[Federal Register Volume 70, Number 104 (Wednesday, June 1, 2005)]
[Rules and Regulations]
[Pages 31323-31342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10780]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 050314072-5126-02; I.D. 030705D]
RIN 0648-AS33


Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 40B

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

ACTION: Final rule.

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SUMMARY: NMFS is implementing approved measures contained in Framework 
Adjustment 40B (FW 40B) to the NE Multispecies Fishery Management Plan 
(FMP). FW 40B was developed by the New England Fishery Management 
Council (Council) to modify existing effort control programs 
implemented under Amendment 13 to the FMP to improve the effectiveness 
of these programs, to create additional opportunities for commercial 
fishing vessels in the fishery to target healthy groundfish stocks, and 
to increase the information available to assess groundfish bycatch in 
the herring fishery. This final rule implements several revisions to 
the Days-at-Sea (DAS) Leasing and Transfer Programs, modifies 
provisions for the Closed Area (CA) II Yellowtail Flounder Special 
Access Program (SAP), revises the allocation criteria for the Georges 
Bank (GB) Cod Hook Sector (Sector), establishes a DAS credit for 
vessels standing by an entangled whale, implements new notification 
requirements for Category 1 herring vessels, and removes the net limit 
for Trip gillnet vessels.

DATES: Effective June 1, 2005.

ADDRESSES: Copies of FW 40B, its Regulatory Impact Review (RIR) and the 
Environmental Assessment (EA) are available from Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, The Tannery--Mill 2, Newburyport, MA 01950. NMFS prepared a 
Final Regulatory Flexibility Analysis (FRFA), which is contained in the 
Classification section of this final rule. The EA/RIR/FRFA are also 
accessible via the Internet at http://www.nero.nmfs.gov. Copies of the 
Small Entity Compliance Guide are available from the Regional 
Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, 
Gloucester, MA 01930-2298.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule should be submitted to the Regional Administrator at the 
address above and to David Rostker, Office of Management and Budget 
(OMB), by e-mail at [email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy 
Analyst, (978) 281-9141, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The Council developed Amendment 13 in order to bring the FMP into 
conformance with all Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) requirements, including ending 
overfishing and rebuilding all overfished groundfish stocks. Amendment 
13 was partially approved by the Secretary of Commerce on March 18, 
2004. A final rule implementing the approved measures in the amendment 
was published April 27, 2004 (69 FR 22906) and became effective May 1, 
2004. Because of the mixed-stock nature of the NE multispecies fishery, 
management measures to reduce mortality on overfished stocks adopted in 
Amendment 13, including effort reductions, are expected to reduce 
fishing mortality more than is necessary on other, healthy stocks. As a 
result, yield from healthy stocks may be sacrificed and the FMP may not 
provide for the fishery to harvest the optimum yield (OY), the amount 
of fish that will provide the greatest overall benefit to the Nation, 
from all stocks managed under the FMP for a given year.
    Amendment 13 categorized the DAS allocated to each NE multispecies 
permit as Category A, B (Regular), B (Reserve), or C DAS. Category A 
DAS can be used to target any regulated groundfish stock, while 
Category B DAS are to be used only to target healthy groundfish stocks. 
Category C DAS cannot be used unless authorized at some time in the 
future. The regulations implementing Amendment 13 created one 
opportunity to use Category B DAS: A SAP designed to target GB 
yellowtail flounder in CA II. Framework Adjustment 40A (FW 40A), 
implemented November 19, 2004 (69 FR 67780), provided additional 
opportunities to use Category B DAS by creating two SAP's to target GB 
haddock and a pilot program designed for using Category B (Regular) DAS 
outside of a SAP (i.e., the Regular B DAS Pilot Program). These 
programs are intended to allow vessels to target healthy groundfish 
stocks without compromising the rebuilding programs of other groundfish 
stocks, thus enabling the industry to harvest OY from the healthy 
stocks.
    Since the implementation of Amendment 13 and submission of FW 40A, 
several issues have been raised concerning the overall approach to 
controlling effort. FW 40B proposes to address these new issues by 
improving the effectiveness of the Amendment 13 effort control program, 
including the opportunities developed to target healthy stocks and 
other measures to facilitate adaptation to the Amendment 13 effort 
reductions, as well as collect additional information regarding the 
bycatch of regulated species in the herring fishery.

Comments and Responses

    Thirteen letters were received regarding the proposed rule (March 
29, 2005; 70 FR 15803) to implement FW 40B, including five letters from 
groups representing the fishing industry. Two letters were received 
that were not relevant to the proposed action, including one comment 
that was directed towards the recent closure of the Eastern U.S./Canada 
Area on April 1, 2005 (70 FR 16758). Since these comments were not 
directed at the proposed measures under FW 40B, NMFS has not responded 
to these comments.

[[Page 31324]]

DAS Transfer Program Modifications

    Comment 1: Four commenters supported eliminating the tonnage 
criterion and reducing the conservation tax on DAS exchanged through 
the DAS Transfer Program. One industry group indicated that these 
revisions would improve the practical utility of the program. Another 
industry group supported this provision because it would also bring the 
DAS Transfer Program more in line with the DAS Leasing Program and 
would make this program more accessible to larger numbers of potential 
users.
    Response: NMFS agrees that these modifications will facilitate and 
encourage the use of the DAS Transfer Program and implements these 
modifications through this final rule.
    Comment 2: One industry group was concerned that the DAS Transfer 
Program has the potential to create distinct classes of vessel owners 
based on the allocation of DAS and the potential for vessels with 
excess capital to consolidate many DAS allocations onto one vessel. 
Because vessels that have consolidated DAS onto fewer vessels have a 
greater potential to continue fishing if future effort reductions are 
necessary, this group urged NMFS to evaluate the implications of the 
DAS Transfer Program for socio-economic affects.
    Response: An evaluation of the economic and social impacts of the 
DAS Transfer Program was conducted during the development of Amendment 
13. Sections 5.4 and 5.6 of the Final Supplemental Environmental Impact 
Statement (FSEIS) for Amendment 13 acknowledged that some vessels would 
be allocated more DAS under Amendment 13 than others. This analysis 
indicates that the DAS Leasing or Transfer Programs could help offset 
some of the impacts from the effort reductions. While some vessels have 
been allocated more DAS under Amendment 13 than others, access to 
sufficient capital to consolidate DAS allocations onto one vessel is 
independent of a vessel's DAS allocation. For example, a vessel with 
few NE multispecies DAS may have relied upon income generated from 
other fisheries instead of the NE multispecies fishery. A vessel's NE 
multispecies DAS allocation is not the only source of revenue for a 
particular vessel. Access to capital is dependent upon several factors, 
including the fixed costs of a business, assets of the vessel owner, 
and potential sources of revenue. Information specifying a vessel's 
fixed costs, the assets of the vessel owner, or sources of revenue 
outside of the NE multispecies fishery are currently not available. As 
a result, the analysis conducted for Amendment 13 and FW 40B, based on 
the best scientific information available, was not able to fully assess 
an individual's access to capital. Further, this analysis indicates 
that the benefits of the DAS Transfer Program would likely outweigh the 
costs associated with this program. Finally, the information available 
indicates that the DAS Transfer Program is consistent with applicable 
law. The Council is considering modifications to the DAS Transfer and 
Leasing Programs as part of FW 42 to the FMP for possible 
implementation during the 2006 fishing year. An evaluation of the DAS 
Transfer and Leasing Programs to address the industry group's concerns 
about the effect of DAS consolidation may be undertaken during the 
development of FW 42 if sufficient information capable of documenting a 
vessel's ability to access capital is available.
    Comment 3: One commenter believed that the 20-percent conservation 
tax on DAS exchanged through the DAS Transfer Program was still too 
high to encourage vessel participation.
    Response: Since no vessels have elected to participate in the DAS 
Transfer Program to date, there is no precise method to accurately 
determine whether the conservation tax or the other requirements (i.e., 
the transferring vessel must forfeit all state and Federal fishing 
permits) of the DAS Transfer Program are impeding vessel participation 
in this program. Based on Council deliberation and telephone 
conversations with members of the fishing industry, NMFS believes that 
reducing the conservation tax to 20 percent may be sufficient to 
encourage at least some vessels to participate in the DAS Transfer 
Program. Revisions to the other requirements of the DAS Transfer 
Program to encourage participation in the program were considered, 
including allowing vessels receiving DAS to obtain other non-groundfish 
permits and allowing the removal of a proxy vessel instead of the 
transferring vessel. However, these other measures were rejected by the 
Council during the development of FW 40B.

DAS Leasing Program Modifications

    Comment 4: Four commenters supported the proposed one-time 
opportunity to downgrade a vessel's baseline for the purposes of 
participating in the DAS Leasing Program. However, the State of Maine 
Department of Marine Resources (State of Maine) expressed concerns that 
the downgraded baseline would cause confusion as to the baseline that 
applies when vessels are sold or replaced.
    Response: NMFS supports measures that would facilitate 
participation in the DAS Leasing Program and implements this measure 
through this final rule. While the downgraded DAS Leasing Program 
baseline may be somewhat confusing at first, NMFS believes that this 
change is fairly straightforward and can be sufficiently explained in 
the Small Entity Compliance Guide permit holder letter it will mail to 
permit holder letters in conjunction with the publication of this final 
rule.

Changes to Incidental Total Allowable Catches (TAC's)

    Comment 5: One commenter expressed general support for modifying 
the incidental catch TAC's for the purposes of allocating GOM cod and 
GOM haddock TAC to the Western Gulf of Maine (WGOM) Closure Area Rod/
Reel Haddock SAP.
    Response: NMFS has determined that the WGOM Closure Area Rod/Reel 
Haddock SAP as currently analyzed and recommended in FW 40B is 
inconsistent with National Standard 2 of the Magnuson-Stevens Act, as 
well as the objectives of the FMP. NMFS has therefore disapproved this 
provision and is not implementing it in this final rule. A full 
explanation of the reasons for the disapproval of the WGOM Rod/Reel 
Haddock SAP is contained in the preamble of this final rule under 
``Disapproved Measures.''

