the interim measures 

that follow. In addition, this action 

continues existing measures in the FMP 

associated with the GOM Differential 

DAS Area, as discussed further below. 

NMFS anticipates that this interim 

action will be renewed upon its 

expiration for an additional 185 days, 

given that the Council does not 

anticipate the implementation of 

Amendment 16 until May 2010 and that 

the Council recommended that any 

interim action implemented by NMFS 

should be in effect for all of FY 2009. 

Several measures were modified from 

the proposed to the final rule based 

upon public comments received and 

further analysis of proposed measures, 

to mitigate the negative economic 

impacts of the management measures on 

the fishing industry and fishing 

communities without compromising 

long-term rebuilding of overfished 

stocks. Although these revisions will 

17034 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

result in less reduction to fishing 

mortality than the measures proposed, 

such changes should not undermine 

efforts to rebuild stocks within the 

established timeframes. Such measures 

will continue to reduce F on all stocks 

and eliminate overfishing on all but four 

stocks (pollock, GB cod, witch flounder, 

and northern windowpane flounder). 

Three of these stocks are newly 

classified as overfished (pollock, witch 

flounder, and northern windowpane 

flounder), and the rebuilding programs 

developed by the Council in draft 

Amendment 16 include rebuilding 

timelines extending to 2017. The 

rebuilding timeline for GB cod extends 

through 2026. Given this, there should 

be sufficient opportunity for future 

management actions to end overfishing 

and rebuild these stocks, as necessary. 

The following describes the measures 

implemented by this final interim rule. 

Approved Commercial Measures 

1. Differential DAS Counting 

This action maintains the existing 

differential DAS counting area in the 

GOM, as established in the FMP. 

However, in SNE, the existing SNE 

Differential DAS Area is replaced by the 

Interim SNE Differential DAS Area. This 

area includes waters between 40°30′ and 

41°30′ N. lat., and west of 68°50′ W. 

long. (i.e., west of the border of the 

Western U.S./Canada Area) to the shore, 

including all of Nantucket Sound and 

the Great South Channel. The Interim 

SNE Differential DAS Area is being 

implemented primarily as a means to 

reduce F on SNE winter flounder and 

SNE/MA yellowtail flounder. 

With the exception of vessels fishing 

with hook gear in the Interim SNE 

Differential DAS Area, all NE 

multispecies vessels declared into and 

fishing under a NE multispecies 

Category A DAS within either the GOM 

or Interim SNE Differential DAS Areas 

for any portion of a trip will be charged 

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

other words, with the exception noted 

above, if a vessel declares into, and 

fishes in, either the GOM or Interim 

SNE Differential DAS Area for 10 hr, the 

vessel’s DAS balance would be charged 

20 hr. NE multispecies vessels declared 

into and fishing under a Category A 

DAS in the Interim SNE Differential 

DAS Area using hook gear will be 

charged DAS at a rate of 1:1, provided 

such vessels have only hook gear on 

board. The hook gear exception to the 

differential DAS counting rate is based 

upon data that indicate that the catch 

rate of winter flounder and yellowtail 

flounder, the primary species targeted 

by this measure, by hook gear is likely 

to be very low and, in conjunction with 

a zero retention limit for SNE winter 

flounder, will not substantially affect F 

reductions achieved by this action. 

A vessel will not be charged at the 

differential DAS rate if it declares into 

and transits to another area outside of 

one of the differential DAS areas. For 

example, if a vessel steams through the 

GOM Differential DAS Area on its way 

to and from the fishing grounds in the 

U.S./Canada Management Area, where 

DAS are not counted differentially, it 

will not be charged at the 2:1 rate for the 

parts of the trip spent steaming through 

the GOM Differential DAS Area. If a 

vessel declares and fishes both inside 

and outside of the GOM Differential 

DAS Area or the Interim SNE 

Differential DAS Area on the same trip, 

it will be charged differential DAS at a 

rate of 2:1 for the entire trip. This does 

not change the way that DAS are 

charged for vessels fishing in the GOM 

Differential DAS Area. However, 

charging differential DAS at a rate of 2:1 

for the entire trip does represent a 

change in the way DAS are currently 

charged under the existing SNE 

Differential DAS Area implemented 

under FW 42. This change is based 

upon the revised area encompassed by 

the Interim Differential DAS Area, as 

further explained in the response to 

Comment 15. 

Consistent with current regulations, 

vessels are required to declare their 

intent to fish in one or both of the 

differential DAS areas via the vessel 

monitoring system (VMS) prior to 

leaving port. However, the 

Administrator, Northeast Region, NMFS 

(Regional Administrator) currently has 

the authority to require the fishery to 

utilize the ‘‘call-in system’’ on a 

temporary basis instead of the VMS for 

DAS accounting if the vessel fishes 

inside/outside of the VMS demarcation 

line on the same trip, if the VMS system 

was down for an extended period of 

time, or for some other unforeseen 

circumstance. In such a circumstance, 

vessels fishing any portion of a trip 

inside one or both of the differential 

DAS areas will be charged at the rate of 

2:1 for the entire trip. 

The interaction of current groundfish 

and non-groundfish regulatory programs 

and the different DAS counting rules 

remain unchanged under this action 

(e.g., the cod running clock, DAS 

charging rules for Day gillnet vessels, 

the application of daily possession 

limits for certain stocks, the Eastern 

U.S./Canada Area rules, use of Regular 

B DAS, and monkfish/groundfish 

permitted vessels fishing under a NE 

multispecies DAS). For example, a 

vessel fishing in the GOM Differential 

DAS Area for 25 hr that caught 1,600 lb 

(726 kg) of GOM cod (i.e., 2 day’s worth) 

would not be required to submit the cod 

running clock form via VMS in order to 

account for the additional day’s worth 

of cod harvested. In addition, a Day 

gillnet vessel declared into and fishing 

in the GOM Differential DAS Area 

would be charged DAS at a rate of 2:1 

for any trip less than or equal to 3 hr 

in duration, or greater than 7.5 hr in 

duration and 15 hr for any trip greater 

than 3 hr, or less than or equal to 7.5 

hr in duration. For vessels fishing in 

multiple geographic areas in which 

different rules apply (such as 

differential DAS counting and trip 

limits), the most restrictive rule would 

apply for the entire trip. The current 

regulations that allow monkfish 

Category C and D vessels to fish as a 

monkfish Category A or B vessel, and 

land monkfish under certain conditions, 

will still apply. As described in detail 

below under Item 9 ‘‘Mitigating 

Measures,’’ the DAS rules that apply to 

monkfish Category C and D vessels 

fishing in the GOM Differential DAS 

Area are modified by this action to 

minimize any impact these measures 

may have on the ability of such vessels 

to fish for monkfish. 

2. Modified Trip Limits 

Under this interim rule, NE 

multispecies vessels are not allowed to 

fish for, possess, or land more than 

1,000 lb (453.6 kg) per DAS, up to 5,000 

lb (2,268 kg) per trip of witch flounder. 

In addition, no retention of SNE winter 

flounder, northern windowpane 

flounder, or ocean pout is allowed. 

Vessels fishing for winter flounder or 

windowpane flounder in multiple stock 

areas are subject to the most restrictive 

possession limit for the pertinent 

species. In other words, if a vessel fishes 

in the SNE winter flounder stock area 

and the GB winter flounder stock area 

on the same trip, the vessel will be 

subject to the prohibition on retention of 

winter flounder for that trip. Lastly, as 

explained further under Measure 6 

under ‘‘Approved Commercial 

Measures’’ of the preamble (‘‘Annual 

Specifications for U.S./Canada 

Management Area’’), a limit of 5,000 lb 

(2,268 kg) of GB yellowtail flounder per 

trip is specified. Modifications to trip 

limits are implemented as a means to 

reduce fishing mortality or increase 

yield because they are a management 

tool that can target particular stocks and 

are an important component of the 

current FMP. 

3. Specification of Target TACs 

Target TACs are utilized in the FMP 

as one method of evaluating the success 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17035 

of management measures and providing 

a way to make simple comparisons 

between different fishing years. 

Secondly, target TACs form the basis of 

calculating allocations of GB cod to 

sectors and the incidental catch TACs 

for the Special Management Programs. 

This final interim rule implements 

target TACs for FY 2009. The proposed 

rule indicated that the target TACs 

would be based upon either Fmsy or 

Frebuild for each stock. For stocks that 

were previously considered overfished, 

target TACs were proposed to be based 

upon Frebuild, with one exception for 

GB cod. For GB cod, the target TAC was 

proposed to be based upon Fmsy, for 

reasons specified in the proposed 

interim rule. In contrast, for stocks that 

have been newly classified as overfished 

based upon the results of GARM III, the 

target TACs were proposed to be based 

upon Fmsy. However, this final interim 

rule specifies target TACs based upon 

either the Ftarget for each stock (i.e., 

Fmsy or Frebuild) or the F resulting 

from measures implemented by this 

action (i.e., estimated F), whichever is 

higher. For stocks where the estimated 

F is lower than the Ftarget, 

implementing target TACs based upon 

the Ftarget allows for increased yield. 

For stocks where the estimated F is 

higher than the Ftarget, implementing 

target TACs based upon the estimated F 

more accurately reflects catch 

anticipated from measures implemented 

by this action. Table 3 lists the target 

TACs for FY 2009, based upon GARM 

III data, and an estimate of F for each 

stock during CY 2008. 

TABLE 3—TARGET TACS (MT) FOR FY 

2009 

Species Stock Target 

TAC 

Cod ........................... GB ........... 5,501 

Cod ........................... GOM ........ 10,724 

TABLE 3—TARGET TACS (MT) FOR FY 

2009—Continued 

Species Stock Target 

TAC 

Haddock .................... GB ........... 89,055 

Haddock .................... GOM ........ 1,564 

Yellowtail flounder .... GB ........... *1,617 

Yellowtail flounder .... SNE/MA ... 389 

Yellowtail flounder .... CC/GOM .. 860 

Plaice ........................ .................. 3,214 

Witch flounder ........... .................. 1,129 

Winter flounder ......... GB ........... 2,004 

Winter flounder ......... GOM ........ 379 

Winter flounder ......... SNE ......... 0 

Redfish ...................... .................. 8,614 

White hake ................ .................. 2,376 

Pollock ...................... .................. 6,346 

Windowpane flounder North ........ 581 

Windowpane flounder South ....... 279 

Halibut ....................... .................. 68 

* A hard TAC, set through a separate process described in Measure 5 of this preamble. 

4. Revisions to Incidental Catch TACs 

and Allocations to Special Management 

Programs 

This final rule revises the 

specification of incidental catch TACs 

applicable to the Special Management 

Programs of the FMP for FY 2009, based 

upon the most recent scientific 

information. Incidental catch TACs are 

specified for certain stocks of concern 

for Special Management Programs in 

order to limit the amount of catch of 

stocks of concern that can be caught 

under such programs, and to fully 

account for fishing mortality. The 

incidental catch TACs apply to catch 

(landings and discards) caught under 

Category B DAS (either Regular or 

Reserve B DAS) on trips that end on a 

Category B DAS. The catch of stocks for 

which incidental catch TACs are 

specified on trips that start under a 

Category B DAS and then flip to a 

Category A DAS do not accrue toward 

such TACs. 

A stock of concern is defined as a 

stock that is in an overfished condition 

or subject to overfishing. Due to the 

revised status of stocks (GARM III) that 

is adopted under this action, an 

incidental catch TAC is no longer 

appropriate for American plaice, 

because it is no longer considered a 

stock of concern. Further, new 

incidental catch TACs are required for 

GOM winter flounder and pollock 

because they are now considered stocks 

of concern. The percentages that the 

TACs are based on remain unchanged, 

with the exception of witch flounder, 

which is reduced from 5 percent to 2 

percent, due to its overfished status and 

the fact that the F and total catch need 

to be reduced. The incidental catch 

TACs for GOM winter flounder are set 

at 5 percent, based on the rationale 

described in Framework (FW) 40A to 

the FMP: If the recent catch levels are 

less than the expected future catch 

levels, and 2009 management measures 

are likely to achieve more than the 

required reduction in F, then the size of 

an incidental catch TAC relative to the 

size of the overall TAC is larger (set as 

a larger percent). The incidental catch 

TAC for pollock is set at 5 percent 

because of the prevalence of pollock 

catch in the Special Management 

Programs, and based upon the rationale 

cited above. The utility of the Special 

Management Programs would be 

severely constrained if the incidental 

catch TAC is set too low. The number 

of total incidental catch TACs is 

increased from the current number (8), 

to 10. Due to the severe F reduction 

necessary for the SNE/MA stock of 

winter flounder, no retention of this 

stock is allowed, and there is no 

incidental catch TAC specified (see 

additional discussion under Section 9 of 

this preamble, Mitigating Measures). 

The calculation of incidental catch 

TACs by stock based on the target TACs 

is shown in Table 4. 

TABLE 4—INCIDENTAL CATCH TACS FOR FY 2009 (MT) 

Stock 

Percentage 

of total 

TAC 

Target TAC Incidental 

TAC 

GB cod ................................................................................................................................................... 2 5,501 110 

GOM cod ............................................................................................................................................... 1 10,724 107 .2 

GB yellowtail .......................................................................................................................................... 2 1,617 32 .3 

CC/GOM yellowtail ................................................................................................................................ 1 860 8 .6 

SNE/MA yellowtail ................................................................................................................................. 1 389 3 .9 

Pollock ................................................................................................................................................... 5 6,346 317 .3 

Witch flounder ........................................................................................................................................ 2 1,129 22 .6 

GB winter flounder ................................................................................................................................. 2 2,004 40 .1 

White hake ............................................................................................................................................. 2 2,376 47 .5 

GOM winter ............................................................................................................................................ 5 379 19 .0 

17036 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

This final interim rule also modifies 

the allocation of the incidental catch 

TACs to the various Special 

Management Programs due to the 

changes in status of stocks, and to 

optimize the design of the programs 

based on the operation of the programs 

since their inception. For example, the 

Eastern U.S./Canada Haddock SAP was 

not used at all in FY 2007, and only two 

trips were taken in the area in FY 2006. 

Therefore, the percent allocations to this 

SAP are reduced for GB cod, GB 

yellowtail, and GB winter flounder, and 

the percent allocation to the Regular B 

DAS Program is increased due to higher 

participation in that program 

historically. Secondly, this rule 

provides the Regional Administrator the 

authority to modify the allocations 

among programs in-season, or prior to 

the beginning of the season, because it 

is difficult to estimate the appropriate 

TAC, since the level of participation and 

catch rates of stocks of concern in the 

various programs is highly variable. The 

changes to the allocations are 

summarized in Table 5. Table 6 contains 

the incidental catch TACs that result 

from applying the percentages in Table 

5 to the incidental TACs in Table 4. 

TABLE 5—MODIFICATIONS TO THE INCIDENTAL CATCH TAC ALLOCATIONS FOR FY 2009 

Stock 

Regular B DAS Program Eastern U.S./Canada 

Haddock SAP 

Closed Area I Hook Gear 

Haddock SAP 

Current New Current New Current New 

GB Cod ............................................................................ 50% 70% 34% 14% 16% No change 

GB Yellowtail flounder ..................................................... 50% 80% 50% 20% .................... ....................

GB Winter flounder .......................................................... 50% 80% 50% 20% .................... ....................

Pollock .............................................................................. None 90% None 5% None 5% 

GOM Winter flounder ....................................................... None 100% .................... .................... .................... ....................

GOM Cod ......................................................................... 100% 100% .................... .................... .................... ....................

White hake ....................................................................... 100% 100% .................... .................... .................... ....................

CC/GOM Yellowtail flounder ............................................ 100% 100% .................... .................... .................... ....................

SNE/MA Yellowtail flounder ............................................. 100% 100% .................... .................... .................... ....................

Witch flounder .................................................................. 100% 100% .................... .................... .................... ....................

Plaice ............................................................................... 100% None .................... .................... .................... ....................

TABLE 6—SPECIFICATION OF INCIDENTAL CATCH TACS FOR SPECIAL MANAGEMENT PROGRAMS (MT) FOR FY 2009 

Stock Regular B 

DAS Program 

Eastern U.S./ 

Canada 

Haddock SAP 

Closed Area I 

Hook Gear 

Haddock SAP 

GB Cod ........................................................................................................................................ 77 15.4 17.6 

GOM Cod ..................................................................................................................................... 107.2 na na 

GB Yellowtail flounder ................................................................................................................. 25.8 6.5 na 

CC/GOM Yellowtail flounder ........................................................................................................ 8.6 na na 

SNE/MA Yellowtail flounder ......................................................................................................... 3.9 na na 

Pollock ......................................................................................................................................... 285.6 15.9 15.9 

Witch flounder .............................................................................................................................. 22.6 na na 

GB Winter flounder ...................................................................................................................... 32.1 8.0 na 

White hake ................................................................................................................................... 47.5 na na 

GOM Winter flounder ................................................................................................................... 19.0 na na 

5. Annual Specifications for U.S./ 

Canada Management Area 

In consultation with the Council, 

NMFS annually implements 

management measures for the U.S./ 

Canada Management Area through 

proposed and final rules. For FY 2009, 

because NMFS is implementing 

management measures for the entire 

fishery to reduce fishing mortality as 

described above, NMFS is including the 

specification of the TACs and other 

measures for the U.S./Canada 

Management Area in this final interim 

rule in order to streamline the 

regulatory process. 

The FMP specifies a procedure for 

setting annual hard TAC levels (i.e., the 

fishery or area closes when a TAC is 

reached) for Eastern GB cod, Eastern GB 

haddock, and GB yellowtail flounder in 

the U.S./Canada Management Area, 

which is described in the proposed 

interim rule. The specific justification 

for the FY 2009 TACs, which were 

based upon the most recent stock 

assessments, is also described in the 

proposed rule. On October 8, 2008, the 

Council approved, consistent with the 

2008 Guidance Document, the following 

U.S./TACs recommended by the 

Transboundary Management Guidance 

Committee: 527 mt of Eastern GB cod; 

11,100 mt of Eastern GB haddock; and 

1,617 mt of GB yellowtail flounder. The 

FY 2009 TACs for the U.S./Canada 

Management Area represent a decrease 

for cod and yellowtail flounder, and an 

increase for haddock compared to those 

specified for FY 2008 (Tables 7 and 8). 

TABLE 7—FY 2009 U.S./CANADA TACS (MT) AND PERCENTAGE SHARES (IN PARENTHESES) 

GB Cod GB Haddock GB Yellowtail 

Flounder 

Total Shared TAC ........................................................................................................................ 1,700 30,000 2,100 

U.S. TAC ...................................................................................................................................... 527 (31) 11,100 (37) 1,617 (77) 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17037 

TABLE 7—FY 2009 U.S./CANADA TACS (MT) AND PERCENTAGE SHARES (IN PARENTHESES)—Continued 

GB Cod GB Haddock GB Yellowtail 

Flounder 

Canada TAC ................................................................................................................................ 1,173 (69) 18,900 (63) 483 (23) 

TABLE 8—FY 2008 U.S./CANADA TACS (MT) AND PERCENTAGE SHARES (IN PARENTHESES) 

GB Cod GB Haddock GB Yellowtail 

Flounder 

Total Shared TAC ........................................................................................................................ 2,300 23,000 2,500 

U.S. TAC ...................................................................................................................................... 667 (29) 8,050 (35) * 1,950 (78) 

Canada TAC ................................................................................................................................ 1,633 (71) 14,950 (65) 550 (22) 

* Adjusted downward to 1,868.7 mt due to overharvest of FY 2007 TAC. 

The regulations for the 

Understanding, promulgated by the 

final rule implementing Amendment 13, 

state that any overages of the GB cod, 

haddock, or yellowtail flounder TACs 

that occur in a given fishing year will 

be subtracted from the respective TAC 

in the following fishing year. 

Therefore, should an analysis of the 

catch of the shared stocks by U.S. 

vessels indicate that an over-harvest 

occurred during FY 2008, the pertinent 

TAC will be adjusted downward in 

order to be consistent with the FMP and 

Understanding. Although it is very 

unlikely, it is possible that a very large 

over-harvest could result in an adjusted 

TAC of zero. If an adjustment to one of 

the FY 2008 TACs of cod, haddock, or 

yellowtail flounder is necessary, the 

public will be notified through 

publication in the Federal Register and 

through a letter to permit holders. 

NMFS is also implementing, through 

the authority granted to the Regional 

Administrator by the FMP, measures to 

optimize the harvest of the shared 

resources. The regulations under 

§ 648.85(a)(3)(iv)(D) provide the 

Regional Administrator the authority to 

implement in-season adjustments to 

various measures in order to prevent 

over-harvesting, or to facilitate 

achieving the TAC. 

Based on the Council’s vote to 

postpone the opening of the Eastern 

U.S./Canada Area for vessels fishing 

with trawl gear in FY 2008 from May 1, 

2008, to August 1, 2008, and the success 

of this management measure in slowing 

the annual catch rate of cod during the 

early part of the year, NMFS is 

implementing this same measure for FY 

2009. Thus, the FY 2009 opening of the 

Eastern U.S./Canada Area for trawl 

vessels will be August 1, 2009; more 

selective longline gear is allowed access 

during May through July. Such vessels 

will be limited to a cod catch of 5 

percent of the cod TAC, or 26.4 mt. The 

objective of this action is to prevent 

trawl fishing in the Eastern U.S./Canada 

Area during the time period when cod 

bycatch is likely to be very high. The 

goal of this measure is to prolong access 

to this area in order to maximize the 

catch of available cod, haddock, and 

yellowtail flounder. 

Secondly, the Regional Administrator 

is implementing a possession limit of 

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

yellowtail flounder. Although the 

regulations under § 648.86(a)(3)(iv)(C) 

indicate an initial trip limit of 10,000 lb 

(4,536 kg) at the beginning of a fishing 

year for GB yellowtail flounder, based 

on the yellowtail flounder catch rate 

from the U.S./Canada Management Area 

under a 5,000-lb (2,268-kg) trip limit 

during FY 2008, and analyses 

conducted by NMFS during FY 2007, a 

5,000-lb (2,268-kg) trip limit is an 

appropriate trip limit to allow 

harvesting of the TAC, and to increase 

the likelihood that further restrictions 

during the fishing year to slow the catch 

rate will be unnecessary. 

Third, the Regional Administrator is 

allowing the use of the Ruhle Trawl in 

the Eastern U.S./Canada Area. Under 

permanent regulations, only a flounder 

net and the haddock separator trawl are 

permanently authorized for such use. 

The Ruhle trawl, which is a modified 

trawl that substantially reduces the 

catch rate of most stocks of concern, was 

approved for use in the Regular B DAS 

Program and the Eastern U.S./Canada 

Haddock SAP (73 FR 40186, July 14, 

2008). Approval of the use of the Ruhle 

trawl in the Eastern U.S./Canada Area 

through this interim rule will provide 

another alternative for trawl vessel 

operators and, therefore, provide 

additional flexibility. As detailed in the 

July 14, 2008 final rule, the Ruhle trawl 

has been demonstrated to substantially 

reduce catch of many species of 

groundfish, and therefore its use is 

consistent with the management 

objectives for the Eastern U.S./Canada 

Area. 

Lastly, the Regional Administrator is 

implementing zero trips into the CA II 

Yellowtail Flounder SAP during FY 

2009, based on a determination that the 

available TAC of GB yellowtail flounder 

is insufficient to support a minimum 

level of fishing activity within the CA II 

Yellowtail Flounder SAP. The Regional 

Administrator has the authority to 

determine the allocation of the total 

number of trips into the CA II Yellowtail 

Flounder SAP based upon several 

criteria, including GB yellowtail 

flounder TAC level and the amount of 

GB yellowtail flounder caught outside of 

the SAP. As implemented by FW 40B, 

zero trips to this SAP should be 

allocated if the available GB yellowtail 

flounder catch is not sufficient to 

support 150 trips with a 15,000-lb 

(6,804-kg) trip limit (i.e., if the available 

GB yellowtail flounder catch is less than 

1,021 mt). This calculation takes into 

account the projected catch from the 

area outside of the SAP. Based on the 

estimate for catch outside of the SAP 

utilized for FY 2008 (1,376 mt), and the 

proposed GB yellowtail flounder TAC 

for FY 2009 (1,617 mt), there is 

insufficient available catch to allow the 

SAP to proceed (i.e., 1,617 ¥ 1,376 = 

241; 241 < 1,021 mt). 

6. Haddock TAC for the CA I Hook Gear 

Haddock SAP 

Under this action, a haddock TAC for 

the CA I Hook Gear Haddock SAP is set 

based upon the GARM III stock 

assessment and a formula implemented 

in FW 42. The haddock TAC in a 

particular year is based upon the TAC 

that was specified for the SAP in 2004 

(1,130 mt), scaled according to the size 

of the exploitable biomass of western 

GB haddock compared to the biomass 

size in 2004 (35,317 mt). The size of the 

western component of the GB haddock 

stock is estimated at 35 percent of the 

size of the total GB haddock stock. 

Because the 2009 exploitable biomass of 

haddock is 321,870 mt, the formula and 

17038 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

resultant TAC is as follows: 

((.35)(321,870)/35,317) × 1,130 = 3,604.5 

mt. This action implements further 

modifications to this SAP, as discussed 

in Item 9 below. 

