[Federal Register Volume 68, Number 124 (Friday, June 27, 2003)]
[Rules and Regulations]
[Pages 38234-38246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16404]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030409081-3154-02; 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: Final rule.

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SUMMARY: This final emergency rule implements emergency measures 
intended to reduce overfishing on species managed under the NE 
Multispecies Fishery Management Plan (FMP), under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This action continues most interim measures specified in 
the Settlement Agreement Among Certain Parties (Settlement Agreement), 
ordered to be implemented by the U.S. District Court for the District 
of Columbia (Court). The interim measures were implemented through an 
interim final rule published on August 1, 2002. The final emergency 
rule contains measures such as: 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, in 
response to public comment, this final emergency rule implements 
measures pertaining to haddock, including reducing the haddock minimum 
size limit for private recreational and party/charter vessels to 21 
inches (52.5 cm), and relaxing the haddock trip limit (also known as 
bag limit) for charter/party and open access Handgear permit vessels. 
NMFS and two of the plaintiffs filed a motion with the Court requesting 
an extension of the August 22, 2003, implementation of Amendment 13 to 
the NE Fishery Management Plan (FMP) schedule in the Order until May 1, 
2004. On December 4, 2002, the Court granted an extension of the Court-
ordered timeline for implementation of Amendment 13 to

[[Page 38235]]

the FMP until May 1, 2004. Amendment 13 will put in place long-term 
measures to end overfishing and rebuild multispecies stocks. This 
emergency rule is necessary to ensure that there exist measures to 
reduce overfishing until implementation of Amendment 13.

DATES: Effective July 28, 2003.

ADDRESSES: Written comments regarding the approved collection-of-
information requirements should be sent to Patricia A. Kurkul, Regional 
Administrator, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930, and to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Washington, DC 20503 (Attn: 
NOAA Desk Officer). Copies of this final emergency rule, including the 
Environmental Assessment/Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (EA/RIR/FRFA) are available upon request from the 
Regional Administrator. The EA/RIR/FRFA 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

    A proposed emergency rule for this action, requesting public 
comment, was published on April 24, 2003 (68 FR 20096), and 
subsequently corrected on May 9, 2003 (68 FR 24914), that would 
continue measures implemented on August 1, 2002, consistent with the 
Settlement Agreement, which was ordered to be implemented by the Court 
in a Remedial Order (Order) issued on May 23, 2002, as a result of 
Conservation Law Foundation, et al. v. Evans, et al. In addition to 
containing the interim measures implemented on August 1, 2002, 
consistent with the Settlement Agreement, which are being implemented 
through this final emergency rule, the proposed emergency rule 
contained a program that would allow limited access NE multispecies 
vessels to lease DAS. Due to the newness and potential controversiality 
of the DAS Leasing Program and its implications, NMFS extended the 
comment period through June 10, 2003, on the DAS leasing aspect of the 
proposed emergency rule only (68 FR 28188; May 23, 2003). This final 
emergency rule implements many of the same measures implemented through 
the August 1, 2002, interim final rule with some modifications in 
response to public comment, and does not implement the DAS Leasing 
Program. If the DAS Leasing Program is approved, a separate final rule 
will be published to implement that program.
    Pursuant to the Court's Order, NMFS published an interim final rule 
(67 FR 50292) on August 1, 2002, which implemented management measures 
consistent with the Settlement Agreement that intended to reduce 
overfishing on species managed under the FMP. Measures implemented on 
August 1, 2002, included: A freeze on DAS based on the highest annual 
level used from fishing years 1996-2000, 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; 
limits on yellowtail flounder catch; a reduction in the haddock trip 
limit for open access Handgear vessels; a haddock trip limit for 
charter/party vessels fishing in the Gulf of Maine (GOM); and an 
increase in minimum haddock size for private recreational and party/
charter vessels.
    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 in the Federal 
Register informing 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. 
Thus, in order to comply with the Court Order to maintain the short-
term measures until implementation of Amendment 13, the Secretary is 
implementing this final emergency rule under 305(c) of the Magnuson-
Stevens Act.
    This final emergency rule implements many of the same measures 
contained in the interim final rule published on August 1, 2002, as 
described below, with slight modifications to measures pertaining to 
haddock size and possession limits for recreational, party/charter, and 
open access Handgear vessels. As acknowledged in the Settlement 
Agreement, the Secretary maintains the discretion to modify measures 
contained therein. NMFS determined that slight modifications to certain 
haddock specific measures are justified due to the unique circumstances 
of the haddock fishery, including, the fact that overfishing is not 
occurring in the haddock fishery, the disproportionate haddock 
restrictions among different sectors of the fishery, and the potential 
for lowering discarded bycatch of haddock. Fishing mortality on haddock 
in the 2002 fishing year continued at a level well below the level 
necessary to ensure rebuilding of the stock within the timeframes 
specified in the Magnuson-Stevens Act. In response to this low level of 
fishing mortality, NMFS has relieved certain haddock trip limits during 
the 2002 fishing year (67 FR 45401; July 9, 2002), on commercial 
limited access multispecies vessels as allowed for in the multispecies 
regulations. Public comments for this proposed action pointed out that 
other fishing sectors fishing for haddock did not receive the same 
consideration with respect to haddock restrictions. This emergency rule 
significantly reduces these disproportionate haddock restrictions 
without jeopardizing the objective of preventing overfishing on 
haddock. Even though NMFS received public comments requesting 
modifications to other measures, NMFS determined that the changes to 
the haddock measures were the only appropriate ones because they apply 
to haddock only and the analysis in the EA demonstrates that these 
measures will not have a detrimental effect on haddock or any other 
multispecies stock. Moreover, these changes were designed to limit the 
changes to a return to haddock restrictions in effect before 
implementation of the August 1, 2002, interim regulations. These unique 
circumstances do not exist for implementing any other suggested 
modifications affecting other stocks of multispecies. The measures 
being implemented by this final emergency rule are described below.

