[Federal Register Volume 68, Number 79 (Thursday, April 24, 2003)]
[Proposed Rules]
[Pages 20096-20109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10163]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. ; I.D. 032103B]
RIN 0648-AQ72


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed emergency rule; request for comments.

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SUMMARY: NMFS proposes an emergency rule under the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) to 
implement measures intended to reduce overfishing on species managed 
under the NE Multispecies Fishery

[[Page 20097]]

Management Plan (FMP). This proposed rule would continue measures 
specified in the Settlement Agreement Among Certain Parties (Settlement 
Agreement), which were implemented as ordered by the U.S. District 
Court for the District of Columbia (Court) in a Remedial Order issued 
on May 23, 2002 (Order). These measures include: a freeze on days-at-
sea (DAS) at the highest annual level used from fishing years 1996-2000 
and a 20-percent cut from that level; a freeze on the issuance of new 
open access Hand-gear permits; gear restrictions; modifications and 
additions to closure areas; and restrictions on yellowtail flounder 
catch. In addition, this rule would implement a NE Multispecies DAS 
Leasing Program (Program), which is being proposed to mitigate impacts 
of these measures and to provide flexibility to some segments of the 
fishing industry. NMFS and two of the plaintiffs filed a motion with 
the Court requesting an extension of the August 22, 2003, 
implementation schedule until May 1, 2004. The Court granted an 
extension of the Court-ordered timeline for Amendment implementation 
until May 1, 2004. This emergency action is necessary to ensure that 
the regulations governing the NE multispecies fishery continue to be in 
compliance with the Court's Order.

DATES: Comments must be received no later than 5 p.m., local time, on 
May 27, 2003.

ADDRESSES: Written comments on the proposed emergency rule should be 
sent to Patricia A. Kurkul, Regional Administrator, National Marine 
Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on the Proposed Emergency Rule for 
Groundfish.'' Comments also may be sent via facsimile (fax) to (978) 
281-9135. Comments will not be accepted if submitted via e-mail or 
Internet.
    Requirements should be sent to the Regional Administrator and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, Washington, DC 20503 (Attn: NOAA Desk Officer).
    Written comments regarding the proposed collection-of-information 
Copies of this proposed rule, including the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) are available upon request from the Regional Administrator. 
The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, 
phone: 978-281-9347, fax: 978-281-9135; email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 1, 2002, in response to the Order issued by the Court, 
NMFS published an interim final rule (67 FR 50292) that implemented 
management measures intended to reduce overfishing on species managed 
under the FMP and to implement the measures contained in the Settlement 
Agreement. Measures implemented on August 1, 2002, included: A freeze 
on DAS based on the highest annual level used from fishing years 1996-
2000 and reduced by 20-percent; a freeze on the issuance of new open 
access Hand-gear permits; increased gear restrictions for certain gear 
types, including gillnets, hook-gear and trawl nets; modifications and 
additions to the closure areas; and limits on yellowtail flounder 
catch.
    The Order specified that the management measures implemented by the 
August 1, 2002, interim rule must remain in effect until implementation 
of Amendment 13 to the FMP. Amendment 13 was initially scheduled to be 
in effect no later than August 22, 2003. However, due to the need for 
additional time to address unanticipated concerns related to NMFS' 
Northeast Fisheries Science Center's trawl survey and the new 
biological reference points developed for the NE multispecies stocks, 
NMFS and two of the plaintiffs filed a motion with the Court requesting 
an extension of the August 22, 2003, implementation schedule until May 
1, 2004. On December 4, 2002, the Court granted an extension of the 
Court-ordered timeline for Amendment 13 implementation until May 1, 
2004.
    On January 22, 2003, NMFS published a notice of continuation of 
regulations in the Federal Register to inform the public that NMFS was 
continuing the interim regulations for a second 180-day period (ending 
July 27, 2003). Under section 305(c)(3)(B) of the Magnuson-Stevens Act, 
interim regulations implemented under section 305(c) are limited to 
two, consecutive 180-day periods. The Court subsequently granted an 
extension of the original schedule for implementation of Amendment 13 
to May 1, 2004. However, because the Settlement Agreement specifies 
that the current management measures must remain in effect until 
Amendment 13 is implemented, and because the second 180-day period for 
the interim regulations expires on July 27, 2003, there is insufficient 
time to implement an action to continue the interim measures under the 
Magnuson-Stevens Act, except through the Secretary's emergency 
authority under section 305(c) of the Magnuson-Stevens Act.
    In addition to continuing the August 1, 2002, measures specified in 
the Settlement Agreement and Order, NMFS proposes to implement a DAS 
leasing program under its emergency action authority (305(c) of the 
Magnuson-Stevens Act and 62 FR 44421, August 21, 1997) in order to 
mitigate the potential harm resulting from the continuation of the 
August 1, 2002, interim final rule measures. This proposed emergency 
rule would implement a DAS Leasing Program that would allow limited 
access NE multispecies vessels to lease their NE multispecies DAS. This 
Program would alleviate some of the negative economic and social 
impacts resulting from the reduced DAS allocations that would be 
continued as a result of this proposed rule. The Program would be 
designed to maintain conservation neutrality, i.e., maintain groundfish 
fishing effort close to the level that would be fished under the 
current management measures in the absence of a DAS Leasing Program.

Management Measures

    This proposed rule would implement (i.e., continue) the following 
management measures, effective July 28, 2003, which are intended to 
reduce overfishing on all regulated species managed under the FMP, and 
to reduce the negative economic impact of the current DAS allocations.

Regulated Mesh Areas (RMAs)

    This proposed rule would continue the RMAs established by the 
August 1, 2002, interim rule for the Gulf of Maine (GOM), Georges Bank 
(GB), Southern New England (SNE) and Mid-Atlantic (MA) RMAs. The GOM 
RMA is the area north of the GOM cod exemption line, which is currently 
used to define the areas where the GOM cod and GB cod trip limits 
apply, and the GB RMA lies south of the GOM cod exemption line, and 
continues south to the EEZ for the areas east of 69[deg] 00' W. long. 
The SNE RMA would be defined as the area west of the GB RMA and east of 
a line beginning at the intersection of 74[deg] 00' W. long. and the 
south-facing shoreline of Long Island, NY, and running southward along 
the 74 00' W. long. line. The MA RMA would be defined as the area west 
of the SNE RMA. Specific management measures would apply, depending on 
the area fished. For the purposes of the exempted fishery programs 
already implemented under the FMP, the GOM/GB and SNE RMAs, as defined 
under Amendment 7 to the

[[Page 20098]]

FMP, would remain in effect and be referred to as ``Exemption 
Areas.

DAS Freeze

    This proposed rule would continue the DAS baseline that was 
established for each vessel by the August 1, 2002, interim rule, based 
on the permit history of that vessel. This baseline is as follows: The 
used DAS baseline for a limited access permit would be calculated based 
on the highest number of DAS that a vessel(s) fished during any single 
fishing year among the 1996 through 2000 fishing years, which includes 
the period May 1, 1996, through April 30, 2001, not to exceed the 
vessel's current DAS allocation in any given year. For any vessel where 
the calculation of the baseline DAS results in a net amount of DAS less 
than 10, that vessel would be allocated a used DAS baseline of 10 DAS. 
Because vessel owners were already provided an opportunity to correct 
any errors regarding their current DAS baselines (under the August 1, 
2002, interim rule), and the proposed DAS baseline would incorporate 
any corrections made, no additional opportunity to correct used DAS 
baseline allocations would be provided under this proposed rule.

DAS Effort Reduction

    The proposed emergency measures would result in DAS allocations for 
the 2003 fishing year consistent with the 20-percent DAS reductions 
that were implemented by the August 1, 2002, interim rule (i.e., the 
current DAS allocations). That is, for the 2003 fishing year, each 
vessel's DAS allocation would be equal to that vessel's used DAS 
baseline, minus 20 percent of that vessel's used DAS baseline. Assuming 
that these measures become effective July 28, 2003, each vessel's DAS 
remaining for the 2003 fishing year would equal that vessel's used DAS 
baseline, minus 20 percent of that vessel's used DAS baseline, minus 
any DAS that the vessel fished during the period May 1 through July 27, 
2003.