7. Elimination of the SNE/MA Winter 

Flounder SAP 

The SNE/MA Winter Flounder SAP 

regulations allow a limited access NE 

multispecies vessel fishing for summer 

flounder west of 72°30′ W. long. to 

retain up to 200 lb (91 kg) of winter 

flounder while not under a NE 

multispecies DAS, provided the vessel 

complies with various restrictions. Due 

to the severely depleted status of SNE/ 

MA winter flounder, and the goal of 

reducing F to as close to zero as 

practicable, this final rule eliminates 

this SAP. Because the SAP could enable 

limited targeting of winter flounder, 

elimination of the SAP may prevent 

some catch of winter flounder from 

occurring. 

8. Elimination of the State Waters 

Winter Flounder Exemption 

The State Waters Winter Flounder 

Exemption allows vessels issued a NE 

multispecies permit to fish in state 

waters for winter flounder using gear 

with mesh smaller than required for 

other vessels in the fishery (provided 

various requirements and criteria are 

met). Due to the severely depleted status 

of the SNE/MA winter flounder stock, 

and the goal of reducing F to as close 

to zero as practicable, this final rule 

eliminates this SAP. Because the SAP 

could enable limited targeting of winter 

flounder, elimination of the SAP may 

prevent some catch of winter flounder 

from occurring. 

9. Mitigating Measures 

CA I Hook Gear Haddock SAP 

Expansion. For reasons explained in the 

Comments section below, this final rule 

implements modifications to the CA I 

Hook Gear Haddock SAP to expand its 

scope and change some of the 

restrictions in order to increase 

opportunity to access GB haddock and 

provide additional flexibility to vessels. 

The expansion has been determined to 

be consistent with the goals of the FMP. 

Specifically, this rule modifies the time 

period for the SAP from October 

through December, to May through 

January, and expands the area within 

CA I where vessels may fish to the east 

and south, to encompass the entire 

northern half of CA I. This rule 

eliminates the division of the SAP into 

two time periods, as well as the 

allocation of the haddock TAC to the 

two time periods. All limited access NE 

multispecies DAS vessels fishing with 

hook gear may fish in the SAP at any 

time (provided the SAP is open), 

regardless of whether the vessel is 

enrolled in a sector or is in the 

‘‘common pool.’’ This final rule also 

implements a provision that was not 

included in the Council’s alternative, 

which is a prohibition on the use of 

squid as bait when fishing in this SAP, 

in order to allow haddock to be targeted 

with increased likelihood that the catch 

rate of cod will be low. This prohibition 

is based upon analysis of experimental 

fishery data during the comment period 

for this action that indicated high 

bycatch of cod may occur when using 

squid as bait. This final rule also 

eliminates the requirement that vessels 

intending to participate in the SAP 

provide a yearly notification to the 

observer program in advance of the SAP 

season, because the removal of the 

sector and non-sector seasons for this 

SAP no longer make this notification 

necessary to assist in the deployment of 

observers. The requirement to notify the 

observer program 72 hr in advance of 

each trip is maintained. These measures 

were not included in the proposed rule 

and NMFS is soliciting comments on 

this aspect of the rule. 

Reduction of Haddock Minimum Size. 

Under this interim action, the haddock 

minimum size is reduced to 18 inches 

(45 cm) for both the commercial and 

recreational fisheries in order to 

increase yield and decrease bycatch (as 

defined by the Magnuson-Stevens Act). 

Information from GARM III indicates 

that the GB stock is very large and is 

rebuilt, while the GOM stock is 99- 

percent rebuilt. Furthermore, a portion 

of the large 2003 year class of haddock 

is still below the current 19-inch (47.5- 

cm) minimum size. A reduced 

minimum size for haddock will allow 

vessels to retain more haddock, thereby 

increasing yield for this species. Other 

recreational measures are described 

under Measure 10 under ‘‘Approved 

Commercial Measures’’ of the preamble 

to this final interim rule. 

Extension of the Eastern U.S./Canada 

Haddock SAP. The Eastern U.S./Canada 

Haddock SAP, which is set to expire at 

the end of FY 2008 on April 30, 2009, 

is extended through this interim action, 

in order to continue to facilitate access 

to GB haddock. This SAP allows vessels 

fishing with trawl gear to fish in a 

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

including a section of the northern 

portion of CA II (the ‘‘triangle’’), under 

a Regular B DAS or a Reserve B DAS. 

This SAP allows a vessel to utilize a 

Category B DAS and fish in the 

‘‘triangle,’’ which is not otherwise 

accessible. The geographic area remains 

unchanged, and the rules that apply 

remain unchanged, with the exception 

of the reallocation of the incidental 

catch TACs (see Table 5). 

When fishing in this SAP, vessels 

must fish with either a haddock 

separator trawl or a Ruhle Trawl, and 

are subject to restrictive possession 

limits in order to provide an incentive 

to correctly use the specialized trawl 

gear to help minimize bycatch of stocks 

of concern. Catch of stocks of concern 

on trips that end under a B DAS count 

toward the incidental catch TACs 

specified for pollock, GB cod, GB winter 

flounder, and GB yellowtail flounder 

(see Table 6). The total amount of these 

stocks of concern caught is limited by 

these incidental catch TACs and the 

program is typically subject to a higher 

level of observer coverage than the NE 

multispecies fishery at large. 

Furthermore, there are specialized rules 

that apply when fishing in this SAP, 

including those regarding observer 

notification, VMS declaration, reporting 

requirements, and a no discard 

provision. 

Modifications to the Regular B DAS 

Program. The Regular B DAS Program 

was designed to provide opportunities 

to target healthy stocks without 

threatening stocks for which a mortality 

reduction is required. The program 

allows the use of Regular B DAS under 

restrictions designed to minimize 

impacts of stocks of concern. Under this 

interim rule, in addition to the 

modifications implemented under 

Measure 5 under ‘‘Approved 

Commercial Measures’’ of the preamble 

to this final interim rule (Revisions to 

Incidental Catch TACs and Allocations 

to Special Management Programs), 

several revisions are made to the 

Regular B DAS Program in order to 

address the current status of stocks and 

necessary reductions to F, as well as to 

maintain the usefulness of the Regular 

B DAS Program. Under current 

regulations, the Regional Administrator 

has the authority to close the Regular B 

DAS Program if it is projected that 

continuation of the Regular B DAS 

Program would undermine the 

achievement of the objectives of the 

FMP. In addition to monitoring the 

incidental TACs proposed under 

Section 5 of the preamble, NMFS will 

closely monitor the level of discarding 

of stocks that are proposed to have zero 

retention, but for which there is no 

incidental TAC (i.e., SNE/MA winter 

flounder, northern windowpane 

flounder, and ocean pout) to ensure that 

fishing mortality objectives for all stocks 

are not jeopardized. 

In order to prevent the quarterly 

incidental catch TACs from limiting the 

usefulness of the program, any quarterly 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17039 

incidental catch TAC that remains 

uncaught from quarters one, two, and/ 

or three will roll over into the 

subsequent quarter. 

Due to the number of flatfish stocks 

that need reductions in F, the use of low 

profile (tie-down) gillnets under this 

interim action are prohibited on trips 

fishing under the Regular B DAS 

Program. Within the NE multispecies 

fishery, flatfish are traditionally targeted 

by reducing the vertical height of 

bottom-set gillnets by tying the floatline 

of a gillnet to the leadline, or modifying 

the construction of the floatline to 

reduce or eliminate its buoyancy. Thus, 

because most stocks of concern are 

flatfish and targeting stocks of concern 

is not consistent with the goals of the 

Regular B DAS Program, the use of low 

profile gillnet gear is prohibited under 

this Program. The use of gillnet gear to 

catch haddock is still allowed. 

Under current regulations, when 100 

percent of the Incidental Catch TAC for 

white hake has been harvested, vessels 

fishing under a Regular B DAS are 

prohibited from retaining white hake. 

This is in contrast to the rules 

pertaining to the other Incidental Catch 

TACs in the Regular B DAS Program 

whereby, when the TAC is projected to 

be harvested, the use of Regular B DAS 

is prohibited in the pertinent stock area 

for the duration of the quarter. This final 

interim rule treats pollock and witch 

flounder in the same manner as white 

hake. Therefore, when 100 percent of 

the Incidental Catch TAC for white 

hake, pollock, or witch flounder is 

harvested, vessels fishing under a 

Regular B DAS will be prohibited from 

retaining white hake, pollock, or witch 

flounder, respectively. Because white 

hake, pollock, and witch flounder have 

stock areas that cover the GOM, GB, and 

SNE/MA areas, if the harvest of the TAC 

were to trigger a shutdown of the 

pertinent stock area, the entire Regular 

B DAS Program would be shut down. 

The Regional Administrator is provided 

the authority to modify the pertinent 

possession restriction, or implement 

other measures, including a partial 

closure for the Regular B DAS Program, 

in order to prevent excessive discarding 

of the stock. 

DAS Leasing Program Modifications. 

Under this rule, the current prohibition 

on leasing DAS between sector and 

common pool vessels is eliminated in 

order to increase flexibility and 

efficiency in the DAS leasing market. 

Secondly, the limit on the maximum 

number of DAS that a vessel sector and 

common-pool vessel may lease is 

eliminated. Amendment 13 

implemented a restriction that a lessee 

may lease Category A DAS in an amount 

up to the vessel’s FY 2001 allocation 

(excluding carry-over DAS from the 

previous year, or additional DAS 

associated with obtaining a Large Mesh 

permit). This restriction is removed in 

order to increase flexibility and 

efficiency in the DAS leasing market. 

These mitigation measures, including 

the DAS Transfer Program modifications 

described below, will also enhance the 

likelihood of compliance with the 

measures by providing additional 

fishing opportunities. 

DAS Transfer Program Modifications. 

Under this final rule, the DAS 

conservation tax is removed from the 

DAS Transfer Program. Specifically, the 

mandatory reduction of Category A and 

B DAS (20 percent), and Category C 

DAS (90 percent), will no longer apply 

when vessels participate in the DAS 

Transfer Program. The Council is 

expected to propose modifications to 

the DAS Transfer Program in 

Amendment 16 in order to provide an 

additional incentive to permanently 

transfer groundfish DAS, provide for 

parity of the DAS Transfer Program with 

the DAS Leasing Program, facilitate 

consolidation of permits, and provide 

flexibility for vessels to mitigate the 

negative impacts of DAS reductions and 

other management measures. NMFS is 

implementing this temporary 

modification to the program for the 

same reasons the Council is expected to 

propose such changes. The limited 

duration of the tax-free period (due to 

the limited duration of the proposed 

interim action) will limit the amount of 

any effect the change may have on 

increasing the overall DAS use rate. 

Monkfish DAS Rules to Mitigate 

Impacts of Groundfish Interim Action. 

Because vessels with a limited access 

Monkfish Category C and D permit are 

required to concurrently use a 

groundfish DAS in most circumstances, 

the differential DAS requirements 

implemented by this final rule impact 

such vessels. Although vessels fishing 

under concurrent monkfish and 

groundfish DAS in a differential DAS 

area still utilize monkfish DAS at a 1:1 

rate, the fact that their groundfish DAS 

are used at the rate of 2:1 indirectly 

limits the ability for such vessels to fish 

for monkfish in the future, because once 

a vessel runs out of groundfish DAS, 

their ability to fish under a monkfishonly DAS is limited. This final rule 

provides economic relief to groundfish 

vessels that also possess either a 

Category C or D monkfish permit by 

allowing these vessels to accrue a 

monkfish-only DAS while fishing for 

groundfish in a 2:1 differential DAS 

counting area. 

For example, a limited access 

monkfish Category C or D vessel with 40 

groundfish DAS and 31 monkfish DAS 

that fished under a monkfish DAS 

exclusively in a 2:1 differential DAS 

counting area for 20 days would use all 

of its 40 DAS groundfish allocation and, 

concurrently, 20 DAS of its monkfish 

allocation (because monkfish DAS are 

counted on a 1:1 basis in the differential 

DAS area). Thus, the vessel would have 

a remaining balance of 11 monkfish 

DAS, and zero groundfish DAS. Without 

a regulatory change that allows a vessel 

to accrue a monkfish-only DAS while 

fishing for groundfish in a 2:1 

differential DAS area, once the vessel 

used up its groundfish DAS, the vessel 

would be unable to fish monkfish-only 

DAS and, in this example, the use of the 

11 remaining monkfish DAS would 

have to be foregone. This action will 

restore the ability for the vessel to use 

its remaining 11 monkfish DAS, in this 

example, because the vessel would be 

eligible to receive up to a total of 20 

monkfish-only DAS as a result of fishing 

in the 2:1 groundfish differential DAS 

area. Since the vessel in this example 

would only have 11 monkfish DAS left, 

its monkfish-only DAS would be capped 

at 11. This measure was not included in 

the proposed rule, and NMFS is 

soliciting comments on this provision. 

10. Recreational Measures 

This action reduces fishing mortality 

on the GOM cod, GB cod, and SNE 

winter flounder fisheries for private 

recreational vessels fishing in the EEZ 

and for federally permitted charter/party 

vessels, commensurate with the 

reduction proposed for the commercial 

fishery. The seasonal prohibition on the 

possession of GOM cod for both private 

recreational and charter/party vessels is 

extended from its current duration of 

November through March, to November 

through April 15, and a GB cod trip 

limit of 10 cod per person per day for 

charter/party vessels is implemented, 

consistent with the GB cod trip limit for 

private recreational vessels. Retention of 

winter flounder caught in the SNE/MA 

stock area is prohibited for both private 

recreational and charter/party vessels. 

Recreational vessels in possession of 

winter flounder caught outside of the 

SNE/MA winter flounder stock area may 

transit this area, provided all bait and 

hooks are removed from fishing rods, 

and any winter flounder on board has 

been gutted and stored. Lastly, as a 

mitigation measure as further described 

above, the minimum size for haddock 

caught by recreational vessels fishing in 

the EEZ and federally permitted charter/ 

party vessels is reduced to 18 inches 

(45.7 cm). 

17040 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

11. Revised FY 2009 GB Cod TACs for 

Sectors 

As highlighted above in Measure 3 

under ‘‘Approved Commercial 

Measures’’ (‘‘Specification of Target 

TACs’’), this final interim rule revises 

several of the FY 2009 target TACs 

originally proposed for this action. 

Because the GB cod target TAC serves 

as the basis for calculating the GB cod 

TAC allocated to approved sectors, this 

final rule also revises the FY 2009 sector 

GB cod TAC allocations. Proposed rules 

specifying the 2009 GB cod TAC 

allocations for both the GB Cod Hook 

Sector and the GB Cod Fixed Gear 

Sector were published in the Federal 

Register on February 10, 2009 (74 FR 

6564), and February 12, 2009 (74 FR 

7029), respectively. These allocations 

were based upon an available U.S. share 

of the GB cod TAC of 3,506 mt, and the 

proposed interim rule listed the GB Cod 

Hook Gear Sector GB cod TAC as 284 

mt (based upon an 8.09-percent share of 

the U.S. portion of the TAC), and the GB 

Cod Fixed Gear Sector GB cod TAC as 

408 mt (based upon an 11.64-percent 

share of the U.S. portion of the TAC). 

Because this final interim rule revises 

the overall target TAC for GB cod from 

3,506 mt to 4,328 mt, the GB cod 

allocations to these sectors are increased 

to 350.1 mt for the GB Cod Hook Sector 

and 503.8 mt for the GB Cod Fixed Gear 

Sector. 

12. Extension of the Deadline for Gillnet 

Designation 

The current regulations at 

§ 648.4(c)(2)(iii)(A) require vessels 

fishing with gillnet gear to make an 

annual designation as either a Day or 

Trip gillnet vessel when the vessel is 

issued or renews a limited access NE 

multispecies permit. Once a vessel has 

elected this designation, the vessel may 

not change its declaration for the 

remainder of the fishing year. As further 

explained in Measure 1 under 

‘‘Approved Commercial Measures,’’ this 

designation dictates the manner in 

which DAS are counted for such 

vessels. Because these final interim 

measures will affect how DAS are 

counted during FY 2009, and because 

such measures were not known to the 

public until after many vessels had 

already selected a gillnet designation for 

FY 2009, this final interim rule allows 

a vessel owner to change the gillnet 

designation associated with his/her 

permit through June 12, 2009. This 

provides additional time for the vessel 

owner to review the final interim 

measures and revise the gillnet 

designation for his/her permit, if 

necessary. 

Comments and Responses 

Eighty-eight comments were received 

during the comment period on the 

proposed interim rule and 

accompanying EA, from 63 individuals, 

11 commercial fishing organizations, 2 

state senators, 8 U.S. Senators, 9 U.S. 

Congressmen, 2 state resource 

management agencies (Massachusetts 

Division of Marine Fisheries (DMF) and 

the Maine Department of Marine 

Resources (DMR)), 2 conservation 

organizations, 2 municipalities (New 

Bedford, MA, and East Hampton, NY), 

and the Council. 

Legal Authority for Interim Action 

Comment 1: Four members of the 

commercial fishing industry, two 

organizations representing the 

commercial fishing industry (Northeast 

Seafood Coalition and Westend 

Fisherman’s Association), an 

environmental organization (The Pew 

Environmental Group), and seven U.S. 

Senators stated that there is no legal 

requirement for interim measures to 

reduce fishing effort to the extent that 

the interim rule proposes to do. 

Response: Section 305(c) of the 

Magnuson-Stevens Act authorizes the 

Secretary to implement interim 

measures to reduce or address 

overfishing if he/she finds that 

overfishing exists, as more fully 

explained elsewhere in this preamble. 

Guidelines to help clarify this authority 

(63 FR 24212; May 1, 1998) allow 

discretion and flexibility with respect to 

the scope and severity of the action. 

When proposing the interim measures, 

NMFS considered recent stock status 

and the need for substantial reductions 

in F to help ensure that overfished 

stocks remain on their Amendment 13 

rebuilding trajectories. However, after 

review of public comments, NMFS has 

modified the management measures 

implemented under this final interim 

rule from those that were proposed, to 

target stocks in most immediate need of 

reductions; e.g., SNE winter flounder, 

and northern windowpane flounder; to 

reduce negative impacts on fishermen to 

the extent practicable in the context of 

this interim rule, without jeopardizing 

the likelihood of meeting rebuilding 

objectives of overfished multispecies 

stocks. Because NMFS is not 

implementing the proposed expanded 

differential DAS accounting in the GOM 

and northern portions of GB, and 

because this final interim rule replaces 

the SNE Closure Area with differential 

DAS counting, this final interim rule 

will result in smaller F reductions for 

several of the stocks than the proposed 

measures would have, and will not 

provide as much assurance that 

rebuilding goals will be met for 

overfished stocks. However, these final 

interim measures should not impede 

progress of attaining FMP rebuilding 

objectives, provided adequate 

adjustments, if necessary, are made by 

the Council in future years. This is due, 

in part, to the fact that several 

overfished stocks have extended 

rebuilding periods (GB cod—2026, 

Atlantic halibut—2058, and CC/GOM 

yellowtail flounder—2023), which 

allows more time for the stocks to 

respond to management. In addition, the 

Council has adopted draft rebuilding 

programs in Amendment 16 for stocks 

recently classified as overfished 

(pollock, witch flounder, GB winter 

flounder, and northern windowpane 

flounder) that will likely set a 

rebuilding end-date as 2017 for these 

stocks. The measures implemented by 

this final interim rule do achieve 

substantial reductions in F for the 

targeted stocks, including a 62-percent 

reduction for SNE/MA winter flounder 

and a 39-percent reduction for SNE/MA 

yellowtail flounder. 

Goal of Interim Action and Magnitude 

of Management Measures 

Comment 2: Fifty-seven commenters, 

including commercial fishermen, 

commercial fishing organizations, 

municipalities, state fisheries 

organizations, and state senators 

questioned why such severe interim 

restrictions are necessary. Twenty 

commenters questioned NMFS’s 

justification and compliance with the 

Magnuson-Stevens Act, particularly 

National Standard (NS) 8. Many 

characterized the proposed interim rule 

as failing to balance the need to reduce 

overfishing and rebuild stocks with the 

need to maintain a viable fishery and 

infrastructure. Some claimed that NMFS 

is ignoring the provisions of the 

Magnuson-Stevens Act that provide 

flexibility to achieve an appropriate 

balance. Others asked what stocks have 

collapsed to warrant such extreme 

measures. 

Response: Based upon the best 

available science (GARM III), NMFS 

believes substantial reductions in F are 

necessary for stocks in most need of 

protection in order to ensure that 

rebuilding objectives are not 

jeopardized. When determining final 

management measures for this rule, 

NMFS considered the requirements of 

the Magnuson-Stevens Act, including 

the minimization of adverse economic 

impacts, the status of stocks, and the 

requirements of the FMP. As stated in 

the proposed interim rule, NMFS’s goal 

for this interim action is to implement 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17041 

measures to reduce overfishing, while 

addressing the need to help sustain 

fishing communities, without 

compromising rebuilding objectives and 

statutory rebuilding timelines. Relying 

on the additional flexibility inherent in 

implementing an interim rule under 

section 305(c) of the Magnuson-Stevens 

Act, as more fully explained elsewhere 

in this preamble, NMFS balanced the 

need to reduce overfishing and rebuild 

stocks with the need to minimize 

adverse impacts on fishing industry 

businesses and sustain fishing 

communities. However, based on public 

comments that the proposed 

management measures would create 

severe economic hardship, and further 

analysis of the impacts of several 

additional alternative combinations of 

management measures, NMFS is not 

implementing the proposed interim 

measures of 2:1 differential DAS 

counting in the GOM and northern GB 

area as this measure was primarily 

intended to reduce F on pollock and 

witch flounder. Given that there is no 

current rebuilding program for pollock, 

witch flounder, or northern 

windowpane flounder, and that the 

Amendment 16 rebuilding programs 

likely to be proposed for these stocks 

have a rebuilding timeline of 2017, 

NMFS believes that there is additional 

time for the Council to ensure that 

these, and other newly overfished 

stocks, are rebuilt as intended under 

Amendment 16. Further, given concern 

raised by the public regarding the severe 

economic impacts that would be 

imposed by the SNE Closure Area, 

NMFS is not implementing that 

proposed measure, but is instead 

implementing a modified 2:1 

differential DAS counting area, with a 

zero landing limit for SNE winter 

flounder, to discourage effort on this 

stock. As stated in response to Comment 

1 above, NMFS believes that, despite 

these revisions, the FMP rebuilding 

goals are still achievable, although 

additional restrictions may likely be 

necessary in the future to achieve the 

goals. 

This action includes several measures 

intended to minimize the adverse 

economic impacts associated with effort 

reduction measures. These include a 

reduction in the haddock minimum size 

restriction, revisions to the DAS Leasing 

Program, elimination of the 

conservation tax in the DAS Transfer 

Program, continuation of the Eastern 

U.S./Canada Haddock SAP, 

modifications to the Regular B DAS 

Program, and expansion of the CA I 

Hook Gear Haddock SAP. As described 

in the EA associated with this action, 

these measures should provide 

additional flexibility and fishing 

opportunity for vessels that would 

otherwise not be available. 

In summary, in response in public 

comments, NMFS, within the limits 

associated with implementing an 

interim rule under section 305(c) of the 

Magnuson-Stevens Act, has made 

several changes from the proposed rule 

to mitigate negative economic impacts 

and address industry concerns regarding 

disproportionate impacts of particular 

measures, consistent with NS 8. As 

described in more detail under the 

description of management measures 

above, the principal changes from the 

proposed rule are as follows: (1) 

Replacement of the SNE Closure Area 

with 2:1 differential counting in this 

area; (2) expansion in time and area of 

the CA I SAP; (3) modification of the 

rules regarding monkfish DAS to 

mitigate unintended impacts of the 

existing GOM Differential DAS Area and 

the Interim SNE Differential DAS Area; 

and (4) modification of how vessels are 

charged DAS when fishing inside and 

outside of a differential DAS area on the 

same trip, i.e., vessels will be charged 

DAS based on the area that they are 

fishing in. 

Comment 3: One commenter asked 

how NMFS can reconcile the magnitude 

of the impacts of this rule, based on the 

status of the stocks, with its October 

2007 determination that there was not a 

fishery resource disaster. 

Response: In 2007, Massachusetts, 

New Hampshire, and Maine requested 

that NMFS make a determination that 

there was a fishery resource disaster 

affecting them. NMFS denied those 

requests because the statutory 

requirements for such a finding were 

not met. Although the most recent stock 

assessments indicate that many 

groundfish stocks are overfished, several 

important stocks have recovered, or are 

close to recovery. The fact that 

substantial reductions in F are still 

necessary to rebuild stocks and 

eliminate overfishing is not inconsistent 

with the 2007 denial of the requests for 

a fishery resource disaster declaration. 