Research Set-Aside TAC

    Comment 6: One industry group opposed the measure to set aside 10 
percent of the GB cod incidental catch TAC to facilitate research, 
despite recognizing the need to account for the mortality associated 
with research activities. This commenter acknowledged the deficiencies 
in the proposed measure highlighted by NMFS in the proposed rule (i.e., 
insufficient detail to implement this measure) and recommended 
disapproving this measure in FW 40B and remanding it to the Council to 
consider in a future action.
    Response: NMFS concurs that the details necessary to implement this 
provision were not adequately described in the FW 40B document. The FW 
40B document did not establish criteria to evaluate which research 
projects should be allocated research set-aside TAC for GB cod. As a 
result, it is not possible to assess whether this measure would pose 
equity concerns under National Standard 4. Because this proposed 
provision would not set aside research TAC for other species, it could 
also

[[Page 31325]]

undermine the conservation measures of the FMP. Therefore, NMFS has 
determined that this provision is not consistent with National 
Standards 1, 2, or 4, has disapproved this measure, and is not 
implementing this measure through this final rule. A full explanation 
of the reasons for the disapproval of the research set-aside TAC is 
contained in the preamble of this final rule under ``Disapproved 
Measures.'' Noting the proposed measure's deficiencies, NMFS has 
provided recommendations to the Council to specify criteria to evaluate 
applications to utilize GB cod research set-aside TAC as well as a 
mechanism to allocate this TAC during future fishing years. 
Additionally, NMFS has recommended that the Council specify research 
TAC's for other groundfish stocks to fully account for the mortality 
associated with research activities. The Council could clarify the 
noted deficiencies in this provision and implement these revisions 
through a future management action.
    Comment 7: One industry group and the State of Maine supported the 
research set-aside TAC for GB cod. However, the industry group 
suggested that there is limited information provided in the proposed 
measure to evaluate the equity of this measure. This group noted that 
this measure would take away TAC available to all vessels through the 
Regular B DAS Pilot Program and allocate it to a limited pool of 
vessels conducting research. Further, this group was concerned that the 
benefits of this allocation may not accrue to the entire fishery, as 
research would likely be directed at establishing SAP's benefitting 
specific participants instead of measures that would benefit the 
fishery as a whole.
    Response: NMFS agrees that there is limited information available 
to adequately assess the impacts of this proposed measure and to 
determine consistency with the Magnuson-Stevens Act, including National 
Standards 1 and 4. As specified in the proposed rule, there are no 
criteria to evaluate which research projects should be allocated 
research set-aside TAC for GB cod under this proposed measure. For 
these reasons, as well as those specified in the preamble of this final 
rule under ``Disapproved Measures,'' NMFS has disapproved this 
provision and is not implementing this measure in this final rule. NMFS 
supports research that would provide benefits to the entire fishery, 
but acknowledges that the Council's Research Steering Committee reviews 
research priorities for the NE multispecies fishery on a yearly basis.

WGOM Rod/Reel Haddock SAP

    Comment 8: Six commenters expressed general support for the WGOM 
Rod/Reel Haddock SAP, with one industry group expressing strong support 
for this SAP. Four commenters believed that there are sufficient 
controls on participation and mortality to minimize any adverse impacts 
resulting from this SAP.
    Response: NMFS has determined that the information available to 
support this SAP was not representative of the action proposed and is 
of limited use in evaluating the potential impacts of the proposed 
measures. In addition, while this SAP includes measures that would 
limit the mortality of non-target species, including establishing a cap 
on the amount of GOM cod that may be caught and incentives to encourage 
vessels to avoid catching GOM cod, this SAP, as recommended by the 
Council and analyzed in FW 40B, fails to adequately justify that the 
amount of bycatch of GOM cod would be minimized to the extent 
practicable. Therefore, this proposed measure is inconsistent with 
National Standard 9 and section 303(a)(11) of the Magnuson-Stevens Act. 
Furthermore, this proposed SAP is not consistent with the suggested 
minimum criteria for the development and approval of a SAP as specified 
in the Amendment 13 FSEIS because the limited information available to 
support this SAP is not based on an experimental fishery and does not 
indicate that vessels could effectively minimize bycatch of GOM cod. 
Therefore, NMFS has disapproved this provision because the proposed SAP 
is not consistent with National Standard 2, National Standard 9, and 
section 303(a)(11) of the Magnuson-Stevens Act as well as the 
objectives of the proposed SAP and the FMP. A full explanation of the 
reasons for the disapproval of the WGOM Rod/Reel Haddock SAP is 
contained in the preamble of this final rule under ``Disapproved 
Measures.''
    Comment 9: Two commenters indicated that this SAP represents the 
only opportunity for vessels to use Category B DAS in the GOM and the 
only SAP allowing access to the WGOM Closure Area.
    Response: NMFS disagrees that this SAP provides the only means of 
targeting healthy groundfish stocks in the GOM using a Category B DAS. 
While this proposed SAP would represent the only opportunity for 
limited access NE multispecies vessels to access a closed area to 
target groundfish in the GOM, the Regular B DAS Pilot Program 
implemented under FW 40A allows groundfish vessels to target healthy 
groundfish stocks throughout the GOM using Category B DAS.
    Comment 10: Two commenters stated that NMFS should only allow 
limited access NE multispecies vessels to access this SAP due to 
concerns over the potential impact of open access Handgear B vessels 
fishing in this area.
    Response: As recommended by the Council and approved by NMFS, only 
limited access NE multispecies vessels are allowed access to this SAP.
    Comment 11: Two industry groups indicated that the information 
available to support this SAP is not the best scientific information 
available and is not sufficient to accurately estimate cod catch 
resulting from this SAP. The State of Maine acknowledged the limited 
data available to support this SAP, but suggested, along with one 
industry group, that NMFS consider the positive results of an ongoing 
experimental fishery in the WGOM Closure Area that preliminary data 
indicate is capable of targeting haddock without catching cod.
    Response: NMFS is aware of the experimental fishery currently being 
conducted in the WGOM Closure Area. However, to date, no final reports 
documenting the results of the early experimental activities have been 
submitted to NMFS. In addition, NMFS is required to evaluate proposed 
measures based on the best scientific information available. 
Information from the experimental fishery is not considered the best 
scientific information available because it is currently not available 
for review and was not integrated into the EA to analyze the 
biological, social, and economic impacts of the proposed SAP. 
Therefore, at this time, the best scientific information available to 
assess the impacts of the proposed fishing activity for the WGOM 
Closure Area Rod/Reel Haddock SAP is contained in the FW 40B document. 
NMFS cannot use preliminary data from an ongoing experimental fishery 
to evaluate the impacts of this proposed SAP.
    Comment 12: One industry group believed that the requirement to use 
a vessel monitoring system (VMS) in the WGOM Closure Area Rod/Reel 
Haddock SAP is inconsistent with National Standard 7 because VMS 
requirements do not minimize costs and duplicate information submitted 
via vessel trip reports (VTR's). This commenter was concerned that the 
yearly operational costs associated with VMS usage exceed the value of 
the expected catch of haddock and suggested that the SAP be approved 
without the VMS requirement.
    Response: NMFS believes that the use of VMS is critical to the 
successful monitoring and enforcement of the

[[Page 31326]]

provisions of recently approved SAP's. Without VMS, real-time 
monitoring of TAC's associated with SAP's, access to areas, and vessel 
activity for the purposes of enforcement would not be possible. Real-
time monitoring of TAC's is not possible using VTR's alone due to the 
delay in obtaining and entering information from VTR's. VMS catch 
reports only require vessels to submit the amount of target species and 
specific stocks of concern anticipated to be caught in the SAP, unlike 
VTR's which require vessels to submit the amount of all species caught 
and discarded. Therefore, VMS catch reports do not duplicate the 
information submitted via VTR's, but augment this data to provide more 
real-time monitoring of SAP TAC's. Without such real-time monitoring, 
tracking catch rates of stocks of concern managed by small TAC's would 
not be possible, thereby increasing the likelihood of exceeding these 
TAC's and compromising the rebuilding objectives of the FMP. NMFS also 
disagrees that the costs associated with this SAP were not minimized. 
NMFS has certified two vendors to provide VMS services for the 
Northeast region. With the addition of this second vendor, a wider 
range of VMS units of varying costs are available to vessels, allowing 
vessels to choose the more economical vendor and unit. Furthermore, 
without adequate information to assess the expected catch of regulated 
species from operations proposed in this SAP, it is impossible to 
accurately predict expected revenues resulting from this SAP. Available 
information indicates that catch would primarily be composed of cod and 
haddock, though vessels would not be allowed to land cod. However, 
vessels would not be limited by a haddock possession limit. Therefore, 
it is possible that the catch of haddock alone could cover at least the 
operational costs of VMS.
    Comment 13: One industry group suggested that NMFS change the 
regulations to allow Handgear A vessels to fish in the WGOM Closure 
Area Rod/Reel Haddock SAP between March 1 and March 20.
    Response: As explained in the response to Comment 8, NMFS has 
disapproved the proposed WGOM Closure Area Rod/Reel Haddock SAP. Since 
NMFS has disapproved this SAP for the reasons specified in the 
``Disapproved Measures'' section of the preamble of this final rule, no 
changes to this measure of the SAP were made.
    Comment 14: One industry group indicated that it would not be fair 
and equitable under National Standard 4 if NMFS disapproved the WGOM 
Closure Area Rod/Reel Haddock SAP because hook fishermen would not have 
access to inshore areas where haddock could be profitably targeted, 
resulting in an unfair allocation of the haddock catch among all 
fishermen.
    Response: The National Standard Guidelines indicate that management 
measures may have different effects on persons of different geographic 
locations, provided they are reasonably calculated to promote 
conservation. The WGOM Closure Area was implemented by Framework 25 on 
March 31, 1998 (63 FR 15326) to reduce fishing mortality on GOM cod. 
GOM cod are still considered overfished and overfishing is still 
occurring. Therefore, there is still a need to maintain the WGOM 
Closure Area to limit mortality on GOM cod and continue rebuilding this 
stock. Accordingly, NMFS believes that the disapproval of the WGOM 
Closure Area Rod/Reel Haddock SAP through this final rule would not 
constitute an unfair or inequitable allocation of the haddock catch 
among fishery participants, as specified in National Standard 4, 
because it is reasonably calculated to promote conservation as required 
by the Magnuson-Stevens Act. Despite the disapproval of the WGOM 
Closure Area Rod/Reel Haddock SAP through this final rule, vessels are 
still able to target GOM haddock throughout the GOM to help achieve OY 
for this stock.
    Comment 15: The Council commented that the expected economic 
returns from the WGOM Closure Area Rod/Reel Haddock SAP would help 
mitigate revenue reductions to hook vessels and would justify 
administrative costs associated with this SAP.
    Response: In their comment, the Council used the expected revenue 
returns resulting from the GOM haddock TAC being fully harvested. 
However, the SAP is also regulated by an incidental catch TAC for GOM 
cod. As proposed, the SAP would be closed if either of these TAC's are 
harvested. Based on information used to support this SAP, it is highly 
unlikely that vessels would be able to fully harvest the available 
haddock TAC without first catching the incidental catch TAC for GOM 
cod. Therefore, the economic benefits of this SAP could likely be less 
than the $140,000 used by the Council in support of this SAP. Due to 
limited data accurately depicting catch rates by commercial vessels 
operating within the SAP as proposed, it is difficult to accurately 
predict the expected economic revenues from this provision. The 
administrative costs associated with this SAP are not described in the 
FW 40B document. Therefore, based on the information available as 
provided in FW 40B, it is not possible to reliably estimate if the 
economic benefits of this SAP as recommended by the Council would 
justify the administrative costs associated with implementing this 
measure.
    Comment 16: The Council noted that the proposed regulations 
regarding catch reports for this SAP were inconsistent with those 
specified in the FW 40B document.
    Response: As explained in the response to Comment 8 and in the 
``Disapproved Measures'' section of the preamble to this final rule, 
NMFS has disapproved the proposed WGOM Closure Area Rod/Reel Haddock 
SAP. Therefore, the proposed reporting requirements for this SAP are 
not revised by this final rule.
    Comment 17: One industry group recommended that NMFS should approve 
the WGOM Closure Area Rod/Reel Haddock SAP and use data from this 2-
year pilot program to evaluate the impacts of this SAP.
    Response: For the reasons specified in the ``Disapproved Measures'' 
section of the preamble of this final rule, NMFS has determined that 
the information available to support this SAP indicates that this 
proposed measure is not consistent with the FMP, National Standard 9, 
and section 303(a)(11) of the Magnuson-Stevens Act. Therefore, it would 
be inappropriate to approve this SAP simply to provide more data on the 
efficacy of its proposed measures.