Regulated Mesh Areas (RMAs)

    This action continues the RMAs established by the August 1, 2002, 
interim rule for the Gulf of Maine

[[Page 38236]]

(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 U.S. Exclusive Economic Zone 
(EEZ) for the areas east of 69 00' W. long. The SNE RMA is defined as 
the area west of the GB RMA and east of a line beginning at the 
intersection of 74 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 is defined as the area west of the SNE RMA. Specific management 
measures 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 FMP, remain in effect 
and are referred to as ``Exemption Areas.''

DAS Freeze

    This action continues 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 is 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 is 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 DAS baseline will incorporate any corrections 
made, no additional opportunity to correct used DAS baseline 
allocations is provided under this action.

DAS Effort Reduction

    These emergency measures will 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 is equal to that vessel's used DAS baseline, minus 20 
percent of that vessel's used DAS baseline. Effective July 28, 2003, 
each vessel's DAS remaining for the 2003 fishing year is equal to 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 action, vessels that have never been issued an open 
access NE multispecies Hand-gear permit are 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 in advance of the actual 
departure of the vessel. This final emergency rule continues the 
prohibition on frontloading. Under this prohibition, a vessel owner or 
authorized representative is 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 will begin once the call has been received and a 
confirmation number is given. This measure applies to all management 
areas.

Closed Area Additions/Modifications

    This final emergency rule continues 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 remain the same as established under the August 1, 2002, 
interim rule (and corrected in 68 FR 14347, March 25, 2003). Charts of 
the 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 final emergency rule, vessels fishing with otter trawl 
gear, and fishing any part of a NE multispecies DAS trip in the GOM, 
GB, or MA RMAs, are required to fish with a minimum 6.5-inch (16.5-cm) 
diamond or square mesh codend. This requirement applies only to the 
codend of the net; the minimum mesh-size for the remaining portion of 
the net is 6.0-inch (15.24-cm) diamond mesh or 6.5-inch (16.5-cm) 
square mesh, or any combination thereof. The codend is 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 action, limited access NE 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, are 
required to fish with nets with a minimum of 6.5-inch (16.5-cm) mesh 
and are restricted to 150 nets, with one tag fixed to each net. 
Multispecies vessels that obtain an annual designation as a Day gillnet 
vessel are 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 can fish no more than 100 nets, with a minimum 
mesh size of 7 inches (17.8 cm), with one tag affixed to each net; 
vessels may only fish roundfish nets from July through February, and 
are 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 must be retained on the vessel and be immediately 
available for inspection.

Gillnet Vessels, When Fishing in the GB RMA

    Under this final emergency 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 are 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 are required to fish with nets with a 
minimum of 6.5-inch (16.5-cm) mesh and are restricted from fishing more 
than 50 nets, with two tags fixed to each net.

Trawl Vessels, When Fishing in the SNE RMA

    Under this final emergency rule, when fishing any part of a NE 
multispecies DAS in the SNE RMA, otter trawl vessels are 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 applies only to the codend of the 
net, which is

[[Page 38237]]

defined as described above under the GOM and GB trawl mesh 
restrictions.

Gillnet Vessels, When Fishing in the SNE RMA

    Under this final emergency 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 are 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 are required to fish with nets with a 
minimum of 6.5-inch (16.5-cm) mesh, and are restricted from fishing 
more than 75 nets, with two tags fixed to each net.

Gillnet Vessels, When Fishing in the MA RMA

    Under this final emergency rule, limited access NE multispecies 
vessels that fish under a NE multispecies DAS with gillnet gear in the 
MA RMA are 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 are allowed to fish up to 160 nets. Vessels fishing under 
the monkfish DAS program are limited to 150 nets.

Gillnet Vessels, When Fishing Under a Monkfish DAS

    Under this final emergency 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, is 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 are required 
to affix one tag to each net. Category A and B monkfish vessels remain 
unaffected by these measures.

Large-Mesh Vessel Permit Categories

    Under this final emergency 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, are 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 are 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 final emergency rule, vessels that have a valid NE 
multispecies limited access permit are 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 are required to use 
12/0 or larger circle hooks on longline gear, and are subject to a 
maximum number of rigged hooks on board the vessel. Specifically, 
vessels fishing in the GOM or SNE RMAs are prohibited from possessing 
more than 2,000 rigged hooks, and vessels fishing in the GB RMA are 
prohibited from possessing more than 3,600 rigged hooks.
    Table 1 summarizes the gear restriction measures for each gear 
sector when fishing in the various RMAs.
BILLING CODE 3510-22-S

[[Page 38238]]

[GRAPHIC] [TIFF OMITTED] TR27JN03.003

BILLING CODE 3510-22-C

[[Page 38239]]

Cod Minimum Fish Size (Commercial Vessels)

    Under this final emergency rule, the minimum size for cod that may 
be lawfully sold is 22 inches (55.9-cm) total length.