Freeze on Issuance of New Hand-gear Permits

    Under this proposed rule, vessels that have never been issued an 
open access NE multispecies Hand-gear permit would be prohibited from 
obtaining a Hand-gear permit for the duration of this action.

Prohibition on Front-loading the DAS Clock

    The term ``frontloading the DAS clock'' refers to the practice of 
vessel owners starting their DAS clock well in advance of the actual 
departure of the vessel. This proposed rule would continue the 
prohibition on frontloading. Under this prohibition, a vessel owner or 
authorized representative would be required to notify NMFS no earlier 
than 1 hour prior to the vessel leaving port to fish under the NE 
multispecies DAS program. A DAS would begin once the call has been 
received and a confirmation number is given. This measure would apply 
in all management areas.

Closed Area Additions/Modifications

    This proposed rule would continue the closure areas established 
under the August 1, 2002, interim rule for the Western Gulf of Maine 
(WGOM) Area Closure, the Rolling Closure Areas, the Cashes Ledge 
Closure Area, and the GB Seasonal Closure Area. Exemptions to the GOM 
rolling closure areas, WGOM, Cashes Ledge Closure Area, and GB Seasonal 
Closure Area would remain the same as established under the August 1, 
2002, interim rule. Charts of the proposed closure areas are available 
from the Regional Administrator upon request (see ADDRESSES).

Gear Restrictions

Trawl Vessels, When Fishing in the GOM, GB, or MA RMAs

    Under this proposed rule, vessels fishing with otter trawl gear, 
and fishing any part of a NE multispecies DAS trip in the GOM, GB, or 
MA RMAs, would be required to fish with a minimum 6.5-inch (16.5-cm) 
diamond or square mesh codend. This requirement would apply only to the 
codend of the net; the minimum mesh-size for the remaining portion of 
the net would be 6.0-inch (15.24-cm) diamond mesh or 6.5-inch (16.5-cm) 
square mesh, or any combination thereof. The codend would be defined as 
follows: 25 meshes for diamond mesh, or 50 bars in the case of square 
mesh, from the terminus of the net for vessels 45 ft (13.7 m) in length 
and less; and 50 meshes for diamond mesh, or 100 bars in the case of 
square mesh, from the terminus of the net for vessels greater than 45 
ft (13.7 m) in length.

Gillnet Vessels, When Fishing in the GOM RMA

    Under this proposed rule, limited access multispecies vessels that 
obtain an annual designation as a Trip gillnet vessel, when fishing in 
the GOM RMA during any part of a trip under a multispecies DAS, would 
be required to fish with nets with a minimum of 6.5-inch (16.5-cm) mesh 
and would be restricted to 150 nets, with one tag fixed to each net. 
Multispecies vessels that obtain an annual designation as a Day gillnet 
vessel would be allowed to fish up to 100 nets, provided that, when 
fishing any part of a trip under a NE multispecies DAS in the GOM RMA, 
the vessel complies with the following specifications: When fishing 
with flatfish nets, vessels could fish no more than 100 nets, with a 
minimum mesh size of 7 inches (17.8 cm), with one tag affixed to each 
net; when fishing with roundfish nets, vessels would be restricted to 
fishing during July through February, and would be allowed to fish no 
more than 50 nets, with a minimum mesh size of 6.5 inches (16.5 cm), 
with two tags affixed to each net. Any tag not affixed to a net would 
have to be retained on the vessel and be immediately available for 
inspection.

Gillnet Vessels, When Fishing in the GB RMA

    Under this proposed rule, limited access NE multispecies vessels 
that fish under a NE multispecies DAS with gillnet gear in the GB RMA 
at any time throughout the fishing year would be required to declare 
into the Day or Trip gillnet category. Vessels fishing under either the 
Day or Trip gillnet category in the GB RMA during any part of a trip 
under a NE multispecies DAS would be required to fish with nets with a 
minimum of 6.5-inch (16.5-cm) mesh and would be restricted from fishing 
more than 50 nets, with two tags fixed to each net.

Trawl Vessels, When Fishing in the SNE RMA

    Under this proposed rule, when fishing any part of a NE 
multispecies DAS in the SNE RMA, otter trawl vessels would be required 
to fish with a minimum 7.0-inch (17.8-cm) diamond or 6.5-inch (16.5-cm) 
square mesh codend. This requirement would apply only to the codend of 
the net, which is defined as described above under the GOM and GB trawl 
mesh restrictions.

Gillnet Vessels, When Fishing in the SNE RMA

    Under this proposed rule, limited access NE multispecies vessels 
that fish under a NE multispecies DAS with gillnet gear in the SNE RMA 
at any time throughout the fishing year would be required to declare 
into the Day or Trip gillnet category. Vessels fishing under either the 
Day or Trip gillnet category in the SNE RMA during any part of a trip 
under a NE multispecies DAS would be required to fish with nets with a 
minimum of 6.5-inch (16.5-cm) mesh, and would be restricted from 
fishing

[[Page 20099]]

more than 75 nets, with two tags fixed to each net.

Gillnet Vessels, When Fishing in the MA RMA

    Under this proposed rule, limited access NE multispecies vessels 
that fish under a NE multispecies DAS with gillnet gear in the MA RMA 
would be allowed to fish the same type and number of nets as allowed 
prior to the implementation of the August 1, 2002, interim rule. That 
is, vessels would be allowed to continue to fish up to 160 nets. 
Vessels fishing under the monkfish DAS program would be limited to 150 
nets.

Gillnet Vessels, When Fishing Under a Monkfish DAS

    Under this proposed rule, any monkfish vessel that has a monkfish 
limited access Category C or D permit (i.e., a vessel that possesses 
both a monkfish and NE multispecies limited access permit) and that is 
fishing under a monkfish DAS, in all areas, would be restricted from 
fishing more than 150 nets, provided the vessel fishes with nets with a 
minimum mesh size of 10 inches (25.4 cm). Vessels would be required to 
affix one tag to each net. Category A and B monkfish vessels would be 
unaffected by these proposed measures.

Large-Mesh Vessel Permit Categories

    Under this proposed rule, vessels that have a valid limited access 
NE multispecies Large Mesh Individual DAS category or a Large Mesh 
Fleet DAS category permit, when fishing in the GOM, GB, and SNE RMAs, 
with trawl nets or sink gillnets, would be required to fish with nets 
with a minimum mesh size of 8.5-inch (21.6-cm) diamond or square mesh 
throughout the entire net. Vessels fishing with trawl nets or sink 
gillnets when fishing in the MA RMA would be required to fish with nets 
with a minimum mesh size of 7.5-inch (19.0-cm) diamond or 8.0-inch 
(20.3-cm) square mesh throughout the entire net.

Hook-gear Vessels

    Under this proposed rule, vessels that have a valid NE multispecies 
limited access permit would be prohibited from using de-hookers 
(crucifiers) with less than 6-inch (15.2-cm) spacing between the 
fairlead rollers. In addition, limited access Small-vessel permitted 
vessels and limited access permitted vessels that fish any part of a NE 
multispecies DAS trip in the GOM, GB or SNE RMAs would be required to 
use 12/0 or larger circle hooks on longline gear, and would be subject 
to a maximum number of rigged hooks on board the vessel. Specifically, 
vessels fishing in the GOM or SNE RMAs would be prohibited from 
possessing more than 2,000 rigged hooks, and vessels fishing in the GB 
RMA would be prohibited from possessing more than 3,600 rigged hooks.
    Table 1 summarizes the proposed gear restriction measures for each 
gear sector when fishing in the various RMAs.

[[Page 20100]]

[GRAPHIC] [TIFF OMITTED] TP24AP03.021

Cod Minimum Fish Size (Commercial vessels)

    Under this proposed rule, the minimum size for cod that may be 
lawfully sold would be 22 inches (55.9 cm)(total length).