CA II Yellowtail Flounder SAP

    Comment 18: Three commenters expressed general support for the 
proposed measures to revise the CA II Yellowtail Flounder SAP. One 
industry group supported the proposed mechanism to adjust the number of 
trips into the CA II Yellowtail Flounder SAP based on the available GB 
yellowtail flounder TAC. Another industry group indicated that this 
mechanism, in allowing the Regional Administrator to authorize zero 
trips into this SAP for a particular fishing year, would increase 
vessel safety, enable vessels to utilize more of the GB haddock TAC, 
and maximize the benefit from the GB yellowtail flounder TAC.
    Response: NMFS agrees that revising the CA II Yellowtail Flounder 
SAP as proposed would offer a suite of benefits to the fishing 
industry. During the 2004 fishing year, the rapid harvest of the GB 
yellowtail flounder TAC from the CA II Yellowtail Flounder SAP and the 
Regular B DAS Pilot Program implemented by FW 40A prompted NMFS to 
close and later reopen the Eastern U.S./Canada Area under reduced GB 
yellowtail flounder

[[Page 31327]]

possession limits to ensure that the TAC remained available throughout 
the fishing year. However, these actions also limited the ability of 
vessels to harvest the available GB cod and GB haddock TAC from the 
Eastern U.S./Canada Area. The proposed measure to allow for the 
modification of the number of trips into the CA II Yellowtail Flounder 
SAP enables the Regional Administrator to adjust the number of trips 
more efficiently and effectively in response to changing stock 
conditions. In addition, this provision would help ensure that the GB 
yellowtail flounder TAC is not harvested prior to the end of the 
fishing year, thereby increasing the likelihood that the Eastern U.S./
Canada Area will remain open as long as possible to allow vessels full 
opportunity to harvest the available GB cod and GB haddock TAC's and 
achieve OY from the fishery. Therefore, NMFS has approved this 
provision and is implementing it through this final rule.
    Comment 19: The provision to reduce the GB yellowtail flounder trip 
limit from 30,000 lb (13,605 kg) to 10,000 lb (4,536 kg) per trip was 
opposed by one industry group. This group felt that this trip limit is 
insufficient to cover costs associated with trips into this SAP. 
Further, the State of Maine recommended that NMFS calculate the GB 
yellowtail flounder trip limits for vessels fishing under a Category A 
or B DAS based on projected effort using a Category A DAS effort and 
other uses of GB yellowtail flounder TAC.
    Response: The reduction of the GB yellowtail flounder trip limit in 
FW 40B is intended to reduce the possibility that GB yellowtail 
flounder landings from the CA II Yellowtail Flounder SAP would result 
in the premature closure of the Eastern U.S./Canada Area that occurred 
during the 2004 fishing year. This reduction will also help ensure that 
the GB yellowtail flounder TAC is not exceeded in future fishing years. 
The analysis prepared for FW 40B indicates that, unless vessels are 
able to harvest greater amounts of species other than GB yellowtail 
flounder inside of the CA II Yellowtail Flounder SAP, or to redirect 
effort inside and outside of the SAP on the same trip, potential 
economic returns from a 10,000-lb (4,536-kg) GB yellowtail flounder 
trip limit may be insufficient to encourage participation in this SAP. 
Under the current regulations, vessels are able to fish inside the CA 
II Yellowtail Flounder SAP, in the Eastern U.S./Canada Haddock SAP 
Pilot Program, and in the Eastern U.S./Canada Area outside of these two 
SAP's on the same trip. Therefore, the current regulations enable 
vessels the flexibility to target other species in other areas during 
trips into the CA II Yellowtail Flounder SAP. This flexibility in 
operations could, as indicated in the EA prepared for FW 40B, increase 
the potential revenue available to vessels fishing in this SAP and may 
be sufficient to at least cover costs associated with trips into this 
SAP. In addition, while this final rule changes the GB yellowtail 
flounder trip limit to 10,000 lb (4,536 kg), the Regional Administrator 
has the authority to adjust this trip limit to a maximum of 30,000 lb 
(13,608 kg) after considering several factors related to TAC 
availability and fishery performance similar to those recommended by 
the State of Maine. Outside of the CA II Yellowtail Flounder SAP, there 
is no specified trip limit for GB yellowtail flounder, however. Under 
the current regulations, the Regional Administrator is authorized to 
modify the trip limits throughout the U.S./Canada Management Area, 
including implementing a trip limit for vessels fishing outside of the 
CA II Yellowtail Flounder SAP, once 30 percent and/or 60 percent of the 
U.S./Canada Management Area TAC allocations for GB cod, GB haddock, or 
GB yellowtail flounder are projected to be harvested. Therefore, the 
Regional Administrator can establish a GB yellowtail flounder trip 
limit as recommended by the State of Maine, but only when at least 30 
percent of the TAC for GB cod, GB haddock, or GB yellowtail flounder 
has been harvested.
    Comment 20: The State of Maine expressed concern that the proposed 
4,000-mt TAC for GB yellowtail flounder for the 2005 fishing year may 
be insufficient to maintain a yellowtail flounder fishery outside of 
the CA II Yellowtail Flounder SAP, resulting in the premature closure 
of the Eastern U.S./Canada Area during the 2005 fishing year. The State 
of Maine was also concerned that premature closure of this area could 
lead to underharvesting the U.S./Canada Management Area TAC's, leading 
to future reductions in TAC allocations for the Area based upon this 
underharvest.
    Response: The information used to support the proposed TAC of 4,260 
mt for GB yellowtail flounder for the 2005 fishing year indicates that 
the current fishing mortality on GB yellowtail flounder is still higher 
the appropriate level of fishing mortality required to rebuild the 
stock. NMFS concurs that the proposed GB yellowtail flounder TAC of 
4,260 mt in the U.S./Canada Management Area may be insufficient to 
support both the CA II Yellowtail Flounder SAP and a yellowtail 
flounder fishery outside of the SAP without likelihood of an early 
closure of the Eastern U.S./Canada Area. Therefore, NMFS has approved 
the proposed revisions to the measures regulating the CA II Yellowtail 
Flounder SAP and is implementing these revisions through this final 
rule. Further, based on the authority granted the Regional 
Administrator in this final rule and specified in the ``Approved 
Measures'' section of this final rule, it may be appropriate for the 
Regional Administrator to authorize zero trips into the CA II 
Yellowtail Flounder SAP for the 2005 fishing year, after consulting 
with the Council at its June meeting. A final notification of such a 
determination would be published in the Federal Register, consistent 
with the Administrative Procedure Act. This determination would help to 
ensure that the entire GB yellowtail flounder TAC would be available 
for vessels fishing outside of the CA II Yellowtail Flounder SAP, 
increasing the likelihood that the TAC would not be harvested during 
the 2005 fishing year and reducing the chance that the Eastern U.S./
Canada Area would be prematurely closed.

Minimum Effective Effort Allocation

    Comment 21: Four commenters, including Senator Collins, the State 
of Maine, the Council, and one industry group supported allocating 10 
Category B Reserve DAS to vessels allocated zero Category A and B DAS 
under Amendment 13. Addressing the equity concerns expressed by NMFS in 
the proposed rule for FW 40B, Senator Collins indicated that it is 
unfair that vessels were not allocated DAS under Amendment 13. Both 
Senator Collins and the Council noted that Category A DAS are more 
valuable and allow more opportunities to fish than only Category B 
Reserve DAS. The Council suggested that vessels issued any Category A 
DAS under Amendment 13 have more opportunities to fish for groundfish 
or benefit from their limited DAS allocation through leasing DAS than 
those who did not receive any DAS under Amendment 13. The Council 
further contended that Amendment 13 anticipated different allocations 
among individual vessels.
    Response: Amendment 13 did anticipate that DAS allocations would be 
different among vessels based upon the qualification criteria 
implemented. These criteria were implemented to eliminate latent effort 
and ensure that vessels recently active in the fishery would be able to 
continue to participate in the fishery. All vessels issued a limited 
access NE multispecies permit were subject to the same qualification