NMFS’s response to the Commonwealth 

of Massachusetts included the 

following: ‘‘The National Oceanic and 

Atmospheric Administration’s National 

Marine Fisheries Service (NMFS) has 

carefully analyzed the data regarding 

the Massachusetts groundfish fishery 

and also the provisions regarding a 

commercial fishery failure due to a 

fishery resource disaster under 

Magnuson-Stevens Act sections 312(a) 

and 315. Although we understand that 

there has been economic difficulty in 

the groundfish-dependent communities 

of Massachusetts and we are very 

sympathetic, we find that your request 

for a determination of a commercial 

fishery failure due to a fishery resource 

disaster does not meet the requirements 

for such a finding under Sections 312 or 

315 of the Magnuson-Stevens Act. Our 

latest research shows encouraging 

increases in most of the groundfish 

stocks including cod, haddock, and 

Georges Bank yellowtail. Even though 

fishing revenues show some declines, 

the commercial fishery itself, although 

diminished, has not failed.’’ 

Evaluation of the Council Proposal for 

FY 2009 

Comment 4: Twenty-one commenters, 

including eight U.S. Senators and nine 

U.S. Congressmen, supported adoption 

of the Council’s recommended interim 

measures. Some commenters questioned 

why NMFS disregarded the Council’s 

proposal, noting their belief that the 

Council proposal is better for fishermen 

and the fish, and stating that the 

Council proposal would itself cause 

economic harm. Many commenters 

believed that the Council’s proposal 

represents a better bridge to 

Amendment 16. Several commenters 

claimed that input controls such as DAS 

have failed to prevent overfishing and 

have increased discarding and foregone 

yield, with some supporting the TACpayback provision of the Council’s 

proposal, in particular. Three 

commenters suggested that NMFS 

implement a requirement for all 

groundfish vessels to submit daily catch 

reports through VMS as a means to 

improve reporting and move toward an 

output control management system. 

Response: As explained in the 

response to Comment 2 above, NMFS’s 

goal for the interim action is to reduce 

F on the groundfish stocks while 

minimizing economic impacts to the 

extent practicable, without jeopardizing 

rebuilding objectives. NMFS carefully 

considered the Council’s recommended 

alternative, but ultimately rejected it for 

several reasons, the principal reason 

being that it would not have reduced F 

sufficiently to meet NMFS’s goals for 7 

of 12 stocks. As part of the EA, NMFS 

analyzed the no action alternative as a 

proxy for the Council’s alternative using 

the closed area model (CAM). The 

results indicated that F reductions 

achieved by the Council’s alternative 

would be insufficient for a number of 

stocks (7 of the 12 stocks requiring F 

reductions). Subsequent to the 

publication of the proposed interim 

rule, NMFS analyzed the Council’s 

alternative and the results were 

essentially the same as the results of the 

analysis of the no action alternative. 

17042 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

After the end of the comment period, 

NMFS conducted additional analyses 

comparing the Council’s proposed 

interim alternative, NMFS’s proposed 

measures, and other alternatives. Based 

on those analyses, the loss of yield over 

time is greater for the measures 

recommended by the Council than for 

either the measures originally proposed 

by NMFS or those implemented by this 

final interim rule. Accordingly, the 

measures implemented by this interim 

action will preserve more TAC for more 

stocks in future years than those 

recommended by the Council. This 

aspect is important in the context of 

measures included in draft Amendment 

16, as those measures rely heavily upon 

TACs to control the fishery in the form 

of sector allocations or annual catch 

limits and the associated accountability 

measures. Finally, deductions of TAC 

overharvests in the subsequent fishing 

year, as specified in the Council’s 

proposal, are outside the possible scope 

of this interim action (or any subsequent 

interim action during FY 2009), because 

the effectiveness of interim actions is 

limited to a maximum of 366 days. 

NMFS believes that an interim rule is 

not the appropriate means to transition 

toward a new management structure, or 

to implement novel management tools; 

it is intended to address short-term 

needs to end or reduce overfishing 

while the Council is developing longerterm measures for the fishery. NMFS 

cannot effectively implement new 

measures (such as an expanded VMS 

reporting requirement or sector 

management) to transition toward a new 

management system that has not yet 

been decided upon, nor can it build the 

foundation for a program that has not 

yet been selected by the Council. 

Although the Council has stated its 

intent to move toward an output-based 

management system, and NMFS is 

supportive of this goal, the current FMP 

controls fishing effort principally 

through DAS, in conjunction with trip 

limits and closures, and the Council 

will need to make transitions to 

different approaches through future 

amendments to the FMP. 

Scientific Basis of Interim Action 

Comment 5: Five commenters 

expressed concern about the quality of 

the data and underlying science and 

stock assessments used to develop the 

proposed interim rule. Specific 

comments related to the level of 

uncertainty due to the ‘‘retrospective 

patterns’’ associated with some stock 

assessments, and the stock size estimate 

for SNE/MA winter flounder. 

Response: The scientific data upon 

which this interim action is based are 

the most recent stock assessments, 

referred to as GARM III, which were 

conducted from November 2007 through 

August 2008. GARM III was a regional, 

scientific peer review process for the 

purpose of providing benchmark 

assessments for the 19 groundfish stocks 

managed under the FMP. The 

assessments included extensive peer 

review from independent scientists. Of 

the 14 groundfish stocks assessed in 

GARM III based on an analytical 

assessment model, 7 stocks exhibited 

retrospective patterns that were 

considered severe enough that an 

adjustment to the population numbers 

and fishing mortality in 2007 was 

deemed necessary before determining 

current stock status and generating stock 

projections. The largest retrospective 

patterns were observed in GB yellowtail 

flounder, GOM winter flounder, and 

SNE/MA winter flounder. NMFS agrees 

that further work on the nature and 

causes of retrospective patterns is 

required. Notwithstanding the concerns 

regarding retrospective patterns, GARM 

III represents the best available science, 

and its use is consistent with NS 2. This 

was confirmed in a February 17, 2009 

Department of Commerce Inspector 

General’s report. 

Support for Proposed Measures for 

Interim Action 

Comment 6: One commenter from an 

environmental organization (The Ocean 

Conservancy) supported the proposed 

interim rule and stated that it is 

consistent with the current management 

regime, comprehensive, and simple. The 

commenter noted that the measures fall 

short of preventing overfishing in some 

cases, advocated hard TAC backstops 

for stocks of concern to increase 

accountability, and suggested that the 

goal should be Frebuild for stocks that 

were newly declared overfished. The 

commenter also recommended that 

NMFS should take strong action in 

2009, otherwise the measures necessary 

to rebuild stocks after allowing another 

year of overfishing will make the 

procedural and administrative changes 

outlined in draft Amendment 16 much 

harder to successfully implement. One 

member of the public believed that 

NMFS should reduce fishing effort more 

than proposed. 

Response: NMFS agrees with the 

commenter that strong action is 

necessary for 2009, but disagrees that 

the goal for newly declared stocks 

should be Frebuild and that hard TAC 

backstops are appropriate for an interim 

action. Although NMFS set a goal of 

Fmsy in the proposed interim action for 

stocks recently declared overfished 

(witch flounder, GB winter flounder, 

northern windowpane flounder, and 

pollock), the interim action provisions 

of the Magnuson-Stevens Act (section 

305(c)) do not specifically require that 

an interim action end overfishing, but 

rather only reduce or address 

overfishing as more fully described 

elsewhere in this preamble. Despite that 

management measures in this final 

interim rule have been relaxed from 

what the proposed interim rule 

measures would have implemented, 

NMFS believes that the FMP rebuilding 

goals are still achievable, although 

additional restrictions in Amendment 

16 or other actions will likely be 

necessary to achieve such goals. 

NMFS analyzed a hard-TAC 

alternative, but rejected the alternative 

because: (1) It is likely that the TACs for 

at least two stocks (GB cod and pollock) 

would have resulted in fishery closures 

relatively early in each trimester; and (2) 

the complexity of a hard TAC 

management system and the associated 

cost and difficulties in its 

implementation to both the fishing 

industry and NMFS would make it 

impractical, if not impossible, to 

successfully and effectively implement 

in the short period of an interim action; 

and it would possibly be inconsistent 

with Magnuson-Stevens Act national 

standards and required provisions, 

because of disproportionate impacts on 

the fishing industry that could result 

from such a temporary, short-term 

action. 

Safety Concerns 

Comment 7: Four commenters, 

including nine U.S. Congressmen, and 

seven U.S. Senators, were concerned 

that the proposed interim rule did not 

adequately consider safety issues for 

small and mid-sized vessels. 

Specifically, they believed that the 

proposed differential DAS area in the 

GOM and GB, and the SNE Closure Area 

would create an incentive for vessels to 

steam to offshore fishing grounds or 

farther from their ports of departure and 

therefore be fishing in a less safe 

manner than if they were fishing closer 

to shore or their home port. 

Response: As explained elsewhere in 

this preamble, based on public 

comment, this action does not 

implement the proposed expansion of 

the differential DAS counting in the 

GOM and GB, or the SNE Closure Area, 

and, therefore, largely addresses any 

safety issues associated with these two 

measures that the public may have been 

concerned about. Although NMFS is 

implementing 2:1 counting largely in 

the same area as the proposed SNE 

Closure Area (referred to in the rule as 

the ‘‘Interim SNE Differential DAS 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17043 

Area’’), this revision would not pose any 

additional safety concerns beyond those 

already associated with the status quo 

GOM Differential DAS Area. NMFS 

agrees that differential DAS areas are 

among the many factors that confront a 

vessel operator in trying to achieve a 

profitable fishing trip in a safe manner. 

However, modifications to the DAS 

Leasing and Transfer Programs 

implemented by this interim action may 

provide additional DAS necessary for 

vessels to fish within the differential 

DAS areas and remain closer to shore, 

reducing safety concerns associated 

with measures implemented by this 

action. Finally, because the Interim SNE 

Differential DAS Area abuts the 

coastline, similar to the status quo GOM 

Differential DAS Area, vessels that 

declare into this area will be required to 

burn 2 DAS for every 1 day fished, 

regardless of where they fish on that 

trip. This is consistent with the 

provisions of the GOM Differential DAS 

Area and is based upon the same 

rationale offered by the Council when 

the GOM Differential DAS Area was 

adopted under FW 42. 

Mixed-Stock Exception 

Comment 8: Four comments were 

received, including one from nine U.S. 

Congressmen, that suggested that NMFS 

should consider the mixed-stock 

exception in the NS 1 guidelines to 

prevent the depleted condition of one 

stock from influencing the management 

measures developed for other stocks, 

resulting in management measures that 

are overly restrictive and reduce yield. 

Response: NMFS agrees that, under 

the current FMP, the depleted condition 

of some stocks result in management 

measures that impact non-depleted 

stocks due to the commingled nature of 

the fishery and the management tools 

used, particularly DAS. However, NMFS 

disagrees that reliance on the mixedstock exception can provide relief in the 

current situation, due to the number and 

nature of the particular stocks that are 

driving the management measures, and 

the constraints and conditions on the 

use of the mixed-stock exception in NS 

1. The mixed-stock exception provides 

a very limited exception, with strict 

criteria, for ending overfishing of certain 

stocks, but not for rebuilding 

requirements and statutory time 

requirements. In fact, the new NS 1 

Guidelines do not allow the mixed-stock 

exception to be used for overfished 

stocks. The Magnuson-Stevens Act 

mandates rebuilding of overfished 

stocks in most cases within 10 years. FY 

2009 marks the midpoint of most of the 

rebuilding plans implemented under 

Amendment 13. Data from GARM III 

indicate that many of the 13 overfished 

stocks are substantially below biomass 

levels that can produce MSY such that 

substantial reductions in F are necessary 

to rebuild these stocks by the end of the 

rebuilding periods (i.e., by 2014 for 

most stocks). Accordingly, these stocks 

are not eligible for the mixed-stock 

exception and, even if they were, 

continuing to subject such stocks to 

high levels of fishing effort would 

decrease the probability that these 

stocks will rebuild within the mandated 

timelines without substantial F 

reductions within the next few years. 

Based on GARM III, the only stocks 

that are subject to overfishing, and not 

overfished, are GOM cod and the 

southern stock of windowpane flounder. 

Evaluation of whether these stocks 

would meet the threshold criterion for 

allowing overfishing does not make 

sense in this circumstance, because both 

stocks require relatively small F 

reductions (21 percent), compared with 

most of the other stocks. The current 

status of GOM cod and southern 

windowpane flounder is not causing a 

situation where management measures 

designed for these stocks are resulting in 

excessively restrictive measures on 

other stocks. Nevertheless, this interim 

rule will allow overfishing to continue 

for the duration of this interim action on 

GB cod, witch flounder, pollock, and 

northern windowpane flounder under 

authority found in section 305(c) of the 

Magnuson-Stevens Act, as is more fully 

explained elsewhere in this preamble. 

Thus, by allowing overfishing on these 

stocks, this final interim rule results in 

the same type of mitigation of negative 

impacts as would result if the mixedstock exception were evoked. 

SNE Closure Area 

Comment 9: Twenty-eight 

commenters supported the proposed 

SNE Closure Area, including three 

members of the public and four 

commercial fishermen. Although several 

commenters believed the proposed 

closure was a proactive measure, most 

stated that such a restriction was long 

overdue, and necessary to rebuild the 

SNE/MA stock of winter flounder. One 

commenter believed that the area 

between Nantucket and CA I is 

particularly important to protect. 

Commenters noted the importance of 

winter flounder to the ecosystem and 

observed that the SNE winter flounder 

stock used to support a vibrant fishery 

and was a source of employment for 

fishing communities. One commenter 

noted that a closure area would provide 

the best chance of recovery for the stock. 

Another commenter strongly supported 

the provision that would allow hook 

vessels to fish in the closure area due to 

the selectivity of the gear, and noted 

that the closure area does not exclude 

fishermen, but only certain gear types. 

Five commenters who did not support 

the proposed SNE Closure Area 

suggested restrictions on the number or 

type of gillnets fished and the required 

use of specialized trawl gears in order 

to reduce catch of winter flounder. 

Some commenters expressed concerns 

such as an effort shift to targeting 

lobsters, and others acknowledged the 

economic hardship such a closure 

would cause. Suggestions for 

modification of the closure area 

included reducing the overall size and/ 

or allowing more access, such as 

allowing groundfish vessels to use 

roundfish gillnets or tended roundfish 

gillnets (provided that winter flounder 

are not retained). 

Response: NMFS agrees that the 

proposed SNE Closure Area would have 

afforded protection for winter flounder 

and served as an important factor in 

rebuilding the SNE/MA stock of winter 

flounder. Although the use of 

specialized gears may be effective in 

reducing the catch of flatfish, including 

winter flounder, a requirement for the 

use of specialized gear for an interim 

action (or limited duration) is not 

practical due to the cost of purchasing 

such gear and possible lack of 

availability. Further, this final action 

would implement a differential DAS 

area instead of a closure, and does not 

exclude gillnet or trawl gear. However, 

as explained in the response to 

Comment 10, below, NMFS is instead 

implementing an expanded differential 

DAS area in SNE to mitigate the 

economic impacts of the interim action 

without unnecessarily compromising 

efforts to rebuild overfished stocks. All 

commercial and recreational vessels 

fishing in the Interim SNE Differential 

DAS Area will be subject to a zero 

landing limit on SNE winter flounder to 

strictly control F for this stock. 

Comment 10: Thirty-two commenters, 

including commercial fishing 

organizations, state fishery management 

organizations, and elected officials, did 

not support the proposed SNE Closure 

Area. The principal concern of 14 

commenters was the anticipated 

economic impacts. Three commenters 

noted that the closure area is important 

fishing grounds for 16 vessels, and 

predicted a loss of 30 percent of income 

for fishermen, with a severe impact on 

the ports of Point Pleasant and Belford, 

NJ, where the majority of groundfish are 

landed in NJ. Several commenters noted 

that winter flounder is the only 

available groundfish off NJ, and stated 

that it is an important component of the 

17044 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

mix of species targeted. Their concern 

was heightened by the potential for 

cumulative negative impacts of the 

recent regulatory changes in other 

fisheries such as the Atlantic scallop 

fishery on such vessels. Two 

commenters expressed concern 

regarding the potential negative 

economic impact on the port of New 

Bedford, due to its reliance on winter 

flounder. Two commenters noted that 

there may be disproportionate impact 

on small, groundfish-dependent vessels 

with home ports near the proposed SNE 

Closure Area that are too small, or lack 

adequate manpower to transit long 

distances and fish in areas outside of the 

closure. 

Response: Based on its economic 

analysis, NMFS agrees that groundfishdependent vessels would be more 

severely impacted by the proposed 

interim measures than vessels that rely 

on groundfish for a lower percentage of 

their income, and that vessels that 

would have fished for groundfish in the 

area of the proposed SNE Closure Area 

would be substantially impacted if they 

fish with gillnets or trawl gear. For those 

vessels that would have been most 

impacted by the proposed interim rule, 

medium and large boats would be 

slightly more impacted than small 

vessels; but, in general, the analysis 

indicated that the impacts among small, 

medium, and large vessels would be 

similar. In order to mitigate impacts on 

vessels that fish in this geographic area, 

but still provide a substantial reduction 

in fishing mortality for SNE/MA winter 

flounder and other stocks in this area 

consistent with rebuilding objectives, 

NMFS is implementing 2:1 differential 

DAS counting instead of the proposed 

closure. In addition to differential DAS 

counting, all vessels will be prohibited 

from retaining winter flounder 

throughout the SNE winter flounder 

stock area. Vessels fishing with hook 

gear will not be charged DAS at the 

differential rate due to the low catch 

rates of winter flounder by hook gear. 

Although this change from the 

proposed rule will not allow vessels to 

target or land winter flounder in this 

area, there is the potential for vessels to 

land other species, such as haddock, 

pollock, and cod. This would allow for 

at least some groundfish landings from 

all gears fishing in this area and reduce 

the economic impacts of the interim 

measures compared to those anticipated 

from the proposed measures. In 

addition, this change is likely to reduce 

the potential for effort shifts into other 

geographic areas or other fisheries by 

maintaining a smaller directed fishery 

within SNE. The estimated reduction in 

F resulting from this change will be 

closer to the objectives of this action 

and reduce the amount of lost yield for 

several stocks, particularly GB haddock, 

SNE/MA yellowtail flounder, American 

plaice, and white hake. 

Comment 11: Seven commenters, 

including DMR, the Monkfish Defense 

Fund, and the Garden State Seafood 

Association, expressed concern about 

potential harmful impacts that the 

proposed SNE Closure Area would have 

on vessels with limited access Monkfish 

Category C and D permits (those with 

both a limited access monkfish and a NE 

multispecies permit). The commenters 

stated that there is a robust monkfish 

fishery in the area, and asserted that the 

large mesh (10–12 inch (25–30 cm, 

respectively)) gear used does not catch 

winter flounder or yellowtail flounder 

in meaningful quantities. Further, some 

asserted that the impact on such vessels 

would be unfair because Category A and 

B vessels would still be allowed to fish 

in the area. One commenter was 

concerned about the proposed 

exemptions, which would allow other 

non-groundfish fisheries to occur in the 

proposed closure area. 

Response: NMFS agrees that, as 

proposed, the SNE Closure Area would 

have negatively impacted vessels with a 

limited access Monkfish Category C or 

D permit, because, under current 

groundfish rules, such vessels may not 

fish in the SNE Monkfish and Skate 

Gillnet Exemption Area (which 

overlapped the proposed SNE Closure 

Area) unless they are fishing under a 

‘‘monkfish only’’ DAS. Because this 

final rule does not implement the 

proposed SNE Closure Area, NMFS 

believes that negative impact on 

monkfish Category C and D vessels is 

greatly reduced. To avoid further 

negative impact on the monkfish fishery 

that could occur because Monkfish 

Category C and D vessels will use 

groundfish DAS at a higher rate in the 

differential DAS counting areas (both in 

the GOM and SNE), this final rule 

allows vessels to fish their additional 

monkfish DAS as ‘‘monkfish only’’ DAS. 

As explained in detail in Measure 9 

under ‘‘Approved Commercial 

Measures’’ of the preamble to this rule 

(‘‘Mitigating Measures’’), Monkfish 

Category C and D vessels fishing in 

either the GOM Differential DAS Area or 

the Interim SNE Differential DAS Area 

will accrue a monkfish-only DAS at the 

rate of one monkfish DAS for every two 

groundfish DAS used in the differential 

areas. 

The regulatory exemptions enable 

non-groundfish fisheries to continue to 

fish in the proposed closure area to 

continue, due to the nature of the 

exemptions and the restrictions 

associated with the exemptions. 

Exempted fisheries are required to 

maintain an incidental catch of 

regulated species that is less than or 

equal to 5 percent of the weight of fish 

on board and must not jeopardize 

groundfish fishing mortality objectives. 

Further, the exemptions and exempted 

fisheries have strict limitations that 

minimize the potential for adversely 

impacting groundfish, including gear, 

area, and seasonal restrictions designed 

to decrease interaction with groundfish 

stocks. Because the closure area has 

been revised to a differential DAS 

counting area, the concern about 

allowing exempted fishery participants 

into the SNE Closure Area while 

groundfish vessels fishing with certain 

gears are excluded should be addressed. 

Comment 12: Five commenters were 

concerned that the proposed SNE 

Differential DAS Area would be 

ineffective at achieving its objective of 

reducing fishing mortality on winter 

flounder, and instead suggested DAS or 

trip limits as a better means of 

controlling fishing effort. Some 

commenters believed that overfishing is 

not responsible for the depleted status 

of winter flounder, but instead 

attributed the low stock size to habitat 

loss; or predation by striped bass, spiny 

dogfish, or gray seals. 

Response: NMFS acknowledges that 

the proposed SNE Closure Area would 

not have completely eliminated F on 

winter flounder, because the potential 

for unavoidable bycatch of winter 

flounder from other fisheries, although 

limited, would result in some level of 

fishing mortality on this stock. Both 

DAS and trip limits have advantages 

and disadvantages as management tools. 

DAS restrictions such as differential 

DAS counting will allow more fishing 

opportunity in the area than a closure, 

but, depending upon a vessel’s DAS 

allocation and its ability to lease DAS, 

such measures may not cause a 

particular vessel to reduce its fishing 

effort in the geographic area proposed 

for the 2:1 DAS counting. Overall, 

however, such measures do reduce 

fishing effort and are effective at 

reducing F on stocks predominantly 

caught in a particular area. Trip limits 

can be effective at limiting a vessel’s 

catch of a particular species, and may 

influence fishing behavior, but can 

cause regulatory discarding or highgrading. As explained in the response to 

Comment 10, NMFS modified the 

measures of this interim rule from those 

originally proposed. This final rule 

implements a differential DAS counting 

area in SNE in order to reduce F on 

SNE/MA winter flounder and other 

stocks in the area that also require 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17045 

reductions in F. In addition, this rule 

implements a zero retention limit for 

SNE/MA winter flounder to further 

reduce F on this stock. Thus, in 

conjunction with the overall DAS 

reduction, NMFS has relied upon DAS 

and trip limits to reduce F on SNE 

winter flounder to the extent possible, 

short of the proposed closure area. 

Although this measure does not reduce 

fishing mortality on SNE/MA winter 

flounder to a level necessary for 

rebuilding (which is an F of zero), it 

does end overfishing on this stock. 

Further restrictions may be needed in 

Amendment 16 to reduce F in this stock 

to a level consistent with rebuilding 

objectives. 

With respect to whether there are 

other factors responsible for the 

depleted status of the stock, the major 

non-fishing impact that has been 

identified and documented is a 

correlation between warmer winter/ 

early spring water temperatures and 

increased predation on winter flounder 

larvae by Crangon shrimp and some 

other planktonic predators. These 

factors may have negatively impacted 

recruitment levels since the early 1990s. 

Notwithstanding environmental factors, 

fishing mortality has been, and remains 

at a level that is not sustainable, and not 

compatible with stock rebuilding. Thus, 

further reductions in fishing effort are 

necessary to rebuild this stock, as 

required by the Magnuson-Stevens Act. 

Interim Differential DAS Area 

Comment 13: Five comments, 

including one from a commercial 

fishery organization (Associated 

Fisheries of Maine), suggested that the 

DAS reduction proposed by the interim 

rule, including that from the Interim 

Differential DAS Area, is too drastic and 

that the Interim Differential DAS Area is 

larger than necessary to achieve the 

target fishing mortality reductions, 

resulting in loss of optimum yield (OY) 

in the fishery. One respondent indicated 

that, because the proposed Interim 

Differential DAS Area is so large, there 

would be no incentive for vessels to fish 

outside of the area, resulting in 

increased F on species within the area 

such as GOM cod. 

Response: Because many of the stocks 

managed by the FMP co-occur, and 

much of the fishing gear used to harvest 

groundfish stocks is limited in its ability 

to selectively target particular stocks, it 

is very difficult to design management 

measures that precisely achieve 

different conservation objectives for 

every stock. Management measures 

designed to achieve a particular F 

reduction for one stock will likely 

achieve larger than necessary reductions 

in F for other stocks. DAS, one of the 

principal tools of the FMP controlling 

fishing effort in the fishery, is a difficult 

and often blunt tool with which to target 

F reductions on specific stocks. 

As explained elsewhere in this 

preamble, including in the response to 

Comments 2 and 10, NMFS is not 

implementing the proposed interim 

measures of an expanded differential 

DAS area in the GOM and northern 

portions of GB based upon public 

comment and additional analysis. 

