Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2959 

subject to EO 13045 because it 

implements Section 604(d)(2) of the 

Clean Air Act which states that the 

Agency shall authorize essential use 

exemptions should the Food and Drug 

Administration determine that such 

exemptions are necessary. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

proposed rule does not involve 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low income 

populations from this proposed rule. 

EPA believes, however, that this action 

affects the level of environmental 

protection equally for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Any ozone depletion that results from 

this proposed rule will impact all 

affected populations equally because 

ozone depletion is a global 

environmental problem with 

environmental and human effects that 

are, in general, equally distributed 

across geographical regions. 

List of Subjects in 40 CFR Part 82 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Chemicals, 

Chlorofluorocarbons, Imports, Methyl 

Chloroform, Ozone, Reporting and 

recordkeeping requirements. 

Dated: January 12, 2009. 

Stephen L. Johnson, 

Administrator. 

40 CFR Part 82 is proposed to be 

amended as follows: 

PART 82–PROTECTION OF 

STRATOSPHERIC OZONE 

1. The authority citation for part 82 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7601, 7671– 

7671q. 

Subpart A—Production and 

Consumption Controls 

2. Section 82.8 is amended by revising 

the table in paragraph (a) to read as 

follows: 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

(a) * * * 

TABLE I.—ESSENTIAL USE ALLOWANCES FOR CALENDAR YEAR 2009 

Company Chemical 2009 Quantity 

(metric tons) 

(i) Metered Dose Inhalers (for oral inhalation) 

for Treatment of Asthma and Chronic Obstructive Pulmonary Disease 

Armstrong CFC–11 or 

CFC–12 or 

CFC–114.

63.0 

* * * * * 

[FR Doc. E9–945 Filed 1–15–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080521698–8699–01] 

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: Proposed rule; request for 

comment. 

SUMMARY: NMFS proposes a temporary 

Secretarial interim action under the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) to implement 

measures intended to immediately 

reduce overfishing in the Northeast (NE) 

multispecies fishery, while addressing 

the need to help sustain fishing 

communities, without compromising 

rebuilding objectives. Measures 

proposed for the commercial fishery 

include the following: A differential 

days-at-sea (DAS) area north of 41°30′ N. 

lat., whereby a vessel would be charged 

2 days for every day fished; a large 

Southern New England (SNE) Closure 

Area; and modified groundfish trip 

limits. This action does not change the 

scheduled DAS reduction in the NE 

Multispecies Fishery Management Plan 

(FMP), which would result in an 

approximate 18–percent reduction in 

DAS. For private recreational vessels 

fishing in the Exclusive Economic Zone 

(EEZ) and for federally permitted 

charter/party vessels, this action would 

extend in time a seasonal prohibition on 

the possession of Gulf of Maine (GOM) 

cod, and prohibit the possession of SNE 

winter flounder. For federally permitted 

charter/party vessels, this action would 

implement a trip limit for Georges Bank 

(GB) cod. In addition, this action 

proposes to mitigate some of the 

negative short-term economic impacts of 

the FMP by making modifications to the 

DAS Leasing Program, the Regular B 

DAS Program, and the DAS Transfer 

Program; continuing the Eastern U.S./ 

Canada Haddock Special Access 

Program (SAP); and implementing a 

reduction in the haddock minimum size 

to 18 inches (45 cm). Finally, this action 

would specify management measures 

for the U.S./Canada Management Area 

for fishing year (FY) 2009. 


hsrobinson on PROD1PC76 with PROPOSALS
2960 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

DATES: Comments must be received by 

February 17, 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 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 an Initial Regulatory 

Flexibility Analysis (IRFA), which is 

contained in the Classification section 

of this proposed rule. 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. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Warren, Fishery Policy Analyst, 

(978) 281–9347, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: The FMP 

specifies the management measures for 

12 species in Federal waters off the New 

England and Mid-Atlantic coasts, which 

are Atlantic cod, haddock, yellowtail 

flounder, pollock, American plaice, 

witch flounder, white hake, 

windowpane flounder, Atlantic halibut, 

winter flounder, ocean pout, and 

redfish, comprising a total of 19 

individual stocks (groundfish). A major 

overhaul of the FMP occurred in 2004 

with implementation of Amendment 13 

and the establishment of rebuilding 

programs for all stocks managed by the 

FMP, including specification of status 

determination criteria for each stock. 

Amendment 13 established two 

different strategies for rebuilding (an 

adaptive and a phased rebuilding 

strategy), and a rebuilding plan for each 

overfished stock was developed in 

accordance with one of the two 

strategies. Under the ‘‘adaptive’’ 

rebuilding strategy, fishing mortality is 

held at Fmsy from 2004 through 2008, 

and then subsequently reduced to the 

level required to rebuild by the selected 

end-date of the rebuilding period. In 

2008, the effectiveness of the 

management measures and the validity 

of the status determination criteria 

(biological reference points) were fully 

evaluated. Eight stocks (GOM cod, GB 

haddock, GOM haddock, SNE/Mid 

Atlantic (MA) winter flounder, GB 

yellowtail flounder, redfish, 

windowpane flounder (southern stock), 

and ocean pout) are managed under the 

adaptive rebuilding strategy. In contrast, 

under the ‘‘phased’’ rebuilding strategy, 

fishing mortality is allowed to remain 

above Fmsy at the start of the rebuilding 

period in 2004, and then reduced 

sequentially in 2006 and 2009. Five 

stocks (GB cod, Cape Cod (CC)/GOM 

yellowtail flounder, SNE/MA yellowtail 

flounder, American plaice, and white 

hake) are managed under the phased 

rebuilding strategy. The end of the 

rebuilding period for all stocks is 2014, 

with the exception of GB cod (2026), 

CC/GOM yellowtail flounder (2023), 

and redfish (2051). 

Amendment 13 also implemented a 

process whereby the NE multispecies 

complex is routinely evaluated through 

a biennial adjustment. This adjustment 

process provides an update of the 

scientific information regarding the 

status of the stocks, and an evaluation 

of the effectiveness of the regulations. 

The biennial adjustment provides the 

New England Fishery Management 

Council (Council) with information to 

make adjustments to management 

measures necessary to modify fishing 

mortality to comply with the rebuilding 

schedules and approach optimum yield. 

The FMP further specified a benchmark 

stock assessment and review of the 

biological reference points (stock status 

determination criteria) in 2008. This 

planned assessment of the biological 

reference points (Groundfish 

Assessment Review Meeting, (GARM III) 

in 2008) was part of the biennial 

adjustment process, but was also part of 

the adaptive rebuilding strategy 

described above, which sought to 

evaluate the more fundamental 

scientific information mid-way through 

the rebuilding period for most stocks. 

Although, strictly speaking, the adaptive 

rebuilding strategy applies to only five 

stocks, the intent of the Council in 

scheduling a benchmark assessment in 

2008 was an evaluation of the biological 

reference points for all stocks. 

In order to implement these 

rebuilding strategies, Amendment 13 

included default management measures 

for implementation in FY 2006 and FY 

2009, which were designed to reduce 

fishing mortality on certain stocks, and 

established criteria to determine 

conditions under which the default 

measures would not be triggered. The 

default measure developed for FY 2009 

is a modification to the Category A DAS 

and Category B DAS ratio from 55:45 to 

45:55 (respectively). This decrease in 

the amount of A DAS represents an 

18.2–percent decrease in the number of 

A DAS a vessel may fish. Amendment 

13 noted the challenge of implementing 

the rebuilding program due to the 

difficulty of designing effort controls 

that would precisely achieve the desired 

fishing mortality reductions for all 

stocks. 

The Council began development of 

Amendment 16 in 2006 to meet a 

required May 1, 2009, implementation 

date because it anticipated that new 

scientific information from the 

scheduled 2008 biennial review and 

benchmark assessment (GARM III) 

would indicate that additional fishing 

mortality reductions may be necessary 

for FY 2009 in order to continue 

rebuilding at the required rate. At the 

Council meeting on June 3, 2008, the 

Northeast Fisheries Science Center 

(NEFSC) presented preliminary 

estimates of stock size and fishing 

mortality in 2006, which indicated that 

draft effort control measures under 

development for Amendment 16 were 

not targeting the correct stocks. Based 

on this information, the Council 

decided to wait until receipt of the final 

GARM III assessment results in 

September 2008 to design appropriate 

management measures and hold public 

hearings. 

The Council subsequently developed 

a revised schedule of development for 

Amendment 16, which, if approved, 

would be implemented on May 1, 2010. 

The Council voted on September 4, 

2008, to request that NMFS implement 

an interim action for the duration of FY 

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

recommended a specific suite of 

management measures for the interim 

action. As explained fully under section 

12 below, NMFS did not adopt the 

Council’s recommendations for this 

proposed interim action because it was 

determined that the Council’s 

recommended alternative was 

insufficient to end overfishing. 

GARM III, completed in August 2008, 

was an extensive benchmark 

assessment. GARM III evaluated the 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2961 

underlying data and models utilized for 

assessment of the groundfish stocks, 

evaluated the biological reference 

points, established new reference 

points, assessed the biomass and fishing 

mortality status of the groundfish stocks 

in 2007, and provided examples of 

fishing mortality rates that would be 

expected to rebuild overfished stocks. 

Incorporation of new scientific 

information and revisions to 

management measures in the FMP, 

effective May 1, 2009, are necessary to 

continue rebuilding to comply the 

intent of the FMP. However, due to the 

Council’s revised Amendment 16 

schedule, such revisions to the FMP 

would not be implemented, without this 

interim action. 

Section 305(c) of the MagnusonStevens Act authorizes the Secretary of 

Commerce (Secretary) to amend an FMP 

if the appropriate Council fails to 

develop and submit to the Secretary any 

necessary amendment to an FMP if the 

fishery requires conservation and 

management. NMFS promulgated 

guidelines to further clarify how this 

authority to amend an FMP should be 

interpreted (63 FR 24212; May 1, 1998). 

The Secretary, on his/her own initiative, 

or in response to a Council request, may 

implement interim measures to reduce 

overfishing under section 305(c), until 

such measures can be replaced by an 

FMP amendment or regulations taking 

remedial action. The measures may 

remain in place for 180 days, but may 

be extended for an additional 186 days 

if the public has had an opportunity to 

comment on the measures. 

Because of the need to eliminate and 

reduce overfishing, as well as to reduce 

fishing mortality to more closely comply 

with the FMP rebuilding schedules, 

NMFS is proposing this interim action. 

To that end, this action would 

implement management measures that, 

as much as practicable, build upon the 

Amendment 13 default measures and 

include major elements of the Council’s 

Amendment 16 alternatives, such as 

differential DAS. Measures that are 

similar to Amendment 16 would 

facilitate industry understanding, enable 

NMFS to administer such short-term 

measures, and allow vessels to adapt 

any measures implemented by 

Amendment 16 if they are adopted. 