NE Multispecies Possession Restrictions

Yellowtail Flounder

    This proposed rule would require enrollment in one of two 
authorization programs for any possession of yellowtail flounder, and 
would implement restrictions on the harvest of yellowtail flounder when 
fishing in the SNE and MA RMAs and in the GB RMA south of 40[deg] 00' 
N. lat. From March 1 through April 30, 2004, all vessels would be 
subject to a possession and landing limit of 250 lb (113.4 kg) of 
yellowtail flounder per trip when

[[Page 20101]]

fishing any part of a trip in the SNE and MA RMAs north of 40[deg] 00' 
N. lat. In addition, from June 1 through February 28, all vessels would 
be subject to a possession and landing limit of 750 lb (340.3 kg) of 
yellowtail flounder per day, and a maximum trip limit of 3,000 lb 
(1,361.2 kg) per trip when fishing any part of the trip in the SNE and 
MA RMAs north of 40[deg] 00' N. lat. A vessel fishing for yellowtail 
flounder in the SNE and MA RMAs north of 40[deg] 00' N. lat. would be 
allowed to possess and land up to the seasonal yellowtail flounder 
allowable limits, provided the vessel does not fish south of 40[deg] 
00' N. lat. and has on board a SNE/MA yellowtail flounder possession/
landing authorization issued by the Administrator, Northeast Region, 
NMFS (Regional Administrator). Under this proposed rule, all vessels 
would be prohibited from possessing yellowtail flounder in the MA, SNE 
or GB RMAs unless fishing north of 40[deg] 00' N. lat., or unless the 
vessel is transiting areas south of 40[deg] 00' N. lat. and all fishing 
gear on board the vessel is properly stowed according to the 
regulations. Vessels fishing east or north of this area would not be 
subject to the yellowtail flounder possession limit restrictions, 
provided that the vessel does not fish west of the GB RMA and possesses 
on board a GOM/GB yellowtail flounder possession/landing authorization 
issued by the Regional Administrator. Vessels exempt from the 
yellowtail flounder possession limit requirements would be allowed to 
transit areas outside of the specific exempted area that they are 
fishing, provided that their gear is stowed in accordance with one of 
the provisions of Sec.  648.23(b).

Hand-gear Permitted Vessels

    Under this proposed rule, the cod, haddock and yellowtail flounder 
possession limit for vessels that have been issued a valid open access 
Hand-gear permit would continue to be set at 200 lb (90.7 kg), 
combined, per trip. Such vessels would not be required to obtain a 
yellowtail flounder possession/landing authorization in order to 
harvest yellowtail flounder, but would not be allowed to harvest 
yellowtail flounder south of 40[deg] 00' N. lat.

GB Cod Trip Limit

    This proposed rule would continue the current method of how the DAS 
clock accrues for those vessels fishing in the GB RMA and harvesting GB 
cod, which is consistent with how the DAS clock accrues when fishing in 
the GOM RMA and harvesting GOM cod. That is, a vessel subject to this 
landing limit restriction could come into port with, and offload cod in 
excess of the landing limit, as determined by the number of DAS elapsed 
since the vessel called into the DAS program, provided that the vessel 
operator does not call out of the DAS program and does not depart from 
a dock or mooring in port 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.

GOM Cod

    This action would maintain the daily possession limit for GOM cod 
at 500 lb (227.3 kg) per DAS, with a maximum possession limit of 4,000 
lb (1,818.2 kg) per trip.

Recreational and Charter/Party Vessel Restrictions

    Under this proposed rule, the minimum size for cod and haddock that 
could be retained by a federally permitted charter/party vessel not on 
a DAS, or a private recreational vessel not holding a Federal permit 
and fishing in the EEZ, would be 23 inches (58.4 cm) total length. This 
proposed rule would also continue a cod and haddock bag (possession) 
limit for the charter/party recreational fishing sector when a vessel 
is fishing in the GOM RMA and not under a DAS. During the period April 
through November, each person on a charter/party vessel not fishing 
under a DAS would be allowed to possess no more than 10 cod or haddock, 
combined, per trip. For each trip during the period December through 
March, each person on a charter/party vessel not fishing under a DAS 
would be allowed to possess no more than 10 cod or haddock combined, no 
more than 5 of which may be cod. This action would continue the 
restriction of the cod possession limit for private recreational 
vessels by requiring that, when fishing in the GOM RMA during the 
period December through March, each person on a recreational vessel 
would be allowed to possess no more than 10 cod or haddock combined, no 
more than 5 of which may be cod. Cod and haddock harvested by 
recreational vessels with more than one person aboard could be pooled 
in one or more containers. Compliance with the possession limit would 
be determined by dividing the number of fish on board by the number of 
persons on board.
    For a vessel that intends to charter/party fish in the GOM closed 
areas, this proposed rule would require that the vessel possess on 
board a letter of authorization (LOA) issued by the Regional 
Administrator. The LOA would be required for the entire fishing year if 
the vessel intends to fish in the year-round GOM closure areas, and for 
a minimum of 3 months if the vessel intends to fish in the seasonal GOM 
closure areas. Vessels could obtain an LOA by calling the NMFS Permit 
Office at 978-281-9370.
    All other existing recreational measures would remain in effect, 
including the no-sale provision for all fish caught for both the party/
charter and private recreational sectors when not fishing under a NE 
multispecies DAS. Table 2 summarizes the proposed party/charter and 
private recreational sector measures. NMFS is especially seeking 
comment on the recrerational measures that would be implemented by this 
action.

                                            Table 2. Charter/Party and Private Recreational Fishing Measures.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Minimum Fish Size, Inches                                          GOM Closure Exemption
                                                                  Cod & Haddock\1\              Bag Limit (combined)                Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
Charter/party not on a DAS................................                           23   April-November: 10 cod/haddock\2\    A minimum of 3 months, or
                                                                                         December-March: 10 cod/haddock, no          duration of closure
                                                                                            more than 5 which can be cod\2\
Private Recreational......................................                           23   Areas outside of GOM RMA: 10 cod/                          N/A
                                                                                                                    haddock
                                                                                            GOM RMA:10 cod/haddock, no more
                                                                                         than 5 which can be cod, Dec.-Mar.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All other minimum fish sizes remain unchanged.
\2\ When fishing in the GOM RMA.


[[Page 20102]]

Observer Coverage

    NMFS was ordered by the Court to expand for all gear sectors its 
observer coverage in the NE multispecies fishery by providing 5-percent 
coverage, or higher, if statistically necessary to monitor and collect 
information on bycatch, as well as other biological and fishery-related 
information. Additionally, NMFS was ordered, by May 1, 2003, to expand 
further its observer coverage to 10 percent for all gear sectors, or 
that level necessary to provide statistically reliable data. Regarding 
this issue, NMFS has determined that 5 percent observer coverage would 
provide sufficiently robust statistical data to assess the amount and 
type of bycatch in the NE multispecies fishery. This conclusion is 
based upon an analysis of the relative precision of discard estimates 
of 17 groundfish stocks, using observer coverage and landings data for 
the year 2000 (Northeast Fisheries Science Center, 2003).

NE Multispecies DAS Leasing Program

    Under this proposed rule, NMFS would implement a program to allow 
limited access NE multispecies permit holders to lease NE multispecies 
DAS to one another, under the conditions and restrictions described 
below. For purposes of this Program, the term ``lease'' refers to the 
transfer of the use of DAS from one limited access NE multispecies 
vessel to another for no more than one fishing year (except if carried 
over). Implementation of the proposed Program on an emergency basis is 
necessary to provide the fishing industry with an opportunity to 
mitigate the potential economic harm caused by the continuation of the 
restrictive measures that would be implemented by the proposed action, 
while maintaining conservation neutrality. In addition, this program is 
designed to allow for efficient and effective administration by NMFS.