NE Multispecies Possession Restrictions

Yellowtail Flounder

    This final emergency rule requires enrollment in one of two 
authorization programs for any possession of yellowtail flounder, and 
continues restrictions on the harvest of yellowtail flounder when 
fishing in the SNE and MA RMAs and in the GB RMA south of 40 00' N. 
lat. From March 1 through April 30, 2004, all vessels are subject to a 
possession and landing limit of 250 lb (113.4 kg) of yellowtail 
flounder per trip when 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 are 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. may possess and land up to the seasonal yellowtail 
flounder allowable limits, provided the vessel does not fish south of 
40 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 final emergency rule, 
all vessels are 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 are not 
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 may 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 final emergency rule, the maximum haddock possession 
limit for vessels that have been issued a valid open access Hand-gear 
permit has been modified from the interim measures to allow up to the 
trip limit in effect prior to the implementation of the Settlement 
Agreement, 300 lb (136.1 kg) of haddock per trip. However, the maximum 
possession limit for cod or yellowtail flounder, combined, remains at 
200 lb (90.7 kg) per trip. In other words, such vessels may land a 
maximum of 300 lb (136.1 kg) combined cod, haddock, or yellowtail 
flounder, provided that no more than 200 lb (90.7 kg) of which are cod 
or yellowtail flounder. Such vessels are not required to obtain a 
yellowtail flounder possession/landing authorization in order to 
harvest yellowtail flounder, but are not allowed to harvest yellowtail 
flounder south of 40[deg] 00' N. lat. The haddock limit is changed in 
order to enhance the equitable distribution of fish harvest among 
sectors of the NE multispecies fishery, decrease discarding, and 
mitigate economic impacts resulting from the measures implemented as a 
result of the Settlement Agreement.

GB Cod Trip Limit

    This final emergency rule continues 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 can 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 maintains 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 final emergency rule, the minimum fish size for haddock 
that can be retained by a federally permitted charter/party vessel not 
on a NE multispecies DAS, or a private recreational vessel not holding 
a Federal permit and fishing in the EEZ, is reduced from 23 inches 
(58.4-cm) to 21 inches (52.5-cm) total length, which was the minimum 
size limit in effect prior to the implementation of the Settlement 
Agreement. This final emergency rule also removes the haddock bag limit 
for the charter/party sector when fishing in the GOM RMA and not under 
a NE multispecies DAS. This final emergency rule continues the current 
cod bag (possession) limit for the charter/party sector when a vessel 
is fishing in the GOM RMA and not under a DAS. Each person on a 
charter/party vessel not fishing under a DAS in the GOM RMA is allowed 
to possess no more than 10 cod per trip during the period April through 
November, and no more than 5 cod per trip during the period December 
through March. This final emergency rule continues the minimum fish 
size of 23 inches (58.4-cm) total length for cod that can be retained 
by a federally permitted charter/party vessel not on a NE multispecies 
DAS, or a private recreational vessel not holding a Federal permit and 
fishing in the EEZ. This action continues the cod and haddock 
possession limit of no more than 10 cod or haddock, combined, for 
private recreational vessels, and continues the further restriction of 
the cod possession limit for private recreational vessels when fishing 
in the GOM RMA, by requiring that during the period December through 
March, each person on a recreational vessel may possess no more than 
five cod. Cod and haddock harvested by recreational vessels with more 
than one person aboard can be pooled in one or more containers. 
Compliance with the possession limit is determined by dividing the 
number of fish on board by the number of persons on board. The haddock 
minimum size and bag limit are changed in order to enhance the 
equitable distribution of fish harvest among sectors of the NE 
multispecies fishery, decrease discarding, and mitigate potential 
economic impacts resulting from the measures implemented as a result of 
the Settlement Agreement.
    For a vessel that intends to charter/party fish in the GOM closed 
areas, this final emergency rule requires that the vessel possess on 
board a letter of authorization (LOA) issued by the Regional 
Administrator. The LOA is 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 can obtain an LOA by calling the NMFS Permit 
Office at 978-281-9370.
    All other existing recreational measures remain in effect, 
including the no-sale provision for all fish caught for both the party/
charter and private recreational sectors when not fishing

[[Page 38240]]

under a NE multispecies DAS. Table 2 summarizes the party/charter and 
private recreational sector measures.

                        Table 2. Charter/Party and Private Recreational Fishing Measures.
----------------------------------------------------------------------------------------------------------------
                                   Minimum Fish                                         GOM Closure Exemption
                                      Size\1\           Bag Limit (combined)                Authorization
----------------------------------------------------------------------------------------------------------------
Charter/party not on a NE           haddock 21                      April-November:    A minimum of 3 months, or
 multispecies DAS                    (52.5 cm)                            10 cod\2\          duration of closure
                                        cod 23                       December-March  ...........................
                                     (57.5 cm)                             5 cod\2\
Private Recreational                haddock 21            Areas outside of GOM RMA:                          N/A
                                     (52.5 cm)                       10 cod/haddock
                                        cod 23                             GOM RMA:                          N/A
                                      57.5 cm)       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.

Observer Coverage

    NMFS was ordered by the Court to expand its observer coverage for 
all gear sectors 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. NMFS has 
determined, based upon internal agency decision-making, 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), and NMFS has therefore implemented this level of observer 
coverage in the NE multispecies fishery.

Other 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, because the interim final rule was implemented during the 
middle of the fishing season. This exemption was only necessary for the 
2002 fishing year and, therefore, is not included in this final 
emergency rule. In the August 1, 2002 interim rule, the Cashes Ledge 
Area Closure regulations inadvertently omitted a reference to 
transiting, under a listing of allowable exemptions to the closure. The 
relevant reference is added by this final emergency rule.