Although the revised measures 

implemented by this final interim rule 

do not achieve the target F reductions 

for all stocks, these measures achieve 

substantial F reductions for all stocks, 

particularly those that are severely 

overfished, including SNE/MA winter 

flounder and SNE/MA yellowtail 

flounder. In addition, according to the 

analysis conducted to support this 

action, the measures implemented by 

this final interim rule are expected to 

result in more yield of all stocks than 

the measures included in the proposed 

interim rule. Finally, this analysis 

suggests that measures implemented by 

this final interim rule are not likely to 

result in additional shifts in effort and 

will not increase F on stocks such as 

GOM cod. 

Comment 14: Ten comments, 

including those from two commercial 

fishery organizations (Northeast Seafood 

Coalition and Associated Fisheries of 

Maine), suggested that fishing effort will 

shift inshore because the size of the 

proposed Interim Differential DAS Area, 

which includes all of the GOM and 

northern portions of GB, limits the areas 

not subject to differential DAS counting. 

Four commenters indicated that this 

would increase fishing pressure on 

GOM cod, CC/GOM yellowtail flounder, 

and winter flounder stocks, as well as 

discards of other stocks, possibly 

resulting in more onerous regulations 

for FY 2010. One individual 

recommended that no changes should 

be made to existing differential DAS 

areas and believed that shifting effort 

inshore as part of the interim action 

would result in reduced yield of 

offshore stocks. 

Response: As noted above in the 

discussion of Comment 13, this final 

interim rule does not implement the 

proposed Interim Differential DAS Area, 

but rather maintains the existing GOM 

Differential DAS Area and an expanded 

differential DAS area in SNE. Analysis 

of these measures utilized the CAM, 

which estimates shifts in fishing effort 

to maximize vessel profit in response to 

management measures. This analysis 

indicates that the measures 

implemented by this final interim rule 

would not increase F on inshore stocks, 

but would continue to decrease F on 

GOM cod, CC/GOM yellowtail flounder, 

and GOM winter flounder. By 

maintaining the existing GOM 

Differential DAS Area closer to shore, 

yield of offshore stocks will not likely 

be reduced by this interim action. 

NMFS acknowledges that more 

onerous restrictions may be necessary in 

FY 2010 and beyond to ensure that 

stocks rebuild within established 

rebuilding timeframes. However, even 

though the revised measures 

implemented by this final interim rule 

are less restrictive than those originally 

proposed and may not achieve Frebuild 

or Fmsy for all stocks, such measures 

continue to reduce F on all stocks and 

would help continue to rebuild 

overfished stocks. 

Comment 15: One individual 

recommended that the interim action 

should be revised to only charge DAS at 

a rate of 2:1 for the time spent within 

the Interim Differential DAS Area, 

suggesting that VMS has the capacity to 

support such a measure, as reflected in 

the measures for the SNE Differential 

DAS Area implemented under FW 42. 

Response: NMFS acknowledges that 

VMS has the capacity to identify the 

time a vessel spends in particular areas 

and could implement the 

recommendations made by the 

commenter. However, NMFS is 

concerned that failing to charge DAS at 

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

of area fished, would undermine the 

effectiveness of this measure by 

allowing vessels to fish for short 

durations within the differential DAS 

areas on their return to port and, 

thereby, minimize the resulting DAS 

charge. This was the rationale provided 

in the Council’s recommendation on 

how to count DAS in the GOM 

Differential DAS Area implemented 

under FW 42. As a result, this final 

interim rule does not change the manner 

in which the differential DAS counting 

rate is applied in the GOM, but adopts 

the same approach for the Interim SNE 

Differential DAS Area based upon the 

same rationale. 

Comment 16: Three individuals, 

including one commercial fishery 

organization (Associated Fisheries of 

Maine), recommended that, in lieu of 

differential DAS counting in the GOM 

and northern portions of GB, the F 

objectives of the interim action would 

be better achieved by implementing trip 

limits on particular stocks, including 

witch flounder and pollock, and 

reducing the trip limit for GB cod. In 

addition, the representative from the 

DMR recommended implementing zero 

possession limits for SNE/MA winter 

17046 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

flounder, ocean pout, and both stocks of 

windowpane flounder. 

Response: NMFS did not analyze an 

alternative that relies solely on trip 

limits instead of differential DAS 

counting in the GOM because it is 

unlikely that reliance upon trip limits 

alone would achieve the stated 

objectives for the stocks in the GOM. 

The Plan Development Team analyzed 

the daily trip limits that would be 

necessary to achieve the Amendment 16 

rebuilding objectives for each stock. 

However, that analysis also 

incorporated a 24-hour minimum DAS 

charge in order to achieve the 

conservation objectives for each stock. 

Reliance upon a combination of 

measures, including DAS as the 

principal effort reduction measure, is 

necessary to achieve the F reductions 

required to rebuild overfished stocks as 

much as practicable in this interim 

action. Trip limits frequently result in 

regulatory discarding and must be 

balanced with other measures to 

minimize unnecessary bycatch, as 

mandated by the Magnuson-Stevens 

Act. This interim action implements a 

suite of measures, including both 

differential DAS counting and trip 

limits to reduce F and continue to 

rebuild overfished stocks. 

One of the objectives of this interim 

action is to implement measures that are 

consistent, to the maximum extent 

practicable, with measures being 

considered in the Council’s 

development of Amendment 16, the 

action that will follow this interim 

action. Mirroring the Amendment 16 

measures will reduce uncertainty and 

impacts associated with transitioning 

from interim measures to the long-term 

management measures under 

Amendment 16. Draft effort-control 

measures currently included in 

Amendment 16 for non-sector vessels 

incorporate differential DAS counting in 

four large areas encompassing an area 

larger than the Interim Differential DAS 

Area and the SNE Closure Area 

originally proposed for this interim 

action. Although the draft Amendment 

16 measures do not include a trip limit 

for witch flounder, this final interim 

rule implements a trip limit of 1,000 lb 

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

kg) per trip of witch flounder to further 

reduce F on this stock based upon 

recommendations from the public and 

the Council. In addition, both draft 

Amendment 16 measures and this 

interim action include zero retention 

limits for SNE/MA winter flounder and 

northern windowpane flounder. This 

interim action also includes a zero 

possession limit for ocean pout. For 

southern windowpane flounder, the 

GOM Differential DAS Area, in 

conjunction with the Interim SNE 

Differential DAS Area, is sufficient to 

achieve the necessary F reductions for 

this stock and a zero retention limit for 

this stock is unnecessary. 

Comment 17: Two individuals, 

including one commercial fishery 

organization (Associated Fisheries of 

Maine) suggested that differential DAS 

counting is not needed in the Eastern 

U.S./Canada Area due to the existence 

of hard TAC management in the area. 

Response: NMFS agrees that 

differential DAS counting is not 

necessary in the Eastern U.S./Canada 

Area. As noted above, this final interim 

rule does not implement the Interim 

Differential DAS Area, as proposed, and, 

when replacing the SNE Closure Area 

with 2:1 differential DAS counting, 

removed differential DAS counting from 

that area of the Interim SNE Differential 

DAS Area that overlapped with the 

U.S./Canada Management Area. 

Comment 18: One commercial 

fisherman noted an error in the 

description of the economic impacts of 

the proposed measures in the preamble 

of the proposed interim rule. This 

commenter indicated that, for vessels 

fishing exclusively within the GOM, an 

18-percent reduction in DAS combined 

with differential DAS counting at a rate 

of 2:1 would result in a 59-percent 

reduction in available DAS, not 36 

percent, as stated in the preamble of the 

proposed interim rule. 

Response: NMFS acknowledges this 

error in the preamble of the proposed 

rule, but notes that the impacts were 

correctly reported in the EA supporting 

this action. The Final Regulatory 

Flexibility Analysis developed for this 

action and summarized in this preamble 

correctly describes the revised impacts 

of this action. 

CA I Hook Gear Haddock SAP 

Comment 19: Eighteen commenters 

supported expanding the CA I Hook 

Gear Haddock SAP, as requested by the 

Council. Supporters noted that an 

expansion of the SAP would be an 

important means of mitigating the 

negative impacts of the interim action 

and enable more access to the healthy 

stock of GB haddock, while not 

undermining the status of GB cod. Some 

commenters noted the existence of 

pertinent data supporting the contention 

that the expanded SAP would be 

consistent with the FMP, and wondered 

whether an oversight by NMFS had 

resulted in its conclusions stated in the 

proposed rule. One commenter 

estimated that the economic benefits of 

the expanded SAP would be tens of 

millions of dollars, and another noted 

that it offered mitigation with very little 

associated risk. One commenter noted 

that the SAP benefits vessels in the 40- 

to 50-ft (18–22-m) range, but not smaller 

vessels, due to the distance of the SAP 

from shore. Lastly, one commenter was 

confused by the calculation of the 

haddock TAC. 

Response: Pertinent data that support 

expanding the CA I Hook Gear Haddock 

SAP as recommended were not 

available to NMFS prior to the 

publication of the proposed rule, but 

were brought to the attention of NMFS 

during the public comment period by 

the Cape Cod Commercial Hook 

Fishermen’s Association. This 

information includes the results of 

research in CA I that has been reviewed 

by the Council’s Research Steering 

Committee (RSC) and supported in its 

May 30, 2007, report. Although the RSC 

cautioned against the broad application 

of the results of this research outside of 

the season and areas tested, a review of 

the relevant research, including a 

review by the DMF, indicated that catch 

rates of haddock with hook gear using 

a range of baits was significantly higher 

than cod, and that the catch rates of 

species in the proposed expanded area 

are not higher than in the current SAP. 

Based on this information, NMFS is 

implementing revisions to the CA I 

Hook Gear Haddock SAP, including the 

expansion of both the season and the 

SAP area in this final interim rule. 

NMFS is also prohibiting the use of 

squid as bait, based upon recent 

research indicating that squid caught 

higher amounts of cod than any other 

bait, but is soliciting further comments 

on this prohibition. The expansion of 

this SAP will help mitigate some of the 

negative economic impacts of this 

action on vessels fishing with hook gear. 

The elimination of the rules separating 

sector and common-pool vessels into 

separate seasons will also provide 

additional flexibility for all participants. 

Finally, the calculation of the haddock 

TAC for this SAP is described in 

Measure 6 under ‘‘Approved 

Commercial Measures’’ of the preamble 

of this final interim rule. However, 

further explanation about the derivation 

of the formula used to calculate the 

haddock TAC for this SAP is available 

in the EA supporting FW 42 to the FMP. 

Comment 20: One commercial 

fisherman requested that, because of the 

uncertainty associated with the final 

interim measures and when such 

measures would be made public, the 

final interim rule should allow gillnet 

vessels the opportunity to change the 

gillnet designation associated with their 

permit (i.e., as either a Day or Trip 

gillnet vessel) after the permit has been 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17047 

issued, citing a similar allowance in a 

2002 interim final rule. 

Response: NMFS agrees with the 

commenter. Since gillnet vessel owners 

may have renewed their groundfish 

permits and selected a particular gillnet 

designation for FY 2009 without 

knowledge of the final interim 

measures, and because this designation 

is effective for the remainder of the 

fishing year and defines how gillnet 

vessels can operate, NMFS will allow a 

vessel owner that has already elected a 

gillnet designation prior to May 1, 2009, 

to change the gillnet designation 

associated with his/her permit through 

June 12, 2009. This will provide 

additional time for the vessel owner to 

review the final interim measures and 

revise the gillnet designation for his/her 

permit, if necessary. 

Comment 21: Two commenters did 

not support the termination of the SNE 

Winter Flounder SAP because they 

asserted that the SAP works to reduce 

discarding in the summer flounder 

fishery in the spring and fall. Further, 

they suggested a requirement that 

vessels fishing in the SAP use mesh size 

consistent with the FMP. 

Response: The SNE/MA Winter 

Flounder SAP currently allows a limited 

access NE multispecies vessel fishing 

for summer flounder west of 72° 30’ W. 

long. to retain up to 200 lb (91 kg) of 

winter flounder while not under a NE 

multispecies DAS, provided the vessel 

complies with various restrictions. Due 

to the severely depleted status of SNE/ 

MA winter flounder, and the goal of 

reducing F to as close to zero as 

practicable, elimination of this SAP is 

justified. Although the SAP can be 

effective at reducing discarding, the 

SAP may also enable limited targeting of 

winter flounder. Vessels are more likely 

to modify their fishing practices and 

attempt to avoid encountering winter 

flounder if winter flounder possession is 

not allowed. 

Comment 22: One commenter stated 

that NMFS should prepare an 

Environmental Impact Statement (EIS) 

in order to analyze the potential impacts 

of the alternatives considered, instead of 

an EA. 

Response: NMFS believes that its 

analysis of the impacts of the 

alternatives complies with the National 

Environmental Policy Act (NEPA). 

NEPA provides a mechanism for 

identifying and evaluating 

environmental impacts associated with 

Federal actions, and for considering a 

reasonable range of alternatives to avoid 

or minimize adverse environmental 

impacts. As fully explained in the EA, 

NMFS concluded that the preparation of 

an EIS for this action is not necessary. 

Comment 23: One commercial 

fisherman supported the delayed 

opening of the Eastern U.S./Canada 

Area until August 1. 

Response: NMFS agrees that it is 

prudent and consistent with Council 

intent to delay the opening of the 

Eastern U.S./Canada Area for trawl gear 

until August 1, 2009. As fully explained 

in the proposed interim rule, a delayed 

opening of the Eastern U.S./Canada 

Area is intended to maximize the 

harvest of cod and other species from 

the area by reducing the catch rate of 

cod, and avoiding early closure of the 

area. 

Comment 24: Three comments were 

received, including one from the GB 

Cod Fixed Gear Sector, one from the GB 

Cod Hook Sector, and one from a 

commercial fishery organization (Cape 

Cod Commercial Hook Fisherman’s 

Association), requesting that the interim 

action include a provision that would 

allow the GB Cod Hook Sector to 

transfer or lease GB cod quota to the GB 

Cod Fixed Gear Sector. Respondents 

cited the substantially reduced FY 2009 

target TAC for GB cod and the 

likelihood that the GB Cod Fixed Gear 

will catch its allocation of that stock and 

be shut down prior to the end of FY 

2009. 

Response: Under the current 

regulations, existing sectors are 

allocated a portion of the yearly GB cod 

TAC based upon the landings histories 

of participating vessels. A sector can 

only change its share of the GB cod TAC 

by adding or removing participating 

vessels from its roster. The draft 

measures in Amendment 16 include 

provisions that would allow the transfer 

of sector allocations of particular stocks, 

but these provisions have not been 

selected as a preferred alternative or 

formally adopted by the Council. As 

indicated in the response to Comment 4, 

NMFS believes that an interim rule is 

not the appropriate means to implement 

novel management tools such as sector 

quota trading; it is intended to address 

short-term needs to end or reduce 

overfishing while the Council is 

developing longer-term measures for the 

fishery. Moreover, as detailed above in 

Measure 12 under ‘‘Approved 

Commercial Measures’’ of this 

preamble, because this final interim rule 

revises the 2009 GB cod target TAC to 

reflect estimated F rather than Fmsy, the 

GB cod TAC allocations to both sectors 

will increase by 66.1 mt for the GB Cod 

Hook Sector and by 95.8 mt for the GB 

Cod Fixed Gear Sector. As a result, this 

revised measure should help address 

the concerns identified by the 

commenters. 

DAS Leasing 

Comment 25: One commercial 

fisherman and one representative of the 

GB Cod Fixed Gear Sector opposed the 

removal of the DAS leasing cap, 

indicating that it would activate latent 

effort and undermine the intent of the 

interim action to reduce overfishing. In 

addition, the respondents objected to 

the apparent contradiction between 

drastically cutting DAS through 

allocation reductions and differential 

DAS counting, but increasing the access 

to DAS by allowing vessels to lease an 

unlimited number of DAS from other 

vessels. 

Response: NMFS disagrees that the 

removal of the DAS leasing cap conflicts 

with the objectives of the interim action. 

The objectives of this interim action 

include ending overfishing and 

rebuilding overfished stocks. However, 

because effort reductions necessary to 

achieve the conservation objectives of 

this action impose substantial economic 

impacts on the groundfish fishery, 

another objective of this interim action 

is to mitigate the economic impacts of 

effort controls as much as practicable. 

Analysis supporting this action 

indicates that some vessels, particularly 

those with low DAS allocations and 

high expenses, will require additional 

DAS to remain economically viable. 

Because nearly 15 percent of vessels 

participating in the DAS Leasing 

Program in recent years were limited by 

the DAS leasing cap, eliminating this 

cap through the interim action would 

enable groundfish vessels greater 

opportunity to obtain additional DAS 

and remain economically viable. In 

conjunction with DAS reductions and 

differential DAS counting, the measures 

implemented by this interim action 

would not increase F on overfished 

stocks and would achieve both the 

conservation and mitigation objectives 

of this action. 

Comment 26: Representatives of both 

the GB Cod Hook and Fixed Gear 

Sectors and one commercial fishery 

organization (Cape Cod Commercial 

Hook Fisherman’s Association) 

supported changes to the DAS Leasing 

Program to allow sector vessels to lease 

DAS to and from non-sector vessels, 

citing the limited number of DAS 

available to sector vessels and the need 

to continue to acquire more DAS to 

operate under the DAS system until 

sectors could be allocated quota for all 

groundfish stocks under Amendment 

16. 

Response: NMFS agrees. Currently, 

sector effort is managed by a hard TAC 

on GB cod and by DAS for all other 

stocks. Accordingly, sectors are 

17048 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

impacted by DAS restrictions nearly as 

much as common pool vessels. As noted 

in the response to Comment 25, analysis 

supporting this interim action indicates 

that some vessels will need to acquire 

additional DAS to remain economically 

viable. Because the DAS Leasing 

Program already imposes size 

restrictions on which vessels can lease 

to and from one another, continuing to 

prohibit vessels participating in sectors 

from leasing to non-sector vessels limits 

the pool of DAS available for leasing, 

especially considering the fact that 

sectors are only restricted by hard TACs 

for one stock at this time. Therefore, in 

order to increase flexibility and 

efficiency in the DAS market and 

provide greater access to available DAS, 

this interim action allows groundfish 

DAS vessels to lease DAS to and from 

any other groundfish DAS vessel. 

Comment 27: One commercial fishery 

organization (West End Fisherman’s 

Association) recommended the interim 

action implement measures in the 

recreational fishery. One party/charter 

operator indicated that party/charter 

vessels fishing on multiple day trips 

will benefit from being able to take 

advantage of double bag limits for trips 

over 15 hours, but suggested that it was 

not supported by any analysis. This 

commenter also highlighted that 

previous efforts to impose such a bag 

limit on party/charter vessels was not 

included because it would have resulted 

in severe economic impacts to such 

operations and noted that similar 

measures are currently not being 

considered by the Council under 

Amendment 16. The party/charter 

operator further indicated that the 

decrease in size limit for haddock will 

not help party/charter vessels operating 

on GB, as most haddock are found in 

closed areas inaccessible to recreational 

vessels. 

Response: The measures implemented 

by this interim action include 

restrictions on the recreational fishery, 

namely a daily GB cod bag limit for 

party/charter vessels and, for both 

private recreational vessels and party/ 

charter vessels, extension of the closed 

season for GOM cod and a possession 

prohibition for SNE/MA winter 

flounder. NMFS disagrees that the GB 

cod bag limit for party/charter vessels is 

not supported by any analysis. In fact, 

the biological, economic, and social 

analyses supporting this provision are 

detailed in Sections 17.1, 17.2, and 17.3 

of the EA supporting this action, 

respectively. The respondent is correct 

that the measures proposed under 

Amendment 16 may not include a 

similar provision, but that does not 

mean that the measures included in this 

interim action are unnecessary. In fact, 

such measures are necessary to ensure 

a similar reduction in F on GB cod 

across both the commercial and 

recreational fisheries, consistent with 

the objectives of this action. Finally, 

despite the fact that charter/party 

vessels cannot access closed areas on 

GB, the reduced haddock size limit is 

expected to increase opportunities for 

recreational vessels to retain haddock in 

all areas open to such vessels. A similar 

size reduction for GOM haddock is 

proposed under Amendment 16 for 

consideration at public hearings. 

Comment 28: One commenter stated 

that the proposed GB cod TAC was too 

low, and noted the economic impacts of 

a lower TAC. 

Response: Typically, the size of the 

GB cod target TAC is set based upon a 

projection of the catch that will be 

associated with a particular F and stock 

size for a given year. As noted in 

Measure 3 under ‘‘Approved 

Commercial Measures’’ of this 

preamble, this final interim rule has 

changed the manner in which target 

TACs were calculated from that in the 

proposed rule. In the case of the GB cod 

target TAC for FY 2009, this target TAC 

is based upon the F expected to result 

from measures implemented by this 

action and the GARM III estimation of 

stock size for 2009 and is specified as 

5,501 mt. Although this is an increase 

to the TAC specified in the proposed 

rule, it is a decrease in the size of the 

TAC relative to the past TACs. This is 

due to the reductions in F estimated to 

be achieved by measures implemented 

by this final interim rule. The estimated 

2009 F is lower than the objective set 

during the first 5 years of the rebuilding 

period. Although the stock size is 

increasing, the relatively low estimated 

2009 F results in a lower target TAC. 

The proposed rule incorrectly stated 

that the FY 2009 GB cod TAC would be 

3,506 mt, because the Canadian TAC of 

1,173 mt had been subtracted. The FMP 

precedent for specifying the GB cod 

target TAC is to specify the TAC that 

corresponds to the whole stock, 

including the Canadian portion of the 

TAC, resulting in a total GB cod target 

TAC of 5,501 mt (4,328 mt available to 

U.S. vessels, plus 1,173 mt available to 

Canadian vessels) for FY 2009. 

Comment 29: Three commenters 

believed that the economic analysis 

underestimated the economic impacts, 

and noted specific concerns regarding 

the analysis of impacts on the states of 

New York and Maine. One commenter 

referenced a break-even analysis that 

NMFS had prepared, and noted that 

many vessels will not be able to break 

even. One commenter stated that the 

revenue analysis is flawed, and one 

commenter noted that a 31-percent 

reduction in revenue is enough to 

destroy most small businesses. 

Response: NMFS believes that the 

economic analysis provides sufficient 

information for decision makers to 

compare the potential economic impacts 

among alternatives in order to select an 

alternative that best complies with the 

Magnuson-Stevens Act. The aggregate 

economic impacts of the alternatives are 

included in the EA, including estimates 

of revenue reductions, by state, for each 

alternative. For each alternative, the 

estimated changes in groundfish trip 

revenue and total trip revenue are 

provided, and expressed as a percent 

change in revenue and the estimated 

revenue in dollars by state. As noted 

above, this final interim rule 

implements measures that are changed 

from those in the proposed rule. 

Therefore, the estimated economic 

impacts reported for the preferred 

alternative in the EA prepared for this 

action and summarized in this preamble 

reflect impacts associated with revised 

measures and will not be consistent 

with the impacts cited by the 

commenters. For example, the original 

analysis indicated that, for Maine 

groundfish vessels, the average total 

revenue would decline by 34 percent 

and the estimated total revenue would 

be $12,277,101. However, the updated 

economic analysis based upon revised 

measures indicates that the impacts to 

Maine would be a 12.2-percent 

reduction in total revenue, and the 

revised estimate of total revenue would 

be $16,419,523. This revised analysis 

indicates that, for New York, groundfish 

vessels would see a decline in average 

total revenue of about 4.2 percent (6 

percent was estimated in the proposed 

rule), and the estimated total revenue 

would be $13,710,083 ($13,430,633 was 

estimated in the proposed rule) under 

the measures implemented by this final 

interim rule. Although the estimates of 

percentage reductions in the EA 

represent the best estimation of the 

relative amount of revenue reduction 

anticipated, the estimated revenue in 

dollars, by state, that would result from 

each alternative is an underestimation, 

because the analysis used only a subset 

of the total fishery data due to missing 

information. 

Comparisons of past economic 

analyses of FMP management measures 

with the realized economic impacts 

have shown that the CAM tends to 

overestimate the economic impacts of 

management measures. NMFS 

acknowledges that an analysis of the 

short-term impacts on the regional 

economy was not conducted (input/ 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17049 

output model analysis). An input/ 

output analysis provides an estimation 

of how changes in the economic activity 

of a particular industry would affect 

other industries from which it 

purchases and to which it sells goods 

and services. Thus, in addition to 

reductions in harvesting revenues, this 

analysis captures losses associated with 

the commercial fishing industry buying 

fewer inputs and the upstream losses 

that result from less product being 

available to local seafood dealers and 

processors. Such secondary and tertiary 

impacts are proportional to the direct 

impacts on the fishing industry (which 

have been estimated), and the lack of an 

input/output analysis does not prevent 

a reasonable and informed comparison 

of management alternatives. 

The economic analysis for the 

measures implemented by this final 

interim rule indicates that the total 

reduction in groundfish trip revenue 

would be approximately 14.7 percent, or 

$14.8 million. Based on the break-even 

analysis, NMFS agrees that some small 

businesses may not be able to remain 

profitable, and many will have to lease 

DAS in order to remain profitable. 

However, as stated above, the CAM 

tends to overestimate revenue 

reductions. Vessels typically modify 

their fishing behavior in response to 

new regulations, and increase fishing 

effort on other non-groundfish species. 