Further, it is important that NMFS can 

enforce and administer the interim 

measures, and that such measures are 

fair and simple. The proposed interim 

action management measures are more 

narrowly focused than what is currently 

under consideration in the Council’s 

Amendment 16 draft document, which 

contains measures beyond those 

designed to reduce fishing mortality, 

such as inclusion of many new sectors 

and measures to address new 

Magnuson-Stevens Act requirements 

(e.g., annual catch limits and 

accountability measures). Failure to 

reduce or prevent overfishing by May 1, 

2009, while the Council completes 

Amendment 16, would likely lead to 

continued overfishing of several 

groundfish stocks, resulting in slower 

rebuilding that would likely require 

more stringent future measures, with 

additional economic and social 

consequences. 

A summary of the GARM III results 

that form the basis for this proposed 

interim rule is in Table 1 below. 

Overfishing is occurring on stocks when 

the fishing mortality to Fmsy ratio (F/ 

Fmsy) is greater than 1.0, and a stock is 

overfished if the biomass level to Bmsy 

ratio (B/Bmsy) is equal to or less than 

0.5. 

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

Species Stock Fmsy Bmsy 2007 Fishing Mortality 

(2007 F/ Fmsy) 

2007 Biomass (2007 B/ 

Bmsy) 

Cod GB 0.2466 148,084 1.2 0.12 

GOM 0.237 58,248 1.9 0.58 

Haddock GB 0.350 158,873 0.49 2.05 

GOM 0.430 5,900 0.8. 0.99 

Yellowtail flounder GB 0.254 43,200 1.1 0.22 

SNE/MA 0.254 27,400 1.6 0.13 

CC/GOM 0.239 7,790 1.7 0.25 

American plaice 0.190 21,940 0.5 0.51 

Witch flounder 0.200 11,447 1.5 0.30 

Winter flounder GB 0.260 16,000 1.1 0.31 

GOM 0.283 3,792 1.5 0.29 

SNE/MA 0.248 38,761 2.6 0.09 

Redfish 0.038 271,000 0.1 0.64 

White hake 0.125 56,254 1.2 0.35 

Pollock 5.660 2.0 * 1.2 * 0.71 

Windowpane North 0.500 1.4 * 3.9 * 0.38 

South 1.470 0.34 * 1.3 * 0.62 

Ocean pout 0.760 4.94 0.5 0.10 


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2962 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

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

Species Stock Fmsy Bmsy 2007 Fishing Mortality 

(2007 F/ Fmsy) 

2007 Biomass (2007 B/ 

Bmsy) 

Atlantic halibut 0.073 49,000 0.9 0.03 

* Pollock and windowpane flounder information was revised subsequent to GARM III in order to utilize 3 yr averages. Pollock is approaching 

an overfished condition. 

Because GARM III revised the 

biological reference points and the 2007 

stock status determination, and the 

current status of stocks is different from 

the understanding of stock status based 

on GARM I and II, it is necessary to 

utilize new fishing mortality targets that 

are appropriate to the revised stock 

status. Therefore, this interim action 

would utilize the GARM III revised 

stock status determination as the basis 

for developing fishing mortality targets 

in order to be consistent with National 

Standard 2, which requires that 

conservation and management measures 

shall be based upon the best scientific 

information available. 

New rebuilding plans for those stocks 

recently determined to be overfished or 

approaching an overfished condition, 

based on results from GARM III 

(windowpane flounder (northern stock), 

GOM and GB winter flounder, witch 

flounder, and pollock), are not proposed 

in this interim action, but rather are 

being considered by the Council in 

Amendment 16. For these five stocks, 

the fishing mortality target of the 

interim action is proposed to be Fmsy, 

although, as explained later in this 

preamble, the proposed measures would 

not achieve this objective for 

windowpane north. 

For those stocks that are either rebuilt 

(GB haddock) or for stocks where Fmsy 

would rebuild the stock (GOM haddock, 

GOM cod, American plaice, redfish), the 

fishing mortality target for the interim 

action would be Fmsy. For these stocks, 

which are currently in rebuilding 

programs, Fmsy is the appropriate target 

fishing mortality rate because Fmsy is 

lower than Frebuild, and the stocks are 

projected to rebuild to Bmsy within 

their rebuilding periods. 

For stocks currently under rebuilding 

programs and for which the fishing 

mortality rate required to rebuild the 

stock (Frebuild) is less than Fmsy (GB 

cod, GB yellowtail, SNE yellowtail, CC 

yellowtail, SNE winter flounder, white 

hake), the fishing mortality target under 

this interim action would be Frebuild, 

with one exception (noted below). 

For GB cod, fishing mortality under 

this interim action would be reduced to 

a level less than Fmsy, but would not 

achieve Frebuild. The two recent stock 

assessments that pertain to GB cod 

(GARM III for the entire stock; 

Transboundary Resource Assessment 

Committee 2008 for the eastern portion 

of the stock) were unable to be 

reconciled with each other, with the 

assessment of the size of the overall 

stock relatively low and the assessment 

of the size of the eastern portion of the 

stock relatively high. Given the 

scientific uncertainty, the fact that the 

fishing mortality of the eastern portion 

of the stock is strictly controlled 

through a hard total allowable catch 

(TAC), and the limited scope of this 

action, Fmsy is being proposed as the 

fishing mortality rate target for this 

stock. However, the fishing mortality 

rate that would be achieved by the 

proposed interim action is estimated to 

be between Fsmy and Frebuild. 

GARM III provided example estimates 

of Frebuild for overfished stocks, 

making assumptions about the rebuild 

period end-dates and the starting 

conditions at the beginning of the 

rebuilding periods. In doing so, GARM 

III assumed that the catch in FY 2008 

will equal the catch in FY 2007. In 

contrast, for this interim action, an 

estimated catch in FY 2008 was used to 

recalculate the starting conditions in FY 

2008, and the Frebuilds. For 

Amendment 16, the Plan Development 

Team (PDT) estimated catch for the 

entire FY 2008 year based upon an 

extrapolation of landings data for 

calendar year 2008 through June 2008. 

This interim action relies on the PDT’s 

estimated landings for FY 2008 and a 

derived estimate of fishing mortality for 

Calendar Year (CY) 2008 and the 

recalculated Frebuilds. The probabilities 

associated with the Frebuilds and 

rebuilding end dates are consistent with 

the current FMP. Stocks would rebuild 

with a 50–percent probability, with the 

exception of GB yellowtail flounder, 

which has a 75–percent probability of 

rebuilding by the end of the rebuilding 

period. The end of the rebuilding period 

for all stocks with rebuilding plans is 

2014, with the exception of GB cod 

(2026), CC/GOM yellowtail flounder 

(2023), and redfish (2051). Because the 

measures to be implemented by this 

action would begin 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. 

In a similar manner, in order to 

calculate the amount of reduction in 

fishing mortality required for pertinent 

stocks, the estimated fishing mortality 

in CY 2008 was considered as the 

starting condition. For example, in order 

to calculate the required fishing 

mortality reduction for the CC/GOM 

stock of yellowtail flounder, Frebuild 

(0.238) was compared to F 2008 (0.289). 

An 18–percent reduction in fishing 

mortality is required to reduce F from 

0.289 in CY 2008 to achieve an Frebuild 

of 0.238 in CY 2009. Table 2 below 

summarizes information on the CY 2008 

fishing mortality, the fishing mortality 

goal of the interim action, and the 

percentage fishing reduction objective to 

reduce fishing mortality from the 

starting conditions (F 2008) to the 

fishing mortality rate goal. 

TABLE 2. FISHING MORTALITY REDUCTION OBJECTIVES FOR THE PROPOSED INTERIM ACTION

Species Stock 2008 F Fishing Mortality Rate 

Goal 

Value Associated with 

Fishing Mortality Rate 

Goal 

Fishing Mortality Rate 

Reduction Objective 

Cod GB 0.410 Fmsy 0.2466 - 40 % 

GOM 0.300 Fmsy 0.237 - 21 % 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2963 

TABLE 2. FISHING MORTALITY REDUCTION OBJECTIVES FOR THE PROPOSED INTERIM ACTION—Continued 

Species Stock 2008 F Fishing Mortality Rate 

Goal 

Value Associated with 

Fishing Mortality Rate 

Goal 

Fishing Mortality Rate 

Reduction Objective 

Haddock GB 0.083 Fmsy 0.350 322 % 

GOM 0.250 Fmsy 0.430 72 % 

Yellowtail flounder GB 0.130 Frebuild 0.109 - 16 % 

SNE/MA 0.120 Frebuild 0.075 -386% 

CC/GOM 0.289 Frebuild 0.238 - 18 % 

American plaice 0.099 Fmsy 0.190 92 % 

Witch flounder 0.296 Fmsy 0.200 - 32 % 

Winter flounder GB 0.131 Fmsy 0.260 98 % 

GOM 0.317 Fmsy 0.283 - 11 % 

SNE/MA 0.265 Frebuild 0.000 - 100 % 

Redfish 0.008 Fmsy 0.038 375 % 

White hake 0.065 Frebuild 0.084 29 % 

Pollock NA Fmsy 5.66 - 48 % 

Windowpane NA Fmsy 0.50 - 74 % 

NA Fmsy 1.47 - 21 % 

Ocean pout NA Fmsy 0.760 NA 

Atlantic halibut 0.060 Frebuild 0.044 - 27 % 

NA - not available 

Proposed Management Measures 

All measures in effect prior to May 1, 

2009, including the default measures 

relating to DAS reductions scheduled to 

go into place and not amended by this 

proposed interim rule, would remain in 

effect on and after May 1, 2009. This 

proposed interim action would 

implement management measures to 

reduce fishing mortality on the 

commercial and recreational fisheries, 

without compromising rebuilding 

objectives, as well as revise various 

management programs in order to 

mitigate the negative economic and 

social impacts of the FMP to ensure 

consistency with National Standards 

and required provisions of the 

Magnuson-Stevens Act and to enhance 

the likelihood of compliance with the 

measures. Routine specification of TAC 

and annual specifications for the U.S./ 

Canada Management Area are also 

proposed. As is more fully discussed 

later in this document, these measures 

would result in both quantifiable and 

non-quantifiable reductions in fishing 

mortality for virtually all of the NE 

multispecies stocks managed under the 

FMP. 

The proposed interim measures are 

designed to work in conjunction with 

the current FMP to achieve the fishing 

mortality requirements of the FMP. The 

analysis of this action presumes that the 

proposed measures would be in effect 

throughout FY 2009, and that a 

subsequent management action 

(Amendment 16) will be implemented 

on May 1, 2010. The current FMP 

management measures include a FY 

2009 default measure that will change 

the allocation ratio of Category A:B DAS 

from 60:40 to 55:45. This measure, 

therefore, is not discussed specifically 

in the description of the proposed 

interim measures that follows. NMFS 

anticipates that, if approved and 

implemented, this interim action may 

be renewed upon expiration for an 

additional 185 days, given that the 

Council does not anticipate the 

implementation of Amendment 16 until 

May 2010. The Council also 

recommended to NMFS that any interim 

action should be in effect for all of FY 

2009. The following measures are 

proposed to be implemented on May 1, 

2009, to reduce overfishing. 