Comments and Responses

    A total of 76 comments were received on the proposed emergency rule 
that pertain to the management measures specified by the Settlement 
Agreement. Because management measures contained in this final 
emergency rule are being implemented as a result of a negotiated 
Settlement Agreement and a Court Order, NMFS has limited discretion to 
alter the measures that were published in the August 1, 2002, interim 
rule.
    Comment 1: Sixty-nine commenters from the charter/party and private 
recreational sectors commented on the haddock restrictions implemented 
under the August 1, 2002, interim final rule and that were proposed to 
continue under this final emergency rule. Specifically, the commenters 
noted the disparity between the substantially higher haddock trip 
limits associated with the NE multispecies DAS limited access vessels 
and the lower trip limits associated with the charter/party and private 
recreational vessels. Some commenters stated that the difference in 
trip limits between the two sectors was not justified in light of the 
relatively small amount of haddock landed by the private recreational 
and charter/party sectors in comparison to the commercial DAS sector. 
They believe that the disparity in trip limits is unfair, and cited 
National Standard 4, which requires that assignment of fishing 
privileges among fishermen be fair and equitable.
    Thirty-seven commenters from the charter/party or private 
recreational sectors suggested that haddock should be removed from the 
combined cod/haddock trip limit, which would result in a bag limit of 
10 cod. Three commenters believed that the limit should be 20 cod/
haddock combined, and one commenter thought that the bag limit should 
be five for haddock. Two commenters stated that the haddock stock does 
not need the protection provided by the 10- haddock bag limit, and one 
commenter requested an explanation of why the recreational haddock 
catch should be restricted at all. One commenter stated that other 
factors such as the amount of free time available for fishing and 
weather, were more important determinants to overall levels of 
recreational catch than bag limits.
    Response: The fact that a trip limit is different for various 
sectors of the groundfish fishery does not necessarily make those trip 
limits unfair. However, in this situation, the changes to the 
recreational sector regulations, when compared to the commercial sector 
regulations, created an unfair situation. Low numbers of haddock 
landings reported by private recreational and party/charter fishers, as 
indicated by the Marine Recreational Fisheries Statistics Survey and 
Vessel Trip Reports (VTR), supports the assertion that the total amount 
of haddock landed by the recreational and charter party sectors is 
small relative to the amount of haddock landed by the commercial 
sector.
    Comparison of the most recent estimate of fishing mortality on the 
GOM stock of haddock with the recent estimate of the fishing mortality 
rate associated with maximum sustainable yield (Fmsy), indicates that 
fishing mortality could increase substantially over current levels. An 
increase in fishing mortality will not undermine the ability of the 
stock to rebuild within the timeframe required by the Magnuson-Stevens 
Act. In light of the current status of the haddock stocks, the current 
trip limit in effect for the NE multispecies limited access DAS 
vessels, the negative economic impacts that may have resulted from the 
10 cod/haddock combined trip limit (see response to comment 2), and the

[[Page 38241]]