[[Page 31328]]

criteria under Amendment 13. However, the proposed measure would 
allocate 10 Category B Reserve DAS only to the 448 vessels that did not 
receive any Category A or B (Regular or Reserve) DAS under Amendment 
13. These vessels did not qualify for DAS under Amendment 13 because 
they have not recently participated in the fishery and therefore failed 
to meet the qualification criteria approved by the Council and 
implemented under Amendment 13. Under Amendment 13, only vessels that 
were recently active in the fishery received a DAS allocation. Nineteen 
vessels were allocated fewer than 10 Category A and B (Regular and 
Reserve) DAS in total under Amendment 13. Although these vessels have 
recently participated in the fishery and therefore met the 
qualification criteria for continued participation in the fishery under 
Amendment 13, under the proposed measure they would receive fewer DAS 
than those who have not been recently active in the fishery and did not 
qualify for DAS under Amendment 13. As a result, these 19 vessels would 
potentially bear more of the burden for the effort reductions under 
Amendment 13 than vessels receiving additional DAS under this proposed 
measure, without any conservation justification. NMFS acknowledges that 
vessels allocated at least some Category A DAS have the flexibility to 
fish these DAS and could lease these DAS to another vessel, thereby 
gaining at least some benefit from these DAS. However, vessels that 
were not allocated any DAS under Amendment 13 could still participate 
in the fishery by leasing DAS from another vessel. Since this measure 
would not ensure that all vessels are allocated the same minimum level 
of DAS, NMFS interprets this measure to be inconsistent with National 
Standard 4 of the Magnuson-Stevens Act because it allocates DAS to a 
particular group of vessels without providing any conservation 
justification. Therefore, for these reasons and the reasons presented 
in the ``Disapproved Measures'' section of the preamble of this final 
rule, NMFS has disapproved this measure and is not implementing this 
measure in this final rule.
    Comment 22: The Council indicated that some Council members 
believed the proposed measure to allocate 10 Category B Reserve DAS to 
vessels allocated zero DAS under Amendment 13 was an implicit promise 
when Amendment 13 was voted on.
    Response: Notwithstanding the Council's intent to address the 
minimum effective effort issue in a future management action, the 
measure proposed in FW 40B to allocate a minimum amount of DAS to 
vessels allocated zero DAS under Amendment 13 is not fair and equitable 
to all limited access NE multispecies permit holders as described in 
the ``Disapproved Measures'' section of this final rule. For this 
reason and the reasons described in the ``Disapproved Measures'' 
section of this final rule, NMFS has disapproved this measure.
    Comment 23: One industry group supported allocating 10 Category B 
Reserve DAS to vessels allocated zero Category A and B DAS under 
Amendment 13, but suggested that NMFS expand this measure to ensure 
that all vessels are allocated a minimum of 10 B Reserve DAS. This 
group indicated that the proposed measure would not be fair and 
equitable to vessels allocated fewer than 10 DAS total under Amendment 
13, stating that these vessels would be disadvantaged by the proposed 
measure.
    Response: NMFS agrees that this measure, as proposed, is not fair 
and equitable to all vessels participating in the NE multispecies 
fishery. The potential solution proposed by the industry group to 
ensure that all vessels are allocated a minimum amount of DAS might be 
fair and equitable to all vessels under the Magnuson-Stevens Act. 
However, since NMFS does not have the authority to add substantial 
measures to the provisions recommended by the Council, NMFS had 
disapproved this proposed measure for the reasons specified in the 
``Disapproved Measures'' section of the preamble of this final rule.

GB Cod Hook Sector Revisions

    Comment 24: One industry group supported revisions to the GB Cod 
Hook Sector provisions that would allow all vessels, regardless of 
fishing history, to join the GB Cod Hook Sector and apply their 
landings of GB cod, regardless of gear used, towards the GB Cod Hook 
Sector's GB cod TAC. This group indicated that these revisions properly 
address fairness and equity issues and are consistent with the Council 
intent when approving the GB Cod Hook Sector.
    Response: NMFS has approved the new GB Cod Hook Sector provisions.
    Comment 25: The State of Maine expressed concern that the GB Cod 
Hook Sector TAC allocation could result in other groups seeking similar 
TAC allocations resulting in the entire GB cod TAC being allocated to 
such groups. The State of Maine recommended that the proposed revisions 
should not be considered a precedent for future allocations.
    Response: The current regulations allow any person to submit a 
Sector allocation proposal. These regulations limit any Sector's 
allocation to 20 percent of a stock's TAC. If additional Sectors are 
approved, these Sectors could, taken together, be allocated the 
majority of a stock's TAC. However, it is highly unlikely that several 
Sectors could be allocated the entire TAC for a particular stock 
because a Sector's TAC allocation is based upon the fishing history of 
all NE multispecies vessels that have landed that particular stock. 
Therefore, unless approved Sectors incorporate every individual vessel 
that landed a particular stock during the 5-year period prior to 
submission of the Sectors' allocation proposals, these Sectors would 
not be able to capture the entire TAC for a particular stock. The 
general requirements applicable to all Sector allocations adopted by 
Amendment 13 specify that members of the Sector bring all of their 
catch history into the Sector, regardless of how it was caught. 
Therefore, while the original requirements specifying the allocation 
for the GB Cod Hook Sector were based on the landings by hook gear, the 
proposed measure revises these regulations consistent with the intent 
of Amendment 13. Therefore, no mandatory precedent is set by this 
revision as any future Sector would be able to bring all of its catch 
history into the Sector, regardless of how it was caught. Based on the 
above rationale, NMFS has approved this measure.
    Comment 26: Responding to a statement in the proposed rule that a 
higher Sector GB cod TAC would result in a small increase in the 
probability that the GB cod target TAC would be exceeded, one industry 
group suggested that increased participation in the GB Cod Hook Sector 
would actually decrease the chance that the non-Sector portion of the 
GB cod TAC would be exceeded. The group reasoned that a larger GB Cod 
Hook Sector TAC would correspond to more vessels in the GB Cod Hook 
Sector and fewer non-Sector vessels available to catch the GB cod 
target TAC. Based on the performance of the Sector during the 2004 
fishing year, in which only 50 percent of the GB Cod Hook Sector's GB 
cod allocation was harvested (although the GB Cod Hook Sector was 
unable to start fishing until July 21, 2004 (69 FR 43535), a higher 
Sector GB cod TAC in the future would increase the likelihood that GB 
Cod Hook Sector vessels would not be able to harvest their full GB cod 
TAC allocation.
    Response: NMFS maintains that an increased Sector TAC on GB cod 
could potentially increase the chance that the

[[Page 31329]]

GB cod target TAC could be exceeded by non-Sector vessels. However, 
this contention assumes that the GB Cod Hook Sector is capable of 
catching its entire allocation of GB cod. If the GB Cod Hook Sector is 
unable to catch its entire allocation, there is less of a chance that 
the GB cod target TAC would be exceeded.

DAS Credit for Standing by Entangled Whales

    Comment 27: Three commenters expressed general support for DAS 
credit for vessels standing by an entangled whale.
    Response: This provision would provide incentives through a DAS 
credit for vessels to report entangled whales and track the locations 
of such whales so that rescue teams could attempt to disentangle the 
animal. NMFS has approved this provision and is implementing it through 
this final rule.

Herring Vessel Interactions With Regulated Groundfish

    Comment 28: Three commenters expressed general support for measures 
requiring Category 1 herring vessels to notify the NMFS Observer 
Program and the NMFS Office of Law Enforcement when fishing in the GOM 
or GB Regulated Mesh Area (RMA). One industry group supported increased 
observer coverage for herring vessels and requested that NMFS provide 
the Council with annual reports on the amount of regulated species 
caught and discarded by the herring fishery.
    Response: Several herring vessel offloading operations were 
observed by NMFS Office of Law Enforcement during the 2004 fishing 
year, indicating some level of groundfish bycatch by herring vessels. 
This proposed measure would facilitate the observation of herring 
vessel offloading operations by providing the date, time, and port of 
landing by these vessels. Increased observation of herring catches 
would increase the amount of information available to assess the amount 
of regulated species bycatch in the herring fishery. For these reasons, 
NMFS has approved this measure and is implementing it through this 
final rule. Information obtained through this measure will be made 
available to the Council.
    Comment 29: One individual and one industry group suggested that 
Observer Program notification measures for Category 1 herring vessels 
should be implemented on an interim basis.
    Response: As explained in the response to Comment 27, NMFS has 
approved this measure because it facilitates acquiring additional 
information necessary to assess the amount of regulated species caught 
and discarded in the herring fishery. The Council, in developing this 
measure, did not specify a sunset date for this provision. It is 
anticipated that further action to address groundfish bycatch in the 
herring fishery on a more permanent basis is necessary. A future action 
could modify or eliminate the requirements implemented by this final 
rule.
    Comment 30: One individual indicated that purse seine vessels do 
not catch regulated species and suggested that the proposed 
notification requirements should not apply to purse seine vessels.
    Response: During the development of FW 40B, the Council considered 
specifying different measures for the different gear types in the 
herring fishery. However, the information available was insufficient to 
support such differential regulations in this action. Accordingly, NMFS 
has approved the Council's recommendation to collect bycatch 
information from the entire herring fishery to more accurately 
understand the problem so that future management actions could 
effectively address this issue.
    Comment 31: One individual and one industry group indicated that 
the 72-hour Observer Program notice requirement for Category 1 herring 
vessels is inconsistent with the sporadic operations of the herring 
fishery and suggested that NMFS find alternative means of accomplishing 
the intent of this measure.
    Response: The 72-hour Observer Program notice is necessary to 
effectively identify the herring vessels that intend to fish in the GOM 
or GB RMA's to ensure that sufficient observers are placed on these 
vessels and that the fishery is adequately monitored to achieve the 
objectives of the Observer Program. Currently, the NMFS Observer 
Program needs a minimum of 72 hours to determine whether an observer is 
required for a particular trip and to coordinate the deployment of an 
observer, if necessary. NMFS recognizes that this requirement may not 
coincide with the normal fishing operations of the herring fishery and 
will encourage the herring fishing industry to work with the NMFS 
Observer Program to comply with the requirements implemented by this 
final rule without compromising vessel operations.
    Comment 32: One industry group indicated that some Category 1 
herring vessels fish shoreward of the VMS demarcation line and 
suggested that NMFS clarify the reporting requirements for these 
vessels.
    Response: Based upon the information provided by this industry 
group, NMFS has clarified the regulations at Sec.  648.80(d)(7) and 
(e)(6) to allow vessels fishing landward of the VMS demarcation line to 
notify NMFS Office of Law Enforcement of the time and place of 
offloading at least 12 hours before landing.
    Comment 33: The Council commented that while the proposed 
regulations for the Category 1 herring vessel notification requirements 
are consistent with the draft proposed rule submitted by the Council, 
the proposed regulations are not consistent with the FW 40B document 
because the proposed rule specified that the Observer Program and NMFS 
notification requirements for herring vessels apply to the GOM/GB 
Exemption Area. The Council suggested NMFS revise these regulations to 
refer to the GOM/GB RMA's as specified in the FW 40B document.
    Response: The current regulations specify that herring vessels are 
only exempt from the minimum mesh size requirements of the GOM or GB 
RMA's when fishing in the GOM/GB Exemption Area specified at Sec.  
648.80(a)(17), which is a slightly smaller area than the GOM or GB RMA. 
Accordingly, in order to use small mesh necessary to pursue the herring 
fishery in the GOM or GB RMA's, herring vessels are required fish in 
the GOM/GB Exemption Area. While FW 40B does specify that the proposed 
notification requirements would apply to herring vessels intending to 
fish in the GOM or GB RMA's, it would be inconsistent with the current 
regulations governing the fishery and confusing to the industry to 
include this provision because it adds a requirement to fish in an area 
where herring vessels are not permitted to fish. Therefore, NMFS 
declines to revise the regulations as suggested by the Council. Because 
herring vessels could not fish outside the GOM/GB Exemption Area 
anyway, retaining the language of the proposed rule will not 
meaningfully affect herring vessel activities subject to these 
regulations.