Some vessels will be able to lease 

additional DAS and continue fishing at 

a level that produces a similar amount 

of revenue as in the past, but at a 

reduced profit margin, while other 

vessels will either continue to fish at an 

economic loss, or cease fishing. 

Changes From the Proposed Rule 

NMFS has made several changes to 

the proposed rule, including changes as 

a result of public comment. Some of 

these changes are substantive changes, 

whereas others are administrative in 

nature, clarify new management 

measures, or correct inadvertent errors 

or omissions in the proposed rule. 

These changes are listed below in the 

order that they appear in the 

regulations. 

In § 648.4, paragraph (c)(2)(iii)(C) is 

added to allow gillnet vessels that have 

already elected a gillnet designation as 

a Day or Trip gillnet vessel to change 

this designation through June 31, 2009. 

In § 648.81, the proposed addition of 

paragraph (n) has been removed because 

the proposed SNE Closure Area is not 

implemented by this final interim rule. 

In § 648.82, paragraph (e)(4) has been 

revised to retain the existing GOM 

Differential DAS Area, rather than 

implementing the proposed Interim 

Differential DAS Area and to insert an 

additional Interim SNE Differential DAS 

Area. In addition, paragraph (e)(4)(iii) 

has been revised to include provisions 

for applying the differential DAS 

counting rate to vessels fishing in either 

the GOM Differential DAS Area or the 

Interim SNE differential DAS Area, 

including measures to reflect that NE 

multispecies vessels fishing with hook 

gear in the Interim SNE Differential DAS 

Area will not be charged DAS at a rate 

of 2:1. 

In § 648.85, paragraph (a)(3)(viii) has 

been revised to reflect revised 

declaration requirements associated 

with declaring into one or both of the 

differential DAS areas defined under 

§ 648.82(e)(4). Proposed revisions to 

paragraph (b)(7) of this section have 

been removed and paragraph (b)(7) has 

been suspended in its entirety. Instead, 

paragraph (b)(11) has been added in 

order to revise the CA I Hook Gear 

Haddock SAP regulations to expand the 

scope of the SAP in both season and 

area, eliminate the split in the season 

and TAC between sector and non-sector 

vessels, and prohibit the use of squid as 

bait. Paragraph (b)(10)(i)(F) has been 

revised to reflect the implementation of 

differential DAS counting in SNE. 

Paragraphs (b)(10)(v)(G) through (I) have 

been added to identify the GB yellowtail 

flounder, GB winter flounder, and GOM 

winter flounder stock areas, 

respectively, for the purposes of the 

Regular B DAS Program. 

In § 648.86, paragraph (l) has been 

revised to include references the Interim 

SNE Differential DAS Area 

implemented under this final interim 

rule. In addition, paragraph (m) has 

been revised to reflect a new trip limit 

for witch flounder instead of a revised 

trip limit for white hake. The existing 

trip limit for white hake specified at 

§ 648.86(e) will remain in effect. 

In § 648.92, paragraphs (b)(1)(i), 

(b)(1)(iii)(A), (b)(2), and (b)(8)(v) have 

been suspended; and paragraphs 

(b)(1)(iii)(C), (b)(1)(vi), (b)(8)(vi), and 

(b)(10) have been added to mitigate the 

impacts of the interim management 

measures on the monkfish fishery. 

In § 648.95, paragraph (h) has been 

suspended and paragraph (i) has been 

added to replace reference to paragraph 

§ 648.92(b)(2), because that paragraph 

has been suspended, and to insert 

reference to the newly added 

§ 648.92(b)(10). 

Classification 

NMFS has determined that the 

management measures implemented by 

this final interim 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. 

There is good cause under 5 U.S.C. 

553(d)(3) to waive the 30-day delay in 

effective date for the measures 

implemented by this final interim rule. 

This final interim rule would 

immediately reduce fishing mortality for 

all stocks managed under the FMP in 

order to continue to rebuild overfished 

stocks. As a result of the January 23, 

2009, February 17, 2009, and February 

23, 2009, Federal Court Orders in the 

case of Commonwealth of 

Massachusetts and State of New 

Hampshire v. Carlos M. Gutierrez (Civil 

Action No.: 06–12110–EFH), several 

critical conservation measures in the NE 

multispecies fishery have been vacated 

for the latter portion of FY 2008. While 

the precise impacts of these Court 

Orders are unknown at this time, it is 

likely that the vacation of these 

measures, particularly restrictive trip 

limits and differential DAS counting, 

caused fishing mortality to increase on 

overfished stocks due to increased 

fishing effort. Because such increases in 

fishing effort occurred during peak 

spawning periods for particular 

overfished stocks, the impacts of these 

Court Orders could affect efforts to 

rebuild such stocks. As a result, it is 

imperative that interim measures 

designed to reduce fishing mortality on 

all groundfish stocks be implemented 

quickly. In order to avoid unnecessary 

confusion about which regulations are 

in effect, and, thereby, increase 

compliance with, and the effectiveness 

of, conservation measures implemented 

under this final interim rule, such 

measures must become effective by the 

start of the fishing year on May 1, 2009. 

While this final interim rule implements 

measures that will reduce fishing effort 

in the NE multispecies fishery, such 

measures are necessary to ensure longterm economic benefits associated with 

rebuilt stocks. Thus, it would be 

contrary to the public interest to delay 

the effectiveness of measures 

implemented by this final interim rule. 

In addition, while NOAA believes 

there is sufficient support in the record 

to justify the changes between the 

proposed and final interim rule, NOAA 

nonetheless believes there is good cause 

to waive notice and opportunity to 

comment on these changes under 5 

U.S.C. 553(b)(B). This good cause 

waiver is based upon the same reasons 

described above concerning the waiver 

of the 30-day delay in effective date. 

An EA was prepared for this action 

that analyzed the environmental 

impacts of the measures being 

implemented, as well as alternatives to 

such measures. This EA was revised 

17050 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

since the publication of the proposed 

rule to include further analysis of 

several additional alternative 

combinations of management measures. 

A copy of the Finding of No Significant 

Impact for the EA prepared for this 

action is available from the Regional 

Administrator (see ADDRESSES). 

This final interim rule has been 

determined to be significant for the 

purposes of Executive Order (E.O.) 

12866. 

This final interim rule does not 

contain policies with Federalism or 

‘‘takings’’ implications as those terms 

are defined in E.O. 13132 and E.O. 

12630, respectively. 

Final Regulatory Flexibility Analysis 

(FRFA) 

NMFS, pursuant to section 604 of the 

Regulatory Flexibility Act (RFA), 

prepared this FRFA in support of the 

measures implemented by this final 

interim rule. The FRFA incorporates the 

updated economic impacts summarized 

in the IRFA, but revised this final 

interim rule to account for changes from 

the proposed rule measures 

implemented by this final action. A 

summary of 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. A copy of this 

analysis is available from the Regional 

Administrator (see ADDRESSES). 

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 

estimated that the economic benefits of 

an expanded CA I Hook Gear Haddock 

SAP would be tens of millions of dollars 

and recommended that NMFS 

implement measures to expand this 

SAP. 

Response: As highlighted in the 

response to Comment 19 above, NMFS 

has implemented several revisions to 

the CA I Hook Gear Haddock SAP 

through this final interim rule. Because 

this final interim rule would 

substantially increase both the size and 

extend the season of this SAP, it is 

unclear how such revisions would affect 

participation in this SAP. It is likely that 

participation would increase in both the 

number of participants and the number 

of fishing trips throughout the expanded 

season. As a result, it is difficult to 

accurately predict the economic impacts 

associated with this measure. 

Qualitatively, the economic impacts are 

likely to be positive, as this measure 

provides greater access to available 

haddock resources and at a higher catch 

rate than would otherwise be 

experienced outside of the SAP because 

of its location within CA I. 

Comment B: As highlighted in 

Comment 29 above, three commenters 

believed that the economic analysis 

underestimated the economic impacts of 

the proposed measures, highlighted 

specific concerns regarding the analysis 

of impacts on New York and Maine, and 

noted that many vessels will not be able 

to break even. One commenter stated 

that the revenue analysis is flawed and 

one commenter noted that a 31-percent 

reduction in revenue is enough to 

destroy most small businesses. 

Response: The response to Comment 

29 explains that economic impacts were 

underestimated due to missing data and 

the fact that an analysis of secondary 

and tertiary economic impacts of the 

proposed measures on other industries 

that interact with the fishing industry 

was not conducted. However, when 

compared to assessments of economic 

impacts associated with previous 

actions, the estimated economic impacts 

to the directed fishery often 

overestimated realized impacts. 

Description of and Estimate of the 

Number of Small Entities to Which the 

Final Interim Rule Would Apply 

The Preferred Alternative would 

affect regulated entities engaged in 

commercial fishing for groundfish and 

entities that provide recreational fishing 

services to anglers. These entities 

include any vessel that has been issued 

either an open access or a limited access 

Federal permit under the FMP. During 

FY 2007, 2,822 vessels were issued 

commercial limited access and open 

access NE multispecies permits. Of 

these, only 739 actually landed 

groundfish. A total of 762 NE 

multispecies party/charter permits were 

issued during FY 2007. Additionally, 

limited access permit holders (1,525 

during FY 2007) may take passengers for 

hire, but do not possess a party/charter 

permit, since the FMP prohibits issuing 

both an open access and a limited 

access permit to the same vessel. Of the 

762 vessels issued an open access party/ 

charter permit, only 128 reported taking 

at least one for-hire trip, and only 74 

reported keeping groundfish on one or 

more trips. 

The size standard for commercial 

fishing entities is $4 million in sales, 

while the size standard for party/charter 

operators is $7 million in sales. 

Available data indicate that, based on 

2005–2007 average conditions, median 

gross sales by commercial fishing 

vessels were just over $200,000, and no 

single fishing entity earned more than 

$2 million. Available data are not 

adequate to identify affiliated vessels, so 

each operating unit is considered a 

small entity for purposes of the RFA. 

For regulated party/charter operators, 

the median value of gross receipts from 

passengers was just over $9,000, and did 

not exceed $500,000 in any year during 

2001 to 2007. Therefore, all regulated 

commercial fishing and all regulated 

party/charter operators are determined 

to be small entities under the RFA, and, 

accordingly, there are no differential 

impacts between large and small entities 

under this rule. The remaining 

discussion describes the number of 

regulated entities, the number of 

participating regulated entities, and the 

potential economic impacts on 

participating regulated entities for 

party/charter operators and for 

commercial fishing vessels. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of This Final Interim Rule 

This final interim rule contains 

collection-of-information requirements 

that have previously been subject to 

review and approval by OMB under 

control number 0648–0202 and 

0648.0212. Public reporting burden for 

these collections of information are 

estimated as follows: 

1. VMS purchase and installation, 

OMB# 0648–0202 (1 hr/response); 

2. VMS proof of installation, OMB# 

0648–0202 (5 min/response); 

3. Automated VMS polling of vessel 

position, OMB# 0648–0202 (5 sec/ 

response); 

4. Declaration of intent to participate 

in the Regular B DAS Program, or fish 

in the U.S./Canada Management Areas 

and any associated SAPs, and the DAS 

type to be used via VMS prior to each 

trip into the one of these programs, 

OMB# 0648–0202 (5 min/response); 

5. Notice requirements for observer 

deployment prior to every trip into the 

Regular B DAS Program or the U.S./ 

Canada Management Areas and 

associated SAPs OMB# 0648–0202, (2 

min/response); 

6. Standardized catch reporting 

requirements while participating in the 

Regular B DAS Program, the CA I Hook 

Gear Haddock SAP, or the U.S./Canada 

Management Area and its associated 

SAPs, OMB# 0648–0212 (15 min/ 

response); 

7. Standardized reporting of Universal 

Data I.D. while participating in the 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17051 

Regular B DAS Program or fishing in the 

U.S./Canada Management Area, 

associated SAPs, and CA I SAP, OMB# 

0648–0212 (15 min/response); 

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

the Regular B DAS Program, OMB# 

0648–0202 (5 min/response); 

9. Sector Manager daily reports for CA 

I Hook Gear Haddock SAP, OMB# 0648– 

0212 (2 hr/response); 

10. DAS Leasing Program application, 

OMB# 0648–0202 (10 min/response); 

11. DAS Transfer Program 

application, OMB# 0648–0202 (10 min/ 

response); and 

12. Declaration of intent to fish inside 

and outside of the Eastern U.S./Canada 

Area on the same trip, OMB# 0648–0202 

(5 min/response). 

13. Declaration of area and gear via 

VMS when fishing under a NE 

multispecies DAS, OMB# 0648–0202 (5 

min/response); and 

14. Declaration of entry into the GOM 

and SNE Differential DAS Area when 

not fishing or transiting via VMS, OMB# 

0648–0202 (5 min/response). 

These estimates include the time 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 

burden, to NMFS (see ADDRESSES) and 

by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

Description of Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes 

During the development of this final 

interim rule, NMFS considered and 

fully analyzed five alternatives, 

including the no action alternative, a 

differential DAS alternative, a DAS 

reduction and closed area alternative, 

the original proposed measures, and the 

measures implemented by this final 

interim rule. Three other alternatives 

were considered, but rejected, including 

the measures recommended by the 

Council, an expanded Regular B DAS 

Program alternative, and a hard TAC 

alternative. The reasons behind rejecting 

the Council’s preferred alternative are 

explained in the preamble of the 

proposed interim rule and further 

discussed in the response to Comment 

4 above. The expanded Regular B DAS 

Program alternative was rejected 

because it would have required vessels 

to use specialized nets that would have 

been costly to acquire. In addition, this 

alternative would have resulted in 

unnecessary loss of yield from several 

groundfish stocks. The hard TAC 

alternative was an attempt to increase 

the effectiveness of the Council’s 

recommended measures. However, this 

alternative was rejected because it 

would likely have resulted in early 

closure of the fishery and would have 

been complex, costly, and impractical to 

implement for the short duration of an 

interim action. 

In response to comments emphasizing 

the economic impacts of the proposed 

measures, NMFS partially analyzed 

three additional alternatives that 

included various combinations of 

differential DAS areas, closure areas, 

and trip limits in order to minimize the 

economic impacts of this action without 

compromising the ability of the fishery 

to achieve the long-term rebuilding 

objectives in the FMP. One of these 

alternatives was selected as the 

preferred alternative for this action and 

is implemented by this final interim 

rule. As discussed in the responses to 

comments, the measures implemented 

by this final interim rule reduce F on all 

stocks, but do not achieve the F 

objectives for GB cod and witch 

flounder. However, this will not 

compromise the ability of the fishery to 

rebuild overfished stocks, provided 

additional measures to end overfishing 

and rebuild overfished stocks are 

implemented through future 

management actions, as necessary. 

While the no action alternative would 

result in the fewest economic impacts (a 

reduction of total trip revenue of 

approximately 7.7 percent, or $12.2 

million, and a reduction of groundfish 

trip revenue of 12.1 percent, or $12.2 

million), that alternative would also 

achieve the least amount of reduction in 

F. In contrast, the measures 

implemented by this final interim rule 

would result in substantially higher 

reductions in F for some stocks, while 

minimizing reductions in both 

groundfish and total revenue than the 

other alternatives considered. It is 

estimated that these measures would 

achieve much lower reductions in both 

total trip revenue (a reduction of 9.4 

percent, or $14.8 million) and 

groundfish trip revenue (a reduction of 

14.7 percent, or $14.8 million) when 

compared to the other three alternatives 

considered, including the originally 

proposed measures (see the 

Classification section of the preamble of 

the proposed interim rule for a full 

discussion of the economic impacts 

associated with those alternatives). This 

is true across all states. This action is 

expected to result in positive economic 

impacts to vessels operating out of New 

Jersey due to the replacement of the 

existing SNE Differential DAS Area with 

the Interim SNE Differential DAS Area. 

In addition, the measures implemented 

by this action achieve a higher yield 

from several groundfish stocks as a 

result of higher landings than the other 

alternatives. As noted in the response to 

Comment 4, preserving future yield in 

the fishery becomes increasingly 

important as the fishery moves toward 

quota-driven management regimes such 

as sector management, as proposed in 

draft Amendment 16, and annual catch 

limits mandated by the recent revision 

to the Magnuson-Stevens Act. 

In addition to revisions designed to 

continue to reduce overfishing, this 

action also implements a number of 

measures intended to mitigate the 

economic impacts of effort reductions 

associated with conservation measures. 

These measures include revisions to the 

DAS Leasing and Transfer Programs, 

modifications to the Regular B DAS 

Program, continuation of the Eastern 

U.S./Canada Haddock SAP, expansion 

of the CA I Hook Gear Haddock SAP in 

both area and season, and a reduction in 

the minimum size of haddock for both 

recreational and commercial vessels. 

Modifications to the DAS Leasing 

Program attempt to remove 

administrative barriers that would 

unnecessarily limit the ability of vessels 

to lease DAS to one another. This 

increases flexibility and efficiency in 

the program by providing greater 

opportunities for vessels to acquire and 

sell DAS to other similar-sized vessels. 

In addition, analysis indicates that 15 

percent of vessels participating in the 

DAS Leasing Program were affected by 

the DAS leasing cap in FY 2007. 

Elimination of this cap through this 

final interim rule eliminates that 

restriction and will help enable vessels 

to acquire sufficient DAS to remain 

economically viable. Modifications to 

the DAS Transfer Program eliminate the 

DAS conservation tax. This is expected 

to encourage transfers and will likely 

result in more efficient operations, as 

vessel owners could combine DAS and 

other fishing permits from multiple 

vessels onto one operational platform. 

Revisions to the Regular B DAS 

Program, including the redistribution of 

incidental catch TACs and quarterly 

17052 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

TAC roll-over, are intended to increase 

the efficiency of the program and 

provide more opportunities for vessels 

to take advantage of this program. 

Because the original intent of the 

Regular B DAS Program was to 

encourage the selective harvest of 

healthy stocks while minimizing the 

catch of overfished stocks, increasing 

participation in this program is one 

additional means of accomplishing the 

dual objectives of this action: Ensuring 

continued progress toward rebuilding 

overfished stocks while mitigating the 

economic impacts to the extent 

practicable. Measures to expand the CA 

I Hook Gear Haddock SAP would also 

contribute toward achieving these two 

objectives by greatly increasing 

opportunities to harvest the abundant 

haddock resource on GB using gear 

proven to selectively harvest this stock, 

while minimizing the bycatch of cod. 

The extension of the season from 3 

months to 9 months also enables vessels 

to take advantage of market conditions 

to maximize economic return on trips 

into this SAP. Finally, although slower 

growth rates delayed recruitment of 

recent large year classes of haddock into 

the fishery, most of these fish have 

reached sizes susceptible to capture by 

existing mesh sizes. This action reduces 

the minimum size limit for haddock 

from 19 inches (48.3 cm) to 18 inches 

(45.7 cm) to increase yield from this 

species and increase revenue in the 

groundfish fishery. 

In summary, the measures 

implemented by this action attempt to 

strike a balance, under the authority of 

section 305(c) of the Magnuson-Stevens 

Act, between continuing efforts to 

reduce overfishing and rebuild 

overfished stocks and minimizing 

economic impacts to affected entities, as 

required by the Magnuson-Stevens Act 

and other applicable law. While this 

action does not implement measures 

that would, by themselves, achieve all 

of the mortality objectives outlined in 

the preamble, together with measures in 

draft Amendment 16 and potential 

future actions, these measures will 

assist the fishery to meet the 

requirements to rebuild overfished 

stocks and maintain participation of 

fishing communities in the groundfish 

fishery, as required by the MagnusonStevens Act, during the transition to 

more sustainable fishing practices in 

future years, without jeopardizing 

rebuilding objectives. 

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 the small 

entity compliance guide (the guide) was 

prepared. Copies of this final rule are 

available from the Northeast Regional 

Office (see ADDRESSES), 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: April 6, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons stated in the preamble, 

50 CFR part 648 is amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.4, paragraph (c)(2)(iii)(A) is 

suspended and paragraph (c)(2)(iii)(C) is 

added to read as follows: 

§ 648.4 Vessel permits. 

* * * * * 

(c) * * * 

(2) * * * 

(iii) * * * 

(C) For vessels fishing for NE 

multispecies with gillnet gear, with the 

exception of vessels fishing under the 

Small Vessel permit category, an annual 

declaration as either a Day or Trip 

gillnet vessel designation as described 

in § 648.82(j). A vessel owner electing a 

Day or Trip gillnet designation must 

indicate the number of gillnet tags that 

he/she is requesting, and must include 

a check for the cost of the tags. For the 

2009 fishing year, a vessel owner that 

has already elected this designation 

prior to May 1, 2009, may change this 

designation through June 12, 2009. For 

the 2009 fishing year only, a vessel may 

fish under more than one gillnet 

category. A permit holder letter will be 

sent to the owner of each eligible gillnet 

vessel, informing him/her of the costs 

associated with this tagging requirement 

and providing directions for obtaining 

tags. Incomplete applications, as 

described in paragraph (e) of this 

section, will be considered incomplete 

for the purpose of obtaining 

authorization to fish in the NE 

multispecies gillnet fishery and will be 

processed without a gillnet 

authorization. 

* * * * * 

■ 3. In § 648.14: 

■ A. Paragraphs (a)(50), (53), (121), 

(129), (130), (132), (146), (153), (165), 

(173) through (175), and (177) are 

suspended. 

■ B. Paragraphs (c)(7), (23) through (26), 

(33), (39), (50), (51), (57) through (78), 

(81) through (83), (85), (86), (88), and 

(89) are suspended. 

■ C. Paragraphs (g)(4) and (5) are 

suspended. 

■ D. Paragraphs (a)(181) through (188), 

(c)(90) through (134), and (g)(6) and (7) 

are added. 

The additions read as follows: 

§ 648.14 Prohibitions. 

* * * * * 

(a) * * * 

(181) Enter or fish in the Western 

U.S./Canada Area or Eastern U.S./ 

Canada Area specified in § 648.85(a)(1), 

unless declared into the area in 

accordance with § 648.85(a)(3)(viii). 

(182) If declared into one of the areas 

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

that same trip outside of the declared 

area, unless in compliance with the 

applicable restrictions specified under 

§ 648.85(a)(3)(viii)(A) or (B). 

(183) Fail to notify NMFS via VMS 

prior to departing the Eastern U.S./ 

Canada Area, when fishing inside and 

outside of the area on the same trip, in 

accordance with § 648.85(a)(3)(viii) 

(A)(1). 

(184) When fishing inside and outside 

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

same trip, fail to abide by the most 

restrictive DAS counting, trip limits, 

and reporting requirements that apply, 

as described in § 648.85(a)(3)(viii)(A). 

(185) If fishing inside the Eastern 

U.S./Canada Area and in possession of 

fish in excess of what is allowed under 

the most restrictive regulations that 

apply outside of the Eastern U.S./ 

Canada Area, fish outside of the Eastern 

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

prohibited under § 648.85(a)(3)(viii)(A). 

(186) Fail to comply with the 

reporting requirements under 

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

inside and outside of the Eastern U.S./ 

Canada Area on the same trip. 

(187) If fishing with trawl gear under 

a NE multispecies DAS in the Eastern 

U.S./Canada Area defined in 

§ 648.85(a)(1)(ii), fail to fish with a 

haddock separator trawl, flounder trawl 

net, or Ruhle trawl, as specified in 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17053 

§ 648.85(a)(3)(ix) and (b)(10)(iv)(J)(3), 

unless otherwise allowed under the 

Eastern U.S./Canada Haddock SAP rules 

in § 648.85(b)(8)(v)(E). 

(188) Possess, land, or fish for 

regulated species while in possession of 

scallop dredge gear on a vessel not 

fishing under the scallop DAS program 

as described in § 648.53, or fishing 

under a general scallop permit, unless 

the vessel and the dredge gear conform 

with the stowage requirements of 

§ 648.23(b), or unless the vessel has not 

been issued a multispecies permit and 

fishes for NE multispecies exclusively 

in state waters. 

* * * * * 

(c) * * * 

(90) If fishing under the Eastern U.S./ 

Canada Haddock SAP, fish for, harvest, 

possess, or land any regulated NE 

multispecies from the area specified in 

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

with the restrictions and conditions 

specified in § 648.85(b)(8)(v)(A) through 

(M). 

(91) If fishing under a Category B DAS 

in the Closed Area II Yellowtail 

Flounder SAP specified in 

§ 648.85(b)(3), the Regular B DAS Pilot 

Program specified in § 648.85(b)(10), or 

the Eastern U.S./Canada Haddock SAP 

Pilot Program specified in 

§ 648.85(b)(8), remove any fish caught 

with any gear, including dumping the 

contents of a net, except on board the 

vessel. 

(92) Possess or land per trip more 

than the possession or landing limits 

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

(h), (j), (l), (m), and (n) and 648.82(b)(5) 

and (6), if the vessel has been issued a 

limited access NE multispecies permit 

or open access NE multispecies permit, 

as applicable. 

(93) Fail to declare through VMS the 

intent to be exempt from the GOM cod 

trip limit under § 648.86(l)(1), as 

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

north of the exemption line if in 

possession of more than the GOM cod 

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

(94) Enter port, while on a NE 

multispecies DAS trip, in possession of 

more than the allowable limit of cod 

specified in § 648.86(l)(1), unless the 

vessel is fishing under the cod 

exemption specified in § 648.86(l)(4). 