Vessels Eligible to Lease NE Multispecies DAS

    All vessels with a valid limited access NE multispecies DAS permit 
would be eligible to lease NE multispecies DAS to or from another such 
vessel through the Program, unless otherwise noted below. Eligible 
vessels acquiring leased NE multispecies DAS would be termed the 
``lessee,'' or transferee, and eligible vessels leasing-out NE 
multispecies DAS would be termed the ``lessor,'' or transferor. 
Although all eligible vessels would be allowed to lease NE multispecies 
DAS from another such vessel, vessels holding the minimum allocation of 
8 DAS would be prohibited from leasing-out, or transferring, DAS under 
the Program. Prohibiting vessels with the minimum allocation of 8 DAS 
from leasing-out their DAS to another vessel would prevent previously 
inactive (latent) DAS from becoming active, since most of these vessels 
fished either zero DAS or close to zero DAS during the 1996-2000 
qualification period. This restriction would be necessary to promote 
the conservation neutrality of the Program. For similar reasons, NE 
multispecies DAS associated with Confirmation of Permit Histories (CPH) 
would be prohibited from being activated for the sole purpose of 
leasing-out DAS to another vessel.
    The proposed Program and its restrictions and conditions are 
described below:

NE Multispecies DAS Leasing Application

    Under this proposed rule, an eligible vessel owner wanting to lease 
NE multispecies DAS would be required to submit a complete application 
to lease DAS (Application) at least 45 days prior to the time that the 
vessel intends to fish the leased DAS. (Vessels fishing with a vessel 
monitoring system would likely be able to receive notification of an 
approved lease agreement sooner than 45 days.) Upon approval of the 
Application by NMFS, the lessor and lessee would be sent written 
confirmation of the approved application. Leased DAS would be effective 
only during the fishing year for which they were leased, unless the 
vessel has carry-over DAS (see below). A vessel may lease to as many 
qualified vessels as desired, provided that all of the restrictions and 
conditions described in this proposed rule are complied with.
    An Application may be submitted at any time throughout the fishing 
year, up until March 1. A complete application would consist of the 
following: Lessor's (transferor) owner name, vessel name, permit number 
and official number or state registration number; lessee's (transferee) 
owner name, vessel name, permit number and official number or state 
registration number; number of NE multispecies DAS to be leased; total 
price paid for the leased DAS; signatures of lessor and lessee; and 
date the form was completed. Information obtained from the Application 
would be held confidential in accordance with the Magnuson-Stevens Act 
and applicable regulations.
    The Regional Administrator could reject an Application for any of 
the following reasons: The application is incomplete or submitted after 
the March 1 deadline; the lessor or lessee does not possess a valid 
limited access NE multispecies permit; the lessor's or lessee's DAS are 
under sanction; lessor's vessel is prohibited from fishing; the 
lessor's limited access multispecies permit is sanctioned; or the 
lessor has an insufficient number of allocated DAS available to lease. 
Upon denial of an Application, the Regional Administrator would send a 
letter to the applicants describing the reason(s) for application 
rejection. The decision by the Regional Administrator would be the 
final agency decision and there would be no opportunity to appeal the 
Regional Administrator's decision as specified in NMFS' regulations.

Sub-leasing and Carry-over Prohibition

    Under this proposed rule, no sub-leasing of NE multispecies DAS 
would be allowed. This means that, once a lease application is approved 
by NMFS, the leased DAS could not be leased a second time, even if the 
lessee was prevented from fishing the leased DAS due to circumstances 
beyond his/her control (e.g., a vessel sinking). This restriction is 
necessary to ensure NMFS' ability to administer and account for all 
leased DAS in an efficient manner.
    Under this proposed rule, eligible vessels would be allowed to 
carry over up to 10 DAS, regardless of whether these DAS were allocated 
or leased days, in order to promote safety at sea in the waning days of 
the fishing year. Thus, a vessel that purchased leased DAS that 
remained unused at the end of the fishing year would be allowed to 
carry over these leased DAS to the subsequent fishing year. To 
determine DAS fished for a given fishing year, a vessel's allocated DAS 
(as opposed to DAS that it acquired through lease) would be counted 
first for purposes of determining how many DAS remain for the fishing 
year. As an example, if a vessel was allocated 50 DAS and acquired an 
additional 20 DAS by leasing them from another vessel, that vessel 
would have 70 DAS that it could use during the fishing year. If that 
vessel, for whatever reason, used only 60 DAS during that year, NMFS 
would consider that the vessel's 50 allocated DAS were used first, and 
that 10 of the leased DAS were then used. The remaining 10 leased DAS 
that were unused would be carried over to the next fishing year.

Minimum and Maximum Leased DAS

    This proposed rule would require that vessels lease a minimum of 5 
NE multispecies DAS to any one vessel, or the full amount of the 
vessel's

[[Page 20103]]

remaining allocated DAS, whichever is less. For example, a vessel with 
50 DAS could lease any number of DAS equal to 5 or more DAS to as many 
vessels as possible. If the vessel leased 6 DAS to eight vessels, 
leaving 2 DAS (i.e., 6 DAS x 8 = 48 DAS), the vessel could then lease 
its remaining 2 DAS to another vessel, since it only has 2 DAS left. 
Although setting a minimum increment at a level less than 5 DAS would 
provide additional flexibility to the industry, NMFS believes it would 
be administratively burdensome to process and monitor the increased 
number of leases that this may invite, particularly in the first year 
of implementation. Because, as a new Program, the actual administrative 
burden associated with the Program is unknown, NMFS has determined that 
a 5- DAS minimum for vessels applying to lease DAS would better enable 
NMFS to ensure it can effectively administer the Program. Nevertheless, 
NMFS is interested in soliciting public comment on the feasibility and 
flexibility of this restriction, to get a better idea of whether the 5-
DAS minimum is appropriate. Under this proposed rule, there would be no 
maximum number of DAS a lessor could lease out to another vessel. 
Similarly, there would be no maximum number of DAS a lessee could 
receive. In addition, a lessor would be allowed to lease to multiple 
lessees, and a lessee could lease from multiple lessors. Vessel owners 
with more than one vessel with a valid limited access NE multispecies 
DAS permit would be allowed to lease NE multispecies DAS from one 
eligible vessel under their ownership to another, to allow the owner to 
optimize the number of DAS available for use by his/her vessels.

Adjustments to Leased DAS

    Several of the stocks managed under the FMP are considered 
overfished. To help ensure that fishing effort is not increased under 
the proposed Program, an adjustment factor would be applied to leased 
DAS when DAS are being leased from a smaller horsepower class vessel to 
a larger horsepower class vessel (that is, from a vessel with less 
fishing power to one with more fishing power). For the purposes of the 
Program, all limited access NE multispecies DAS permit holders would be 
classified according to the baseline horsepower associated with that 
permit as of April 24, 2003. Thus, if the lessee vessel were in a 
higher horsepower category than the lessor vessel, the lessee would 
receive a fraction of the DAS leased, based on the relative horsepower 
classes of the two vessels (see Table 3). Conversely, if the lessee 
vessel were in the same or a lower horsepower category than the lessor 
vessel, the lessee would be allowed to use the full amount of DAS 
leased.

                                                       Table 3. Adjustment Factors for DAS Leases.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Lessor Vessel (seller vessel) Horsepower Class
                                                                           -----------------------------------------------------------------------------
                                                                               0-175       176-250      251-324      325-400       401-65       651 +
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lessee Vessel                                                        0-175         1.00         1.00         1.00         1.00         1.00         1.00
(buyer vessel) Horse-power Class
                                                                   176-250         0.80         1.00         1.00         1.00         1.00         1.00
                                                                   251-324         0.70         0.88         1.00         1.00         1.00         1.00
                                                                   325-400         0.58         0.73         0.83         1.00         1.00         1.00
                                                                   401-650         0.49         0.61         0.70         0.84         1.00         1.00
                                                                     651 +         0.36         0.45         0.52         0.62         0.74         1.00
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For example, if Vessel A, a 176-250 horsepower class vessel, leases 
10 NE multispecies DAS to Vessel B, a vessel in the 325-400 horsepower 
class, Vessel B would receive 7.3 DAS (10 x 0.73). Using these same 
horsepower class vessels, if Vessel B leases 10 DAS to Vessel A, Vessel 
A would receive 10 DAS.

Leasing Restrictions for Hook-gear Permitted Vessels

    This rule proposes that limited access NE multispecies Hook-gear 
permitted vessels (Category D) be allowed to lease NE multispecies to 
and from other limited access Hook-gear permitted vessels only. This 
restriction is being proposed because current regulations prohibit 
limited access Hook-gear permitted vessels from using gear other than 
hook-gear.