Trip Gillnet Net Limitations

    Comment 34: Four commenters, including Senator Collins, the State 
of Maine, and two industry groups, expressed support for removing the 
net limit for Trip gillnet vessels. The State of Maine and one industry 
group indicated that the net limit is unnecessary and the gillnet tag 
requirements used to enforce this net

[[Page 31330]]

limit pose operational difficulties to vessels.
    Response: NMFS concurs that the net limit for Trip gillnet vessels 
is unnecessary because Trip gillnet vessels are required to remove all 
gear from the water prior to returning to port. Unlike Day gillnet 
vessels, gear fished by Trip gillnet vessels is not left in the water 
upon returning to port. Trip gillnet vessels must remove gillnet gear 
from the water before returning to port, thereby greatly dissipating 
the advantage of fishing unlimited amounts of gillnets. The capacity of 
the vessel to carry additional gillnets often limits the number of nets 
that are fished by a vessel. In addition, the analysis prepared for 
this action indicates that, while the number of nets used by vessels 
may increase by removing the net limit for Trip gillnet vessels, the 
expected increase in mortality will be minor. For these reasons, NMFS 
approved the removal of the net limits and the associated gillnet 
tagging requirements for Trip gillnet vessels.

Dumping Prohibition for Vessels Under a Category B DAS

    Comment 35: Two industry groups expressed support for the principle 
behind prohibiting discard in management programs allowing the use of 
Category B DAS. One group strongly supported the proposed dumping 
prohibition for vessels fishing under a Category B DAS, indicating that 
prohibiting discards is fundamental to the ability of these programs to 
achieve their stated objectives. The other group cautioned that this 
dumping prohibition seems to apply only to trawl gear and could 
increase mortality of bycatch.
    Response: NMFS agrees that prohibiting the discarding of legal-
sized regulated species in programs that allow the use of Category B 
DAS is critical to accurately monitoring catch of regulated species and 
accounting for additional mortality resulting from the use of Category 
B DAS. According to the regulations at 50 CFR 600.10, ``discarding'' 
means to return fish to the sea, whether or not such fish are brought 
fully on board a fishing vessel. This prohibition on removing any fish 
caught before the gear is brought on board the vessel clarifies that 
this practice constitutes discarding and is therefore prohibited. 
Because vessels may use longline gear (i.e., gear other than nets) to 
fish in the Regular B DAS Pilot Program, NMFS has revised the proposed 
prohibition to further clarify that removing any fish caught using any 
gear, including the dumping of nets before the gear is brought on board 
the vessel, is prohibited. In addition, prohibiting the removal of fish 
caught before the gear is brought on board the vessel is necessary to 
ensure an accurate accounting of the amount of fish caught in these 
programs. While releasing the fish in the water may increase their 
chance of survival, there is no way to accurately determine the amount 
of fish that was released unless the gear is hauled aboard. Without 
accurate accounting of discards, the effectiveness of catch monitoring 
in these programs is undermined.

General Comments

    Comment 36: One commenter supported a general provision to prohibit 
the discard of legal-sized regulated species of concern when fishing on 
a Category B (regular or reserve) DAS (i.e., when fishing in the 
Regular B DAS Pilot Program or any approved SAP).
    Response: The regulations currently prohibit the discard of legal-
sized regulated groundfish in the Regular B DAS Pilot Program and cod 
in the CA II Yellowtail Flounder SAP and the Eastern U.S./Canada 
Haddock SAP Pilot Program. Expansion of this prohibition would have to 
be addressed through a future Council action.
    Comment 37: One commenter supported monitoring catches of stocks of 
concern though VTR, VMS, and by dealer reporting.
    Response: Currently, regulations require the reporting of all 
species through VTR and dealer reporting. Regulations specific to 
approved SAP's and the U.S./Canada Management Area require vessels to 
declare through the VMS the amount of species kept and discarded based 
on which stocks are expected to be caught in a particular SAP and which 
stocks are managed under hard TAC's, respectively. NMFS and the Council 
are currently investigating the feasibility of pursuing the commenter's 
suggestion of expanding the VMS reporting requirements for approved 
SAP's and the U.S./Canada Management Area to collect information on 
additional species caught under a Category B (regular or reserve) DAS 
for possible implementation in a future Council action.
    Comment 38: Responding to a request for comments by NMFS in the 
proposed rule, two commenters, including one industry group, opposed 
publishing the DAS allocations of NE multispecies vessels on the 
Northeast Regional Office website. Both commenters felt that posting 
DAS allocations online should be voluntary. One individual felt that 
posting DAS allocations online would be an invasion of privacy.
    Response: NMFS will take these comments into consideration when 
determining whether to publish this information online.

Disapproved Measures

GB Cod Research Set-Aside TAC

    FW 40B proposed to set aside up to 10 percent of the GB cod 
incidental catch TAC to facilitate research. As proposed, this TAC 
would be distributed to research proposals submitted to NMFS by May 1 
of every year. However, the FW 40B document does not specify criteria 
for determining which proposals should be allocated this set-aside 
research TAC. Further, the document does not describe a mechanism by 
which this TAC should be distributed to researchers. NMFS supports 
setting aside TAC to facilitate fisheries research. Such research set-
aside TAC's in the NE multispecies fishery would account for mortality 
associated with this research, while supporting vessel participation in 
this research without the use of DAS. However, FW 40B proposes to set 
aside research TAC for only one species. Given the nature of the NE 
multispecies fishery, this provision would only account for the 
mortality of GB cod during research activities. The mortality of other 
species in the conduct of research set-aside projects would not be 
accounted for, potentially undermining the conservation measures of the 
FMP. Further, without sufficient detail about how to administer this 
provision, including the process and mechanism by which proposals to 
use the GB incidental cod TAC research set-aside would be considered 
and TAC distributed, there is insufficient information to implement 
this provision. Without such details, there is no way to assess the 
likely costs and benefits of this provision. Further, as highlighted in 
the response to Comments 6 and 7, there is insufficient information to 
determine whether this provision would be equitable. The proposed 
measure would potentially take away a portion of the GB cod TAC 
available to all vessels through the Regular B DAS Pilot Program, 
resulting in a possible disproportionate impact on the fleet. 
Accordingly, there is insufficient information to make a determination 
that this provision is consistent with applicable law. Thus, NMFS has 
determined that this provision is not consistent with National 
Standards 1, 2, or 4 and has disapproved this provision.

[[Page 31331]]

WGOM Closure Area Rod/Reel SAP

    Amendment 13 established a process to provide vessels the 
opportunity to target healthy groundfish stocks without undermining 
efforts to rebuild overfished stocks. According to Section 3.4.5.1 of 
the FSEIS prepared for Amendment 13, a SAP should avoid or minimize 
impacts on stocks of concern, as well as minimize bycatch. In addition, 
for a SAP to be approved, sufficient information should be available to 
indicate that the SAP would minimize bycatch of non-target species and 
minimize the mortality of such bycatch. If such information is not 
available, an experimental fishery should be conducted before a SAP 
could be approved.
    The WGOM Closure Area Rod/Reel Haddock SAP proposes to allow rod/
reel vessels to target GOM haddock in the WGOM Closure Area while 
minimizing the bycatch of GOM cod (GOM cod is considered a stock of 
concern because it is currently overfished). No experimental fishery 
was conducted that would support the proposed SAP. Instead, the 
analysis in the EA relied upon VTR's from party/charter vessels in the 
WGOM Closure Area. This information is not indicative of the proposed 
vessel operations for this SAP as party/charter vessels target cod 
instead of haddock and the possession limits for these trips were based 
on the party/charter regulations and are substantially different from 
commercial possession limits. Despite these limitations, this 
information indicated that more cod was caught than haddock when 
fishing in the WGOM Closure Area. VTR's for commercial handline trips 
within the GOM, but outside of the WGOM Closure Area were also 
examined, but they too indicated that more cod would be caught than 
haddock. The proposed SAP included a provision where the Regional 
Administrator could close this SAP if the catch of cod to haddock 
exceeds a ratio of 1:2, by weight. The data in the EA suggests that the 
amount of cod and haddock caught under this proposed SAP would likely 
exceed a ratio of 1:2.
    While NMFS supports the creation of SAP's within the GOM to allow 
vessels to target healthy groundfish stocks and mitigate some of the 
economic and social impacts resulting from Amendment 13 effort 
reductions, NMFS must ensure that the provisions of the FMP are 
consistent with the Magnuson-Stevens Act and appropriate law. Based on 
the best available information, vessel operations under this SAP would 
be inconsistent with the purpose and intent of this SAP. The 
information available indicates that vessel operations would likely 
exceed the required ratio of cod to haddock, requiring the Regional 
Administrator to close access to this SAP. In addition, the fact that 
no experiment was conducted to document whether non-target species 
could be avoided in this SAP and that the information available to 
support this SAP indicates that this SAP would likely catch more cod (a 
stock of concern) than haddock demonstrate that this SAP is not 
consistent with the intent and principles behind the establishment of 
SAP's as described in section 3.4.5.1 of the FSEIS for Amendment 13. 
Further, this SAP is not consistent with Objective 10 of the FMP, as 
specified in Amendment 13, in that this SAP would not minimize 
regulatory discards. Instead, this SAP would facilitate regulatory 
discards by prohibiting vessels from retaining any GOM cod caught while 
fishing in this SAP. Furthermore, while this proposed SAP includes 
measures that would minimize the mortality of non-target species and 
encourage vessels to avoid catching cod, the analysis of this SAP in FW 
40B fails to sufficiently justify that the amount of bycatch of GOM cod 
would be minimized to the extent practicable, and, therefore, the 
measure is inconsistent with National Standard 9 and section 303(a)(11) 
of the Magnuson-Stevens Act. Therefore, based on the above, NMFS has 
disapproved this measure and is implementing it through this final 
rule.