potential impact on discarding bycatch of haddock, a charter/party 
haddock bag limit is not necessary, and has therefore been removed 
under this final emergency rule. With respect to private recreational 
vessels, the haddock bag limit was unchanged by the Settlement 
Agreement and is, therefore, not changed by this final emergency rule. 
These changes make the haddock measures more consistent with National 
Standard 4.
    Comment 2: Thirty-six commenters from the charter/party sector 
commented that the haddock size and trip limit restrictions that have 
been in effect since August 2002, and that were proposed to continue 
under this emergency action, have made customers reluctant to sign up 
for charter/party trips or caused trip cancellations. According to the 
commenters, this has resulted in about a 50-percent reduction in the 
number of trips and, thus, has created economic hardship for this 
sector of the fishing industry. One commenter predicted that relaxation 
of the haddock limits would have positive effects on businesses that 
rely on the recreational fishery (e.g., lodging, food, and tackle).
    Sixty-five commenters from the charter/party and private 
recreational sectors commented on the haddock minimum size restriction, 
recommending that the minimum size be reduced to 19 or 21 inches (47.5 
or 52.5 cm, respectively). The rationale provided was that few haddock 
reach 23 inches (57.5 cm), that the recreational size limit should be 
the same as the commercial size limit, and that culling of undersized 
fish (discarding) represents a waste of a valuable resource that 
results in increased fishing mortality on the stock. One commenter 
supported the current 23-inch (57.5-cm) minimum length for cod.
    Response: NMFS agrees that fish size and trip limit restrictions on 
haddock, coupled with the size and trip limit restrictions on cod for 
the charter/party sector, may have been a factor in the decrease in the 
number of charter/party trips. Relaxation of the haddock restrictions 
may benefit the charter/party fishery and businesses that rely on the 
charter/party fishery, while not having a negative impact on the 
haddock resource, but restrictions on the GOM stock of cod are 
necessary in order to reduce overfishing. Prior to the Settlement 
Agreement, the minimum fish size limit for the private recreational and 
party/charter fisheries for both cod and haddock was 21 inches (52.5 
cm). Reduction of the haddock minimum length restriction to 21 inches 
(52.5 cm) would decrease haddock bycatch mortality by enabling fishers 
to keep some fish that they would otherwise be required to discard. 
Given this, and the current relatively low level of fishing mortality 
on haddock, this final emergency rule reduces the haddock minimum size 
restrictions for both the private recreational and charter/party 
vessels to 21 inches (52.5 cm), the minimum fish size regulation that 
was in effect prior to the Settlement Agreement.
    Comment 3: Eight commenters did not support the more restrictive 
cod limits in December through March because they believe business was 
hurt by the low limit, that five fish are not worth the risks 
associated with winter fishing, and that the restriction amounts to a 
GOM closure for party/charter and private recreational vessels.
    Response: NMFS continues to believe that the GOM bag limit of five 
cod during December through March for the private recreational and 
charter/party sectors is justified due to the need for a substantial 
reduction in fishing mortality for the GOM stock of cod. Data suggest 
that the majority of charter/party catch of cod occurs from November 
through April. Maintaining the five-cod bag limit from December through 
March will, therefore, afford continued needed protection for this 
stock, which is overfished.
    Comment 4: One commenter stated that the proposed rule would not 
impose a seasonal bag limit on recreational cod caught on GB, despite 
the fact that the GB stock of cod is at a low level. The commenter 
believed this was justification for removal of the seasonal 
recreational bag limit (five cod in December through March) on GOM cod.
    Response: A GB charter/party bag restriction for cod was not an 
alternative contained in the proposed rule or analyzed in the EA for 
this emergency action. Therefore, there is not a sufficient 
justification in the record to support implementation of such measures.
    Comment 5: The State of Massachusetts Division of Marine Fisheries 
and the Associated Fisheries of Maine indicated that the limitations on 
the number of gillnets allowed for vessels with a Trip gillnet 
designation disadvantages that sector of the fishery, and suggested 
that the 150-net restriction either be eliminated, or that the 150-net 
limit apply everywhere, and not only to the GOM RMA. The commenters 
noted that the number of nets that can be safely carried on board the 
vessel is limited by the size of the vessel, and that access to pollock 
and haddock is restricted. One commenter suggested that a limit of 75 
nets be set for both Day and Trip gillnet vessels, that the flatfish 
net restriction in the GOM be removed, and that the day vessels have a 
6.5-inch (16.3-cm) requirement year round.
    Response: Several stocks of groundfish in the GOM and GB RMAs 
require significant mortality reductions, and the gillnet restrictions 
were part of the measures designed to reduce overfishing because such 
gear is extensively used in the areas where reductions are needed. NMFS 
agrees that a subset of the gillnet fishery will be affected by both 
types of gillnet restrictions (mesh size and maximum number of nets). 
Although the aggregate reduction in groundfish landings that may be 
attributed to the gear restrictions imposed on gillnet vessels is 
relatively small (e.g., 2.6 percent for GOM cod), such restrictions 
have the potential to achieve important reductions in fishing mortality 
on several stocks, particularly cod and yellowtail flounder, which are 
overfished. Although, the complexity of the management measures makes 
it difficult to compare precisely the impacts of all regulations across 
gear sectors, the EA concludes that the Preferred Alternative would not 
result in disproportionate impacts among gear groups. Therefore, this 
final emergency rule does not modify the gillnet restrictions that were 
part of the Settlement Agreement. Amendment 13 to the FMP will reassess 
the continuation of these measures.
    Comment 6: One commenter stated that the haddock trip limit 
associated with the open access Handgear permit category is not fair, 
given the more liberal haddock trip limit rules that the NE 
multispecies DAS vessels have been fishing under, and therefore should 
be removed. The commenter recommended that the cod and yellowtail 
flounder trip limits be set at the levels existing prior to 
implementation of the Settlement Agreement.
    Response: In light of the current fishing mortality rate on the 
haddock stocks, the limit in effect for the NE multispecies limited 
access vessels concurrent with the implementation of the Settlement 
Agreement, the negative economic impacts that may have resulted from 
the 200-lb (90.7-kg) haddock trip limit, and the potential to reduce 
discarding, this final emergency rule increases the trip limit for the 
open access Handgear permitted vessels to 300 lb (136.1 kg) of cod, 
haddock, and yellowtail flounder, combined, no more than 200 lb (90.7 
kg) of which, may consist of cod and yellowtail, combined. Maintenance 
of the 200-lb (90.7-kg) maximum for cod and yellowtail

[[Page 38242]]