History of DAS Use and Landings

    Because, in the future, DAS use and landing history may be used to 
determine fishing rights, the proposed Program includes provisions for 
how such history will be accounted for. For ease of administration, 
under this proposed Program, history of leased DAS use would be 
presumed to remain with the lessor vessel, and landings resulting from 
the leased DAS use would be presumed to be attributed to the lessee 
vessel. However, the history of used leased DAS would be presumed to 
remain with the lessor only if the lessee actually fished the leased 
DAS in accordance with the DAS notification program specified at Sec.  
648.10. For purposes of DAS-use history, DAS allocated to the vessel 
would be considered to be the first DAS to be used, followed by the 
leased DAS. For example, if a vessel had an allocation of 50 DAS, 
leased an additional 20 DAS, and actually used a total of 60 DAS during 
the fishing year, the lessor of the 20 DAS would be attributed with 10 
DAS, for purposes of its DAS-use history, because the lessee vessel 
would have used its 50 allocated DAS first, then 10 of the 20 DAS it 
acquired from the lessor.
    Under the proposed Program, history of fish landings would be 
presumed to be attributed to the vessel that actually landed the fish 
(lessee). Attributing landings history to the lessor would be 
inconsistent with the current vessel reporting system used for all 
other fisheries in the Northeast Region, and would be extremely 
difficult and costly for NMFS to implement.
    In the case of multiple lessors, the leased DAS actually used would 
be attributed to the lessors based on the order in which such leases 
were approved by NMFS. For example, if lessee Vessel A has 50 allocated 
DAS, leases 10 DAS from lessor Vessel B on August 1, and leases another 
10 DAS from lessor Vessel C on August 5, then the first 50 DAS used by 
lessee Vessel A during that fishing year would be attributed to lessee 
Vessel A, the next 10 DAS would be attributed to lessor Vessel B, and 
the next 10 DAS would be attributed to lessor Vessel C, for purposes of 
DAS-use history. If lessee Vessel A used only 60 DAS during the fishing 
year, then lessor Vessel C would not be attributed with DAS use for the 
DAS it leased to Vessel A during the fishing year for which the DAS 
were leased (these DAS could be attributed to

[[Page 20104]]

Vessel C in the subsequent fishing year, if they are carried over and 
used). In cases where a horsepower adjustment factor is applied to 
leased DAS, the number of DAS attributed to the lessor for those leased 
DAS used would be the actual number of DAS leased, prior to the 
calibration reduction. For example, suppose Vessel A leased 10 DAS from 
Vessel B and, because Vessel A is in a larger horsepower category than 
Vessel B, the 10 leased DAS were reduced to 8.8 DAS that could actually 
be fished. If the 8.8 leased DAS were fished by Vessel A, then Vessel B 
would still be credited with 10 DAS used for that year, for purposes of 
its DAS use history.

Termination of NE Multispecies DAS Leasing Program

    Under this proposed rule, the Regional Administrator would maintain 
the authority to terminate acceptance of new applicants to the Program 
if, due to unanticipated impacts, she determines that the goals of 
reducing fishing mortality or increasing economic opportunity would be 
seriously undermined by allowing the continuance of leasing of DAS. If 
such a determination is made, the public would be notified through 
rulemaking consistent with the Administrative Procedure Act (APA), and 
would be based upon information including, but not limited to, 
projected landings, patterns of DAS use, or information obtained from 
the leasing program.

Monkfish Category C and D Vessels

    Similar to the August 1, 2002, interim rule measures, a vessel with 
both a limited access NE multispecies permit and a limited access 
monkfish permit (monkfish Category C or D vessels) for which the NE 
multispecies DAS reductions proposed under this proposed emergency rule 
would result in the vessel having more allocated monkfish DAS than NE 
multispecies DAS, the vessel would be allowed to fish under a monkfish-
only DAS when multispecies DAS are no longer available, provided the 
vessel fishes under the provisions of the monkfish Category A or B 
permit, or unless otherwise noted below. Under this proposed rule, 
monkfish Category C and D vessels that have remaining monkfish-only DAS 
at the time of implementation of this emergency rule, and that have 
submitted a NE Multispecies DAS Leasing Application that has been 
approved by NMFS, would be required to fish their available ``monkfish-
only'' DAS in conjunction with their leased NE multispecies DAS, to the 
extent that the vessel has NE multispecies DAS available. This is 
consistent with the original intent of the Monkfish Fishery Management 
Plan (Monkfish FMP).
    Under this proposed rule, if a monkfish Category C or D vessel 
leases DAS to another vessel, the vessel is required to forfeit a 
monkfish DAS for each NE multispecies DAS that the vessel leases, equal 
in number to the difference between the number of remaining 
multispecies DAS and the number of unused monkfish DAS at the time of 
the lease. For example, if a lessor vessel, which had 40 unused 
monkfish DAS and 47 allocated multispecies DAS, leased 10 of its 
multispecies DAS, the lessor would forfeit 3 of its monkfish DAS (40 
monkfish DAS - 37 multispecies DAS = 3) because it would have 3 fewer 
multispecies DAS than monkfish DAS after the lease. The Monkfish FMP 
specifies that monkfish Category C and D vessels must fish a NE 
multispecies DAS concurrently with a monkfish DAS. Not deducting 
monkfish DAS in a situation where NE multispecies DAS are leased 
(transferred) would allow monkfish and NE multispecies DAS to be fished 
independently. This could create a significant effort increase in the 
monkfish fishery.

Other Proposed Modifications to Regulations

    For the 2002 fishing year, vessels electing a Day or Trip gillnet 
designation were allowed to change their designation prior to September 
1, 2002. This exemption applied only to the 2002 fishing year and would 
therefore be eliminated by this proposed rule.
    In the August 1, 2002 interim rule, the Cashes Ledge Area Closure 
regulations omitted a reference to transiting, under a listing of 
allowable exemptions to the closure, and would therefore be corrected 
by this proposed rule.

Classification

    This rule has been determined to be significant for purposes of 
Executive Order 12866.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) 
that 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 at 
the beginning of the preamble and in the SUMMARY section of the 
preamble and in the IRFA. For management measures that continue the 
Settlement Agreement, gross revenue in the absence of reliable cost 
data is considered to be a proxy for profitability. For leasing of DAS, 
profitability is estimated using a break-even analysis. A summary of 
the analysis follows:
    The IRFA considered three alternatives: The proposed emergency 
action, the No Action alternative, and a Hard TAC alternative. Analysis 
of the proposed emergency action examined the impacts on industry that 
would result from the continuation of the current management measures 
(Settlement Agreement), with implementation of a days-at-sea (DAS) 
leasing program. Analysis of the No Action alternative examined the 
impacts on industry that would result from implementation of the 
management measures that were in place for the 2001 fishing year (prior 
to implementation of the Court Order) and allowing fishing inside the 
WGOM Area Closure. Analysis of the hard TAC alternative examined the 
impacts to the industry that would result from a hard TAC system that 
achieved similar fishing mortality reductions as the proposed emergency 
action. The economic impacts of the first two alternatives were 
analyzed and described according to the type of management measure as 
follows: (a) Commercial measures that were modeled (DAS restrictions, 
area closures, and trip limits); (b) commercial measures that were not 
modeled (changes to the open access hand gear category, prohibition on 
frontloading, prohibition on de-hooker use, mesh size restrictions, and 
limitations on the number of gillnets and hooks); and (c) recreational 
measures (private recreational vessel and party/charter). The hard TAC 
alternative is a fundamentally different type of management scheme and 
the economic impacts were examined in a qualitative manner.
    All commercial vessels with a multispecies permit had gross 
receipts less than $3.5 million, the SBA size standard for defining a 
small versus large commercial fishing business (3,894 multispecies 
vessels) (Environmental Assessment of the Settlement Agreement, June 
2002). Therefore, there would be no disproportionate economic impacts 
between small and large entities.
    The proposed measures would impact all limited access permit 
holders (1,383), all open access Hand gear-only permit holders (2,973), 
and all party/charter operators (1,028 open access permit holders). 
Based upon the June 2002 Environmental Assessment, the number of 
participating vessels that may be affected by any one or more of the 
proposed measures is about 37 percent of the total number of those 
eligible to participate in some component of the multispecies fishery.