Commercial Measures 

1. Differential DAS Counting 

Under this proposed interim action, 

the existing differential DAS areas in the 

GOM and SNE would no longer apply, 

and a single, larger differential DAS area 

would be implemented in the entire 

GOM and in the northern portion of GB, 

north of 41o 30’N. lat. For the revised 

Interim Differential DAS Area, the DAS 

accrual rate would be 2:1. In other 

words, under this action, if a vessel 

declares into the Interim Differential 

DAS Area for 10 hr, the vessel’s DAS 

balance would be debited 20 hr. A 

vessel would not be charged at the 

differential DAS rate if it declared and 

transited to another area outside of the 

Interim Differential DAS Area. For 

example, if a vessel steams through the 

Interim Differential DAS Area on its 

way to and from the fishing grounds in 

the southern portion of the U.S./Canada 

Management Area, where DAS are not 

counted differentially, it would not be 

charged at the 2:1 rate for part of the trip 

spend steaming through the Interim 

Differential DAS Area. If a vessel 

declared and fished both inside the 

Interim Differential DAS Area and 


hsrobinson on PROD1PC76 with PROPOSALS
2964 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

outside that area on the same trip, it 

would be charged differential DAS (2:1) 

for all the DAS accrued on that trip. 

The interaction of current groundfish 

and non-groundfish regulatory programs 

and the different DAS counting rules 

would remain unchanged under this 

action (e.g., the cod running clock, Day 

Gillnet Category rules, the application of 

per DAS possession limits, 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, vessels 

fishing in the Interim Differential DAS 

Area and the Eastern U.S./Canada 

Management Area (exclusively) would 

be charged at the differential DAS rate 

of 2:1, but would not be charged 

steaming time to or from the area. For 

vessels fishing in multiple geographic 

areas where different rules apply to each 

area (such as differential DAS 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, 

would still apply. 

As under the current regulations, 

vessels would be required to declare, 

prior to leaving port, their intent to fish 

in the Interim Differential DAS Area, via 

Vessel Monitoring System (VMS). The 

VMS declaration screens would be 

modified slightly to accommodate the 

fact that the southern border of the 

Interim Differential DAS Area divides 

the U.S./Canada Management Area into 

two portions. For example, a vessel 

intending to fish in the Eastern U.S./ 

Canada Area would also have to specify 

whether it would also fish in the Interim 

Differential DAS Area. 

The Interim Differential DAS Area is 

proposed as a means to reduce fishing 

mortality on multiple stocks instead of 

further reductions in DAS allocations in 

order to provide flexibility for vessel 

owners. 

2. SNE Closure Area 

The area in SNE between 40° 30’ and 

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

long. to the shore, including Nantucket 

Sound (30-minute square blocks of 97– 

107 and 80–90) would be closed to 

federally permitted groundfish vessels 

(both open access and limited access) 

when fishing on groundfish, with the 

exception of NE multispecies vessels 

using hook gear, provided such vessels 

do not retain winter flounder, and 

provided the vessels have only hook 

gear on board. This interim rule 

proposes that groundfish vessels using 

only hook gear on a particular trip may 

fish in the SNE Closure Area because 

the catch rate of winter flounder is 

likely to be very low. Non-groundfish 

commercial trips fishing in exempted 

fisheries (e.g., summer flounder, scallop, 

and skate exemptions), or using 

exempted gear, could also fish in the 

SNE Closure Area. NE multispecies 

vessels not fishing in the SNE Closure 

Area would be allowed to transit 

through the area, provided all fishing 

gear is properly stowed. The SNE 

Closure Area is proposed as a means to 

reduce fishing mortality on SNE winter 

flounder primarily, but would also 

reduce fishing mortality on other stocks 

such as SNE/MA yellowtail flounder. 

3. Modified Trip Limits 

Under this interim rule, the current 

white hake possession limit of 1,000 lb 

(454 kg) per DAS would be increased to 

2,000 lb (907 kg) per DAS, with the 

same maximum of 10,000 lb (4,536 kg) 

per trip, and the trip limit for GB winter 

flounder, currently 5,000 lb (2.268 kg) 

per trip, would be removed. No 

retention of any fish would be allowed 

for SNE winter flounder, northern 

windowpane flounder, or ocean pout. 

Vessels fishing for winter flounder or 

windowpane flounder in multiple stock 

areas would be 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 

would be subject to the prohibition on 

retention for that trip. Lastly, as 

explained further under item 7 

(‘‘Annual Specifications for U.S./Canada 

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

(2,268 kg) of GB yellowtail flounder per 

trip would be specified. Modifications 

to trip limits are proposed as a means 

to reduce fishing mortality or increase 

yield because they are a management 

tool that can effectively target particular 

stocks and are an important component 

of the current FMP. 

4. Specification of Target TACs 

Target TACs are utilized in the FMP 

as one method of evaluating the success 

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 basis of calculating the 

incidental catch TACs for the Special 

Management Programs. Table 3 lists the 

target TACs for FY 2009, based upon 

GARM III data and estimated CY 2008 

fishing mortalities. 

TABLE 3. TARGET TACS (MT) FOR FY 

2009 

Species Stock Target TAC 

Cod GB 3,506 

Cod GOM 10,327 

Haddock GB 86,520 

Haddock GOM 1,564 

Yellowtail 

flounder 

GB 1,617 

Yellowtail 

flounder 

SNE/MA 389 

Yellowtail 

flounder 

CC/GOM 860 

Plaice 3,214 

Witch flounder 928 

Winter flounder GB 2,004 

Winter flounder GOM 379 

Redfish 8,614 

White hake 2,376 

Pollock 6,486 

Windowpane 

flounder N. 

299 

Windowpane 

flounder S. 

338 

Halibut 68 

* A hard TAC, set through a separate process described in item 6. 

5. Revisions to Incidental Catch TACs 

and Allocations to Special Management 

Programs 

This proposed interim action would 

revise the specification of incidental 

catch TACs applicable to the Special 

Management Programs of the FMP 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. 


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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 

would be adopted under this action, an 

incidental catch TAC would no longer 

be appropriate for American plaice, 

because it would no longer be 

considered a stock of concern. Further, 

new incidental catch TACs would be 

required for GOM winter flounder and 

pollock, because they would now be 

considered stocks of concern. The 

percentages that the TACs are currently 

based on would remain unchanged, 

with the exception of witch flounder, 

which would be reduced from 5– 

percent to 2–percent, due to its new 

proposed status and the fact that the 

fishing mortality rate and total catch 

need to be reduced. The incidental 

catch TACs for GOM winter flounder 

would be 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 proposed management 

measures are likely to achieve more 

than the required reduction in fishing 

mortality, 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 would be 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 would 

increase from the current number (8), to 

10. Due to the severe fishing mortality 

reduction necessary for the SNE/MA 

stock of winter flounder, no retention of 

this stock would be allowed under this 

alternative, and there would be no 

incidental catch TAC specified (see 

additional discussion under item 10, 

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 

Stock Percentage of Total TAC Initial TAC Incidental TAC 

GB cod 2 3,506 70.1 

GOM cod 1 10,327 103.3 

GB yellowtail 2 1,617 32.3 

CC/GOM yellowtail 1 860 8.6 

SNE/MA yellowtail 1 389 3.9 

Pollock 5 6,486 324.3 

Witch flounder 2 928 18.6 

GB winter flounder 2 2,004 40.1 

White hake 2 2,376 47.5 

GOM winter 5 379 19.0 

This proposed rule would also modify 

the allocation of the incidental catch 

TACs to the various Special 

Management Programs due to the 

change in status of stocks, as well as 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 would be reduced for GB cod, GB 

yellowtail, and GB winter flounder, and 

the percent allocation to the Regular B 

DAS Program would be increased due to 

higher participation in that program 

historically. Secondly, this rule would 

provide the Administrator, Northeast 

Region, NMFS (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 

rate of catch of stocks of concern in the 

various programs is highly variable. The 

proposed 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 

Regular B DAS Program Eastern U.S./Canada Haddock SAP Closed Area I Hook Gear Haddock 

SAP 

Stock 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 % 


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2966 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

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

Regular B DAS Program Eastern U.S./Canada Haddock SAP Closed Area I Hook Gear Haddock 

SAP 

Stock Current New Current New Current New 

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 49.1 9.8 11.2 

GOM Cod 103.3 na na 

GB Yellowtail flounder 25.9 6.5 na 

CC/GOM Yellowtail flounder 8.6 na na 

SNE/MA Yellowtail flounder 3.9 na na 

Pollock 291.9 16.2 16.2 

Witch flounder 18.6 na na 

GB Winter flounder 32.1 8.0 na 

White hake 47.5 na na 

GOM Winter flounder 19.0 na na 

6. 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 will also be proposing 

management measures for the entire 

fishery to reduce fishing mortality as 

described above and expects to 

implement measures for the entire FY 

2009, NMFS is including the 

specification of the TACs and other 

measures for the U.S./Canada 

Management Area in this proposed 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. The 

regulations governing the annual 

development of TACs were 

implemented by Amendment 13 to the 

FMP in order to be consistent with the 

U.S./Canada Resource Sharing 

Understanding (Understanding), which 

is an informal (i.e., non-binding) 

understanding between the Northeast 

Region of NMFS and the Maritimes 

Region of the Department of Fisheries 

and Ocean of Canada (DFO) that 

outlines a process for the management 

of the shared GB groundfish resources. 

The Understanding specifies an 

allocation of TAC for these three stocks 

for each country, based on a formula 

that considers historical catch 

percentages and current resource 

distribution. 

Annual TACs are determined through 

a process involving the Council, the 

Transboundary Management Guidance 

Committee (TMGC), and the U.S./ 

Canada Transboundary Resources 

Steering Committee. In September 2008, 

the TMGC approved the 2008 Guidance 

Document for Eastern GB cod, Eastern 

GB haddock, and GB yellowtail 

flounder, which included recommended 

U.S. TACs for these stocks. The 

recommended FY 2008 TACs were 

based upon the most recent stock 

assessments TRAC Status Reports for 

2008), and the fishing mortality strategy 

shared by both NMFS and DFO. The 

strategy is to maintain a low to neutral 

(less than 50–percent) risk of exceeding 

the fishing mortality limit reference 

(Fref = 0.18, 0.26, and 0.25 for cod, 

haddock, and yellowtail flounder, 

respectively). When stock conditions are 

poor, fishing mortality rates should be 

further reduced to promote rebuilding. 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2967 

The TMGC concluded that the most 

appropriate combined U.S./Canada TAC 

for Eastern GB cod for FY 2009 is 1,700 

mt. This corresponds to a low risk (less 

than 25- percent) of exceeding the Fref 

of 0.18 (i.e., Fmsy) in 2009. However, 

due to poor recruitment, there is a high 

risk (greater than 75–percent) that stock 

biomass will not increase from CY 2009 

to CY 2010. The annual allocation 

shares between countries for FY 2009 

are based on a combination of historical 

catches (15–percent weighting) and 

resource distribution based on trawl 

surveys (85–percent weighting). 