flounder, combined, is necessary to ensure continued protection of 
those stocks.
    Comment 7: Two commenters did not support the method used to 
calculate the NE multispecies DAS baseline implemented under the August 
1, 2002, interim final rule, which was proposed to continue under this 
rule. One commenter suggested that, instead of a 20-percent DAS 
reduction from the baseline level, all vessels should have their DAS 
reduced by an equal number of days. Although not related to method by 
which days-at-sea are calculated, one commenter suggested that NE 
multispecies limited access DAS permit holders be compensated for lost 
DAS.
    Response: The DAS baseline was chosen as a compromise to lessen 
impact on vessels as much as possible during a short-term interim 
period while Amendment 13 is being developed. NMFS recognizes that for 
some vessel owners the criterion may result in more severe impacts than 
for others. For such a broadly based measure, some differences in 
individual impacts are unavoidable. The conservation benefits of having 
a reduced overall cap on the amount of effort available for this 
fishery, on balance, justifies the freeze for this interim period, 
despite the more severe impacts on a few vessel owners. To help 
mitigate these impacts, in August, 2002, the President and Congress 
signed an Act that allocated funds to provide 12 million dollars in 
economic assistance to fishing communities of New England affected by 
federal restrictions. Amendment 13 is considering various alternative 
methods that define DAS baselines.
    Comment 8: One commenter requested that the western border of the 
SNE RMA, which was redesignated by the Settlement Agreement, be 
returned to its original location. The commenter stated that it was not 
represented during the Settlement Agreement negotiations, and that the 
redesignation has been detrimental to some members of the industry, 
especially during January to June.
    Response: NMFS acknowledges that re-designation of the western 
border of the SNE RMA from 72 30' W. long. to 74 00' W. long. altered 
the area of the SNE RMA and may have particularly impacted vessels 
fishing under a NE multispecies DAS in this re-designated area. 
Although the particular challenges facing fishers in this area may be 
unique, the implementation of the measures consistent with the 
Settlement Agreement made the minimum mesh requirements more 
restrictive in all the RMAs. Thus, NMFS believes the continuance of the 
mesh size restrictions is justifiable, based on the overfished status 
of many stocks managed under the NE Multispecies FMP, and the positive 
impacts that may result from an increase in mesh size (e.g., improved 
spawning success and recruitment).
    Comment 9: One commenter suggested that the Settlement Agreement 
management measures should be discontinued, due to the lack of a public 
process during the development of the measures.
    Response: When implementing the August 1, 2002, interim action, 
NMFS was responding to a Court decision, in which the Court adopted the 
Settlement Agreement. In order to involve the public and solicit 
comment on the proposed rule, NMFS provided a 30-day comment period for 
the August 1, 2002, interim final rule and the proposed emergency rule 
published on April 24, 2003. In addition, the public had an opportunity 
to comment on the proposed emergency rule measures at the May 20, 2003, 
New England Fisheries Management Council meeting. Although the public 
was not involved in the development of the Settlement Agreement, NMFS 
has, to the extent possible, taken into consideration public comments 
and made alterations to the proposed measures.
    Comment 10: Two conservation organizations, The Ocean Conservancy 
and Oceana, supported extension of the Settlement Agreement management 
measures, but were concerned that NMFS concluded that a 5 percent level 
of observer coverage is sufficient.
    Response: NMFS agrees that it is appropriate and necessary to 
continue the majority of the Settlement Agreement measures until such 
time that Amendment 13 is implemented. The level of observer coverage 
is a result of NMFS' internal deliberations related to the adequacy of 
observer coverage and is neither specified in the regulations nor a 
part of this rulemaking. Pursuant to the Court Order NMFS was required 
to provide 10 percent observer coverage for all gear sectors, effective 
May 1, 2003, unless it was able to establish by the most reliable and 
current scientific information available that such increase was not 
necessary. NMFS' Northeast Fisheries Science Center conducted an 
analysis of the relative precision of discard estimates for the NE 
multispecies fishery and concluded that a 5 percent level of observer 
coverage on all trips fished under a NE multispecies DAS would provide 
sufficiently robust statistical data to assess and estimate the amount 
and type of bycatch in the NE multispecies fishery.
    Comment 11: The State of Maine's Department of Marine Resources 
supported the continuance of the measures specified in the Settlement 
Agreement, urged that no changes to the regulations be made, and stated 
that Amendment 13 is the appropriate vehicle for resolution of 
outstanding issues.
    Response: As discussed above, NMFS is continuing most of the 
measures contained in the Settlement Agreement. The measures in the 
emergency proposed rule that were changed in this final emergency rule 
were limited to management measures for the haddock fishery, which is 
not subject to overfishing and where there are inequities between 
fishery sectors.
    Comment 12: One commenter suggested that the requirement for Day 
gillnet vessels to take 120 days out of the fishery be modified to 
allow blocks to be taken in 3 to 7-day increments, and one commenter 
suggested that the commercial haddock limit be removed and therefore, 
there is not a sufficient basis to make such a change to the measures.
    Response: These suggested changes were not analyzed or contained in 
the emergency proposed rule for this short term interim set of 
measures, and therefore, there is no justification in the record that 
such a change to these measures should be made.

Changes to the Proposed Interim Rule

    The following changes to the proposed emergency rule are based upon 
public comment, and NMFS' decision to extend the comment period on the 
DAS Leasing Program. The changes listed below are in the order that 
they appear in the regulations.
    In Sec.  648.2, proposed new definitions pertaining to the DAS 
Leasing Program are removed to reflect that the DAS Leasing Program is 
not being implemented by this final emergency rule.
    In Sec.  648.4, the proposed modification to the consolidation 
restriction is removed to reflect that the DAS Leasing Program is not 
being implemented by this final emergency rule.
    In Sec.  648.14, the proposed prohibitions pertaining to the DAS 
Leasing Program are removed to reflect that the DAS Leasing Program is 
not being implemented by this final emergency rule.
    In Sec.  648.82(a)(1), the proposed modification to the DAS carry-
over restrictions are removed to reflect that the DAS Leasing Program 
is not being

[[Page 38243]]

implemented by this final emergency rule.
    In Sec.  648.82, the proposed removal of paragraph (l)(3) is 
rescinded.
    In Sec.  648.82, proposed paragraph (m) is removed to reflect that 
the DAS Leasing Program is not being implemented by this final 
emergency rule.
    In Sec.  648.88, paragraph (a)(1) is modified to reflect that the 
NE multispecies open access Handgear permit category possession limit 
has changed in response to public comment, as described in the response 
to comment 6.
    In Sec.  648.89, paragraphs (b)(1) and (c)(2)(i) and (ii), the 
recreational cod and haddock minimum sizes and the charter/party 
haddock bag limit, respectively, are modified in response to public 
comment, as described in the response to comments 1 and 2.
    In Sec.  648.92(b)(2), the proposed modifications to monkfish DAS 
restrictions are removed to reflect that the DAS Leasing Program is not 
being implemented by this final emergency rule.

Classification

    This rule has been determined to be significant for purposes of 
Executive Order 12866.