[[Page 20105]]

    The DAS allocations implemented under the August 2002 rule would 
continue under the proposed emergency action. The reductions in 2002 
DAS allocations impacted all permit categories. There were 1,383 
limited access permits with baseline DAS allocations for the 2002 
fishing year. Of these permits, 343 received the minimum allocation of 
8 DAS. A total of 71, 180 DAS were allocated for the fishing year; a 
reduction of 45.7 percent compared to the final fishing year 2001 
allocations.
    The relative reduction in DAS allocations varied by permit 
category. The total reduction for individual allocation vessels 
(category A) was 21.7 percent, as compared with 49 percent for category 
B and 65.9 percent for Category D. Reductions in total DAS allocations 
for FY 2002 were larger for small vessels (less than 50 ft (15.2 m)), 
than for medium or large vessels. New York and New Jersey were the two 
states with the largest reduction in fishing year 2002 DAS allocations. 
In contrast, under the No Action alternative, the DAS allocations would 
be markedly larger, with the potential for DAS use to increase above 
that which was recorded for the 2001 fishing year.
    Relative changes to gross revenue were calculated based upon an 
estimation that DAS use in fishing year 2003 would range from 25 
percent to 35 percent less than the number of DAS used during the 2001 
fishing year. The estimated revenue loss for the 84 most affected 
vessels would be 21.3 percent or greater for an assumed 25 percent 
reduction in DAS, and would be 25 percent for an assumed 35 percent 
reduction in DAS. For vessels in the 25th to 50th percentile, the 
estimated revenue loss range from 19.7 percent to 11.5 percent for a 35 
percent reduction in DAS use. Revenue loss for the least affected 
vessels would be no more than 1.5 percent. Relative dependence upon 
groundfish revenue is an important factor among the various factors 
that may determine the severity of the impact of the proposed measures 
on a particular vessel. The greater a vessel's dependence upon 
groundfish for annual fishing income, the greater the revenue loss is 
likely to be. The No Action alternative would result in no negative 
impacts or slightly positive impacts, in comparison with the proposed 
measures.
    With respect to gross annual revenue earned during the 2001 fishing 
year (pre-settlement agreement), the proposed measures would have the 
largest adverse economic impacts on vessels in Maine, New Hampshire, 
and Massachusetts, but among these states, the estimated impacts would 
be similar. The No Action alternative would have positive economic 
impacts on vessels that fish in the GOM and fish in the Western Gulf of 
Maine specifically. The least adverse economic impacts would be for 
those vessels from states bordering the Gulf of Maine, and for small 
gillnet vessels or large hook vessels.
    A break even analysis was conducted that estimated a total of 86 
vessels that would not have enough DAS to cover overhead costs. The 
analysis further concluded that if vessels were to make a minimum crew 
share payment of $25,000 per person, there would be 268 vessel that 
would be able to cover overhead costs, but would not have enough DAS to 
make this minimum labor payment. However, at this relatively low crew 
payment, DAS leasing could make it possible for vessels to redistribute 
DAS so that all vessels could operate profitably.
    Leasing of DAS would provide individual vessel owners an 
opportunity to offset and mitigate the impact of the DAS reductions 
that were implemented in August, 2002 that would be continued under the 
preferred alternative. On a scale of the fishery as a whole, the 
aggregate supply of groundfish is not expected to differ under a DAS 
leasing program, however, changes in the distribution of landings could 
result in increases in supply in one port while supplies in other ports 
may decline. Although it is difficult to predict the number of vessels 
that would participate in a DAS leasing program, two analyses were 
conducted. The first analysis identified the number of vessels whose 
fishing year 2002 DAS allocations would not be sufficient to pay fixed 
costs plus provide a minimum payment to the vessel crew. Under the 
leasing program, fewer vessels will actually fish, but the profits for 
all vessels will be higher than if days at sea leasing were not 
allowed, and all vessels fished their allocation. Vessels which choose 
to lease all their DAS can greatly enhance their profit, because the 
owner is getting all the revenue from the lease without incurring any 
costs, and in particular not having to pay labor costs. Under the 
analytical scenario where all vessels can fish up to 100 or 150 days, 
the average profit level for vessels which lease DAS from other vessels 
is projected to increase from 31 percent to 60 percent (depending on 
gear sector) compared to what they would earn if they only fished their 
allocation. These vessels would fish on average from 97 to 149 days, 
and would lease on average between 37 and 94 days, at an average cost 
of between $ 724 and $ 1,153 per day. At the same time the number of 
vessels actively fishing would decline from 41 to 67 percent. Average 
profit for the vessels which don't fish under this scenario and instead 
lease all their DAS is projected to increase approximately from 38 
percent to 305 percent compared to what they would earn from fishing 
their allocation of DAS.
    The required changes to mesh size were estimated to affect 424 
trawl vessels fishing in the GOM or GB area and 221 trawl vessels the 
fished in the SNE area. The average cost to replace the cod end was 
estimated to be $1,250. The mesh changes were estimated to affect 18 
day boat gillnet vessels that used tie-down nets fished in the GOM. The 
average cost to these vessels to replace their nets was $7,794. The 
mesh changes were estimated to affect 31 day boat gillnet vessels that 
used stand-up nets that fished in the GOM. The average cost to these 
vessels to replace their nets was $9,300. The mesh changes were 
estimated to affect 25 trip gillnet vessels that fished in the GOM. The 
average cost to these vessels to replace their nets was $18,352. The 
mesh changes were estimated to affect 32 gillnet vessels that fished in 
either GB or SNE. The average cost to these vessels to replace their 
nets was $8,800.
    The required changes to gear limits would affect 30 bottom longline 
vessels, 72 day gillnet vessels, and 24 trip gillnet vessels. The 
average revenue loss for these vessels was estimated to be $21,400.
    Under the proposed measures, individuals that provide passenger 
services to recreational anglers (charter/party vessels) will also be 
directly affected. Economic impacts are expected to be minimal since 
the relationship between changes in bag and possession limits and 
passenger demand has historically been weak. Following implementation 
of a reduction in minimum fish size in 1997, the number of passengers 
on charter/party vessels increased.
    Relative to the proposed measures, the No Action alternative would 
mitigate most of the adverse economic impacts associated with the 
proposed action. In general, gross fishing incomes would increase 
particularly for vessels operating in the GOM and would have 
particularly beneficial impact on small vessels and gillnet vessels in 
general. However, the No Action alternative also would result in 
unacceptably high increases in fishing mortality rates that could 
compromise the rebuilding of several GOM stocks, GOM cod in particular. 
For this reason the No Action alternative would not meet the

[[Page 20106]]

regulatory objectives for this Emergency Action.
    Relative to the proposed measures and the no action alternative, 
the hard TAC alternative would have a more severe adverse economic 
impact because of the severe consequences of closing down fisheries 
when a TAC is reached. In any event, neither the No Action alternative 
nor the Hard TAC alternative are viable because they were not agreed 
upon in the Settlement Agreement ordered by the Court to be 
implemented.
    If DAS leasing was implemented, the economic impact resulting from 
other proposed measures would be minimized. Under the leasing program, 
fewer vessels would actually fish, but the profits for all vessels 
would be higher than if days at sea leasing were not allowed, and all 
vessels fished their allocation. Vessels choosing to lease all their 
DAS to other vessels could greatly enhance their profitability, because 
owners would be getting all the revenue from the lease without 
incurring any costs, and in particular not having to pay labor costs.
    This action does not duplicate, overlap or conflict with other 
Federal rules and takes into consideration the monkfish regulations in 
order to be consistent with the objectives of the Monkfish Fishery 
Management Plan.
    There are no recordkeeping requirements associated with this 
action. There is one reporting requirement that would require lessors 
and lessees to complete and submit an application to NMFS to transfer 
DAS.
    This rule contains a collection-of-information requirement subject 
to review and approval by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act (PRA). This requirement has been 
submitted to OMB for approval. Public reporting burden for completion 
of the application form for vessel owners choosing to lease NE 
multispecies DAS is estimated to average 5 minutes per response. This 
proposed rule also contains previously-approved collection-of-
information requirements that have been approved under OMB control 
number 0648-0202. Public reporting requirements for these requirements 
are 15 minutes for a request for a change in permit category and 5 
minutes for an annual declaration as either a Day or Trip gillnet 
vessel. The response time estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information. Public comment is sought regarding: whether the 
proposed collection-of-information is necessary for the proper 
performance of the functions of the agency, including whether the 
information shall have practical utility; the accuracy of the burden 
estimates; ways to enhance the quality, utility, and clarity of the 
information to be collected; and ways to minimize the burden of the 
collection of information, including through the use of automated 
collection techniques or other forms of information technology. Send 
comments on these or any other aspects of the collection of information 
to NMFS and OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 21, 2003.
Rebecca Lent,
Deputy Assistant Administrator, for Regulatory Programs, National 
Marine Fisheries Services.
    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 Sec.  648.2, new definitions for ``DAS Lease,'' ``DAS 
Lessee,'' ``DAS Lessor,'' and ``Sub-lease'' are added in alphabetical 
order, to read as follows:


Sec.  648.2  Definitions.