(95) For vessels fishing in the NE 

multispecies DAS program under the 

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

system, fail to remain in port for the 

appropriate time specified in 

§ 648.86(l)(1)(ii)(A), except for transiting 

purposes, provided the vessel complies 

with § 648.86(l)(3). For vessels fishing in 

the NE multispecies DAS program 

under the provisions of § 648.10(b), the 

VMS system, fail to declare through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod on board the vessel as required 

under § 648.86(l)(1)(ii)(B). 

(96) Enter port, while on a NE 

multispecies DAS trip, in possession of 

more than the allowable limit of cod 

specified in § 648.86(l)(2). 

(97) For vessels fishing in the NE 

multispecies DAS program under the 

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

system, fail to remain in port for the 

appropriate time specified in 

§ 648.86(l)(2)(ii)(A), except for transiting 

purposes, provided the vessel complies 

with § 648.86(l)(3). For vessels fishing in 

the NE multispecies DAS program 

under the provisions of § 648.10(b), the 

VMS system, fail to declare through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod on board the vessel as required 

under § 648.86(l)(2)(ii)(B). 

(98) Discard legal-sized NE regulated 

multispecies, ocean pout, Atlantic 

halibut, or monkfish while fishing 

under a Regular B DAS in the Regular 

B DAS Program, as described in 

§ 648.85(b)(10)(iv)(E). 

(99) If fishing under a Regular B DAS 

in the Regular B DAS Program, fail to 

comply with the DAS flip requirements 

of § 648.85(b)(10)(iv)(E) if the vessel 

harvests and brings on board more than 

the landing limit for a groundfish stock 

of concern specified in 

§ 648.85(b)(10)(iv)(D), other groundfish 

specified under § 648.86, or monkfish 

under § 648.94. 

(100) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the requirements and 

restrictions specified in 

§ 648.85(b)(10)(iv)(A) through (F), (I), 

and (J). 

(101) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the VMS requirement 

specified in § 648.85(b)(10)(iv)(A). 

(102) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the observer notification 

requirement specified in 

§ 648.85(b)(10)(iv)(B). 

(103) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the VMS declaration 

requirement specified in 

§ 648.85(b)(10)(iv)(C). 

(104) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the landing limits 

specified in § 648.85(b)(10)(iv)(D). 

(105) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the no discard and DAS 

flip requirements specified in 

§ 648.85(b)(10)(iv)(E). 

(106) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the minimum Category 

A DAS and Category B DAS accrual 

requirements specified in 

§ 648.85(b)(10)(iv)(F). 

(107) Use a Regular B DAS in the 

Regular B DAS Program specified in 

§ 648.85(b)(10), if the program has been 

closed as specified in 

§ 648.85(b)(10)(iv)(H) or (b)(10)(vi). 

(108) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), use 

a Regular B DAS after the program has 

closed, as required under 

§ 648.85(b)(10)(iv)(G) or (H). 

(109) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to comply with the reporting 

requirements specified in 

§ 648.85(b)(10)(iv)(I). 

(110) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

requirements and conditions specified 

in § 648.85(b)(11)(iv), and (b)(11)(v) or 

(b)(11)(vi), whichever is applicable. 

(111) If fishing in the CA I Hook Gear 

Haddock Access Area specified in 

§ 648.85(b)(11)(ii), fail to comply with 

the requirements and conditions 

specified in § 648.85(b)(11)(iv), and 

(b)(11)(v) or (b)(11)(vi), whichever is 

applicable. 

(112) Fish in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), outside of the season 

specified in § 648.85(b)(11)(iii). 

(113) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

DAS use restrictions specified in 

§ 648.85(b)(11)(iv)(A), and (b)(11)(v)(A) 

or (b)(11)(vi)(A), whichever is 

applicable. 

(114) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

VMS requirements specified in 

§ 648.85(b)(11)(iv)(B). 

(115) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

observer notification requirements 

specified in § 648.85(b)(11)(iv)(C). 

(116) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

VMS declaration requirement specified 

in § 648.85(b)(11)(iv)(D). 

(117) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

gear restrictions specified in 

§ 648.85(b)(11)(iv)(E), and (b)(11)(v)(B) 

or (b)(11)(vi)(B), whichever is 

applicable. 

(118) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

17054 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

§ 648.85(b)(11), fail to comply with the 

landing limits specified in 

§ 648.85(b)(11)(iv)(H), and (b)(11)(v)(C) 

or (b)(11)(vi)(C), whichever is 

applicable. 

(119) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fail to comply with the 

reporting requirement specified in 

§ 648.85(b)(11)(v)(D) or (b)(11)(vi)(D), 

whichever is applicable. 

(120) Fish in the CA I Hook Gear 

Haddock Access Area specified in 

§ 648.85(b)(11)(ii), if that area is closed 

as specified in § 648.85(b)(11)(iv)(I) or 

(b)(11)(vi)(F). 

(121) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

§ 648.85(b)(11), fish with squid as bait, 

as prohibited at § 648.85(b)(11)(iv)(J). 

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

Haddock SAP specified in 

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

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

(123) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to use a haddock separator trawl as 

described under § 648.85(a)(3)(iii)(A), or 

other approved gear as described under 

§ 648.85(b)(10)(iv)(J). 

(124) If fishing under a NE 

multispecies Category A DAS in one or 

both of the differential DAS areas 

defined under § 648.82(e)(4)(i), fail to 

declare into one or both of the areas 

through VMS, as required under 

§ 648.82(e)(4)(ii). 

(125) If fishing under a NE 

multispecies Category A DAS in one or 

both of the differential DAS areas 

defined in § 648.82(e)(4)(i), and under 

the restrictions of one or more of the 

Special Management Programs under 

§ 648.85, fail to comply with the most 

restrictive regulations. 

(126) Possess or land more witch 

flounder than allowed under 

§ 648.86(m). 

(127) Retain or land zero retention 

stocks as specified under § 648.86(n). 

(128) If possessing a Ruhle Trawl, 

either at sea or elsewhere, as allowed 

under § 648.85(b)(10)(iv)(J)(1) or 

(b)(8)(v)(E)(1), fail to comply with the 

net specifications under 

§ 648.85(b)(10)(iv)(J)(3). 

(129) If fishing as a private 

recreational and charter/party vessel in 

the SNE/MA winter flounder stock area 

defined in § 648.85(b)(10)(v)(E), fish for 

or retain winter flounder or transit this 

area in possession of winter flounder 

caught outside this area, unless all bait 

and hooks are removed from fishing 

rods and any winter flounder on board 

has been gutted and stored. 

(130) If fishing in the Regular B DAS 

Program specified in § 648.85(b)(10), fail 

to use a haddock separator trawl as 

described under § 648.85(a)(3)(ix)(A), or 

other approved gear as described under 

§ 648.85(b)(10)(iv)(J). 

(131) For vessels fishing inside and 

outside the Eastern U.S./Canada Area on 

the same trip, fail to comply with the 

most restrictive regulations that apply 

on the trip as required under 

§ 648.85(a)(3)(viii)(A). 

(132) For vessels fishing inside and 

outside the Eastern U.S./Canada Area on 

the same trip, fail to notify NMFS via 

VMS that the vessel is electing to fish 

in this manner, as required by 

§ 648.85(a)(3)(viii)(A)(1). 

(133) Fail to comply with the 

restrictions on fishing and gear specified 

in § 648.80(a)(3)(v), (a)(4)(v), (b)(2)(v), 

and (c)(2)(iv) if the vessel has been 

issued a limited access NE multispecies 

permit and fishes with hook-gear in 

areas specified in § 648.80(a), (b), or (c), 

unless allowed under 

§ 648.85(b)(11)(iv)(F). 

(134) Discard legal-sized NE regulated 

multispecies, ocean pout, or Atlantic 

halibut while fishing under a Special 

Access Program, as described in 

§§ 648.85(b)(3)(xi), 648.85(b)(11)(iv)(H) 

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

* * * * * 

(g) * * * 

(6) If the vessel is a private 

recreational fishing vessel, fail to 

comply with the seasonal GOM cod 

possession prohibition described in 

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

been issued a charter/party permit or is 

fishing under charter/party regulations, 

fail to comply with the prohibition on 

fishing under § 648.89(c)(5)(v). 

(7) If fishing under the recreational or 

charter/party regulations, fish for or 

possess cod caught in the GOM 

Regulated Mesh Area during the 

seasonal GOM cod possession 

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

(c)(5)(v), or fail to abide by the 

appropriate restrictions if transiting 

with cod on board. 

* * * * * 

§ 648.80 [Amended] 

■ 4. In § 648.80, paragraph (i) is 

suspended. 

■ 5. In § 648.81, paragraph (b)(2)(iv)(B) 

is suspended, and paragraph 

(b)(2)(iv)(C) is added to read as follows: 

§ 648.81 NE multispecies closed areas and 

measures to protect EFH. 

* * * * * 

(b) * * * 

(2) * * * 

(iv) * * * 

(C) The vessel has declared into the 

Eastern U.S./Canada Area as specified 

in § 648.85(a)(3)(viii) and is transiting 

CA II in accordance with the provisions 

of § 648.85(a)(3)(vii). 

* * * * * 

■ 6. In § 648.82: 

■ A. Paragraphs (e)(2) and (3); 

(j)(1)(iii)(A) through (D); (k)(4)(iv) and 

(x); and (l)(1)(iv) and (ix) are suspended. 

■ B. Paragraphs (e)(4) and (5), and 

(j)(1)(iii)(E), (F), and (G) are added. 

The additions read as follows: 

§ 648.82 Effort-control program for NE 

multispecies limited access vessels. 

* * * * * 

(e) * * * 

(4) 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 

one or both of the differential DAS 

areas, as defined in paragraphs 

(e)(4)(i)(A) and (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)(4)(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: 

Point N. lat. W. long. 

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

with Maine 

Coastline. 

GMD2 ............. 43°30′ ...... 69°30′. 

GMD3 ............. 43°00′ ...... 69°30′. 

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

boundary, 

WGOM 

Closed Area. 

GMD5 ............. 42°30′ ...... 69°55′. 

GMD6 ............. 42°30′ ...... 69°30′. 

GMD7 ............. 41°30′ ...... 69°30′. 

GMD8 ............. 41°30′ ...... 70°00′. 

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

Cape Cod, Massachusetts, coast and 70°00′′ 

W. 

(B) Interim SNE Differential DAS 

Area. The Interim SNE Differential DAS 

Area is defined by straight lines 

connecting the following points in the 

order stated (a chart depicting this area 

is available from the Regional 

Administrator upon request): 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17055 

INTERIM SNE DIFFERENTIAL DAS 

AREA

Point N. lat. W. long. 

SNECA1 ........... (1) 70°00′ 

SNECA2 ........... 41°30′ 70°00′ 

SNECA3 ........... 41°30′ 68°50′ 

SNECA4 ........... 40°30′ 68°50′ 

SNECA5 ........... 40°30′ (2) 

1 Intersection of the shoreline of Cape Cod, 

Massachusetts, and 70°00′ W. long. 2 Intersection of the shoreline of Staten Island, New York, and 40°30′ N. lat. 

(ii) Declaration. A NE multispecies 

DAS vessel that intends to fish, or fishes 

under a Category A DAS in one of the 

differential DAS areas described in 

paragraph (e)(4)(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, that the vessel 

will fish in the GOM Differential DAS 

Area, the Interim SNE Differential DAS 

Area, or both areas. A DAS vessel that 

fishes in the Eastern U.S./Canada Area 

and intends to fish, or fishes, 

subsequently in one or both of the 

differential DAS areas under a Category 

A DAS, must declare its intention to do 

so through its VMS prior to leaving the 

dock at the start of the trip, or prior to 

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

specified in § 648.85(a)(3)(viii)(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 to 1 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)(4)(v) of this 

section, may be in the GOM Differential 

DAS Area, provided the vessel’s fishing 

gear is stowed in accordance with the 

provisions of § 648.23(b) for the entire 

time the vessel is in the area, and the 

vessel declares immediately upon 

entering the GOM Differential DAS 

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

vessel that fishes in both the GOM 

Differential Area and the Interim SNE 

Differential DAS Area on the same trip 

will be charged DAS at the rate of 2:1 

for the entire trip. 

(B) Differential DAS counting when 

fishing in the Interim SNE Differential 

DAS Area. With the exception of a 

vessel fishing with hook gear, 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 Interim SNE 

Differential DAS Area shall have each 

Category A DAS, or part thereof, 

counted at the ratio of 2 to 1 for the 

entire trip, even if only a portion of the 

trip is spent fishing in the Interim SNE 

Differential DAS Area. Unless otherwise 

specified in paragraph (e)(4)(iii) of this 

section, a NE multispecies DAS vessel 

fishing with hook gear that intends to 

fish or fishes some or all of its trip other 

than for transiting purposes under a 

Category A DAS in the Interim SNE 

Differential DAS Area shall have each 

Category A DAS, or part thereof, 

counted at the ratio of 1 to 1 for the 

entire trip. A vessel that has not 

declared its intent to fish in the Interim 

SNE Differential DAS Area and that is 

not transiting, as specified in paragraph 

(e)(4)(v) of this section, may be in the 

Interim SNE Differential DAS Area, 

provided the vessel’s fishing gear is 

stowed in accordance with the 

provisions of § 648.23(b) for the entire 

time the vessel is in the area and the 

vessel declares immediately upon 

entering the Interim SNE Differential 

DAS Area, via VMS, that it is in the 

area. A vessel that fishes in both the 

GOM Differential Area and the Interim 

SNE Differential DAS Area on the same 

trip will be charged DAS at the rate of 

2:1 for the entire trip. 

(iv) Restrictions. A NE multispecies 

vessel fishing under a Category A DAS 

in one or both of the differential DAS 

areas defined in paragraph (e)(4)(i) of 

this section, under the restrictions of 

this paragraph (e)(4) and under the 

restrictions of one or more of the Special 

Management Programs under § 648.85, 

must comply with the most restrictive 

DAS counting, trip limits, and reporting 

requirements, specified in this 

paragraph (e)(4) and in § 648.85, under 

the pertinent Special Management 

Program. 

(v) Transiting. A vessel may transit 

either one or both of the differential 

DAS areas, as defined in paragraph 

(e)(4)(i) of this section, provided the 

gear is stowed in accordance with the 

provisions of § 648.23(b). 

(5) Regular B DAS Program 24-hr 

clock. For a vessel electing to fish in the 

Regular B DAS Program, as specified at 

§ 648.85(b)(10), 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 

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

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

vessel that left on a trip at 11 p.m. on 

the first calendar day and returned at 10 

p.m. on the second calendar day would 

be charged 48 hr of Regular B DAS 

instead of 23 hr, because the fishing trip 

would have spanned 2 calendar days. 

For the purpose of calculating trip limits 

specified under § 648.86, the amount of 

DAS deducted from a vessel’s DAS 

allocation shall determine the amount of 

fish the vessel can legally land. For a 

vessel electing to fish in the Regular B 

DAS Program, as specified at 

§ 648.85(b)(10), while also fishing in one 

or both of the differential DAS areas 

defined in paragraph (e)(4) of this 

section, Category B DAS shall accrue at 

the rate described in this paragraph 

(e)(5), 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)(4)(iii) of this section for the entire 

trip. For vessels electing to fish in both 

the Regular B DAS Program, as specified 

in § 648.85(b)(10), and in the Eastern 

U.S./Canada Area, as specified in 

§ 648.85(a), DAS counting will begin 

and end according to the DAS 

accounting rules specified in 

§ 648.10(b)(2)(iii). 

* * * * * 

(j) * * * 

(1) * * * 

(iii) * * * 

(E) A Day gillnet vessel fishing with 

gillnet gear that has elected to fish in the 

Regular B DAS Program, as specified in 

§ 648.85(b)(10), under a Category B 

DAS, is subject to the DAS accrual 

provisions of paragraph (e)(5) of this 

section. 

(F) 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)(4) 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. 

(G) A Day gillnet vessel fishing with 

gillnet gear under a NE multispecies 

Category A DAS that is fishing in one or 

both of the differential DAS areas 

specified in paragraph (e)(4)(i) of this 

section and, therefore, subject to 

differential DAS counting as specified 

under paragraph (e)(4)(iii) of this 

section, shall accrue DAS at a 

differential DAS rate of 2 to 1 for the 

actual hours used for any trip of less 

than or equal to 3 hr in duration, and 

for any trip of greater than 7.5 hr. For 

such vessels fishing on any trip of more 

than 3 hr, but less than or equal to 7.5 

hr duration, vessels will be charged a 

full 15 hr. For example, a Day gillnet 

17056 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

vessel fishing in the Interim SNE 

Differential DAS Area for 8 actual hr 

would be charged 16 hr of DAS, or if 

fishing for 5 actual hr, would be charged 

15 hr of DAS. 

* * * * * 

■ 7. In § 648.83, paragraph (a)(1) and 

(a)(3) are suspended and paragraph 

(a)(4) is added to read as follows:A 

§ 648.83 Multispecies minimum fish sizes. 

(a) * * * 

(4) Minimum fish sizes for 

recreational vessels and charter/party 

vessels that are not fishing under a NE 

multispecies DAS are specified in 

§ 648.89. Except as provided in § 648.17, 

all other vessels are subject to the 

following minimum fish sizes, 

determined by total length (TL): 

MINIMUM FISH SIZES (TL) FOR

COMMERCIAL VESSELS

Species Sizes 

(inches) 

Cod .......................................... 22 (55.9 cm) 

Haddock .................................. 18 (45.7 cm) 

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

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

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

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

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

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

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

* * * * * 

■ 8. In § 648.85: 

■ A. Paragraphs (a)(3)(ii) and (iii); and 

(a)(3)(v)(A), (B), and (C) are suspended. 

■ B. Paragraphs (b)(4), (5), (6) and (7); 

(b)(8)(v)(E)(2); and (b)(8)(v)(H) are 

suspended. 

■ C. Paragraphs (a)(3)(v)(D), (E), and (F); 

(a)(3)(viii) and (ix); (b)(8)(v)(E)(3); 

(b)(8)(v)(M) and (N); and (b)(9), (10), and 

(11) are added. 

The additions read as follows: 

§ 648.85 Special management programs. 

* * * * * 

(a) * * * 

(3) * * * 

(v) * * * 

(D) Total pounds of cod, haddock, 

yellowtail flounder, winter flounder, 

witch flounder, pollock, windowpane 

flounder, and white hake kept; 

(E) Date fish were caught and 

statistical area in which fish were 

caught; and 

(F) Vessel Trip Report (VTR) serial 

number, as instructed by the Regional 

Administrator. 

* * * * * 

(viii) Declaration. To fish in the U.S./ 

Canada Management Area under a 

groundfish DAS, a NE multispecies DAS 

vessel, prior to leaving the dock, must 

declare through the VMS, in accordance 

with instructions to be provided by the 

Regional Administrator, which specific 

U.S./Canada Management Area 

described in paragraphs (a)(1)(i) or (ii) of 

this section, or which specific SAP, 

described in paragraph (b) of this 

section, within the U.S./Canada 

Management Area the vessel will fish 

in, and comply with the restrictions and 

conditions in paragraphs (a)(3)(viii)(A) 

through (C) of this section. Vessels other 

than NE multispecies DAS vessels are 

not required to declare into the U.S./ 

Canada Management Areas. 

(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)(viii)(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 dock at the start of the trip 

or prior to leaving the Eastern U.S./ 

Canada Area (including at the time of 

initial declaration into the Eastern U.S./ 

Canada Area) that it is also electing to 

fish outside the Eastern U.S./Canada 

Area. With the exception of vessels 

participating in the Regular B DAS 

Program and fishing under a Regular B 

DAS, once a vessel that has elected to 

fish outside of the Eastern U.S./Canada 

Area leaves the Eastern U.S./Canada 

Area, Category A DAS shall accrue from 

the time the vessel crosses the VMS 

demarcation line at the start of its 

fishing trip until the time the vessel 

crosses the demarcation line on its 

return to port, in accordance with 

§ 648.10(b)(2)(iii). 

(2) The vessel must comply with the 

reporting requirements of the U.S./ 

Canada Management Area specified 

under paragraph (a)(3)(v) of this section 

for the duration of the trip. 

(3) If the vessel fishes or intends to 

fish in one or both of the differential 

DAS areas defined under 

§ 648.82(e)(4)(i), it must declare its 

intent to do so prior to leaving the 

Eastern U.S./Canada Area (including at 

the time of initial declaration into the 

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

not have exceeded the CC/GOM or SNE/ 

MA yellowtail flounder trip limits, 

specified in § 648.86(g), for the 

respective areas. 

(4) If a vessel possesses yellowtail 

flounder in excess of the trip limits for 

CC/GOM yellowtail flounder or SNE/ 

MA yellowtail flounder, as specified in 

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

either the CC/GOM or SNE/MA 

yellowtail flounder stock area during 

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

U.S./Canada Management Area). 

(B) A vessel fishing under a NE 

multispecies DAS in the Western U.S./ 

Canada Area may fish inside and 

outside the Western U.S./Canada Area 

on the same trip, provided it complies 

with the most restrictive regulations 

applicable to the area fished for the 

entire trip (e.g., the possession 

restrictions specified in paragraph 

(a)(3)(iv)(C)(4) of this section), and the 

reporting requirements specified in 

paragraph (a)(3)(v) of this section. 

(C) For the purposes of selecting 

vessels for observer deployment, a 

vessel fishing in either of the U.S./ 

Canada Management Areas specified in 

paragraph (a)(1) of this section must 

provide notice to NMFS of the vessel 

name; contact name for coordination of 

observer deployment; telephone number 

for contact; and the date, time, and port 

of departure, at least 72 hr prior to the 

beginning of any trip that it declares 

into the U.S./Canada Management Area, 

as required under this paragraph 

(a)(3)(viii). 

(ix) Gear requirements. NE 

multispecies vessels fishing with trawl 

gear in the Eastern U.S./Canada Area 

defined in paragraph (a)(1)(ii) of this 

section, unless otherwise provided in 

paragraphs (b)(8) and (b)(10) of this 

section, must fish with a Ruhle trawl, as 

described in paragraph (b)(10)(iv)(J)(1) 

of this section, or a haddock separator 

trawl or a flounder trawl net, as 

described in paragraphs (a)(3)(ix)(A) and 

(B) of this section (all three nets may be 

onboard the fishing vessel 

simultaneously). Gear other than the 

Ruhle trawl, haddock separator trawl, or 

the flounder trawl net as described in 

paragraph (a)(3)(ix) of this section, or 

gear authorized under paragraphs (b)(8) 

and (b)(10) of this section, may be on 

board the vessel during a trip to the 

Eastern U.S./Canada Area, provided the 

gear is stowed according to the 

regulations at § 648.23(b). The 

description of the Ruhle trawl, the 

haddock separator trawl, and the 

flounder trawl net in paragraph 

(b)(10)(iv)(J)(1) of this section and in 

this paragraph (a)(3)(ix) may be further 

specified by the Regional Administrator 

through publication of such 

specifications in the Federal Register, 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17057 

consistent with the requirements of the 

Administrative Procedure Act. 

(A) Haddock separator trawl. A 

haddock separator trawl is defined as a 

groundfish trawl modified to a vertically 

oriented trouser trawl configuration, 

with two extensions arranged one over 

the other, where a codend shall be 

attached only to the upper extension, 

and the bottom extension shall be left 

open and have no codend attached. A 

horizontal large-mesh separating panel 

constructed with a minimum of 6.0-inch 

(15.2-cm) diamond mesh must be 

installed between the selvedges joining 

the upper and lower panels, as 

described in this paragraph (a)(3)(ix)(A) 

and in paragraph (B) of this section, 

extending forward from the front of the 

trouser junction to the aft edge of the 

first belly behind the fishing circle. 

(1) Two-seam bottom trawl nets. For 

two-seam nets, the separator panel will 

be constructed such that the width of 

the forward edge of the panel is 80–85 

percent of the width of the after edge of 

the first belly of the net where the panel 

is attached. For example, if the belly is 

200 meshes wide (from selvedge to 

selvedge), the separator panel must be 

no wider than 160–170 meshes. 

(2) Four-seam bottom trawl nets. For 

four-seam nets, the separator panel will 

be constructed such that the width of 

the forward edge of the panel is 90–95 

percent of the width of the after edge of 

the first belly of the net where the panel 

is attached. For example, if the belly is 

200 meshes wide (from selvedge to 

selvedge), the separator panel must be 

no wider than 180–190 meshes. The 

separator panel will be attached to both 

of the side panels of the net along the 

midpoint of the side panels. For 

example, if the side panel is 100 meshes 

tall, the separator panel must be 

attached at the 50th mesh. 

(B) Flounder trawl net. A flounder 

trawl net is defined as bottom trawl gear 

meeting one of the following two net 

descriptions: 

(1) A two-seam, low-rise net 

constructed with mesh size in 

compliance with § 648.80(a)(4), where 

the maximum footrope length is not 

greater than 105 ft (32.0 m) and the 

headrope is at least 30-percent longer 

than the footrope. The footrope and 

headrope lengths shall be measured 

from the forward wing end. 