Combining these factors entitles the 

United States to 31–percent of the 

shared TAC and Canada to 69- percent, 

resulting in a national quota of 527 mt 

for the United States and 1,173 mt for 

Canada. 

For Eastern GB haddock, the TMGC 

concluded that the most appropriate 

combined U.S./Canada TAC for FY 2009 

fishing year is 30,000 mt. This 

represents a low to neutral risk (greater 

than 25–percent but less than 50– 

percent) of exceeding the Fref of 0.26. 

Adult biomass is projected to peak at 

158,000 mt in CY 2008 (reflecting the 

recruitment and growth of the 

exceptional 2003 year class), and 

decline to 131,000 mt in 2010. The 

annual allocation shares between 

countries for FY 2009 are based on a 

combination of historical catches (15– 

percent weighting) and resource 

distribution based on trawl surveys (85– 

percent weighting). Combining these 

factors entitles the United States to 37– 

percent of the shared TAC and Canada 

to 63–percent, resulting in a national 

quota of 11,100 mt for the United States 

and 18,900 mt for Canada. 

For GB yellowtail flounder, the TMGC 

concluded that the most appropriate 

combined U.S./Canada TAC for the 

2009 fishing year is 2,100 mt. This 

corresponds to an F of 0.11, lower than 

the Fref of 0.25, and is consistent with 

the fishing mortality required to rebuild 

GB yellowtail flounder by 2014. With a 

catch of 2,100 mt in 2009, the age 3+ 

biomass is expected to increase by about 

21–percent. The annual allocation 

shares between countries for 2008 are 

based on a combination of historical 

catches (15–percent weighting) and 

resource distribution based on trawl 

surveys (85–percent weighting). 

Combining these factors entitles the U.S. 

to 77–percent of the shared TAC and 

Canada to 23–percent, resulting in a 

national quota of 1,617 mt for the U.S. 

and 483 mt for Canada. 

On October 8, 2009, the Council 

approved, consistent with the 2008 

Guidance Document, the following U.S./ 

TACs recommended by the TMGC: 527 

mt of Eastern GB cod; 11,100 mt of 

Eastern GB haddock; and 1,617 mt of GB 

yellowtail flounder. The proposed 2009 

fishing year TACs for the U.S./Canada 

Management Area represent a decrease 

for cod and yellowtail flounder, and an 

increase for haddock compared with 

those specified for the 2008 fishing year 

(Tables 7 and 8). 

TABLE 7. 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%) 

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

TABLE 8. 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 2007 TAC 

The 2009 TACs are based upon stock 

assessments conducted in June 2008 by 

the TRAC. The proposed TACs are 

consistent with the results of the TRAC 

and the TMGC’s harvest strategy, as well 

as the GB yellowtail flounder rebuilding 

plan implemented by FW 42. 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 would 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 proposing, 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 

proposing this same measure for FY 

2009. Thus, the FY 2009 opening of the 

Eastern U.S./Canada Area for trawl 

vessels would be postponed from May 

1, 2009, until August 1, 2009, while 

allowing more selective longline gear 

access during May through July. Such 

vessels would be limited to a cod catch 

of 5–percent of the cod TAC, or 26.4 mt 

of cod. The objective of the proposed 

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 proposing implementation of 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 


hsrobinson on PROD1PC76 with PROPOSALS
2968 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

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 would be an appropriate trip 

limit to allow harvesting of the TAC and 

increase the likelihood that further 

restrictions will not be necessary during 

the fishing year to slow the catch rate. 

Third, the Regional Administrator is 

proposing to allow the use of the Ruhle 

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

Under current regulations, only a 

flounder net and the haddock separator 

trawl are permanently authorized for 

such use. The 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 would provide 

another alternative for trawl vessel 

operators and, therefore, provide 

additional flexibility. As detailed in the 

July 14, 2008 rule, the Ruhle trawl has 

been demonstrated to substantially 

reduce catch of many species of 

groundfish, and therefore its use would 

be consistent with the management 

objectives for the Eastern U.S./Canada 

Area. 

Lastly, the Regional Administrator is 

proposing zero trips into the Closed 

Area (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 SAP. The 

Regional Administrator has the 

authority to determine the allocation of 

the total number of trips into the CA II 

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). 

7. Haddock TAC for CA I Hook Gear 

Haddock SAP 

Under this action, a haddock TAC for 

the CA I Hook Gear Haddock SAP 

would be specified 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), and 

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 as 35–percent of the 

size of the total GB haddock stock. 

Therefore, if the 2007 exploitable 

biomass of haddock is 321,870 mt, the 

formula and resultant TAC would be as 

follows: ((.35)(321,870)/35,317) x 1,130 

= 3,604.5 mt. 

8. Elimination of the SNE/MA Winter 

Flounder SAP 

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 fishing mortality to as close to 

zero as practicable, this SAP would be 

eliminated. Because the SAP could 

enable limited targeting of winter 

flounder, elimination of the SAP may 

prevent some catch of winter flounder 

from occurring. 

9. Elimination of the State Waters 

Winter Flounder Exemption 

The State Waters Winter Flounder 

Exemption currently 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 fishing 

mortality to as close to zero as 

practicable, this SAP would be 

eliminated. Because the SAP could 

enable limited targeting of winter 

flounder, elimination of the SAP may 

prevent some catch of winter flounder 

from occurring. 

10. Mitigating Measures 

Reduction of Haddock Minimum Size. 

Under this interim action, the haddock 

minimum size would be 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 would allow 

vessels to retain additional haddock, 

thereby increasing yield for this species. 

Other recreational measures are 

described under item 11. 

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, 

would be extended through this 

proposed 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’’ that is not otherwise 

accessible. The geographic area would 

remain unchanged, and the rules that 

apply would remain unchanged, with 

the exception of the reallocation of the 

incidental catch TACs (see Table 5). 

When fishing in this SAP, vessels 

must currently 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 are required 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, 

provided the Program requirements 

designed to minimize impacts of stocks 


hsrobinson on PROD1PC76 with PROPOSALS
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2969 

of concern are met. Under this proposed 

rule, in addition to the modifications 

proposed under item 5 (Revisions to 

Incidental Catch TACs and Allocations 

to Special Management Programs), 

several revisions would be made to the 

Regular B DAS Program in order to 

address the current status of stocks and 

necessary reductions to fishing 

mortality, 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 item 5, 

NMFS would closely monitor the level 

of discarding of stocks that are proposed 

to have zero retention, but for which 

there is no incidental TAC proposed 

(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 

incidental catch TAC that remains 

uncaught from quarters one, two, and 

three would roll over into the 

subsequent quarter. 

Due to the number of flatfish stocks 

that need reductions in fishing 

mortality, the use of low profile (tiedown) gillnets under this interim action 

would be 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 bottomset 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 would be prohibited under 

this Program. The use of gillnet gear to 

catch haddock would still be 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 

are prohibited in the pertinent stock 

area for the duration of the quarter. This 

proposed interim rule would treat 

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 has been harvested, vessels 

fishing under a Regular B DAS would 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 would be 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 proposed rule, the current 

prohibition on leasing DAS between 

sector and common pool vessels would 

be 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 vessels 

may lease would be 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 would be removed in order to 

increase flexibility and efficiency in the 

DAS leasing market. These mitigation 

measures, including the DAS Transfer 

Program modifications described below, 

would also enhance the likelihood of 

compliance with the measures by 

providing additional fishing 

opportunities. 

DAS Transfer Program Modifications. 

Under this proposed rule, the DAS 

conservation tax would be removed 

from the DAS Transfer Program. 

Specifically, the mandatory reduction of 

Category A and B DAS (20 percent), and 

Category C DAS (90 percent), would 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 

proposing 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) 

would limit the amount of any effect the 

change may have on increasing the 

overall DAS use rate. NMFS is not 

proposing a DAS tax refund, because it 

would be counter to the regulations that 

have been in place. 

11. Recreational Measures 

This action proposes to reduce 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. Following are the 

recreational measures proposed under 

this action: The current seasonal 

prohibition on the possession of GOM 

cod for both private recreational and 

charter/party vessels would be extended 

from its current duration of November 

through March, to November through 

April 15. Secondly, this action would 

implement a GB cod trip limit of 10 cod 

per person per day for charter/party 

vessels, consistent with the GB cod trip 

limit for private recreational vessels. 

Retention of winter flounder caught in 

the SNE/MA stock area would be 

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 could 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 would be reduced to 18–inches 

(45.7–cm). 

12. Council’s Recommended Measures 

for Interim Action Considered, but 

Rejected 

At it’s September 4, 2008, meeting, 

the Council recommended that NMFS 

implement an interim action for the 

duration of FY 2009 and proposed 

specific management measures. The 

Council’s alternative proposed an 18– 

percent default DAS reduction; and 

target TACs for GB yellowtail flounder, 

SNE/MA yellowtail flounder, CC/GOM 

yellowtail flounder, American plaice, 

witch flounder, GB winter flounder, 

GOM winter flounder, redfish, white 

hake, pollock, GB cod, and GOM cod. 

The Council’s proposed TACs were 

those associated with Frebuild for all 


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stocks except for the two cod stocks, 

which would be the TACs associated 

with Fmsy, and the TAC for SNE/MA 

winter flounder, which would be lower 

than that associated with Fmsy. The 

Council’s proposal also included a 

5,000–lb (2,268–kg) trip limit for SNE/ 

MA winter flounder, and a 1,000–lb 

(454–kg)/DAS and 5,000–lb (2,268–kg)/ 

trip limit for witch flounder. TAC 

overharvests in FY 2009 would be 

deducted from the FY 2010 TACs, and 

sectors would not be held responsible 

for FY 2009 over-harvests that they were 

not responsible for. Amendment 16 was 

proposed as the means by which the FY 

2009 TAC overharvests would be 

reconciled in FY 2010. 

In addition, the Council 

recommended mitigation measures, as 

follows: An 18–inch (45–cm) haddock 

minimum fish size; extension of the 

Eastern U.S./Canada Haddock SAP; 

expansion of the CA I Hook Gear 

Haddock SAP; removal of the DAS 

Transfer Program’s conservation tax; 

and removal of the restriction that 

prohibits sector members from leasing 

to and from common pool vessels. 

Although, for some stocks, the 

appropriate amount of catches in FY 

2009 (i.e., the projected TACs associated 

with Fmsy or F rebuild) would be 

similar to or larger than recent catch 

levels, because of the large fishing 

mortality reductions necessary to end 

overfishing NMFS has determined that 

the Council’s recommended measures to 

reduce fishing mortality are insufficient 

to meet NMFS’ objectives. 