Minimum Effective Effort Allocation

    FW 40B proposes to re-categorize 10 Category C DAS to Category B 
Reserve DAS for any vessel allocated zero Category A or B (Regular and 
Reserve) DAS under Amendment 13. These DAS could only be used in a SAP 
that does not contain a DAS flipping requirement. Currently, the only 
SAP that does not have a DAS flipping requirement is the CA I Hook Gear 
Haddock SAP, which is currently limited to members of the GB Cod Hook 
Sector as discussed below, because the WGOM Closure Area Rod/Reel 
Haddock SAP was disapproved in this final rule. This proposed action 
would grant approximately 448 vessels a DAS allocation of 10 Category B 
Reserve DAS. However, based on DAS allocation data from February 9, 
2005, 277 vessels were allocated fewer than 10 Category B Reserve DAS 
under Amendment 13. Of these vessels, fully 121 vessels were allocated 
fewer than 10 Category B (Regular and Reserve) combined. Furthermore, 
there are 19 vessels that qualified for Category A and B (Regular and 
Reserve) DAS, but were allocated fewer than 10 Category A and B 
(Regular and Reserve) DAS combined under Amendment 13. These vessels 
would receive fewer Category A and B (Regular and Reserve) DAS than the 
448 vessels that did not qualify for any Category A or B (Regular and 
Reserve) DAS under Amendment 13. As a result, an inequitable situation 
would be created in this fishery, because vessels that actually have a 
recent history in the fishery and initially qualified for some Category 
A or B (Regular or Reserve) DAS, could have less of an opportunity to 
fish than vessels that do not have a recent history in the fishery. 
Further, FW 40B did not provide any justification for this 
disproportionate allocation of DAS based on conservation purposes. The 
National Standard Guidelines indicate that any allocation shall be 
reasonably calculated to promote conservation. While the information 
used to support this measure indicates that the proposed measure would 
control the catch of target and non-target species through the measures 
of approved SAP's and would therefore not increase impacts on 
groundfish, the FW 40B document does not provide any information how 
this measure promotes conservation within the fishery. In fact, this 
measure may lead to the TAC's for species regulated by the SAP's to be 
caught more quickly, thereby limiting opportunities to fish in this 
area by vessels currently qualifying for Category A and B (Regular and 
Reserve) DAS. Furthermore, this additional allocation of DAS may have 
other unanalyzed negative consequences due to the potential of this 
measure to increase effective effort in the fishery. Based on this 
disparity being created without promoting conservation and the absence 
of an adequate analysis of the effects of this measure, NMFS has 
determined that this measure is not consistent with National Standard 
4.
    The 448 vessels that would benefit under this proposed measure 
(i.e., vessels that were allocated zero Category A or B DAS under 
Amendment 13) would be allocated 4,480 Category B DAS to use in 
specific SAP's. However, it is estimated that only 50 percent of these 
vessels would actually use these DAS to participate in an approved SAP 
based on fishing activity during the 2003 fishing year in which these 
vessels were allocated a minimum of 10 DAS (reduced to 8 DAS) under the 
August 1, 2002, interim final rule (67 FR 50292). During this time, 
only 26 vessels relied on groundfish for a majority of fishing revenue, 
indicating that most of these vessels were heavily engaged in

[[Page 31332]]

fisheries other than groundfish. Opportunities to use DAS allocated 
under the proposed measure in FW 40B would be limited to the CA I Hook 
Gear Haddock SAP during the 2005 fishing year because this is the only 
currently approved SAP that does not contain a DAS flipping provision. 
However, participation in this SAP is limited to vessels participating 
in the GB Cod Hook Sector, unless modified by FW 41. FW 41, which has 
recently been submitted to NMFS, proposes to allow non-Sector vessels 
to fish in the CA I Hook Gear Haddock SAP. Because none of the 448 
vessels that would benefit from this measure are members of the GB Cod 
Hook Sector, unless FW 41 is approved, these 448 vessels would not be 
able to use these 10 Category B Reserve DAS at all during the 2005 
fishing year. If approved, however, FW 41 would limit non-Sector 
participation in this SAP to November 16, 2005 through December 31, 
2005. Therefore, any benefits from this proposed measure would be 
minimal during the 2005 fishing year.
    Finally, NMFS believes that the FW 40B document fails to adequately 
justify the purpose of this measure other than for economic reasons, 
since neither conservation nor social benefits were cited to support 
this measure. The economic analysis concludes that, while this proposed 
measure would be positive for vessels receiving DAS, this measure would 
also result in possible negative economic impacts to vessels that would 
not receive DAS under this measure. Further, the economic benefits of 
SAP's would be dissipated among more vessels, resulting in decreased 
economic returns to individual vessels. Moreover, this proposed measure 
represents a potential transfer of income opportunities from vessels 
with a recent history in the fishery to vessels without a recent 
history in the fishery. Based on the above, NMFS has concluded that the 
sole purpose for this measure appears to be an allocation for economic 
purposes only that would benefit vessels that do not have a recent 
history in the NE multispecies fishery. For this reason, this measure 
is not consistent with National Standard 5. Therefore, NMFS has 
disapproved this measure and is not implementing it in this final rule.

Approved Measures

    NMFS has approved the remainder of the measures proposed in FW 40B. 
A description of the approved measures follows.

1. DAS Transfer Program Modifications

    The DAS Transfer Program allows for the permanent exchange of DAS 
between vessels with limited access NE multispecies permits for the 
purpose of reducing fishing capacity and mitigating some of the adverse 
economic impacts of effort reductions under Amendment 13. FW 40B 
modifies the current DAS Transfer Program to provide additional 
incentive for vessels to participate in this Program. Under FW 40B, 
Category A and B DAS that are permanently exchanged through the DAS 
Transfer Program are reduced by 20 percent. As implemented under 
Amendment 13, Category C DAS will continue to be reduced by 90 percent.
    Under the DAS Transfer Program, the baseline characteristics of the 
vessel receiving DAS must be within 10 percent of the baseline length 
overall and within 20 percent of the baseline horsepower of the 
transferring vessel. This action makes the size restrictions for the 
DAS Transfer Program consistent with the DAS Leasing Program, which 
requires vessels to meet size restrictions for only length overall and 
horsepower.

2. DAS Leasing Program Modifications

    The DAS Leasing Program allows vessels to temporarily exchange DAS 
on a yearly basis. Vessels involved in leasing DAS under the DAS 
Leasing Program must have permit baseline characteristics for length 
and horsepower that fall within the current size restrictions of the 
DAS Leasing Program. The vessel baseline characteristics used for the 
DAS Leasing Program are the vessel baseline characteristics on file 
with NMFS as of January 29, 2004, the date of publication of the 
proposed rule for Amendment 13 (January 29, 2004; 69 FR 4362).
    Under FW 40B, vessels participating in this program have a one-time 
opportunity to downgrade the permit baseline characteristics for the 
DAS Leasing Program to the physical characteristics of the vessel 
currently using the permit. This one-time downgrade only applies to the 
DAS Leasing Program permit baseline and does not affect any other 
permit baselines currently specified for the permit (i.e., the baseline 
used for vessel upgrades or replacements). In effect, if a permit 
holder were to exercise this option, the permit would have two NE 
multispecies permit baselines: One for the DAS Leasing Program and 
another that applies to all other permit transactions (vessel upgrades 
or replacements or the DAS Transfer Program). If the permit is moved to 
another vessel during a vessel replacement, the downgraded DAS Leasing 
Program baseline reverts to the original DAS Leasing Program baseline 
established on January 29, 2004, and could not be downgraded again for 
the purposes of the DAS Leasing Program. This downgraded DAS Leasing 
Program baseline remains valid until the permit is placed on a 
replacement vessel as specified above, or until the DAS Leasing Program 
expires.

3. CA II Yellowtail Flounder SAP Modifications

    FW 40B modifies the start date of the CA II Yellowtail Flounder SAP 
to enable vessels to target GB yellowtail flounder in CA II outside of 
the spawning period of GB yellowtail flounder. Thus, the season for the 
CA II Yellowtail Flounder SAP is revised to July 1 through December 31. 
In addition, FW 40B revises the limit on trips into this SAP by 
specifying that vessels participating in this SAP are limited to only 
one trip per month. Also, the possession limit for GB yellowtail 
flounder is reduced to 10,000 lb (4,536 kg), unless adjusted by the 
Regional Administrator.
    This SAP is regulated by the maximum number of trips allowed into 
the SAP and by the availability of the GB yellowtail flounder TAC 
allocated to the U.S./Canada Management Area. FW 40B provides the 
Regional Administrator with the authority to adjust the trip limit and 
the total number of trips allowed into this SAP every fishing year to 
adapt to changing stock and fishery conditions. Under FW 40B, the 
Regional Administrator will consider specific criteria and may use a 
formula based on the available TAC and recent catch rates of GB 
yellowtail flounder to determine the number of trips into this SAP and 
the appropriate trip limit for a particular fishing year. The formula 
suggested to determine the number of trips into this SAP was specified 
in the FW 40B proposed rule. If the Regional Administrator determines 
that the available catch is not sufficient to support 150 trips per 
year with a GB yellowtail flounder trip limit of 15,000 lb (6,803 kg), 
the Regional Administrator may choose not to authorize any trips into 
this SAP for the fishing year. One hundred fifty trips at 15,000 lb 
(6,803 kg) per trip amounts to 1,020 mt of GB yellowtail flounder 
necessary to support the CA II Yellowtail Flounder SAP. Based on the 
proposed TAC of GB yellowtail flounder for the 2005 fishing year (4,260 
mt) and using the formula specified in FW 40B, only 260 mt of GB 
yellowtail flounder would be estimated to be available to allow for the 
CA II Yellowtail Flounder SAP. Therefore, because the available GB 
yellowtail flounder TAC is less than the 1,020 mt that may be necessary 
to allow for this SAP, the Regional Administrator will consult with the

[[Page 31333]]

Council at its June meeting to determine whether to set the number of 
trips into the CA II Yellowtail Flounder SAP at zero for the 2005 
fishing year.

4. GB Cod Hook Sector Revisions

    Amendment 13 established the GB Cod Hook Sector and allocated GB 
cod to the Sector based on the history of the Sector participants. FW 
40B modifies the regulations implementing the GB cod Hook Sector by 
allowing any vessel, regardless of gear used in previous fishing years, 
to join the Sector. All landings of GB cod by Sector participants, 
regardless of gear previously used, will be used to determine the 
Sector's GB cod allocation for a particular fishing year. All Sector 
participants are required to use hook gear once in the Sector. The 
maximum share of the GB cod TAC that the Sector could obtain remains 
capped at 20 percent of the overall GB cod TAC.