(2) A two-seam, low-rise net 

constructed with mesh size in 

compliance with § 648.80(a)(4), with the 

exception that the top panel of the net 

contains a section of mesh at least 10 ft 

(3.05 m) long and stretching from 

selvedge to selvedge, composed of at 

least 12-inch (30.5-cm) mesh that is 

inserted no farther than 4.5 meshes 

behind the headrope. 

(b) * * * 

(8) * * * 

(v) * * * 

(E) * * * 

(3) Approval of additional gear. The 

Regional Administrator may authorize 

additional gear for use in the Eastern 

U.S./Canada Haddock SAP in 

accordance with the standards and 

requirements specified at paragraph 

(b)(10)(iv)(J)(2) of this section. 

* * * * * 

(M) Incidental TACs. The maximum 

amount of GB cod, and the amount of 

GB yellowtail flounder, GB winter 

flounder, and pollock, 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) of this section, is the amount 

specified in paragraphs (b)(9)(ii), (iii), 

and (iv) of this section, respectively. 

(N) 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)(M) 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. 

(9) Incidental Catch TACs. Unless 

otherwise specified in this paragraph 

(b)(9), Incidental Catch TACs shall be 

specified through the periodic 

adjustment process described in 

§ 648.90, and allocated as described in 

this paragraph (b)(9), for each of the 

following stocks: GOM cod, GB cod, GB 

yellowtail flounder, GB winter flounder, 

GOM winter, white hake, CC/GOM 

yellowtail flounder, SNE/MA yellowtail 

flounder, witch flounder, and pollock. 

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, GB winter flounder, 

and pollock. With the exception of GB 

cod, GB yellowtail flounder, GB winter 

flounder, and pollock, the Incidental 

Catch TACs specified under this 

paragraph (b)(9) shall be allocated to the 

Regular B DAS Program described in 

paragraph (b)(10) of this section. 

(ii) GB cod. The Incidental TAC for 

GB cod specified under this paragraph 

(b)(9) shall be subdivided as follows: 70 

percent to the Regular B DAS Program 

described in paragraph (b)(10) of this 

section; 16 percent to the CA I Hook 

Gear Haddock SAP described in 

paragraph (b)(7) of this section; and 14 

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)(9) shall be subdivided 

as follows: 80 percent to the Regular B 

DAS Program described in paragraph 

(b)(10) of this section; and 20 percent to 

the Eastern U.S./Canada Haddock SAP 

described in paragraph (b)(8) of this 

section. 

(iv) Pollock. The Incidental TAC for 

pollock specified under this paragraph 

(b)(9) shall be subdivided as follows: 90 

percent to the Regular B DAS Program 

described in paragraph (b)(10) of this 

section; 5 percent to the CA I Hook Gear 

Haddock SAP described in paragraph 

(b)(7) of this section; and 5 percent to 

the Eastern U.S./Canada Haddock SAP 

described in paragraph (b)(8) of this 

section. 

(10) Regular B DAS Program.—(i) 

Eligibility. Vessels issued a valid limited 

access NE multispecies DAS permit and 

allocated Regular B DAS are eligible to 

participate in the Regular B DAS 

Program and may elect to fish under a 

Regular B DAS, provided they comply 

with the requirements and restrictions 

of this paragraph (b)(10), and provided 

the use of Regular B DAS is not 

restricted according to paragraphs 

(b)(10)(iv)(G) or (H) of this section, or 

paragraph (b)(10)(vi) of this section. 

Vessels are required to comply with the 

no discarding and DAS flip 

requirements specified in paragraph 

(b)(10)(iv)(E) of this section and the DAS 

balance and accrual requirements 

specified in paragraph (b)(10)(iv)(F) of 

this section. Vessels may fish under the 

B Regular DAS Program and in the U.S./ 

Canada Management Area on the same 

trip, but may not fish under the Regular 

B DAS Program and in a SAP on the 

same trip. 

(ii) [Reserved] 

(iii) Quarterly Incidental Catch TACs. 

The Incidental Catch TACs specified in 

accordance with paragraph (b)(9) of this 

section shall be divided into quarterly 

catch TACs as follows: The first quarter 

shall received 13 percent of the 

Incidental Catch TACs and the 

remaining three quarters shall each 

receive 29 percent of the Incidental 

Catch TACs. When the Regional 

Administrator projects that there is 

uncaught TAC in quarters one, two, or 

17058 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

three, the uncaught TAC will be added 

to the TAC allocated for the subsequent 

quarter. Uncaught TAC at the end of the 

fishing year will not be added to 

allocations in subsequent fishing years. 

NMFS shall send letters to all limited 

access NE multispecies permit holders 

notifying them of such TACs and any 

adjustments to such TACs. 

(iv) Program requirements.—(A) VMS 

requirement. A NE multispecies DAS 

vessel fishing in the Regular B DAS 

Program described in paragraph 

(b)(10)(i) of this section must have 

installed on board an operational VMS 

unit that meets the minimum 

performance criteria specified in 

§§ 648.9 and 648.10. 

(B) Observer notification. For the 

purposes of selecting vessels for 

observer deployment, a vessel must 

provide notice to NMFS of the vessel 

name; contact name for coordination of 

observer deployment; telephone number 

for contact; the date, time, and port of 

departure; and the planned fishing area 

or areas (GOM, GB, or SNE/MA) at least 

72 hr prior to the beginning of any trip 

that it declares into the Regular B DAS 

Program, as required under paragraph 

(b)(10)(iv)(C) of this section, and in 

accordance with instructions provided 

by the Regional Administrator. 

Providing notice of the area that the 

vessel intends to fish does not restrict 

the vessel’s activity to only that area on 

that trip (i.e., the vessel operator may 

change his/her plans regarding planned 

fishing area). 

(C) VMS declaration. To participate in 

the Regular B DAS 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)(10)(iv)(D), a NE multispecies vessel 

fishing in the Regular B DAS Program 

described in this paragraph (b)(10), 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 

from the areas specified in paragraph 

(b)(10)(v) of this section: Cod, pollock, 

white hake, witch flounder, GB winter 

flounder, GB yellowtail flounder, and 

southern windowpane flounder; 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 that 

are required to fish with a haddock 

separator trawl or Ruhle trawl, as 

specified under paragraph (b)(10)(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)(10)(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 (GOM or GB), 

windowpane flounder (south), and 

yellowtail flounder), combined; 500 lb 

(227 kg) of monkfish (whole weight); 

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

and zero possession of lobsters, ocean 

pout, SNE/MA winter flounder, and 

windowpane flounder (north), unless 

otherwise restricted by § 648.94(b)(3). 

(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, Atlantic halibut, or monkfish, 

unless otherwise specified in this 

paragraph (b)(10)(iv)(E). This 

prohibition on discarding does not 

apply to ocean pout, windowpane 

(north), or SNE winter flounder, or 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 unless 

exempted, as specified in this paragraph 

(b)(10)(iv)(E), in excess of the allowable 

landing limits specified in paragraph 

(b)(10)(iv)(D) of this section, or § 648.86, 

the vessel operator must notify NMFS 

immediately via VMS to initiate a DAS 

flip from a B DAS to an A DAS. Once 

this notification has been received by 

NMFS, the vessel shall automatically be 

switched by NMFS to fishing under a 

Category A DAS for its entire fishing 

trip. Thus, any Category B DAS that 

accrued between the time the vessel 

declared into the Regular B DAS 

Program at the beginning of the trip (i.e., 

at the time the vessel crossed the 

demarcation line at the beginning of the 

trip) and the time the vessel declared its 

DAS flip shall be accrued as Category A 

DAS, and not Regular B DAS. After 

flipping to a Category A DAS, the vessel 

is subject to the applicable trip limits 

specified under § 648.86 or paragraph 

(a) of this section 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 

any part of a trip in one or both of the 

differential DAS areas, as described in 

§ 648.82(e)(4)(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 two. For example, if a vessel 

plans a trip under the Regular B DAS 

Program into the Interim SNE 

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 DAS Program is 5. 

A vessel fishing in the Regular B DAS 

Program for its entire trip shall accrue 

DAS in accordance with § 648.82(e)(5). 

(G) Restrictions when 100 percent of 

the incidental catch TAC is harvested. 

With the exception of white hake, witch 

flounder, and pollock, when the 

Regional Administrator provides 

notification through methods consistent 

with the Administrative Procedure Act 

that 100 percent of one or more of 

quarterly incidental TACs specified 

under paragraph (b)(10)(iii) of this 

section have been projected to have 

been harvested, the use of Regular B 

DAS shall be prohibited in the pertinent 

stock area(s) as defined under paragraph 

(b)(10)(v) of this section for the duration 

of the calendar quarter. The closure of 

a stock area to all Regular B DAS use 

shall occur even if the quarterly 

incidental catch TACs for other stocks 

in that stock area have not been 

completely harvested. When the 

Regional Administrator projects that 100 

percent of the quarterly white hake, 

witch flounder, or pollock incidental 

catch TAC specified under paragraph 

(b)(10)(iii) of this section has been 

harvested, vessels fishing under a 

Regular B DAS, or that complete a trip 

under a Regular B DAS, shall be 

prohibited from retaining white hake, 

witch flounder, or pollock, respectively. 

(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)(10)(iv)(G) of 

this section, or as a result of an action 

by the Regional Administrator under 

paragraph (b)(10)(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 § 648.82(e)(5). 

(I) Reporting requirements. The owner 

or operator of a NE multispecies DAS 

vessel must submit catch reports via 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17059 

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)(10)(iv)(C) 

of this section, the reports must include 

at least the following information: 

Statistical area fished; total pounds of 

cod, haddock, yellowtail flounder, 

winter flounder, witch flounder, 

pollock, and white hake kept; 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)(10)(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 or Ruhle trawl, as 

described under paragraphs (a)(3)(iii)(A) 

and (b)(10)(iv)(J)(3) of this section, 

respectively, or other type of gear, if 

approved, as described under this 

paragraph (b)(10)(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. Vessels 

fishing with gillnet gear in the Regular 

B DAS Program may not use a low 

profile (‘‘tie-down’’ type) gillnet. 

(2) Approval of additional gear. At the 

request of the Council or Council’s 

Executive Committee, the Regional 

Administrator may authorize additional 

gear for use in the Regular B DAS 

Program, through notice consistent with 

the Administrative Procedure Act. The 

proposed gear must satisfy standards 

specified in paragraphs 

(b)(10)(iv)(J)(2)(i) or (ii) of this section in 

a completed experiment that has been 

reviewed according to the standards 

established by the Council’s research 

policy before the gear can be considered 

and approved by the Regional 

Administrator. Comparisons of the 

criteria specified in this paragraph 

(b)(10)(iv)(J)(2) will be made to an 

appropriately selected control gear. 

(i) The gear must show a statistically 

significant reduction in catch of at least 

50 percent (by weight, on a trip-by-trip 

basis) of each regulated species stock of 

concern, unless otherwise allowed in 

this paragraph (b)(10)(iv)(J)(2)(i), or 

other non-groundfish stocks that are 

overfished or subject to overfishing 

identified by the Council. This 

requirement does not apply to regulated 

species identified by the Council as not 

being subject to gear performance 

standards; or 

(ii) The catch of each regulated 

species stock of concern, unless 

otherwise allowed in this paragraph 

(b)(10)(iv)(J)(2)(ii), or other nongroundfish stocks that are overfished or 

subject to overfishing identified by the 

Council, must be less than 5 percent of 

the total catch of regulated groundfish 

by weight, on a trip-by-trip basis. This 

requirement does not apply to regulated 

species identified by the Council as not 

being subject to gear performance 

standards. 

(3) Ruhle Trawl. The Ruhle Trawl is 

a four-seam bottom groundfish trawl 

designed to reduce the bycatch of cod 

while retaining or increasing the catch 

of haddock, when compared to 

traditional groundfish trawls. A Ruhle 

Trawl must be constructed in 

accordance with the standards 

described and referenced in this 

paragraph (b)(10)(iv)(J)(3). The mesh 

size of a particular section of the Ruhle 

Trawl is measured in accordance with 

§ 648.80(f)(2), unless insufficient 

numbers of mesh exist, in which case 

the maximum total number of meshes in 

the section will be measured (between 

2 and 20 meshes). 

(i) The net must be constructed with 

four seams (i.e., a net with a top and 

bottom panel and two side panels), and 

include at least the following net 

sections as depicted in Figure 1 of this 

part A ‘‘Nomenclature for 4-seam Ruhle 

Trawl’’ (this figure is also available from 

the Regional Administrator): Top jib, 

bottom jib, jib side panels (x 2), top 

wing, bottom wing, wing side panels (x 

2), square, bunt, square side panels (x 

2), first top belly, first bottom belly, first 

belly side panels (x 2), second top belly, 

second bottom belly, second belly side 

panels (x 2), and third bottom belly. 

(ii) The first bottom belly, bunt, the 

top and bottom wings, and the top and 

bottom jibs, jib side panels, and wing 

side panels (the first bottom belly and 

all portions of the net in front of the first 

bottom belly, with the exception of the 

square and the square side panels) must 

be at least two meshes long in the fore 

and aft direction. For these net sections, 

the stretched length of any single mesh 

must be at least 7.9 ft (240 cm), 

measured in a straight line from knot to 

knot. 

(iii) Mesh size in all other sections 

must be consistent with mesh size 

requirements specified under § 648.80 

and meet the following minimum 

specifications: Each mesh in the square, 

square side panels, and second bottom 

belly must be 31.5 inches (80 cm); each 

mesh in the first and second top belly, 

the first belly side panels, and the third 

bottom belly must be at least 7.9 inches 

(20 cm); and 6 inches (15.24 cm) or 

larger in sections following the second 

top belly and third bottom belly 

sections, all the way to the codend. The 

mesh size requirements of the top 

sections apply to the side panel 

sections. 

(iv) The trawl must have a fishing 

circle of at least 398 ft (121.4 m). This 

number is calculated by separately 

counting the number of meshes for each 

section of the net at the wide, fore end 

of the first bottom belly, and then 

calculating a stretched length as follows: 

For each section of the net (first bottom 

belly, two belly side panels and first top 

belly) multiply the number of meshes 

times the length of each stretched mesh 

to get the stretched mesh length for that 

section, and then add the sections 

together. For example, if the wide, fore 

end of the bottom belly of the Ruhle 

Trawl is 22 meshes (and the mesh is at 

least 7.9 ft (240 cm)), the stretched mesh 

length for that section of the net is 

derived by multiplying 22 times 7.9 ft 

(240 cm) and equals 173.2 ft (52.8 m). 

The top and sides (x 2) of the net at this 

point in the trawl are 343 meshes (221 

+ 61 + 61, respectively) (each 7.9 inches 

(20 cm)), which equals 225.1 ft (68.6 m) 

stretched length. The stretched lengths 

for the different sections of mesh are 

added together (173.2 ft + 225.1 ft (52.8 

m + 68.6 m)) and result in the length of 

the fishing circle, in this case 398.3 ft 

(121.4 m). 

(v) The trawl must have a single or 

multiple kite panels with a total surface 

area of at least 29.1 sq. ft. (2.7 sq. m) on 

the forward end of the square to help 

maximize headrope height, for the 

purpose of capturing rising fish. A kite 

panel is a flat structure, usually semiflexible used to modify the shape of 

trawl and mesh openings by providing 

lift when a trawl is moving through the 

water. 

(vi) The sweep must include 

rockhoppers of various sizes, which are 

arranged along the sweep in size order, 

graduated from 16-inch (40-cm) 

diameter in the sweep center down to 

12-inch (30-cm) diameter at the wing 

ends. There must be six or fewer 12- to 

16-inch (30- to 40-cm) rockhopper discs 

over any 10-ft (3.0-m) length of the 

sweep. The 12- to 16- inch (30- to 40- 

cm) discs (minimum size) must be 

spaced evenly, with one disc placed 

approximately every 2 ft (60 cm) along 

the sweep. The 12- to 16-inch (30- to 40- 

cm) discs must be separated by smaller 

discs, no larger than 3.5 inches (8.8 cm) 

in diameter. 

(v) Definition of incidental TAC stock 

areas. For the purposes of the Regular 

B DAS Program, including the stocks 

17060 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

that may not be retained by vessels as 

specified under § 648.86, the species 

stock areas are defined in paragraphs 

(b)(10)(v)(A) through (I) of this section. 

Copies of a chart depicting these areas 

are available from the Regional 

Administrator upon request. 

(A) GOM cod stock area. The GOM 

cod stock area for the purposes of the 

Regular B DAS Program is the area 

defined by straight lines connecting the 

following points in the order stated: 

GULF OF MAINE COD STOCK AREA

Point N. lat. W. long. 

GOM1 ............... (1) 70°00′ 

GOM2 ............... 42°20′ 70°00′ 

GOM3 ............... 42°20′ 67°40′ 

GOM4 ............... 43°50′ 67°40′ 

GOM5 ............... 43°50′ 66°50′ 

GOM6 ............... 44°20′ 66°50′ 

GOM7 ............... 44°20′ 67°00′ 

GOM8 ............... (2) 67°00′ 

1 Intersection of the north-facing coastline of 

Cape Cod, MA, and 70°00′ W. Long. 2 Intersection of the south-facing Maine 

coastline and 67°00′ W. Long. 

(B) GB cod stock area. The GB cod 

stock area for the purposes of the 

Regular B DAS Program is the area 

defined by straight lines connecting the 

following points in the order stated: 

GEORGES BANK COD STOCK AREA

Point N. lat. W. long. 

GB1 ................... (1) 70°00′ 

GB2 ................... 42°20′ 70°00′ 

GB3 ................... 42°20′ 66°00′ 

GB4 ................... 42°10′ 66°00′ 

GB5 ................... 42°10′ 65°50′ 

GB6 ................... 42°00′ 65°50′ 

GB7 ................... 42°00′ 65°40′ 

GB8 ................... 40°30′ 65°40′ 

GB9 ................... 39°00′ 65°40′ 

GB10 ................. 39°00′ 70°00′ 

GB11 ................. 35°00′ 70°00′ 

GB12 ................. 35°00′ (2) 

1 Intersection of the north-facing coastline of 

Cape Cod, MA, and 70°00′ W. Long. 2 Intersection of the east-facing coastline of 

Outer Banks, NC, and 35°00′ N. Lat. 

(C) CC/GOM yellowtail flounder stock 

area. The CC/GOM yellowtail flounder 

stock area for the purposes of the 

Regular B DAS Program is the area 

defined by straight lines connecting the 

following points in the order stated: 

CC/GOM YELLOWTAIL FLOUNDER

STOCK AREA

Point N. lat. W. long. 

CCGOM1 .......... 43°00′ (1) 

CCGOM 2 ......... 42°20′ 70°00′ 

CCGOM 3 ......... 42°20′ 66°00′ 

CCGOM 4 ......... 42°10′ 66°00′ 

CC/GOM YELLOWTAIL FLOUNDER

STOCK AREA—Continued 

Point N. lat. W. long. 

CCGOM 5 ......... 42°10′ 65°50′ 

CCGOM 6 ......... 42°00′ 65°50′ 

CCGOM 7 ......... 42°00′ 65°40′ 

CCGOM 8 ......... 40°30′ 65°40′ 

CCGOM 9 ......... 39°00′ 65°40′ 

CCGOM 10 ....... (2) ....................

CCGOM 11 ....... 35°00′ (3) 

CCGOM 12 ....... 35°00′ (4) 

CCGOM 13 ....... (3) ....................

1 Intersection with the New Hampshire 

coastline. 2 Intersection of the south-facing shoreline of 

Cape Cod, MA. 3 Intersection with the east-facing shoreline 

of Cape Cod, MA. 4 Intersection with the west-facing shoreline 

of Massachusetts. 

(D) SNE/MA yellowtail flounder stock 

area. The SNE/MA stock area for the 

purposes of the Regular B DAS Program 

is the area bounded on the north, east, 

and south by straight lines connecting 

the following points in the order stated: 

SNE/MA YELLOWTAIL FLOUNDER

STOCK AREA

Point N. lat. W. long. 

SNEMA1 ........... 40°00′ 74°00′ 

SNEMA2 ........... 40°00′ 72°00′ 

SNEMA3 ........... 40°30′ 72°00′ 

SNEMA4 ........... 40°30′ 69°30′ 

SNEMA5 ........... 41°00′ 69°30′ 

SNEMA6 ........... 41°00′ 69°00′ 

SNEMA7 ........... 41°30′ 70°00′ 

SNEMA8 ........... 39°00′ 70°00′ 

SNEMA9 ........... 41°00′ 70°00′ 

SNEMA10 ......... 41°00′ 70°30′ 

SNEMA11 ......... 41°30′ 70°30′ 

SNEMA12 ......... (1) 72°00′ 

SNEMA13 ......... (2) 72°00′ 

SNEMA14 ......... (3) 73°00′ 

SNEMA15 ......... 40°30′ 73°00′ 

SNEMA16 ......... 40°30′ 74°00′ 

SNEMA17 ......... 40°00′ 74°00′ 

1South-facing shoreline of Connecticut. 

2 North-facing shoreline of Long Island, New 

York. 3South-facing shoreline of Long Island, New 

York. 

(E) SNE/MA winter flounder stock 

area. The SNE winter flounder stock 

area, for the purposes of the Regular B 

DAS Program and the prohibition on 

retention of winter flounder specified 

under § 648.86, is the area defined by 

straight lines connecting the following 

points in the order stated: 

SOUTHERN NEW ENGLAND/MID-ATLANTIC WINTER FLOUNDER STOCK AREA

Point N. lat. W. long. 

SNEW1 ............. (1) 70°00′ 

SNEW2 ............. 42°20′ 70°00′ 

SOUTHERN NEW ENGLAND/MID-ATLANTIC WINTER FLOUNDER STOCK

AREA—Continued 

Point N. lat. W. long. 

SNEW3 ............. 42°20′ 68°50′ 

SNEW4 ............. 39°50′ 68°50′ 

SNEW5 ............. 39°50′ 71°40′ 

SNEW6 ............. 39°00′ 71°40′ 

SNEW7 ............. 39°00′ 70°00′ 

SNEW8 ............. 35°00′ 70°00′ 

SNEW9 ............. 35°00′ (2) 

1 Intersection of the north-facing Coastline of 

Cape Cod, MA, and 70°00′ W. Long. 2The intersection of the east-facing coastline of Outer Banks, NC, and 35°00′ N. Lat. 

(F) Windowpane flounder northern 

stock area. The windowpane flounder 

northern stock area, for the purposes of 

prohibition on retention of northern 

windowpane flounder specified under 

§ 648.86, is the area defined by straight 

lines connecting the following points in 

the order stated: 

WINDOWPANE FLOUNDER NORTHERN

STOCK AREA

Point N. lat. W. long. 

G12 ................... (1) 70°00′ 

WIN1 ................. 41°20′ 70°00′ 

WIN2 ................. 41°20′ 69°50′ 

WIN3 ................. 41°10′ 69°50′ 

WIN4 ................. 41°10′ 69°30′ 

WIN5 ................. 41°00′ 69°30′ 

WIN6 ................. 41°00′ 68°50′ 

WIN7 ................. 39°50′ 68°50′ 

WIN8 ................. 39°50′ 69°00′ 

WIN9 ................. 39°00′ 69°00′ 

WIN10 ............... 39°00′ (2) 

1South-facing coastline of Cape Cod, MA. 

2 Intersection of 39°00′ N. Lat. and the 

boundary of the EEZ. 

(G) GB yellowtail flounder stock area. 

The GB yellowtail flounder stock area, 

for the purposes of the Regular B DAS 

Program, is the area defined as the U.S./ 

Canada Management Areas, as specified 

in paragraphs (a)(1)(i) and (ii) of this 

section. 

(H) GB winter flounder stock area. 

The GB winter flounder stock area, for 

the purposes of the Regular B DAS 

Program, is the area defined as the U.S./ 

Canada Management Areas, as specified 

in paragraphs (a)(1)(i) and (ii) of this 

section. 

(I) GOM winter flounder stock area. 

The GOM winter flounder stock area, for 

the purposes of the Regular B DAS 

Program, is the area defined by straight 

lines connecting the following points in 

the order stated: 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17061 

GOM WINTER FLOUNDER STOCK AREA

Point N. lat. W. long. 

GOM1 ............... (1) 70°00′ 

GOM2 ............... 42°20′ 70°00′ 

GOM3 ............... 42°20′ 67°40′ 

GOM4 ............... 43°50′ 67°40′ 

GOM5 ............... 43°50′ 66°50′ 

GOM6 ............... 44°20′ 66°50′ 

GOM7 ............... 44°20′ 67°00′ 

GOM8 ............... (2) 67°00′ 

1 Intersection of the north-facing coastline of 

Cape Cod, MA, and 70°00′ W. Long. 2 Intersection of the south-facing Maine 

coastline and 67°00′ W. Long. 

(vi) Closure and in-season 

modification to the Regular B DAS 

Program. The Regional Administrator, 

based upon information required under 

§§ 648.7, 648.9, 648.10, or this 

paragraph (b)(10)(vi), and any other 

relevant information, in a manner 

consistent with the Administrative 

Procedure Act, may prohibit the use of 

Regular B DAS, modify possession 

restrictions, or implement other 

measures, including a partial closure for 

the Regular B DAS Program, 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 modification or 

termination of 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. 