To estimate the amount of fishing 

mortality that can be expected from a 

given allocation of DAS, NMFS utilizes 

the Closed Area Model (CAM), which 

incorporates multiple factors, and 

provides indications of relative changes 

in fishing exploitation. NMFS could not 

adopt the Council’s alternative because 

CAM analyses of a similar alternative 

(i.e., the no action alternative), indicated 

that fishing mortality reductions would 

be insufficient for a number of stocks (7 

of 11 requiring fishing mortality 

reductions). Even if the trip limits 

associated with the Council’s alternative 

achieved the witch flounder objective, 

the fishing mortality associated with six 

stocks would have been excessive. 

Further, deductions of TAC 

overharvests in the subsequent fishing 

year would compound the challenge of 

rebuilding stocks (depending upon the 

biomass trend, stock structure, and 

recruitment) in the time required by the 

Magnuson-Stevens Act and the FMP. 

Finally, an interim action cannot 

implement measures that would go into 

place in a subsequent fishing year, such 

as a TAC deduction for over-harvest that 

could occur in 2009, because of the 

statutory limitations on its duration. 

NMFS explored whether the Council’s 

recommended measures could be 

modified to meet the objectives of the 

interim action, and developed a hard 

TAC alternative in order to reduce the 

risk that appropriate catch levels would 

be exceeded. As detailed in the EA 

developed for this proposed action, 

NMFS ultimately rejected the hard TAC 

alternative for two principal reasons: 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, thereby causing 

severe economic costs to the industry; 

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 to successfully implement 

in the short period of an interim action 

and possibly inconsistent with 

Magnuson-Stevens Act National 

Standards and required provisions. 

This proposed interim action would 

adopt the following mitigation measures 

proposed by the Council: Extension of 

the Eastern U.S./Canada Haddock SAP; 

revision of the DAS Leasing Program; 

revision of the DAS Transfer Program; 

and reduction of the haddock minimum 

size limit. 

NMFS considered but rejected the 

Council’s Amendment 16 proposed 

mitigating measures that would modify 

the CA I Hook Gear Haddock SAP, and 

the extension of the CA II Yellowtail 

Flounder SAP to include haddock. The 

Amendment 16 proposal to modify the 

CA I Hook Gear Haddock SAP would 

expand the geographic and temporal 

scope of the SAP. The expansion of the 

CA I Hook Gear Haddock SAP is not 

supported by relevant research. The 

data relied upon for the approval of the 

CA I Hook Gear Haddock SAP in FW 

40A were from the months of October 

through December. These data 

supported the determination that the 

SAP would have minimal impacts on 

stocks of concern (notably cod). In 

contrast, the SAP, as expected to be 

proposed in Amendment 16, would be 

open for a 9-month period from May 

through January. NMFS is unaware of 

pertinent research that would support 

the conclusion that the expansion 

would have minimal impacts on stocks 

of concern. Although the expansion of 

the SAP may provide some mitigating 

effect for some members of the fishery, 

only one gear type would be affected 

and the measures would represent an 

expansion of effort into a closed area. 

Such an expansion may not be fully 

consistent with the intent of this action. 

Similarly, the Council’s proposal for 

the CA II Yellowtail Flounder SAP, 

which would allow targeting of either 

haddock or yellowtail flounder in this 

area, would represent a major 

modification to this SAP. NMFS is 

unaware of pertinent research that 

would support the conclusion that the 

expansion would have minimal impacts 

on stocks of concern. Therefore, the 

Council’s proposed SAP modification 

may have potential adverse impacts on 

stocks of concern, and could undermine 

the utility of CA II. 

Classification 

Because this action is a proposed rule, 

at this time, NMFS has not made a final 

determination that the interim measures 

that this proposed rule would 

implement are consistent with the 

national standards of the MagnusonStevens Act and other applicable laws. 

NMFS, in making this final 

determination, will take into account 

the data, views, and comments received 

during the comment period. 

This proposed rule has been 

determined to be significant for the 

purposes of Executive Order (E.O.) 

12866. 

This proposed rule does not contain 

policies with Federalism or ‘‘takings’’ 

implications as those terms are defined 

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

respectively. This proposed rule does 

not contain any new recordkeeping or 

reporting requirements. 

NMFS prepared an IRFA as required 

by section 603 of the Regulatory 

Flexibility Act (RFA). The IRFA 

describes the economic impact this 

proposed rule, if adopted, would have 

on small entities. A description of the 

action, why it is being considered, and 

the legal basis for this action are 

contained in the preamble to this 

proposed rule and in the Executive 

Summary and Background (Section 3.0) 

of the EA prepared for this action. 

As described above, this action is 

necessary to comply with the fish stock 

rebuilding requirements of the FMP and 

the Magnuson-Stevens Act. In response 

to new scientific information, this 

action would reduce fishing mortality 

on all groundfish stocks and provide 

flexibility to the fishing industry to 

adapt to the new regulations and help 

mitigate negative economic impacts. 

The principal goal of this interim action 

is to eliminate or reduce overfishing and 

achieve the rebuilding fishing mortality 

rates to the extent practicable for an 

interim period, while the Council 

develops more comprehensive, 

permanent measures. The Preferred 

Alternative would achieve an 

appropriate balance of short-term costs 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2971 

and benefits that would strictly 

maintain adherence to rebuilding plans 

for most stocks, and reduce fishing 

mortality to Fmsy or below for all stocks 

except northern windowpane flounder. 

NMFS fully analyzed and considered 

three principal alternatives (plus the No 

Action Alternative), and considered, but 

did not fully analyze, several additional 

alternatives characterized as considered 

but rejected. Alternative 1 relies upon 

an 18–percent DAS reduction combined 

with two different configurations of 

differential DAS areas; Alternative 2 is 

based upon a 40–percent DAS 

reduction; and Alternative 3, the 

Preferred Alternative relies on an 18– 

percent DAS reduction and one large 

differential DAS area. Fishing mortality 

reductions for all three alternatives 

include management measures for the 

commercial and recreational portions of 

the fishery. The No Action Alternative 

consists of the management measures 

currently in effect for the FMP, as well 

as the May 1, 2009, default measures 

specified under Amendment 13. Under 

the default measures, Category A DAS 

would be reduced by approximately 18– 

percent, and all other management 

measures would remain the same. 

Under all alternatives (except the No 

Action Alternative) the trip limit for 

white hake would be modified from 

1,000–lb (454- kg) per DAS, to 2,000–lb 

(907–kg) per DAS (with the maximum 

per trip remaining at 10,000–lb (4,536– 

kg)); the current trip limit of 5,000–lb 

(2,268–kg)/trip for GB winter flounder 

would be removed; and the retention of 

ocean pout, SNE winter flounder, and 

the northern stock of windowpane 

flounder would be prohibited. Also, 

under all alternatives, a SNE Closure 

Area is being proposed to protect SNE 

winter flounder. Furthermore, the two 

current regulatory programs that allow 

vessels to retain winter flounder (that 

would otherwise be prohibited from 

retaining winter flounder) would be 

eliminated, i.e., the SNE Winter 

Flounder SAP and the State Waters 

Winter Flounder Exemption. 

The following measures for the 

recreational sector would be 

implemented under the Preferred 

Alternative, as well as the other two 

principal alternatives considered: The 

current seasonal prohibition on the 

retention of GOM cod (for both private 

recreational vessels fishing in the EEZ 

and federally permitted party/charter 

vessels) would be lengthened by 2 

weeks, with the resulting seasonal 

closure of November through April 15; 

persons fishing on federally permitted 

party/charter vessels would be 

prohibited from possessing more than 

10 cod per day (caught anywhere), a 

more restrictive limit than the current 

limit of 10 cod per day when fishing 

only in the GOM; and private 

recreational vessels fishing in the EEZ 

and federally permitted party/charter 

vessels would not be allowed to retain 

SNE winter flounder. 

In addition, the following mitigation 

measures would be implemented under 

the proposed rule and other alternatives 

considered: The DAS Transfer Program 

would be modified to remove the DAS 

tax on transferred DAS; the Eastern 

U.S./Canada Haddock SAP, which is 

scheduled to expire, would be renewed; 

the DAS Leasing Program rules would 

be modified to remove the cap on the 

number of DAS that can be leased and 

to allow leasing between sector and 

common pool vessels; the minimum 

size for haddock would be reduced from 

19 inches (47.5 cm) to 18 inches (45 cm) 

for both the recreational and 

commercial fisheries; and modifications 

would be made to the Regular B DAS 

Program, including roll-over of quarterly 

incidental catch TACs. A more detailed 

description of the proposed and other 

two principal alternatives analyzed and 

considered may be found in the 

preamble of this proposed rule and in 

the EA, respectively. 

Description of and Estimate of the 

Number of Small Entities to Which the 

Proposed 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. 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 his proposed 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. 

Economic Impacts of the Proposed 

Action 

The Preferred Alternative contains 

several different measures that may 

affect regulated vessels holding either 

an open access or limited access NE 

multispecies permit. During FY 2007, 

there were a total of 1,292 commercial 

open access permits (Handgear B) and a 

total of 1,530 limited access permits 

issued. Of these permits, 664 limited 

access permit holders and 123 open 

access permit holders participated in 

the groundfish fishery during FY 2007. 

The principal proposed management 

measures include a reduction in DAS; 

specification of differential DAS in the 

entire GOM, as well as a portion of GB; 

a SNE Closure Area; and modifications 

to trip limits. Because of statutory and 

regulatory requirements to meet certain 

conservation objectives, the overall 

short term economic impact of the 

proposed action and any alternative 

considered would be negative. 

Region-wide, the impact on revenue 

received on trips where groundfish were 

landed was estimated to fall by 31 

percent, while sales of all species was 

estimated to be reduced by 20 percent 

(from $156 million to $126 million). 

Among individual vessels, a small 

number of regulated entities, primarily 

from NJ, may be able to increase sales 

due to the location of the SNE Closure 

Area relative to taking no action (i.e., 

the SNE Differential DAS Area would 

remain in place under the No Action 

Alternative). That is, fishing 

opportunities in the area that would 

now be opened to these vessels would 

more than offset the changes in trip 

limits and DAS reduction. However, for 

the overwhelming majority of regulated 

small entities, the economic impacts 

would be negative. The impact on total 

revenue would vary depending on a 

port’s dependence on groundfish, with 

the greatest reductions for ME and MA 

(34 percent and 27 percent, 

respectively). For vessels that fish 

exclusively in the GOM, the 2:1 

differential DAS counting, coupled with 

the default 18–percent reduction in 

DAS, is equivalent to a 36–percent 

reduction in DAS. For vessels with a 

low dependence on groundfish, even 

this reduction in DAS may not result in 

a large reduction in total catch. The 

combination of where vessels fish, and 

higher dependence on groundfish trip 


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income, results in the highest impacts 

on fishing revenue. 