5. DAS Credit for Standing by Entangled Whales

    In order to encourage fishing vessels to report entangled whales, 
FW 40B provides a mechanism for a limited access groundfish vessel to 
obtain DAS credit for the time spent standing by an entangled whale. A 
vessel requesting such a credit must notify the USCG and the 
appropriate organization of the entangled whale (currently, the Center 
for Coastal Studies); remain in contact with the Center for Coastal 
Studies; and be available to answer questions on the condition of the 
animal, including, but not limited to, possible species identification, 
severity of entanglement, and gear entangling the animal. To receive 
credit for time standing by an entangled whale, a vessel must submit a 
written request to the Regional Administrator.

6. Herring Vessel Interactions With Regulated Groundfish

    To more accurately document and monitor groundfish bycatch from the 
herring fishery, FW 40B requires vessels with a Category I herring 
permit that intend to fish in the GOM or GB RMA's to notify the NMFS 
Observer Program at least 72 hours before beginning a trip. In 
addition, if an observer is not provided for the trip, the vessel must 
notify NMFS Office of Law Enforcement via VMS of the time and place of 
landing at least 12 hours prior to crossing the VMS demarcation line on 
returning to port, or 12 hours before landing if the vessel fishes 
landward of the VMS demarcation line for the entire trip. This 
requirement to notify NMFS Office of Law Enforcement at least 12 hours 
prior to crossing the VMS demarcation line or landing was determined to 
be necessary to allow sufficient time for NMFS Office of Law 
Enforcement personnel to coordinate efforts to observe herring vessel 
landings and to accommodate Category 1 herring vessels fishing inshore 
of the VMS demarcation line.

7. Trip Gillnet Net Limitations

    FW 40B removes the limit on the number of nets that can be carried 
onboard Trip gillnet vessels. By doing so, FW 40B also eliminates the 
gillnet tagging requirements for Trip gillnet vessels.

8. Dumping Prohibition for Vessels Under a Category B DAS

    To minimize the mortality on stocks of concern from vessel 
activities in programs designed to target healthy groundfish stocks, 
(i.e., the Eastern U.S./Canada Haddock SAP Pilot Program, the Regular B 
DAS Pilot Program, and the CA II Yellowtail Flounder SAP), FW 40A 
implemented measures that prohibit vessels from discarding legal-sized 
cod and other regulated groundfish when fishing under a Category B DAS. 
These measures also require vessels to initiate a DAS flip (i.e., 
change the category of DAS used on that trip to Category A DAS) if 
vessels harvest more legal-sized cod or other regulated groundfish than 
the applicable maximum landing limits per trip under a Category B DAS. 
FW 40B clarifies that the prohibition on discarding of fish also 
includes the removal of any fish caught using any gear, including the 
dumping of nets, before the gear is brought on board when operating 
under a Category B DAS in the CA II Yellowtail Flounder SAP, the 
Eastern U.S./Canada Haddock SAP Pilot Program, or the Regular B DAS 
Pilot Program because it is considered to be discarding as defined at 
50 CFR 600.10.

9. Corrections

    In addition to the approved measures described here, the following 
revisions to existing regulations are made to correct inaccurate 
references in the regulations. The changes listed below are in the 
order in which they currently appear in the regulations.
    In 15 CFR 902.1(b), the inventory of OMB control numbers for NOAA 
actions is updated to include approved control numbers and the 
corresponding regulatory citations for the information collections 
related to the measures approved in Amendment 13 and FW 40A to the FMP. 
This inventory was inadvertently not updated in the final rule and 
interim final rule implementing these actions, respectively.
    In 50 CFR 648.10, the periods ending paragraphs (b)(1)(vi) and 
(b)(1)(vii) are corrected to semicolons.
    In Sec.  648.14, the reference to the restrictions and conditions 
for the CA II Yellowtail Flounder SAP in paragraph (a)(136) is expanded 
to include Sec.  648.85(b)(3)(xi).
    In Sec.  648.14, under paragraph (a)(139), the reference to the 
number of trips specified under Sec.  648.85(b)(3)(vii) is expanded to 
include the monthly trip limits for vessels specified in Sec.  
648.85(b)(3)(vi).
    In Sec.  648.82, paragraphs (k)(4)(ix) and (l)(1)(ii) are revised 
to clarify that vessels can lease or transfer DAS to a vessel with a 
baseline length overall and horsepower that is no more than 10 percent 
and 20 percent greater than the baseline length overall and horsepower 
of the lessor or transferor vessel, respectively. This revision 
corrects the regulations to maintain consistency with the intent of 
Amendment 13 as outlined in the FSEIS.

Changes From the Proposed Rule

    NMFS has made several changes to the proposed rule as a result of 
public comment and because of the disapproval of several management 
measures proposed in FW 40B. Other changes are technical or 
administrative in nature and clarify or otherwise enhance enforcement 
and administration of the FMP. These changes are listed below in the 
order that they appear in the regulations.
    In Sec.  648.2, a new definition for a Category 1 herring vessel is 
inserted to clarify which vessels are affected by the regulations 
specified at Sec. Sec.  648.80(d) and (e).
    In Sec.  648.14, paragraph (a)(165) is revised to clarify that 
vessels are prohibited from removing any fish caught using any gear, 
including the dumping of nets, before the gear is brought on board the 
vessel.
    In Sec.  648.14, the reference to the GOM/GB Exemption area 
specified at Sec.  648.80(a)(17) in paragraphs (bb)(19) and (bb)(20) is 
revised to read the GOM or GB Regulated Mesh Areas specified at Sec.  
648.80(a)(1) and (2).
    In Sec.  648.80, paragraphs (d)(6) and (e)(5) are revised to 
correct an inaccurate reference to Sec.  648.4(a)(10) that should 
accurately read Sec.  648.205(b). In addition, language referring to 
the intent of a vessel to fish in the GOM or GB RMA's was removed.
    In Sec.  648.80, to facilitate the monitoring of herring offloading 
operations by NMFS Office of Law Enforcement personnel and to

[[Page 31334]]

accommodate herring vessels fishing inshore of the VMS demarcation 
line, the language in paragraphs (d)(7) and (e)(6) is revised to 
require that vessels ``must notify NMFS Office of Law Enforcement 
through VMS of the time and place of offloading at least 12 hours prior 
to crossing the VMS demarcation line on its return trip to port, or, 
for vessels that have not fished seaward of the VMS demarcation line, 
at least 12 hours prior to landing.'' This 12-hour notice is required 
to provide the NMFS Office of Law Enforcement with sufficient time to 
meet vessels at the dock prior to offloading. These regulations are 
revised under the authority provided in section 305(d) of the Magnuson-
Stevens Act.
    In Sec.  648.82(k)(4)(ix), the word ``vessel'' is added after the 
word ``Lessor'' to clarify that a Lessor vessel may only lease DAS to a 
Lessee vessel consistent with the size restrictions of the DAS Leasing 
Program.
    In Sec.  648.82, the title of paragraph (k)(4)(xi) is revised to 
read ``One-time downgrade of DAS Leasing Program Baseline'' to clarify 
the intent of this paragraph and maintain consistency with paragraphs 
(k)(4)(xi)(A) and (B) of this section. Further, language is added to 
the introductory text to specify that the intent of this measure is to 
determine eligibility for leasing DAS only.
    In Sec.  648.82, the title of paragraph (k)(4)(xi)(B) is revised to 
read ``Duration and applicability of the one-time DAS Leasing Program 
baseline downgrade'' to clarify the intent of this paragraph. In 
addition, the phrase ``or any other provision'' is added to the last 
sentence of this paragraph to specify that the DAS Leasing Program 
baseline downgrade would not affect any other provision in Subpart F.
    In Sec.  648.85, the title of paragraph (b)(3)(vii) is revised to 
specify that this paragraph describes the maximum number of trips into 
the CA II Yellowtail Flounder SAP per fishing year. Further, paragraphs 
(b)(3)(vii)(A) and (B) are combined into one paragraph. Finally, 
language is inserted into this paragraph to clarify that the available 
catch of GB yellowtail flounder is determined by subtracting the 
potential catch of GB yellowtail flounder by all vessels outside of the 
SAP from the GB yellowtail flounder TAC specified for the U.S./Canada 
Management Area at Sec.  648.85(a)(2).
    In Sec.  648.87, the word ``with'' is replaced by the word 
``issued'' in paragraph (d)(1)(ii) to clarify that all vessels issued a 
valid limited access NE multispecies DAS permit may participate in the 
GB Cod Hook Sector.
    Under NOAA Administrative Order 205-11, 07/01, dated December 17, 
1990, the under Secretary for Oceans and Atmosphere has delegated 
authority to sign material for publication in the Federal Register to 
the Assistant Administrator for Fisheries, NOAA.