(11) CA I Hook Gear Haddock SAP.— 

(i) Eligibility. Vessels issued a valid 

limited access NE multispecies DAS 

permit are eligible to participate in the 

CA I Hook Gear Haddock SAP, and may 

fish in the CA I Hook Gear Haddock 

Access Area, as described in paragraph 

(b)(11)(ii) of this section, for the season 

specified in paragraph (b)(11)(iii) of this 

section, provided such vessels comply 

with the requirements of this section, 

and provided the SAP is not closed 

according to the provisions specified 

under paragraph (b)(11)(iv)(I) or 

(b)(11)(vi)(F) of this section. Copies of a 

chart depicting this area are available 

from the Regional Administrator upon 

request. 

(ii) CA I Hook Gear Haddock Access 

Area. The CA I Hook Gear Haddock 

Access Area is the area defined by 

straight lines connecting the following 

points in the order stated: 

CA I HOOK GEAR HADDOCK ACCESS

AREA

Point N. lat. W. long. 

Hook 1 .............. 41°09′ 68°30′ 

CI4 .................... 41°30′ 68°30′ 

CI1 .................... 41°30′ 69°23′ 

Hook 2 .............. 41°04′ 69°01′ 

(iii) Season. The overall season for the 

CA I Hook Gear Haddock SAP is May 

1 through January 31. 

(iv) General program restrictions. 

General program restrictions specified 

in this paragraph (b)(11)(iv) apply to all 

eligible vessels as specified in paragraph 

(b)(11)(i) of this section. Further 

program restrictions specific to Sector 

and non-Sector vessels are specified in 

paragraphs (b)(11)(v) and (vi) of this 

section. 

(A) DAS use restrictions. A vessel 

fishing in the CA I Hook Gear Haddock 

SAP may not initiate a DAS flip. A 

vessel is prohibited from fishing in the 

CA I Hook Gear Haddock SAP while 

making a trip under the Regular B DAS 

Pilot Program described under 

paragraph (b)(10) of this section. DAS 

will be charged as described in § 648.10. 

(B) VMS requirement. An eligible NE 

multispecies DAS vessel fishing in the 

CA I Hook Gear Haddock SAP specified 

in this paragraph (b)(11) must have 

installed on board an operational VMS 

unit that meets the minimum 

performance criteria specified in 

§§ 648.9 and 648.10. 

(C) Observer notifications. For the 

purpose of selecting vessels for observer 

deployment, a vessel must provide 

notice to NMFS of the vessel name; 

contact name for coordination of 

observer deployment; telephone number 

for contact; and date, time, and port of 

departure at least 72 hr prior to the 

beginning of any trip that it declares 

into the CA I Hook Gear Haddock SAP, 

as required in paragraph (b)(11)(iv)(D) of 

this section, and in accordance with 

instructions provided by the Regional 

Administrator. 

(D) VMS declaration. Prior to 

departure from port, a vessel intending 

to participate in the CA I Hook Gear 

Haddock SAP must declare into the SAP 

via VMS, and indicate the type of DAS 

that it intends to fish. A vessel declared 

into the CA I Hook Gear Haddock SAP 

may fish only on a declared trip in the 

CA I Hook Gear Haddock Special Access 

Area described under paragraph 

(b)(11)(ii) of this section. 

(E) Gear restrictions. A vessel 

declared into and fishing in the CA I 

Hook Gear Haddock SAP may fish with 

and possess on board demersal longline 

gear or tub trawl gear only, unless 

further restricted as specified under 

paragraph (b)(11)(v)(B) of this section. 

(F) Haddock TAC.—(1) Allocation 

and distribution. The maximum total 

amount of haddock that may be caught 

(landings and discards) in the CA I 

Hook Gear SAP Area in any fishing year 

is based upon the size of the TAC 

allocated for the 2004 fishing year 

(1,130 mt live weight), adjusted 

according to the growth or decline of the 

western GB (WGB) haddock exploitable 

biomass (in relationship to its size in 

2004), according to the following 

formula: BiomassYEAR X = (1,130 mt 

live weight) × (Projected WGB Haddock 

ExploitableBiomassYEAR X/WGB 

Haddock Exploitable Biomass2004). The 

size of the western component of the 

stock is considered to be 35 percent of 

the total stock size, unless modified by 

a stock assessment. The Regional 

Administrator shall specify the haddock 

TAC for the SAP, in a manner consistent 

with applicable law. 

(2) [Reserved] 

(G) Trip restrictions. A vessel is 

prohibited from deploying fishing gear 

outside of the CA I Hook Gear Haddock 

SAP Area on the same fishing trip on 

which it is declared into the CA I Hook 

Gear Haddock SAP, and must exit the 

SAP if the vessel exceeds the applicable 

landing limits described in paragraph 

(b)(11)(iv)(H) of this section. 

(H) Landing limits. For all eligible 

vessels declared into the CA I Hook 

Gear Haddock SAP described in 

paragraph (b)(11)(i) of this section, 

landing limits for NE multispecies other 

than cod, which are specified at 

paragraphs (b)(11)(v)(C) and 

(b)(11)(vi)(C) of this section, are as 

specified at § 648.86. Unless otherwise 

specified in this part, 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. 

(I) Mandatory closure of CA I Hook 

Gear Haddock Access Area. When the 

Regional Administrator determines that 

the haddock TAC specified in paragraph 

(b)(11)(iv)(F) of this section has been 

caught, NMFS shall close, through 

rulemaking consistent with the 

Administrative Procedure Act, the CA I 

Hook Gear Haddock SAP Area as 

specified in paragraph (b)(11)(ii) of this 

section, to all eligible vessels. 

(J) Bait restriction. A vessel declared 

into and fishing in the CA I Hook Gear 

Haddock SAP is prohibited from using 

squid as bait when participating in the 

CA I Hook Gear Haddock SAP. 

(v) Sector vessel program restrictions. 

In addition to the general program 

restrictions specified at paragraph 

17062 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

(b)(11)(iv) of this section, the 

restrictions specified in this paragraph 

(b)(11)(v) apply only to Sector vessels 

declared into the CA I Hook Gear 

Haddock SAP. 

(A) DAS use restrictions. Sector 

vessels fishing in the CA I Hook Gear 

Haddock SAP may use Category A, 

Regular B, or Reserve B DAS, in 

accordance with § 648.82(d). 

(B) Gear restrictions. A vessel enrolled 

in the Sector is subject to the gear 

requirements of the Sector Operations 

Plan as approved under § 648.87(d). 

(C) Landing limits. A Sector vessel 

declared into the CA I Hook Gear 

Haddock SAP described in paragraph 

(b)(11)(i) of this section is subject to the 

cod landing limit in effect under the 

Sector’s Operations Plan as approved 

under § 648.87(d). 

(D) Reporting requirements. The 

owner or operator of a Sector vessel 

declared into the CA 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 CA I Hook Gear 

Haddock SAP Area. The Sector Manager 

shall provide daily reports to NMFS, 

including at least the following 

information: Total pounds of haddock, 

cod, yellowtail flounder, winter 

flounder, witch flounder, pollock, and 

white hake kept; total pounds of 

haddock, cod, yellowtail flounder, 

winter flounder, witch flounder, 

pollock, 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)(11)(iv)(F) of this 

section. 

(E) GB cod incidental catch TAC. 

There is no GB cod incidental catch 

TAC specified for Sector vessels 

declared into the CA I Hook Gear 

Haddock SAP. All cod caught by Sector 

vessels fishing in the SAP count toward 

the Sector’s annual GB cod TAC, 

specified in § 648.87(d)(1)(iii). 

(vi) Non-Sector vessel program 

restrictions. In addition to the general 

program restrictions specified in 

paragraph (b)(11)(iv) of this section, the 

restrictions specified in this paragraph 

(b)(11)(vi) apply only to non-Sector 

vessels declared into the CA I Hook 

Gear Haddock SAP. 

(A) DAS use restrictions. Non-Sector 

vessels fishing in the CA I Hook Gear 

Haddock SAP may use Regular B or 

Reserve B DAS, in accordance with 

§ 648.82(d)(2)(i)(A) and (d)(2)(ii)(A). A 

non-Sector vessel is prohibited from 

using A DAS when declared into the 

SAP. 

(B) Gear restrictions. A non-Sector 

vessel declared into the CA I Hook Gear 

Haddock SAP is exempt from the 

maximum number of hooks restriction 

specified in § 648.80(a)(4)(v). 

(C) Landing limits. A non-Sector 

vessel declared into the CA I Hook Gear 

Haddock SAP described in paragraph 

(b)(11)(i) of this section may not land, 

fish for, or possess on board more than 

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

non-Sector vessel is not permitted to 

discard legal-sized cod prior to reaching 

the landing limit, and is required to end 

its trip if the cod trip limit is achieved 

or exceeded. 

(D) VMS declaration. Prior to 

departure from port, a vessel intending 

to participate in the CA I Hook Gear 

Haddock SAP must declare into the SAP 

via VMS, and indicate the type of DAS 

that it intends to fish. A vessel declared 

into the CA I Hook Gear Haddock SAP 

may fish only on a declared trip in the 

CA I Hook Gear Haddock Special Access 

Area described under paragraph 

(b)(11)(ii) of this section. 

(E) Incidental catch TACs. The 

maximum amount of GB cod and 

pollock (landings and discards) that 

may be cumulatively caught by nonSector vessels from the CA I Hook Gear 

Haddock Access Area in a fishing year 

is the amount specified under 

paragraphs (b)(9)(ii) and (iv) of this 

section, respectively. 

(F) Mandatory closure of CA I Hook 

Gear Haddock Access Area due to catch 

of any incidental catch TAC. When the 

Regional Administrator determines that 

either the GB cod or pollock incidental 

catch TAC specified in paragraph 

(b)(11)(vi)(E) of this section has been 

caught, NMFS shall close, through 

rulemaking consistent with the 

Administrative Procedure Act, the CA I 

Hook Gear Haddock Access Area to all 

non-Sector fishing vessels. 

* * * * * 

■ 9. In § 648.86, paragraph (b) is 

suspended; and paragraphs (l), (m), and 

(n) are added to read as follows: 

§ 648.86 NE multispecies possession 

restrictions 

* * * * * 

(l) Cod.—(1) GOM cod landing limit. 

(i) Except as provided in paragraphs 

(l)(1)(ii) and (l)(4) of this section, or 

unless otherwise restricted under 

§ 648.85, a vessel fishing under a NE 

multispecies DAS may land only up to 

800 lb (362.9 kg) of cod during the first 

24-hr period after the vessel has started 

a trip on which cod were landed (e.g., 

a vessel that starts a trip at 6 a.m. may 

call out of the DAS program at 11 a.m. 

and land up to 800 lb (362.9 kg), but the 

vessel cannot land any more cod on a 

subsequent trip until at least 6 a.m. on 

the following day). For each trip longer 

than 24 hr, a vessel may land up to an 

additional 800 lb (362.9 kg) for each 

additional 24-hr block of DAS fished, or 

part of an additional 24-hr block of DAS 

fished, up to a maximum of 4,000 lb 

(1,814.4 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 (l)(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 or 

both of the two differential DAS areas 

under the restrictions of § 648.82(e)(4), 

complies with the following: 

(A) For a vessel that is subject to the 

VMS provisions specified under 

§ 648.10(b), the vessel declares through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod onboard and, after returning to port, 

does not depart from a dock or mooring 

in port, unless transiting as allowed 

under paragraph (l)(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 (725.7 kg) of cod, provided the 

vessel does not declare another trip or 

leave port until 48 hr have elapsed from 

the beginning of the trip). 

(B) For a vessel that has been 

authorized by the Regional 

Administrator to utilize the DAS call-in 

system, as specified under § 648.10(c), 

in lieu of VMS, the vessel does not call 

out of the DAS program as described 

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

from a dock or mooring in port, unless 

transiting as allowed in paragraph (l)(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 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17063 

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

of cod, provided the vessel does not call 

out of the DAS program or leave port 

until 48 hr have elapsed from the 

beginning of the trip). 

(2) GB cod landing and maximum 

possession limits. (i) Unless otherwise 

restricted under § 648.85 or the 

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

section, or unless exempt from the 

landing limit under paragraph (l)(1) of 

this section as authorized under the 

Sector provisions of § 648.87, a NE 

multispecies DAS vessel may land up to 

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

part of a DAS, provided it complies with 

the requirements specified at paragraph 

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

(l)(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 (l)(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 or 

both of the differential DAS areas under 

the restrictions of § 648.82(e)(4), 

complies with the following: 

(A) For a vessel that has been 

authorized by the Regional 

Administrator to utilize the DAS call-in 

system as specified under § 648.10(c), in 

lieu of VMS, the vessel does not call out 

of the DAS program as described under 

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

a dock or mooring in port, unless 

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

of this section, until the rest of the 

additional 24-hr block of DAS has 

elapsed, regardless of whether all of the 

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

that has been called into the DAS 

program for 25 hr at the time of landing 

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

of cod, provided the vessel does not call 

out of the DAS program or leave port 

until 48 hr have elapsed from the 

beginning of the trip.) 

(B) For a vessel that is subject to the 

VMS provisions specified under 

§ 648.10(b), the vessel declares through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod onboard, and after returning to port 

does not depart from a dock or mooring 

in port, unless transiting, as allowed 

under paragraph (l)(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.) 

(3) Transiting. A vessel that has 

exceeded the cod landing limit as 

specified in paragraphs (l)(1) and (2) of 

this section, and that is, therefore, 

subject to the requirement to remain in 

port for the period of time described in 

paragraphs (l)(1)(ii)(A) and (l)(2)(ii)(A) 

of this section, may transit to another 

port during this time, provided that the 

vessel operator notifies the Regional 

Administrator, either at the time the 

vessel reports its hailed weight of cod, 

or at a later time prior to transiting, and 

provides the following information: 

Vessel name and permit number, 

destination port, time of departure, and 

estimated time of arrival. A vessel 

transiting under this provision must 

stow its gear in accordance with one of 

the methods specified in § 648.23(b) and 

may not have any fish on board the 

vessel. 

(4) Exemption. A vessel fishing under 

a NE multispecies DAS is exempt from 

the landing limit described in paragraph 

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

of the Gulf of Maine Regulated Mesh 

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

that it complies with the requirement of 

this paragraph (l)(4). 

(i) Declaration. With the exception of 

vessels declared into the U.S./Canada 

Management Area, as described under 

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

DAS vessel that fishes or intends to fish 

south of the line described in this 

paragraph (l)(4)(i) under the cod trip 

limits described under paragraph (l)(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 NE 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 this paragraph 

(l)(4)(ii) for the duration of the trip, but 

may transit the GOM Regulated Mesh 

Area, provided that its gear is stowed in 

accordance with the provisions of 

§ 648.23(b). A vessel fishing north and 

south of the line on the same trip is 

subject to the most restrictive applicable 

cod trip limit. 

(m) Witch 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 may land up to 

1,000 lb (453.6 kg) of witch flounder per 

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

lb (2,268.1 kg) per trip. 

(n) Zero retention stocks.—(1) SNE 

winter flounder. Vessels issued a NE 

multispecies permit may not fish for, 

possess, or land winter flounder caught 

in the SNE/MA winter flounder stock 

area, as defined in § 648.85(b)(10)(v)(E). 

Vessels may transit this area with GOM 

or GB winter flounder on board the 

vessel, provided that gear is stowed in 

accordance with the provisions of 

§ 648.23(b). Vessels fishing for winter 

flounder in multiple stock areas are 

subject to the most restrictive winter 

flounder possession limit. 

(2) Northern windowpane flounder. 

Vessels issued a NE multispecies permit 

may not fish for, possess, or land 

windowpane flounder caught in the 

northern windowpane flounder stock 

area, as defined in § 648.85(b)(10)(v)(F). 

Vessels may transit this area with 

southern windowpane flounder on 

board, provided that gear is stowed in 

accordance with the provisions of 

§ 648.23(b). Vessels fishing for 

windowpane flounder in multiple stock 

areas would be subject to the most 

restrictive windowpane flounder 

possession limit. 

17064 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 

(3) Ocean pout. Vessels issued a NE 

multispecies permit may not fish for, 

possess or land ocean pout. 

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

(c)(1)(v), and (c)(2) are suspended, and 

paragraphs (b)(5), (c)(1)(vi), (c)(5), and 

(f) are added to read as follows: 

§ 648.89 Recreational and charter/party 

vessel restrictions. 

* * * * * 

(b) * * * 

(5) 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 in (58.4 cm) 

Haddock ............................. 18 in (45.7 cm) 

Pollock ............................... 19 in (48.3 cm) 

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

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

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

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

Winter flounder (blackback) 12 in (30.5 cm) 

Redfish ............................... 9 in (22.9 cm) 

(c) * * * 

(1) * * * 

(vi) Seasonal GOM cod possession 

prohibition. Persons aboard private 

recreational fishing vessels fishing in 

the GOM Regulated Mesh Area specified 

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

possess, or land any cod from November 

1 through April 15. 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 all fishing 

rods, and any cod on board has been 

gutted and stored. 

* * * * * 

(5) Charter/party vessels. Charter/ 

party vessels are subject to the following 

possession limit restrictions: 

(i) Unless further restricted by the 

Seasonal GOM Cod Possession 

Prohibition, specified under paragraph 

(c)(5)(v) of this section, each person on 

a charter/party vessel may possess no 

more than 10 cod per day in, or 

harvested from, the EEZ. 

(ii) For purposes of counting fish, 

fillets shall be converted to whole fish 

at the place of landing by dividing the 

number of fillets by two. If fish are 

filleted into a single (butterfly) fillet, 

such fillet shall be deemed to be from 

one whole fish. 

(iii) Cod harvested by charter/party 

vessels with more than one person 

aboard may be pooled in one or more 

containers. Compliance with the 

possession limits will be determined by 

dividing the number of fish on board by 

the number of persons on board. If there 

is a violation of the possession limits on 

board a vessel carrying more than one 

person, the violation shall be deemed to 

have been committed by the owner and 

operator of the vessel. 

(iv) Cod must be stored so as to be 

readily available for inspection. 

(v) Seasonal GOM cod possession 

prohibition. Persons aboard charter/ 

party fishing vessels fishing in the GOM 

Regulated Mesh Area specified under 

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

any cod from November 1 through April 

15. 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 all fishing rods, and any 

cod on board has been gutted and 

stored. 

* * * * * 

(f) SNE/MA winter flounder retention 

prohibition. Private recreational and 

charter/party vessels fishing in the SNE/ 

MA winter flounder stock area, as 

defined in § 648.85(b)(10)(v)(E), may not 

fish for, possess, or land winter 

flounder. Recreational vessels in 

possession of winter flounder caught 

outside of the SNE/MA winter flounder 

may transit this area, provided all bait 

and hooks are removed from all fishing 

rods, and any winter flounder on board 

has been stored. 

■ 11. In § 648.92, paragraphs (b)(1)(i), 

(b)(1)(iii)(A), (b)(2), and (b)(8)(v) are 

suspended; and paragraphs (b)(1)(iii)(C), 

(b)(1)(vi), (b)(8)(vi), and (b)(10) are 

added to read as follows: 

§ 648.92 Effort-control program for 

monkfish limited access vessels. 

* * * * * 

(b) * * * 

(1) * * * 

(iii) * * * 

(C) Vessels that change their DAS 

declaration from a NE multispecies 

Category A DAS to a monkfish DAS 

during the course of a trip remain 

subject to the NE multispecies DAS 

usage requirements (i.e., use a NE 

multispecies Category A DAS in 

conjunction with the monkfish DAS) 

described in paragraph (b)(10)(i) of this 

section. 

* * * * * 

(vi) General provision. Limited access 

monkfish permit holders shall be 

allocated 31 monkfish DAS each fishing 

year to be used in accordance with the 

restrictions of this paragraph (b), unless 

otherwise restricted by paragraph 

(b)(1)(ii) of this section or modified by 

§ 648.96(b)(3), or unless the vessel is 

enrolled in the Offshore Fishery 

Program in the SFMA, as specified in 

paragraph (b)(1)(iv) of this section. The 

annual allocation of monkfish DAS shall 

be reduced by the amount calculated in 

paragraph (b)(1)(v) of this section for the 

research DAS set-aside. Limited access 

NE multispecies and limited access sea 

scallop permit holders who also possess 

a limited access monkfish permit must 

use a NE multispecies or sea scallop 

DAS concurrently with each monkfish 

DAS utilized, except as provided in 

paragraph (b)(10) of this section, unless 

otherwise specified under this subpart 

F. 

* * * * * 

(8) * * * 

(vi) Method of counting DAS. A vessel 

fishing with gillnet gear under a 

monkfish DAS shall accrue 15 hr of 

monkfish DAS for all trips less than or 

equal to 15 hr in duration. Such vessels 

shall accrue monkfish DAS based on 

actual time at sea for trips greater than 

15 hr in duration. A vessel fishing with 

gillnet gear under only a monkfish DAS 

is not required to remove gillnet gear 

from the water upon returning to the 

dock and calling out of the DAS 

program, provided the vessel complies 

with the requirements and conditions of 

paragraphs (b)(8)(i)–(vi) of this section. 

A vessel fishing with gillnet gear under 

a joint monkfish and NE multispecies 

DAS, as required under 

§ 648.92(b)(10)(i), that is declared as a 

trip gillnet vessel under the NE 

Multispecies FMP, must remove its 

gillnet gear from the water prior to 

calling out of the DAS program, as 

specified at § 648.82(j)(2). 

* * * * * 

(10) Category C, D, F, G, or H limited 

access monkfish permit holders—(i) 

Unless otherwise specified in paragraph 

(b)(10)(ii) of this section, each monkfish 

DAS used by a limited access NE 

multispecies or scallop DAS vessel 

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

limited access monkfish permit shall 

also be counted as a NE multispecies or 

scallop DAS, as applicable, except when 

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

a limited access NE multispecies DAS 

permit has an allocation of NE 

multispecies Category A DAS, specified 

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

the number of monkfish DAS allocated 

for the fishing year May 1 through April 

30. Under this circumstance, the vessel 

may fish under the monkfish limited 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules and Regulations 17065 

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 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, provided that the vessel fishes 

under the regulations pertaining to a 

Category B vessel and does not retain 

any regulated NE multispecies. For 

example, if a monkfish Category D 

vessel’s NE multispecies Category A 

DAS allocation is 20, and the monkfish 

allocation is 31, the vessel may use up 

to 11 of its monkfish DAS without 

concurrently using a groundfish DAS 

(31¥20 = 11), after all 20 NE 

multispecies Category A DAS are used. 

In addition, Category C and D vessels 

that are fishing in one or both of the 2:1 

differential DAS areas specified in 

§ 648.82(e)(4)(i) shall accrue monkfishonly DAS to account for those monkfish 

DAS that are ‘‘lost’’ as a result of fishing 

in the differential DAS area (resulting 

from the use of groundfish DAS at a 

higher rate). These vessels shall accrue 

monkfish-only DAS at a rate of 1 

monkfish DAS for every 2 NE 

multispecies DAS used in the 

differential area (2:1 rate). These 

monkfish-only DAS may later be used 

without concurrent use of a NE 

multispecies DAS, provided that the 

vessel fishes under the regulations 

pertaining to a Category A or 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 

Regular DAS under the NE Multispecies 

Regular B DAS Program, as specified 

under § 648.85(b)(10), in order to satisfy 

the requirement of this paragraph 

(b)(10)(i) to use a NE multispecies DAS 

concurrently with a monkfish DAS. 

(ii) Category C, D, F, G, or H vessels 

that lease NE multispecies DAS.—(A) A 

monkfish Category C, D, F, G, or H 

vessel that has ‘‘monkfish-only’’ DAS, as 

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

section, and that leases NE multispecies 

DAS from another vessel pursuant to 

§ 648.82(k), is required to fish its 

available ‘‘monkfish-only’’ DAS in 

conjunction with its leased NE 

multispecies DAS, to the extent that the 

vessel has NE multispecies DAS 

available. 

(B) A monkfish Category C, D, F, G, 

or H vessel that leases DAS to another 

vessel(s), pursuant to § 648.82(k) must 

forfeit a monkfish DAS for each NE 

multispecies DAS that the vessel leases, 

equal in number to the difference 

between the number of remaining NE 

multispecies DAS and the number of 

unused monkfish DAS at the time of the 

lease. For example, if a lessor vessel that 

had 31 unused monkfish DAS and 35 

allocated NE multispecies DAS leased 

10 of its NE multispecies DAS to 

another vessel, the lessor would forfeit 

6 of its monkfish DAS (10 ¥ (35 NE 

multispecies DAS ¥ 31 monkfish DAS) 

= 6). 

* * * * * 

■ 12. In § 648.95, paragraph (h) is 

suspended and paragraph (i) is added to 

read as follows: 

§ 648.95 Offshore Fishery Program in the 

SFMA. 

* * * * * 

(i) DAS usage by NE multispecies or 

sea scallop limited access permit 

holders. A vessel issued a Category F 

permit that also has been issued either 

a NE multispecies or sea scallop limited 

access permit, and is fishing on a 

monkfish DAS, is subject to the DAS 

usage requirements specified in 

§ 648.92(b)(10). 

[FR Doc. E9–8092 Filed 4–10–09; 8:45 am] 

BILLING CODE 3510–22–P