The estimated reduction in total 

revenue to NH and CT home port 

vessels was 16 percent, and 17 percent, 

respectively. For the other states, the 

expected reduction ranged from 6 

percent in NY to 8 percent in RI. 

In relative terms, the proposed 

measures would have similar impacts 

among vessels of different sizes. Among 

the most affected vessels (the 20 percent 

that would experience the greatest 

impacts), the adverse impact on small 

vessels was less (39 percent) than for 

either medium or large vessels. For 

those vessels least affected by the 

Preferred Alternative, with respect to 

impacts by primary fishing gear, the 

reduction in total revenue was similar 

for vessels using gillnet or trawl gear. 

However, for those vessels more highly 

impacted by the Preferred Alternative, 

trawl gear impacts were higher than for 

either gillnet or hook gear vessels. For 

trawl vessels, an average to above 

average level of severity of impacts 

would mean a 30 percent reduction in 

total revenue, whereas gillnet and hook 

gear vessels would experience a 19 

percent and 12 percent reduction, 

respectively. 

Although analyses of the anticipated 

impacts of past management actions and 

subsequent comparison with the 

realized impacts of such actions 

suggests that realized revenue losses 

have been lower than estimated, the 

proposed restrictions would make it 

more difficult for vessels to cover fixed 

costs on available groundfish trips and 

would place greater pressure on vessels 

to earn additional income from nongroundfish fishing opportunities. The 

proposed action would implement some 

mitigating measures, but not all vessels 

would be able to take advantage of these 

opportunities; some would still require 

financial outlays that may not be 

supportable, given the reduced fishing 

opportunities that would be available. 

The proposed measures would affect 

not only regulated entities engaged in 

commercial fishing for groundfish, but 

also entities that provide recreational 

fishing services to anglers. Available 

data indicate that, of the 92 federally 

permitted charter/party vessels that 

reported keeping cod, haddock, or 

winter flounder, approximately onethird would be adversely affected by 

one or more of the proposed measures, 

and about two-thirds of participating 

party/charter operators would not be 

adversely affected. Party/charter 

receipts may be expected to be reduced 

by approximately 6 percent. The impact 

of extending the closed season for 

recreationally caught GOM cod is 

difficult to predict due to the highly 

variable catch during the month of 

April. Reducing the size limit for 

haddock would increase the number of 

opportunities to keep haddock on all 

fishing trips. 

The overall economic impact of the 

FY 2009 U.S./Canada TACs would 

likely be similar or slightly negative, 

compared to the economic impacts of 

the TACs specified for FY 2008. The 

specification of the proposed U.S./ 

Canada TACs would result in a similar, 

or slightly reduced level of income from 

trips into the U.S./Canada Management 

Area. The FY 2009 cod and yellowtail 

flounder TACs would represent a 

decrease from the FY 2008 TAC levels. 

The changes in TAC reflect changes in 

stock size and the U.S. percentage share. 

The principal effort reduction 

measures may reduce monkfish fishing 

effort due to the requirement that 

limited access monkfish Category C and 

D vessels that also hold a NE 

multispecies DAS permit use a NE 

multispecies DAS in conjunction with a 

monkfish DAS. The proposed measures 

would particularly impact those vessels 

with relatively few multispecies DAS. 

Monkfish vessels with a Category C or 

D permit may experience revenue loss if 

they previously fished in the proposed 

SNE Closure Area and cannot catch a 

similar amount of monkfish from 

outside of this area. The current 

regulations that allow limited access 

monkfish Category C and D vessels with 

fewer allocated NE multispecies DAS 

than allocated monkfish DAS to fish the 

difference between these two 

allocations, as monkfish-only DAS 

would still apply and would help 

mitigate the impact of the proposed 

measures (in particular, the reduction in 

NE multispecies DAS and the SNE 

Closure Area) on monkfish fishing 

effort. 

The two primary skate fisheries, a 

wing fishery and a lobster bait fishery, 

are largely interwoven with the NE 

multispecies fishery. The regulations 

require that vessels must be fishing on 

a NE multispecies, monkfish, or scallop 

DAS, or fish in an exempted fishery, in 

order to possess skates. The vast 

majority of skate landings are landed on 

NE multispecies Category A DAS, and 

the DAS restrictions and SNE Closure 

Area of the Preferred Alternative would 

reduce fishing effort on skates. Thus, the 

proposed measures would have a 

negative economic impact on the skate 

fishery. The SNE Closure Area may have 

a greater negative impact on the skate 

bait fishery than the skate wing fishery, 

because the SNE Closure Area 

encompasses the bulk of the area fished 

in the skate bait fishery. If vessels were 

able to catch skate outside of the SNE 

Closure Area, the impacts would be 

mitigated. 

Economic Impact of Alternatives to the 

Proposed Action 

Under the No Action Alternative the 

estimated groundfish trip revenue 

would decline by 12.1 percent to $89 

million, and total fishing revenue would 

decline by 7.7 percent to $145 million. 

The relative reduction in groundfish trip 

revenue varied little by home port state 

ranging from 10.3 percent to 12.8 

percent. However, the change in total 

trip revenue varied among home port 

states primarily based on the relative 

contribution of groundfish trip revenue 

to total revenue. For example, total trip 

revenue declined by approximately 10 

percent in ME, NH, and MA, but 

declined by no more than 6 percent in 

any other state. The change in revenue 

for individual vessels depends upon 

DAS use rate, as well as dependence 

upon groundfish. Under No Action, any 

vessel whose current DAS use rate was 

low would be unaffected, since their 

allocated A DAS under No Action 

would still be greater than the DAS they 

used. In relative terms, the No Action 

alternative would have similar impacts 

among vessels of different sizes. Among 

primary gears, the relative distribution 

of adverse impact on total revenue was 

nearly identical for vessels using gillnet 

or trawl gear, and less for most hook 

vessels. 

Under Alternative 1 (inshore and 

offshore GOM differential DAS areas, 

with a relative high rate), the estimated 

groundfish trip revenue would decline 

by 28 percent to $72 million, and total 

fishing revenue would decline by 18 

percent to $129 million. Alternative 1 

would have an adverse impact on 477 

of the 509 vessels included in the 

analysis. With a few exceptions, 

Alternative 1 would have similar 

impacts among vessels of different sizes. 

Compared to all other states, adverse 

impact on fishing revenue for ME home 

port vessels was much higher for vessels 

up to the 20th percentile (12 percent), 

and was higher for vessels between the 

20th percentile and the median (21 

percent). At intervals above the median, 

the impacts on ME home port vessels 

were similar to those on MA home port 

vessels. Vessels with high dependence 

on groundfish trip revenue may be 

expected to be more adversely affected 

by Alternative 1 than less dependent 

vessels. 

Alternative 1 reduces fishing effort, 

and therefore reduces opportunities to 

catch and land skates. Compared to the 

No Action alternative, Alternative 1 

would have negative economic impacts 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2973 

on skate fishing vessels. The SNE 

Closure Area may have greater negative 

economic impacts on the skate bait 

fishery than on the skate wing fishery. 

Skate vessels potentially impacted by 

the SNE Closure Area may be able to 

mitigate some of their revenue losses by 

fishing in exempted fisheries. In general 

terms, Alternative 1 could have greater 

negative economic impacts on skate 

vessels than the other alternatives due 

to the 2.25:1 differential DAS area in the 

western GOM, where a great deal of 

skate fishing occurs. 

Under Alternative 1, the 18–percent 

DAS reduction may reduce monkfish 

fishing effort, due to the requirement 

that limited access monkfish Category C 

and D vessels that also hold a NE 

multispecies DAS permit use a NE 

multispecies DAS in conjunction with a 

monkfish DAS. However, the existing 

regulation that allows limited access 

monkfish Category C and D vessels with 

fewer allocated NE multispecies DAS 

than allocate monkfish DAS to use the 

difference between these two allocations 

as monkfish-only DAS will help 

mitigate such impact on monkfish 

fishing effort. The SNE year-round 

closure, although smaller in size than 

the SNE Differential DAS Area currently 

in effect, would likely impact inshore 

monkfish gillnet vessels that fish in this 

region, reducing monkfish fishing effort 

overall in this area with a subsequent 

negative economic impact to the 

monkfish fishery. The extent of this 

potential negative social and economic 

impact would depend on the number of 

limited access monkfish Category C and 

D vessels actively fishing in the 

statistical areas encompassed by the 

closure, how much monkfish is landed 

from these areas, and whether or not 

these vessels could move their fishing 

operations into an open area in an effort 

to mitigate the impacts of the closure. 

Under Alternative 2 (40–percent DAS 

reduction), the estimated groundfish 

trip revenue would decline by 33 

percent to $68 million and total fishing 

revenue would decline by 21 percent to 

$124 million. Reflecting the relatively 

larger share of groundfish trip income in 

total revenue, the expected reduction in 

total fishing revenue was estimated to 

be at least 25 percent in ME (27 

percent), and MA (27 percent). Across 

all vessels, gross revenues for only eight 

of the vessels included in the analysis 

would not change relative to status quo 

conditions, while for the remaining 

vessels the estimated reduction in total 

revenue ranged from 3 percent to 37 

percent. In relative terms, Alternative 2 

would have somewhat similar impacts 

among vessels of different sizes. Among 

primary gears the relative distribution of 

adverse impact on total revenue was 

similar for vessels using gillnet or trawl 

gear. The relative distribution of adverse 

impacts differed between states that 

border the GOM (ME, NH, and MA) and 

those that do not. Vessels with high 

dependence on groundfish trip revenue 

may be expected to be more adversely 

affected by Alternative 2 than less 

dependent vessels. 

Alternative 2 reduces fishing effort, 

and therefore reduces opportunities to 

catch and land skates. Compared to the 

No Action alternative, Alternative 2 

would be expected to have negative 

economic impacts on skate fishing 

vessels. The SNE Closure Area may 

have greater negative economic impacts 

on the skate bait fishery than on the 

skate wing fishery. Skate vessels 

potentially impacted by the SNE closure 

area may be able to mitigate some of 

their revenue losses by fishing in 

exempted fisheries. Alternatives 2 and 3 

are difficult to differentiate from an 

economic impact standpoint. 

Under Alternative 2, the 40–percent 

DAS reduction may reduce monkfish 

fishing effort due to the requirement 

that limited access monkfish Category C 

and D vessels that also hold a NE 

multispecies DAS permit use a NE 

multispecies DAS in conjunction with a 

monkfish DAS. However, the existing 

regulation that allows limited access 

monkfish Category C and D vessels with 

fewer allocated NE multispecies DAS 

than allocate monkfish DAS to use the 

difference between these two allocations 

as monkfish-only DAS will help 

mitigate such impact on monkfish 

fishing effort. The SNE year-round 

closure, although smaller in size than 

the SNE Differential DAS Area currently 

in effect, would likely impact inshore 

monkfish gillnet vessels that fish in this 

region, reducing monkfish fishing effort 

overall in this area with a subsequent 

negative economic impact to the 

monkfish fishery. The extent of this 

potential negative social and economic 

impact would depend on the number of 

limited access monkfish Category C and 

D vessels actively fishing in the 

statistical areas encompassed by the 

closure, how much monkfish is landed 

from these areas, and whether or not 

these vessels could move their fishing 

operations into an open area in an effort 

to mitigate the impacts of the closure. 