* * * * *
    DAS Lease, with respect to the NE multispecies limited access 
fishery, means the transfer of the use of DAS from one limited access 
NE multispecies vessel to another limited access NE multispecies vessel 
for a period not to exceed the 2003 fishing year, unless the leased DAS 
qualify as carry-over DAS.
    DAS Lessee, with respect to the NE multispecies limited access 
fishery, means the NE multispecies limited access vessel owner and/or 
the associated vessel that acquires the use of DAS from another NE 
multispecies limited access vessel.
    DAS Lessor, with respect to the NE multispecies limited access 
fishery, means the NE multispecies limited access vessel owner and/or 
the associated vessel that transfers the use of DAS to another NE 
multispecies limited access vessel.
* * * * *
    Sub-lease, with respect to the NE multispecies fishery, means the 
leasing of DAS that have already been leased to another vessel.
* * * * *
    3. In Sec.  648.4, paragraphs (a)(1)(i)(G), (a)(1)(i)(I)(2) and 
(c)(2)(iii) are revised to read as follows:


Sec.  648.4  Vessel permits.

* * * * *
    (a) * * *
    (1) * * *
    (i) * * *
    (G) Consolidation restriction. Except as provided for in the NE 
Multispecies DAS Leasing Program, as specified in Sec.  648.82(m), 
limited access permits and DAS allocations may not be combined or 
consolidated.
* * * * *
    (I) * * *
    (2) The owner of a vessel issued a limited access multispecies 
permit may request a change in permit category, unless otherwise 
restricted by paragraph (a)(1)(i)(I)(1) of this section. The owner of a 
limited access multispecies vessel eligible to request a change in 
permit category must elect a category upon the vessel's permit 
application and will have one opportunity to request a change in permit 
category by submitting an application to the Regional Administrator 
within 45 days of the effective date of the vessel's permit. If such a 
request is not received within 45 days, the vessel owner may not 
request a change in permit category and the vessel permit category will 
remain unchanged for the duration of the fishing year. A vessel may not 
fish in more than one multispecies permit category during a fishing 
year.
* * * * *
    (c) * * *
    (2) * * *
    (iii) An application for a limited access NE multispecies permit 
must also contain the following information: For vessels fishing for NE 
multispecies with gillnet gear, with the exception of vessels fishing 
under the Small Vessel permit category, an annual declaration as either 
a Day or Trip gillnet vessel designation as described in Sec.  
648.82(k). A vessel owner electing a Day or Trip gillnet designation 
must indicate the number of gillnet tags that he/she is requesting and 
must include a check for the cost of the tags. A permit holder letter 
will be sent to the owner of each eligible gillnet vessel informing 
him/her of the costs associated with this tagging requirement and 
directions for obtaining

[[Page 20107]]

tags. Once a vessel owner has elected this designation, he/she may not 
change the designation or fish under the other gillnet category for the 
remainder of the fishing year. Incomplete applications, as described in 
paragraph (e) of this section, will be considered incomplete for the 
purpose of obtaining authorization to fish in the NE multispecies 
gillnet fishery and will be processed without a gillnet authorization.
* * * * *
    4. In Sec.  648.14, paragraph (c)(3) is revised, and paragraphs 
(c)(34) through (42) are added to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (c) * * *
    (3) Combine, transfer, or consolidate DAS allocations, except as 
provided for under the NE Multispecies DAS Leasing Program as specified 
under Sec.  648.82(m).
* * * * *
    (34) Lease NE multispecies DAS or use leased DAS that have not been 
approved for leasing by the Regional Administrator as specified under 
Sec.  648.82(m).
    (35) Provide false information on the application for NE 
multispecies DAS leasing, as required under Sec.  648.82(m)(4).
    (36) Act as lessor of NE multispecies DAS, if the vessel's current 
allocation is 8 DAS, as determined under Sec.  648.82(l).
    (37) Lease NE multispecies DAS to or from vessels other than Hook-
gear limited access NE multispecies vessels (Category D), if the vessel 
is permitted with a NE multispecies limited access Hook-gear permit 
(Category D).
    (38) Sub-lease NE multispecies DAS.
    (39) Accrue DAS use history through use of leased DAS as specified 
under Sec.  648.82(m)(6).
    (40) Lease NE multispecies DAS to a vessel that does not have a 
valid limited access multispecies permit.
    (41) Lease NE multispecies DAS associated with a Confirmation of 
Permit History.
    (42) Lease NE multispecies DAS if the number of unused allocated 
DAS is less than the number of DAS requested to be leased.
    5. In Sec.  648.81, paragraph (h)(1) is revised to read as follows:


Sec.  648.81  Multispecies closed areas.

* * * * *
    (h) * * *
    (1) No fishing vessel or person on a fishing 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 Cashes Ledge Closure Area, as defined by 
straight lines connecting the following points in the order stated, 
except as specified in paragraphs (d) and (h)(2) of this section:
* * * * *
    6. In Sec.  648.82, paragraph (a)(1) is revised, paragraph (l)(3) 
is removed, and paragraph (m) is added to read as follows:


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

    (a) * * *
    (1) End-of-year carry-over. With the exception of vessels that held 
a Confirmation of Permit History as described in Sec.  
648.4(a)(1)(i)(J) for the entire fishing year preceding the carry-over 
year, NE multispecies limited access vessels that have unused allocated 
DAS, or unused leased DAS, on the last day of April of any year may 
carry over a maximum of 10 DAS into the next year. DAS sanctioned 
vessels will be credited with unused DAS based on their DAS allocation 
minus the total DAS sanctioned.
* * * * *
    (m) NE Multispecies DAS Leasing Program--(1) Program Description. 
Eligible NE multispecies vessels, as specified in paragraph (m)(2) of 
this section, may lease NE multispecies DAS to and from other eligible 
NE multispecies vessels, in accordance with the restrictions and 
conditions of this section. This program will be administered by NMFS, 
whereby the Regional Administrator will have final approval over a NE 
multispecies DAS leasing request.
    (2) Eligible Vessels and Vessel Owners. All vessels with a valid 
limited access NE multispecies permit are eligible to lease NE 
multispecies DAS to or from another such vessel, except as specified in 
paragraphs (m)(2)(i) through (iii) of this section.
    (i) Vessels allocated the minimum allocation of only 8 DAS, as 
calculated in accordance with Sec.  648.82(l), may not act as a lessor, 
but may act as a lessee.
    (ii) Vessel owners in possession of a confirmation of permit 
history may not activate their limited access NE multispecies permit 
for the sole purpose of acting as a lessor.
    (iii) Vessels that possess a limited access Hook-gear permit may 
lease NE multispecies DAS to and from other limited access Hook-gear 
vessels only.
    (3) Application to lease NE multispecies DAS. Eligible vessels 
wanting to lease DAS must submit a completed application on an 
appropriate form obtained from the Regional Administrator. The 
application must be signed by both lessor and lessee and submitted to 
the Regional Office at least 45 days before the date on which the 
applicant desires to have the leased DAS effective. The Regional 
Administrator will notify the applicant of any deficiency in the 
application pursuant to this section. Applications may be submitted at 
any time throughout the fishing year up until March 1. Eligible vessel 
owners may submit multiple lease applications throughout the 
application period.
    (i) Application information requirements. An application to lease 
NE multispecies DAS must contain the following information: Lessor's 
owner name, vessel name, permit number and official number or state 
registration number; lessee's owner name, vessel name, permit number 
and official number or state registration number; number of NE 
multispecies DAS to be leased; total priced paid for leased DAS; 
signatures of lessor and lessee; and date form was completed. 
Information obtained from the lease application will be held 
confidential, and will be used only in summarized form for management 
of the fishery.
    (ii) Approval of lease application. Unless an application to lease 
NE multispecies DAS is denied according to paragraphs (m)(3)(iii) and 
(vii) of this section, the Regional Administrator shall issue 
confirmation of application approval to both lessor and lessee within 
45 days of receipt of an application.
    (iii) Denial of lease application. The Regional Administrator may 
reject an application to lease NE multispecies DAS for the following 
reasons: The application is incomplete or submitted past the March 1 
deadline; the lessor or lessee does not possess a valid limited access 
NE multispecies permit; the lessor's or lessee's DAS are under 
sanction; the lessor's vessel is prohibited from fishing; the lessor's 
limited access multispecies permit is sanctioned; or; the lessor has an 
insufficient number of allocated or unused DAS available to lease. Upon 
denial of an application to lease NE multispecies DAS, the Regional 
Administrator shall send a letter to the applicants describing the 
reason(s) for application rejection. The decision by the Regional 
Administrator would be the final agency decision and there would be no 
opportunity to appeal the Regional Administrator's decision.
    (4) Restrictions on leased DAS use.--(i) Sub-leasing. A vessel that 
has leased DAS may not sub-lease these same DAS to another vessel.
    (ii) Carry-over of leased DAS. Leased DAS that remain unused at the 
end of the fishing year may be carried over to