Final Regulatory Flexibility Analysis

    NMFS prepared a FRFA that analyzes the potential economic impacts 
of the final rule on small commercial fishing entities. The proposed 
emergency rule was published in the Federal Register on April 24, 2003. 
A copy of the Initial Regulatory Flexibility Analysis (IRFA) is 
available from the Regional Administrator (see ADDRESSES). Changes to 
the emergency proposed rule were made as a result of comments, as 
explained in the responses to comments 1, 2, and 3, and to reflect that 
the DAS Leasing Program was removed from this final emergency rule. 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, 
in the SUMMARY, and in the FRFA. Gross revenue, in the absence of 
reliable cost data, is considered to be a proxy for profitability. A 
summary of the analysis follows:
    The FRFA considered three alternatives: The Preferred Alternative, 
the No Action Alternative, and a Hard TAC Alternative. Analysis of the 
Preferred Alternative examined the impacts on industry that would 
result from the continuation of the current management measures 
(Settlement Agreement), with modifications to the haddock measures. 
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 Preferred Alternative. 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 because this 
fishery has not operated under Hard TAC system and therefore, there is 
insufficient data to provide a quantitative assessment of the economic 
impacts.
    A total of seventy-six comments were received on the proposed 
emergency rule. Of these comments, fifty-eight addressed the economic 
impacts of the proposed measures. The principal concerns were the 
private recreational and party/charter haddock and cod restrictions, 
the haddock restrictions for the open access Handgear permit category, 
the limitations on the number of gillnets allowed, the boundary of the 
SNE RMA, and the DAS baseline calculation.
    Forty-three comments addressed the economic impacts of the proposed 
charter/party and private recreational haddock regulations, and one 
comment addressed the economic impacts of the recreational measures on 
businesses related to the recreational fishery. According to the 
commenters, the haddock size and trip limit restrictions that have been 
in effect since August 2002, and that will continue under this final 
emergency rule, have made charter/party customers reluctant to sign up 
for trips or have caused trip cancellations resulting in about a 50-
percent reduction in the number of trips and concomitant reduction in 
gross receipts. This rule restores the minimum size limit for haddock 
to 21 inches (52.5-cm) for recreational and party/charter vessels and 
restores the no haddock trip limit measure for party/charter vessels. 
Relaxation of the haddock restrictions may provide additional revenue 
for the charter/party fishery and businesses that rely on the charter/
party fishery by allowing increased catch and resulting in a greater 
number of trips. Response numbers one and two in the comments and 
responses section of this rule address these issues.
    Five comments addressed the economic impacts of the proposed 
charter/party and private recreational cod regulations. Commenters 
believe that the five cod limit in combination with the haddock 
restrictions has discouraged customers from taking trips. Although the 
cod trip limit in the GOM may be a disincentive for fishers to book 
charter/party trips, relaxation of the cod limit is not justified due 
to the need to reduce fishing mortality on the GOM cod stock. The 
relaxation of the haddock limit by this rule may mitigate some of the 
economic impact of the continuation of the cod trip limit. Response 
number three in the comments and responses section of this rule 
addresses this concern.
    Four comments were received relative to the impacts of the net 
limits for the Trip gillnet category. The commenters stated that the 
limitations on the number of gillnets allowed for vessels with a Trip 
gillnet designation disadvantages that sector of the fishery. This 
final emergency rule implements gear restrictions on all the limited 
access sectors. Although the EA estimates that the gear limitations 
will reduce gross revenues for 24 trip vessels, it concludes that the 
Preferred Alternative would not result in disproportionate impacts 
among gear groups. Consistent with the Settlement Agreement as order to 
be implemented by the Court, the continuation of the Trip gillnet 
restrictions is justified because of the potential for these 
restrictions to achieve important reductions in fishing mortality and 
is, therefore, unchanged by this rule. Response number five in the 
comments and responses section of this rule addresses this issue.
    One commenter stated that the haddock trip limit associated with 
the open access Handgear permit category is unfair, and should be 
increased to 300 lb (136.1-kg). This rule restores the haddock trip 
limit for this sector resulting in increased gross revenues from an 
increase in the amount of haddock retained for sale. Response number 
six in the comments and response section addresses this comment.

[[Page 38244]]