List of Subjects in 50 CFR part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: January 9, 2009 

Samuel D. Rauch III, 

Deputy Assistant Administrator For 

RegulatoryPrograms, National Marine 

Fisheries Service. 

For the reasons stated in the 

preamble, 50 CFR part 648 is proposed 

to be amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.2, a new definition for 

‘‘low profile gillnet’’ is added, in 

alphabetical order, to read as follows: 

§ 648.2 Definitions. 

* * * * * 

Low profile gillnet, with respect to the 

NE multispecies fishery, means a 

bottom-set gillnet with reduced vertical 

height achieved by tying the floatline to 

the leadline or by modifying the 

construction of the floatline, or through 

other means, to reduce or eliminate its 

buoyancy. 

* * * * * 

3. In § 648.10, paragraph (b)(5) is 

suspended, and paragraph (b)(6) is 

added to read as follows: 

§ 648.10 DAS and VMS notification 

requirements. 

* * * * * 

(b) * * * 

(6) VMS notification requirements for 

other fisheries. Unless otherwise 

specified in this part, or via letters sent 

to affected permit holders under 

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

owner or authorized representative of a 

vessel that is required to use VMS, as 

specified in paragraph (b)(1) of this 

section, must notify the Regional 

Administrator of the vessel’s intended 

fishing activity by entering the 

appropriate VMS code prior to leaving 

port at the start of each fishing trip. 

Notification of a vessel’s intended 

fishing activity includes, but is not 

limited to, gear and DAS type to be 

used; area to be fished; and whether the 

vessel will be declared out of the DAS 

fishery, or will participate in the NE 

multispecies and monkfish DAS 

fisheries, including approved special 

management programs. A vessel cannot 

change any aspect of its VMS activity 

code outside of port, except that a NE 

multispecies vessel is authorized to 

change the category of DAS used (i.e., 

flip its DAS), as provided at § 648.85(b), 

or change the area declared to be fished 

so that the vessel may fish both inside 

and outside of the Eastern U.S./Canada 

Area on the same trip, as provided 


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at§ 648.85(a)(3)(viii)(A). VMS activity 

codes and declaration instructions are 

available from the Regional 

Administrator upon request. 

* * * * * 

4. 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 (60), 

(62) through (66), (70), (76), (81) through 

(83), and (85) through (89) are 

suspended. 

C. Paragraphs (g)(4) and (5) are 

suspended. 

D. Paragraphs (a)(183) through (192), 

(c)(90) through (122), and (g)(6) and (7) 

are added. 

The additions read as follows: 

§ 648.14 Prohibitions. 

* * * * * 

(a) * * * 

(183) Enter, or be on a fishing vessel 

with a NE multispecies permit in the 

area described in § 648.81(n), except as 

provided for in § 648.81(n). 

(184) Fish for, harvest, possess, or 

land regulated species in or from the 

closed area specified in § 648.81(n), 

unless otherwise allowed under 

§ 648.81(n). 

(185) 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). 

(186) 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). 

(187) 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). 

(188) 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). 

(189) If fishing inside the Eastern 

U.S./Canada Area and in possession of 

fish in excess of what is allowed under 

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). 

(190) 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 a trip. 

(191) 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 

§ 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). 

(192) 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), (g), (h), and 

(l), 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) If fishing under the party/charter 

or private recreational regulations in the 

SNE Closure Area defined under 

§ 648.81(n)(1), fish for or retain winter 

flounder. 

(99) 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). 

(100) 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. 

(101) 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). 

(102) If fishing in the Regular B DAS 

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

to comply with the VMS requirement 

specified in § 648.85(b)(6)(iv)(A). 

(103) 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). 

(104) If fishing in the Regular B DAS 

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


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to comply with the VMS declaration 

requirement specified in 

§ 648.85(b)(10)(iv)(C). 

(105) 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). 

(106) 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). 

(107) 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). 

(108) 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). 

(109) 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). 

(110) 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). 

(111) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

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

DAS use restrictions specified in 

§ 648.85(b)(7)(iv)(J), and (b)(7)(v)(A) or 

(b)(7)(vi)(A), whichever is applicable. 

(112) If fishing in the CA I Hook Gear 

Haddock SAP specified in 

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

reporting requirement specified in 

§ 648.85(b)(7)(v)(F) or (b)(7)(vi)(D), 

whichever is applicable. 

(113) 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). 

(114) If fishing under a NE 

multispecies Category A DAS in the 

Interim Differential DAS Area, defined 

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

into the area through VMS as required 

under § 648.82(e)(4)(ii). 

(115) If fishing under a NE 

multispecies Category A DAS in the 

Interim Differential DAS Area 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. 

(116) Possess or land more white hake 

than allowed under § 648.86(m). 

(117) Retain or land zero retention 

stocks as specified under § 648.86(n). 

(118) 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). 

(119) 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. 

(120) 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). 

(121) 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). 

(122) 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). 

* * * * * 

(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] 

5. In § 648.80, paragraph (i) is 

suspended. 

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

is suspended, and paragraphs 

(b)(2)(iv)(C) and (n) are 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). 

* * * * * 

(n) Southern New England (SNE) 

Closure Area. (1) No fishing vessel, or 

person on such vessel, may enter, fish 

in, or be in; and no fishing gear capable 

of catching NE multispecies, unless 

otherwise allowed in this part, may be 

in, or on board a vessel, in the area 

known as the SNE Closure Area, as 

defined by straight lines connecting the 

following points in the order stated, 

except as specified in paragraphs (n)(2) 

and (3) of this section (a chart depicting 

this area is available from the Regional 

Administrator upon request). 

SNE CLOSURE AREA

Point N. lat. W. long. 

SNECA1 (1) 70°00’ 

SNECA2 41°30’ 70°00’ 

SNECA3 41°30’ 68°30’ 

SNECA4 40°30’ 68°30’ 

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. 

(2) Paragraph (n)(1) of this section 

does not apply to persons on fishing 

vessels or fishing vessels: 

(i) Fishing with exempted gear, as 

defined in this part, or under the 

exemptions specified in 

§ 648.80(b)(2)(vi) and (b)(3); 

(ii) Fishing with hook gear, provided 

that no gear other than hook gear is on 

board, and the vessel abides by the NE 

multispecies possession restrictions 

under § 648.86; or 

(iii) Fishing under the charter/party or 

private recreational regulations, 

provided that vessel abides by the 

recreational restrictions under § 648.89, 

and: 

(A) With the except of tuna, fish 

harvested or possessed by the vessel are 

not sold or intended for trade, barter or 

sale, regardless of where the regulated 

species are caught; and 

(B) The vessel has no gear other than 

rod and reel or handline on board. 

(3) NE multispecies permitted vessels 

possessing NE multispecies on board 

the vessel and transiting through the 

SNE Closure Area, provided gear other 

than hook gear is stowed in accordance 

with § 648.23(b). 

7. 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. 


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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 

the Interim Differential DAS Area, as 

defined in paragraph (e)(4)(i) 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) Interim Differential DAS Area. The 

Interim Differential DAS Area is defined 

as that area bounded on the west by the 

coast of Massachusetts, New Hampshire, 

and Maine, on the east by the U.S.- 

Canada maritime boundary, and by 

straight lines connecting the following 

points in the order stated (a chart 

depicting this area is available from the 

Regional Administrator upon request): 

Point N. lat. W. long. 

ID10 41°30’ 66°35’(1) 

ID8 41°30’ 70°00’ 

ID9 (2) 70°00’ 

(1) The U.S.-Canada Maritime Boundary. 

(2) The intersection of the Cape Cod, Massachusetts, shoreline and 70°00’ W. long. 

(ii) Declaration. A NE multispecies 

DAS vessel that intends to fish, or fishes 

under a Category A DAS in the Interim 

Differential DAS Area, as 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 Interim Differential DAS 

Area. A DAS vessel that fishes in the 

Eastern U.S./Canada Area and intends 

to fish, or fishes, subsequently in the 

Interim Differential DAS Area 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. For a 

NE multispecies DAS 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 

Interim 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 Interim 

Differential DAS Area. A vessel that has 

not declared its intent to fish in the 

Interim Differential DAS Area and that 

is not transiting, as specified in 

paragraph (e)(4)(v) of this section, may 

be in the Interim 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 Differential DAS 

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

(iv) Restrictions. A NE multispecies 

vessel fishing under a Category A DAS 

in the Interim Differential DAS Area 

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 

the Interim Differential DAS Area, 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 the 

Interim Differential DAS Area, defined 

in paragraph (e)(4)(i) 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 the 

Interim Differential DAS Area 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 vessel fishing in the Interim 

Differential DAS Area for 8 actual hr 

would be charged 16 hours of DAS, or 

if fishing for 5 actual hr, would be 

charged 15 hours of DAS. 

* * * * * 

8. In § 648.83, paragraph (a)(1) is 

suspended and paragraph (a)(3) is 

revised to read as follows: 

§ 648.83 Multispecies minimum fish sizes. 

(a) * * * 

(3) Minimum fish sizes for 

recreational vessels and charter/party 

vessels that are not fishing under a NE 

multispecis 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): 


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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) 

* * * * * 

9. 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), and (6); 

(b)(7)(iv)(A); (b)(7)(v)(D); (b)(7)(vi)(E); 

(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)(7)(iv)(J); 

(b)(7)(v)(F); and (b)(7)(vi)(G); 

(b)(8)(v)(E)(3); (b)(8)(v)(M); and (b)(9) 

and (10) 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 the Interim Differential DAS Area 

defined under § 648.82(e)(4)(i), it must 

declare its intent to fish in the Interim 

Differential DAS Area 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 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, 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, 


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2978 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

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) * * * 

(7) * * * 

(iv) * * * 

(J) 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 

Program described under paragraph 

(b)(10) of this section. DAS will be 

charged as described in § 648.10. 

(v) * * * 

(F) 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 cod, 

haddock, yellowtail flounder, winter 

flounder, witch flounder, pollock, 

windowpane flounder, 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 exit the SAP as 

required under paragraph (b)(7)(iv)(F) of 

this section. 

(vi) * * * 

(G) GB cod incidental catch TAC. The 

maximum amount of GB cod (landings 

and discards) that may be cumulatively 

caught by non-Sector vessels from the 

CA I Hook Gear Haddock Access Area 

in a fishing year is the amount specified 

under paragraph (b)(9)(ii) of this section. 

(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. 

(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 sent 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 


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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 

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 multipecies 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 (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 above) 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 

in the Interim Differential DAS area, 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 2. For example, if a vessel plans a 

trip under the Regular B DAS Program 

into the Interim 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)(4). 