[[Page 20108]]

the subsequent fishing year in accordance with the restrictions 
specified in paragraph (a)(1) of this section.
    (iii) Minimum number of DAS that can be leased. Vessels may lease 
NE multispecies DAS only in blocks of 5 DAS or more, or the full amount 
of a vessel's remaining allocated DAS, whichever is less.
    (iv) Adjustments to leased DAS. An adjustment factor, in accordance 
with Table A below, shall be applied to leased DAS where DAS are being 
leased from a smaller horsepower class vessel to a larger horsepower 
class vessel. For the purposes of this program, all limited access NE 
multispecies DAS permit holders are classified according to the 
baseline horsepower associated with that permit as of April 24, 2003. 
If the lessee vessel is in a larger size horsepower category than the 
lessor vessel, then the lessee will receive a fraction of the DAS 
leased based on the horsepower class of the two vessels, as specified 
in Table A below. Conversely, if the lessee vessel is in the same or a 
smaller size horsepower category than the lessor vessel, the lessee 
vessel will be allowed to use the full amount of DAS leased.

                                                       Table A. Adjustment Factors for DAS Leases.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Lessor Vessel (seller vessel) Horsepower Class
                                                                           -----------------------------------------------------------------------------
                                                                               0-175       176-250      251-324      325-400       401-65       651 +
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lessee Vessel (buyer vessel) Horse-power Class                       0-175         1.00         1.00         1.00         1.00         1.00         1.00
                                                                   176-250         0.80         1.00         1.00         1.00         1.00         1.00
                                                                   251-324         0.70         0.88         1.00         1.00         1.00         1.00
                                                                   325-400         0.58         0.73         0.83         1.00         1.00         1.00
                                                                   401-650         0.49         0.61         0.70         0.84         1.00         1.00
                                                                     651 +         0.36         0.45         0.52         0.62         0.74         1.00
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For example, if Vessel A, a 176-250 horsepower class vessel, 
leases-out 1 NE multispecies DAS to Vessel B, a vessel in the 325-400 
horsepower class, Vessel B will receive 0.73 DAS (1 x 0.73), or 
approximately three-quarters of a DAS. Using these same horsepower 
class vessels, if Vessel A leases-out 5 DAS to Vessel B, Vessel B will 
receive 3.65 DAS (5 x 0.73).
    (v) History of leased DAS use and landings. Unless otherwise 
specified in paragraph (v) of this section, history of leased DAS use 
will be presumed to remain with the lessor vessel and landings 
resulting from a leased DAS will be presumed to remain with the lessee 
vessel, i.e., the vessel landing the fish. History of leased DAS use 
will be presumed to remain with the lessor only if the lessee actually 
fished the leased DAS legally (i.e., in accordance with the DAS 
notification program specified at Sec.  648.10). For the purpose of 
accounting for leased DAS use, allocated DAS will be accounted for 
prior to leased DAS. In the case of multiple leases to one vessel, 
history of leased DAS use will be presumed to remain with the lessor in 
the order in which such leases were approved by NMFS. In cases where an 
adjustment factor is applied to leased DAS, as described in paragraph 
(m)(3)(iv)of this section, the number of used DAS presumed to remain 
with the lessor will be the actual number of DAS leased, prior to the 
adjustment factor reduction.
    (vi) Monkfish Category C and D vessels. A vessel that possesses a 
valid limited access monkfish Category C or D permit and leases NE 
multispecies DAS to another vessel is subject to the restrictions 
specified in Sec.  648.92(b)(2).
    (vii) Termination of NE Multispecies DAS Leasing Program. The 
Regional Administrator may terminate acceptance of new applicants to 
the NE Multispecies DAS Leasing Program if he/she determines that the 
goals of reducing fishing mortality or increasing economic opportunity 
may be undermined by allowing the continued leasing of DAS. Such a 
determination shall be based upon all information available, including, 
but not limited to, projected landings, patterns of DAS use, and 
information obtained from the leasing program. The termination of 
accepting new applicants to the NE Multispecies DAS Leasing Program 
shall be made in accordance with the Administrative Procedure Act.
    7. In Sec.  648.92, paragraph (b)(2)(ii) is revised and paragraph 
(b)(2)(iii) is added to read as follows:


Sec.  648.92  Effort-control program for monkfish limited access 
vessels.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Beginning May 1, 2003. Unless otherwise specified in paragraph 
(b)(2)(iii) of this section, each monkfish DAS used by a limited access 
NE multispecies or scallop vessel holding a Category C or D limited 
access monkfish permit shall also be counted as a NE multispecies or 
scallop DAS, as applicable, except when a Category C or D vessel that 
has an allocation of NE multispecies DAS under Sec.  648.82(l) that is 
less than the number of monkfish DAS allocated for the fishing year May 
1 through April 30, that vessel may fish under the monkfish limited 
access Category A or B provisions, as applicable, for the number of DAS 
that equal the difference between the number of its allocated monkfish 
DAS and the number of its allocated multispecies DAS. For such vessels, 
when the total allocation of NE multispecies DAS has been used, a 
monkfish DAS may be used without concurrent use of a NE multispecies 
DAS. (For example, if a monkfish Category D vessel's NE multispecies 
DAS allocation is 30, and the vessel fished 30 monkfish DAS, 30 NE 
multispecies DAS would also be used. However, after all 30 NE 
multispecies DAS are used, the vessel may utilize its remaining 10 
monkfish DAS to fish on monkfish, without a NE multispecies DAS being 
used, provided that the vessel fishes under the regulations pertaining 
to a Category B vessel and does not retain any regulated NE 
multispecies.)
    (iii) Category C and D vessels that lease NE multispecies DAS. (1) 
A monkfish Category C or D vessel that has ``monkfish-only'' DAS, as 
specified in paragraph (b)(2)(ii) of this section, and that leases NE 
multispecies DAS from another vessel pursuant to Sec.  648.82(m), is 
required to fish its available ``monkfish-only'' DAS in conjunction 
with its leased NE multispecies DAS, to the extent that the vessel has 
NE multispecies DAS available.
    (2) A monkfish Category C or D vessel which leases DAS to another 
vessel(s), pursuant to Sec.  648.82(m), is required to forfeit a 
monkfish DAS for each NE

[[Page 20109]]

multispecies DAS that the vessel leases, equal in number to the 
difference between the number of remaining multispecies DAS and the 
number of unused monkfish DAS at the time of the lease. For example, if 
a lessor vessel, which had 40 unused monkfish DAS and 47 allocated 
multispecies DAS, leased 10 of its multispecies DAS, the lessor would 
forfeit 3 of its monkfish DAS (40 monkfish DAS - 37 multispecies DAS = 
3) because it would have 3 fewer multispecies DAS than monkfish DAS 
after the lease.
* * * * *
[FR Doc. 03-10163 Filed 4-23-03; 8:45 am]
BILLING CODE 3510-22-S