    One commenter requested that the western border of the SNE RMA, 
which was redesignated by the Settlement Agreement, be returned to its 
original location because of negative economic impacts. The designation 
of the SNE RMA, the associated mesh restrictions, and the potential for 
negative economic impacts on a portion of the industry is justifiable, 
based on the following: The positive biological impacts that may result 
from an increase in mesh size, the overfished status of many stocks, 
and the fact that all the RMAs will be subject to restrictive minimum 
mesh sizes. Response number nine in the comments and responses section 
addresses this comment.
    Four comments did not support the method used to calculate the DAS 
baseline, based upon the resultant low numbers of DAS for some vessel 
owners and the negative economic impacts. The DAS baseline implemented 
by this rule results in a lower number of DAS available for use by the 
fishery and a decrease in gross revenues earned by individual vessels. 
The conservation benefits of having a reduced overall cap on the amount 
of effort available for this fishery are consistent with the Court 
Order, goals and objectives of the FMP and Magnuson-Stevens Act for 
overfished fisheries. To help mitigate negative economic impacts from 
DAS reductions, in August, 2002, the Congress passed and the President 
signed an Act that allocated funds to provide 12 million dollars in 
economic assistance to fishing communities of New England affected by 
federal restrictions. Response number seven in the comments and 
responses section addresses this issue.
    All commercial vessels with a NE 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 NE multispecies 
vessels) (EA for the Settlement Agreement, June 2002). Therefore, there 
will be no disproportionate economic impacts between small and large 
entities.
    This action will impact all limited access NE multispecies 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 EA, the number of participating vessels that 
may be affected by any one or more of the measures is about 37 percent 
of the total number of those eligible to participate in some component 
of the NE multispecies fishery.
    The DAS allocations implemented under the August 2002 interim final 
rule continue under this emergency action. The reductions in 2002 DAS 
allocations impacted all limited access 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 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 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 DAS 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 have resulted in no negative impacts or slightly positive 
impacts, in comparison with the measures being implemented.
    With respect to gross annual revenue earned during the 2001 fishing 
year (pre-Settlement Agreement), these measures may 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 had positive economic 
impacts on vessels that fish in the GOM and fish in the WGOM 
specifically. The least adverse economic impacts may be for those 
vessels from states bordering the GOM, and for small gillnet vessels or 
large hook vessels.
    The required changes to mesh size were estimated to affect 424 
trawl vessels fishing in the GOM or GB area, and 221 trawl vessels 
fishing in the SNE area. The average cost to replace a 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 these measures, individuals that provide passenger services 
to recreational anglers (charter/party vessels) will also be directly 
affected. Because the haddock bag limit for charter/party vessels, and 
the minimum haddock size for charter/party and private recreational 
vessels is relaxed by this rule, the negative economic impacts under 
these bag and minimum size restrictions are expected to be less than 
under the restrictions in effect since August 2002. Historic 
information suggests that the relationship between changes in bag and 
possession limits and passenger demand has been weak. Following 
implementation of a reduction in minimum fish size in 1997, the number 
of passengers on charter/party vessels increased. However, public 
comment received in response to the proposed rule supports the 
contention that low bag limits in conjunction with more restrictive 
minimum fish size limits may reduce passenger demand.
    Relative to the final measures, the No Action Alternative would 
have mitigated most of the adverse economic impacts associated with 
this action. In general, gross fishing incomes would have increased, 
particularly for vessels

[[Page 38245]]

operating in the GOM, and would have had a particularly beneficial 
impact on small vessels and gillnet vessels, in general. However, the 
No Action Alternative also would have resulted in unacceptably high 
increases in fishing mortality rates that could compromise the 
rebuilding of several GOM stocks, GOM cod in particular. Therefore, it 
was determined that the No Action Alternative would not meet the 
regulatory objectives for this emergency action.
    Relative to the final measures and the No Action Alternative, the 
Hard TAC Alternative would have had 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 were viable because they were not 
consistent with the Settlement Agreement ordered by the Court to be 
implemented.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and
    shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide was prepared. 
The guide will be sent to all holders of permits issued for the NE 
multispecies fishery. In addition, copies of this final emergency rule 
and guide (i.e., permit holder letter) are available from the Regional 
Administrator (see ADDRESSES) and are also available at the following 
web site: http://www.nmfs.gov/ro/doc/nero.html.
    There are no new recordkeeping requirements associated with this 
action.
    This final emergency 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: June 24, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

0
2. In Sec.  648.4, paragraphs (a)(1)(i)(I)(2) and (c)(2)(iii) are 
revised to read as follows:


Sec.  648.4  Vessel permits.

* * * * *
    (a) * * *
    (1) * * *
    (i) * * *
    (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 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.
* * * * *

0
3. 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:
* * * * *

0
4. In Sec.  648.88, paragraph (a)(1) is revised to read as follows:


Sec.  648.88  Multispecies open access permit restrictions.

    (a) * * *
    (1) Unless otherwise restricted under Sec.  648.86(h), the vessel 
may possess and land up to 300 lb (136.1 kg) of haddock, cod, and 
yellowtail flounder, combined; one Atlantic halibut per trip; and

[[Page 38246]]

unlimited amounts of the other NE multispecies provided the following: 
The vessel does not possess more than 200 lb (90.7 kg) of cod and 
yellowtail flounder, combined; the vessel does not use or possess on 
board gear other than rod and reel or handlines while in possession of, 
fishing for, or landing NE multispecies; and provided it has at least 
one standard tote on board.
* * * * *

0
5. In Sec.  648.89, paragraphs (b)(1), (c)(2)(i) and (ii) are revised 
to read as follows:


Sec.  648.89  Recreational and charter/party restrictions.

* * * * *
    (b) * * *
    (1) Minimum fish sizes. Persons aboard charter or party vessels 
permitted under this part and not fishing under the NE multispecies DAS 
program, and private recreational fishing vessels in the EEZ, may not 
retain 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                           Size (inches)
------------------------------------------------------------------------
Cod.....................................................    23 (58.4 cm)
Haddock.................................................    21 (52.5 cm)
Pollock.................................................    19 (48.3 cm)
Witch flounder (gray sole)..............................    14 (35.6 cm)
Yellowtail flounder.....................................    13 (33.0 cm)
Atlantic halibut........................................    36 (91.4 cm)
Americal plaice (dab)...................................    14 (35.6 cm)
Winter flounder (blackback).............................    12 (30.5 cm)
Redfish.................................................     9 (22.9 cm)
------------------------------------------------------------------------

* * * * *
    (c) * * *
    (2) * * *
    (i) During the period April 1 through November 30, each person on 
the vessel may possess no more than 10 cod.
    (ii) During the period December 1 through March 31, each person on 
the vessel may possess no more than 5 cod.
* * * * *
[FR Doc. 03-16404 Filed 6-25-03; 11:19 am]
BILLING CODE 3510-22-S