(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 has projected to have been 

harvested, the use of Regular B DAS 

shall be prohibited in the pertinent 

stock area(s) as defined under paragraph 

(b)(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 (MayJuly), or when 1,000 Regular B DAS 


hsrobinson on PROD1PC76 with PROPOSALS
2980 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

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 

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 Administrator, Northeast Region): 

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 

+ 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- 

to16–inch (30- to 40–cm) rockhopper 

discs over any 10–ft (3.0–m) length of 

the sweep. The 12- to16- 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 


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smaller discs, no larger than 3.5 inches 

(8.8 cm) in diameter. 

(vii) Definition of incidental TAC 

stock areas. For the purposes of the 

Regular B DAS Program, including the 

stocks that may not be retained by 

vessels as specified under § 648.86, the 

species stock areas are defined below. 

Copies of a chart depicting these areas 

are available from the Regional 

Administrator upon request. 

(A) GOM cod stock area. The GOM 

cod stock area 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) 

CCGOM2 42°20’ 70°00’ 

CCGOM3 42°20’ 66°00’ 

CCGOM4 42°10’ 66°00’ 

CCGOM5 42°10’ 65°50’ 

CCGOM6 42°00’ 65°50’ 

CCGOM7 42°00’ 65°40’ 

CCGOM8 40°30’ 65°40’ 

CCGOM9 39°00’ 65°40’ 

CCGOM10 (2) 

CCGOM11 35°00’) (3) 

CCGOM12 35°00’) (4) 

CCGOM13 (3) 

1 Intersection with the New Hampshire 

coastline. 2 Intersection of the south-facing shoreline of 

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

of Cape Cod, Massachusetts. 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’ 

(1) South-facing shoreline of Connecticut. 

(2) North-facing shoreline of Long Island, 

New York. 

(3) South-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’ 

SNEW3 42°20’ 68°50’ 

SNEW4 39°50’ 68°50’ 

SNEW5 39°50’ 71°40’ 

SNEW6 39°00’ 71°40’ 

SNEW7 39°00’ 70°40’ 

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. 

(2) The 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°50’ 

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) 

(1) South-facing coastline of Cape Cod, MA. 

(2) Intersection of 39° 00’ N. Lat. and the 

boundary of the EEZ. 

(viii) 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 648.85, and any other 

relevant information, may, 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 


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difference in flipping rates between 

observed and unobserved trips; or 

insufficient observer coverage to 

adequately monitor the program. 

* * * * * 

10. In § 648.86, paragraphs (b), (e), 

and (j) are 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 the 

Interim Differential DAS Area under the 

restrictions of § 648.82(e)(4)(i), complies 

with the following: 

(A) For a vessel that is subject to the 

VMS provisions specified under 

§ 648.10(b), the vessel declares through 

VMS that insufficient DAS have elapsed 

in order to account for the amount of 

cod onboard and, after returning to port, 

does not depart from a dock or mooring 

in port, unless transiting as allowed 

under paragraph (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 

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 the 

Interim Differential DAS Area under the 

restrictions of § 648.82(e)(4)(i), complies 

with the following: 

(A) For a vessel that has been 

authorized by the Regional 

Administrator to utilize the DAS call-in 

system as specified under § 648.10(c), in 

lieu of VMS, the vessel does not call out 

of the DAS program as described under 

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

a dock or mooring in port, unless 

transiting, as allowed in paragraph (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 


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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)(ii), a NE multispecies 

DAS vessel that fishes or intends to fish 

south of the line described in this 

paragraph (l)(4), 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) 

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) White hake. Unless otherwise 

restricted under this part, a vessel 

issued a NE multispecies DAS permit, a 

limited access Handgear A permit, an 

open access Handgear B permit, or a 

monkfish limited access permit and 

fishing under the monkfish Category C 

or D permit provisions, may land up to 

2,000 lb (907.2 kg) of white hake per 

DAS, or any part of a DAS, up to 10,000 

lb (4,536 kg) per trip. (n) Zero retention stocks—(1) SNE 

winter flounder. Private recreational 

vessels fishing in the EEZ, and vessels 

issued a NE multispecies permit, may 

not fish for, possess, or land winter 

flounder caught in the SNE/MA winter 

flounder stock area, 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 would be subject to the most 

restrictive 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, 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) or § 648.89(f), as appropriate. 

Vessels fishing for windowpane 

flounder in multiple stock areas would 

be subject to the most restrictive 

possession limit. 

(3) Ocean pout. Vessels issued a NE 

multispecies permit may not fish for, 

possess or land ocean pout. 

11. 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 22in (58.4 cm) 

Haddock 18in (45.7 cm) 

Pollock 19in (48.3 cm) 

Witch flounder (gray 

sole) 

14in (35.6 cm) 

Yellowtail flounder 13in (33.0 cm) 

Atlantic halibut 36in (91.4 cm) 

American plaice 14in (35.6 cm) 

Winter flounder 

(blackback) 

12in (30.5 cm) 

Redfish 9in (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 fishing 

rods and any cod on board has been 

gutted and stored. 

* * * * * 

(5) Charter/party vessels. Charter/ 

party vessels fishing any part of a trip 

in the GOM Regulated Mesh Area, as 

defined in § 648.80(a)(1), 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 or 

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 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, posses, or land winter flounder. 

Recreational vessels in possession of 

winter flounder caught outside of the 


hsrobinson on PROD1PC76 with PROPOSALS
2984 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

SNE/MA winter flounder may transit 

this area, provided all bait and hooks 

are removed from fishing rods and any 

winter flounder on board has been 

stored. 

[FR Doc. E9–846 Filed 1–15–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080612764–8801–01] 

RIN 0648–AW94 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Groundfish Fisheries 

of the Bering Sea and Aleutian Islands 

Management Area and Gulf of Alaska, 

Seabird Avoidance Requirements 

Revisions for International Pacific 

Halibut Commission Regulatory Area 

4E 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS issues a proposed rule 

that would revise the seabird avoidance 

requirements for the hook–and–line 

groundfish and halibut fisheries in 

International Pacific Halibut 

Commission Area 4E. The proposed rule 

would eliminate seabird avoidance 

requirements for hook–and–line vessels 

less than or equal to 55 ft (16.8 m) 

length overall in portions of Area 4E in 

the eastern Bering Sea. This action is 

necessary to revise seabird avoidance 

measures based on the latest scientific 

information and to reduce unnecessary 

regulatory burdens and associated costs. 

DATES: Written comments must be 

received by February 17, 2009. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by 0648–AW94, 

by any one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal website at 

http://www.regulations.gov. 

• Mail: P. O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

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 

portable document file (pdf) formats 

only. 

Copies of the map of the seabird 

avoidance measures in Area 4E, and the 

Environmental Assessment/Regulatory 

Impact Review/Initial Regulatory 

Flexibility Analysis (EA/RIR/IRFA) for 

this action may be obtained from the 

Alaska Region NMFS address above or 

from the Alaska Region NMFS website 

at http://www.alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Melanie Brown, 907–586–7228. 

SUPPLEMENTARY INFORMATION: The 

groundfish fisheries in the exclusive 

economic zone (EEZ) off Alaska are 

managed under the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area and the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska (FMPs). The North 

Pacific Fishery Management Council 

(Council) prepared the FMPs under the 

authority of the Magnuson–Stevens 

Fishery Conservation and Management 

Act (Magnuson–Stevens Act), 16 U.S.C. 

1801, et seq. Regulations implementing 

the FMPs appear at 50 CFR part 679. 

General regulations governing U.S. 

fisheries also appear at 50 CFR part 600. 

Management of the Pacific halibut 

fisheries in and off Alaska is governed 

by an international agreement between 

Canada and the United States. This 

agreement, entitled the ‘‘Convention 

Between the United States of America 

and Canada for the Preservation of the 

Halibut Fishery of the Northern Pacific 

Ocean and Bering Sea’’ (Convention), 

was signed at Ottawa, Canada, on March 

2, 1953, and was amended by the 

‘‘Protocol Amending the Convention,’’ 

signed at Washington, D.C., March 29, 

1979. The Convention is implemented 

in the United States by the Northern 

Pacific Halibut Act of 1982 (Halibut 

Act). The directed commercial Pacific 

halibut fishery in Alaska is managed 

under an individual fishing quota (IFQ) 

program, as is the fixed gear sablefish 

fishery. The IFQ Program is a limited 

access management system. This 

program is codified at 50 CFR part 679. 

Background 

The purpose of this proposed action 

is to revise the seabird avoidance 

measures currently implemented for the 

hook–and–line groundfish and halibut 

fisheries based on the best available 

information regarding seabird 

occurrence and potential fishing vessel 

interactions. Seabird avoidance 

measures reduce the incidental 

mortality of seabirds in the hook–and– 

line fisheries off Alaska. Since 1997, 

NMFS has implemented and revised 

seabird avoidance measures to mitigate 

interactions between the federal hook– 

and–line fisheries and seabirds (62 FR 

23176, April 29, 1997; 63 FR 11161, 

March 6, 1998; 69 FR 1930, January 13, 

2004; and 72 FR 71601, December 18, 

2007). 

NMFS compiled seabird sightings 

data from the following sources: from 

1988–2004 records from seabird 

observers on the U.S. Fish and Wildlife 

Service’s (FWS) research vessel M/V 

TIGLAX; from incidental sightings by 

biologists, fishermen, seamen, fisheries 

observers, and birdwatchers provided to 

the FWS; from the International Pacific 

Halibut Commission (IPHC); from the 

Alaska Natural Heritage Program; from 

historical sightings documented in 

published literature; from satellite 

tagging data; and from the North Pacific 

Pelagic Seabird Database. The EA/RIR/ 

IRFA for this action describes this 

information (see ADDRESSES). This 

information showed that seabird species 

of concern are not likely to occur in 

portions of Area 4E where fishing 

vessels using hook–and–line gear may 

operate; and therefore, it is not likely 

that interactions between the fishing 

vessels and these seabird species of 

concern would occur in those portions 

of Area 4E. Thus, the Council 

recommended revisions to the seabird 

avoidance measures in a portion of Area 

4E. These revisions would eliminate 

seabird avoidance measures in the 

portion of Area 4E where seabird 

species of concern are not likely to 

occur. The revisions would apply to 

vessels greater than 26 ft (7.9 m) to less 

than or equal to 55 ft (16.8 m) length 

overall (LOA) fishing in the EEZ. 

Vessels less than or equal to 26 ft (7.9 

m) LOA are not required to use seabird 

avoidance measures. Vessels greater 

than 55 ft (16.8 m) LOA would continue 

to be required to use seabird avoidance 

measures in all of Area 4E. Vessels this 

size and larger are more likely to 

interact with other seabirds because of 

the greater amount of offal discharge 

and greater number of hooks fished 


hsrobinson on PROD1PC76 with PROPOSALS