Classification

    The Regional Administrator determined that the management measures 
implemented by this final rule are necessary for the conservation and 
management of the NE multispecies fishery, and are consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    This final rule does not contain policies with Federalism or 
``takings'' implications as defined in E.O. 13132 and E.O. 12630, 
respectively.
    An EA was prepared for this action that analyzed the environmental 
impacts of the measures being implemented, as well as alternatives to 
such measures. The EA considered the extent to which the impacts could 
be mitigated, and considered the objectives of the action in light of 
statutory mandates, including the Magnuson-Stevens Act. NMFS also 
considered public comments received during the comment period of the 
proposed rule. A copy of the Finding of No Significant Impact for FW 
40B is available from the Regional Administrator (see ADDRESSES).
    Pursuant to 5. U.S.C. 553(b)(A), the Assistant Administrator waives 
prior notice and opportunity for public comment for the revisions to 15 
CFR 902.1(b) because this portion of this final rule specifies actions 
of agency organization, procedure, or practice. Revisions to 15 CFR 
902.1(b) in this action are necessary to maintain an accurate inventory 
of valid OMB control numbers for NOAA actions. This inventory was 
inadvertently not updated based upon the information collections 
approved by the OMB for the measures contained in Amendment 13 and FW 
40A to the FMP. The public has already been provided opportunity to 
comment on these information collections through the publication of the 
proposed and final rules for Amendment 13 and the proposed and interim 
final rules for FW 40A. Further, because this final rule makes only 
minor, non-substantive changes and does not affect the operating 
practices of the NE multispecies fishery, it is unnecessary to provide 
for additional notice and opportunity for public comment. Further, 
pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator finds good 
cause to waive the 30-day delayed effectiveness for revisions to 15 CFR 
902.1(b) in this final rule because these revisions are necessary for 
the purposes of agency procedure and practice to comply with the 
requirements of the PRA. These non-substantive revisions are necessary 
to ensure that the public is informed of the accurate OMB control 
number associated with particular regulatory citations. These revisions 
do not affect vessel operations.
    The Assistant Administrator finds good cause, under 5 U.S.C. 
553(d)(3), to waive the 30-day delayed effectiveness of the rest of the 
measures in this final rule. NMFS cannot initiate rulemaking for 
actions recommended by the Council until the final FW 40B package is 
received from the Council. NMFS did not receive the final FW 40B 
package until February 15, 2005. This delay limited the ability of NMFS 
to adequately review and implement FW 40B, after consideration of 
public comment, in time to allow delayed effectiveness before the 
beginning of the 2005 fishing year on May 1, 2005, or the opening of 
the CA II Yellowtail Flounder SAP on June 1, 2005. Failure to waive the 
30-day delayed effectiveness would allow the SAP to open on June 1, 
2005 (instead of July 1, 2005, as modified in this final rule), 
resulting in potentially high landings of GB yellowtail flounder that 
could depress market prices for yellowtail flounder as observed during 
the 2004 fishing year. In addition, since June is part of the spawning 
season for GB yellowtail flounder, allowing the SAP to open on June 1 
by delaying the effectiveness would result in lower ex-vessel prices 
due to the lower quality of fish landed during the spawning period. 
Effort reductions implemented by Amendment 13 resulted in substantial 
adverse economic impacts to the groundfish fishery. Additional economic 
impacts resulting from a delayed effectiveness of the measures included 
in this final rule, taken cumulatively, represents further economic 
hardships to an already struggling industry. Moreover, opening on June 
1 would allow vessels to continue to disrupt spawning aggregations of 
GB yellowtail flounder.
    Although not overfished, the GB yellowtail flounder stock is 
currently below a level consistent with maximum sustainable yield 
(MSY). Therefore, under the Magnuson-Stevens Act, this stock must be 
rebuilt to a level consistent with MSY. Consequently, allowing the SAP 
to open due to a delayed effectiveness would enable

[[Page 31335]]

vessels to continue to harvest spawning fish, thereby undermining 
efforts to protect spawning aggregations of GB yellowtail flounder and 
rebuild this stock as required by the Magnuson-Stevens Act. Further, 
opening on June 1 could contribute to the premature harvest of the GB 
Yellowtail Flounder TAC, resulting in the closure of access to the 
Eastern U.S./Canada Area and a prohibition on the retention of GB 
yellowtail flounder in the entire U.S./Canada Management Area by 
limited access NE multispecies DAS vessels during the 2005 fishing 
year. Such a closure and retention prohibition could cause unnecessary 
additional discards of GB yellowtail flounder, reducing economic 
benefits to the fishery and further increasing mortality and the 
potential that the fishery will exceed the yearly TAC. Exceeding the 
yearly TAC would result in any TAC overages being deducted from the 
available TAC allocated to the following fishing year. Additionally, 
since the Regional Administrator has indicated in this action that 
there is justification to not authorize any trips into CA II Yellowtail 
Flounder SAP for the 2005 fishing year, a delayed effectiveness could 
result in the SAP opening on June 1, 2005, only to be closed again once 
such a decision is made and a notice published, thereby causing 
confusion to the industry. Therefore, a delayed effectiveness would be 
contrary to the public interest because it would (1) prevent the agency 
from protecting spawning aggregations of GB yellowtail flounder as 
required by the Magnuson-Stevens Act; (2) result in lower market 
prices, reduced economic returns to the fishing industry, and further 
adverse economic impacts; and (3) increase confusion in the fishing 
industry through rapid closure of the SAP.

Public Reporting Burden

    This final rule contains five new collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA). The 
collection of this information has been approved by OMB. The public's 
reporting burden for the collection-of-information requirements 
includes the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection-of-information requirements. The new reporting 
requirements and the estimated average time for a response are as 
follows:
    1. Notice requirements for observer deployment prior to every trip 
for Category 1 herring vessels intending to fish in the GOM or GB 
RMA's, OMB 0648-0521, (2 min/response);
    2. NMFS Office of Law Enforcement landings notice requirement for 
Category 1 herring vessels operating with an observer waiver, 
OMB 0648-0521, (5 min/response);
    3. Notification and Communication with USCG and Center for Coastal 
Studies, OMB 0648-0521, (10 min/response);
    4. Written requests to receive a DAS credit for standing by an 
entangled whale, OMB 0648-0521, (30 min/response);
    5. Vessel baseline downgrade request for the DAS Leasing Program, 
OMB 0648-0475, (1 hr/response).
    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.

Final Regulatory Flexibility Analysis

    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), prepared this FRFA in support of the approved measures in FW 
40B. The FRFA describes the economic impacts that this final rule will 
have on small entities.
    The FRFA incorporates the economic impacts summarized in the 
Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule to 
implement FW 40B based upon the corresponding economic analysis 
prepared for FW 40B (FW 40B RIR), the comment and response section of 
this final rule, and the analysis contained in FW 40B. For the most 
part, those impacts are not repeated here. A copy of the IRFA, the 
FRFA, the RIR, and FW 40B are available from NMFS, Northeast Regional 
Office and are available on the Northeast Regional Office Web site (see 
ADDRESSES). A description of why this action was considered, the 
objectives of, and the legal basis for this final rule are contained in 
the preamble to this final rule and in the FW 40B document and are not 
repeated here.

A Summary of the Issues Raised by the Public Comments in Response to 
the IRFA, a Summary of the Assessment of the Agency of Such Issues, and 
a Statement of Any Changes Made in the Proposed Rule as a Result of 
Such Comments

    NMFS received thirteen comments on the proposed rule. Of these, 
there was one comment on the IRFA and the economic impacts to small 
entities (vessels) resulting from the management measures presented in 
the proposed rule. A summary of the economic issues raised, and NMFS's 
responses, follow:
    Issue: One industry group suggested that NMFS has not calculated 
the overall expenses (i.e., fuel, ice, bait, etc.) incurred by vessels 
that intend to participate in the WGOM Rod/Reel Haddock SAP as compared 
to the expected daily catch resulting from their participation in this 
SAP. This commenter indicated that the VMS operational costs, in 
addition to other costs, are too high for the expected returns from 
haddock caught, and recommended that the requirements to use VMS should 
be removed.
    Response: The IRFA prepared for this action fulfills the 
requirements of the RFA to determine economic impacts based on 
available information. Apart from VMS operational cost information, 
data specifying other vessel costs in this SAP were not available for 
the analysis conducted for this provision. This is another reason why 
the analysis for this measure was insufficient to justify its approval. 
Accordingly, no further analysis of this measure was done because NMFS 
determined to disapprove this SAP for the reasons specified in the 
preamble of this final rule under ``Disapproved Measures.'' Therefore, 
no changes in response to this comment were made to the final rule.

Description of and Estimate of the Number of Small Entities to Which 
the Proposed Rule Would Apply

    This final rule implements measures that have the potential to 
affect any vessel currently issued a limited access NE multispecies 
permit and vessels issued a Category 1 herring permit. Currently, there 
are approximately 1,500 vessels issued a limited access NE multispecies 
permit and 105 vessels issued a Category 1 herring permit. However, it 
is very unlikely that every vessel issued a limited access NE 
multispecies permit or a Category 1 herring permit would be affected by 
this proposed action because of past and recent participation in the 
fishery, the voluntary nature of specific programs proposed in this 
action, and the associated regulatory and economic cost burdens for 
some of the proposed provisions. Except for the notification 
requirements for Category 1 herring vessels, all of the provisions in 
the proposed rule are voluntary. Therefore, vessels that participate in 
these programs would likely have determined that the potential benefits 
of their participation outweigh costs associated with these programs.
    Based upon the information in the EA prepared for FW 40B, up to 
1,409

[[Page 31336]]

vessels (i.e., vessels issued a limited access NE multispecies DAS 
permit) may participate in the DAS Leasing and DAS Transfer Programs, 
the CA II Yellowtail Flounder SAP, or elect to stand by an entangled 
whale. Up to 1,351 vessels issued a limited access NE multispecies DAS 
permit that are currently not members of the GB Cod Hook Sector are 
eligible to enter the GB Cod Hook Sector. Currently, the 53 vessels 
designated as Trip gillnet vessels are no longer restricted in the 
number of gillnets that they may use and are not required to purchase 
gillnet tags for their gillnets.
    The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $3.5 million in gross receipts and would 
apply to limited access NE multispecies permit holders and vessels 
issued a Category 1 herring permit. Data analyzed for Amendment 13 
indicated that the maximum gross receipt for any single commercial 
fishing vessel for the period 1998 to 2001 was $1.3 million. Data 
analyzed in FW 40B indicate that Category 1 herring vessels averaged 
approximately $1.26 million in gross sales. For this reason, each 
vessel in this analysis is treated as a single entity for the purposes 
of size determination and impact assessment. All commercial fishing 
entities affected by this proposed rule would fall under the SBA size 
standard for small commercial fishing entities, and there would be no 
disproportionate impacts between small and large entities.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Final Rule

    The measures implemented by this final rule include the following 
provisions requiring either new or revised reporting and recordkeeping 
requirements: (1) Notice requirements for observer deployment prior to 
every trip for Category 1 herring vessels intending to fish in the GOM 
or GB RMA's; (2) NMFS Office of Law Enforcement landings notice 
requirement for Category 1 herring vessels operating with an observer 
waiver; (3) notification and communication with USCG and Center for 
Coastal Studies for standing by an entangled whale; (4) request for DAS 
Credit for standing by an entangled whale; and (5) vessel baseline 
downgrade request for the DAS Leasing Program.
    The measures proposed under FW 40B would result in several costs to 
participants. To participate in the herring fishery, Category 1 vessels 
are required to use VMS. The cost of the purchase and installation of 
VMS units to vessels participating in the herring fishery have already 
been considered and approved in a previous PRA submission. VMS 
operational costs that have not been previously authorized under the 
PRA include the costs associated with VMS notifications to NMFS Office 
of Law Enforcement for Category 1 herring vessels that are not issued 
an observer waiver. These costs total approximately $3 per vessel every 
year, assuming every vessel issued a Category 1 herring permit fishes 
in the GOM or GB RMA's, a 50-percent observer coverage rate, and a 
total of 1,337 trips per year. There are no costs associated with 
communicating with the USCG or the Center for Coastal Studies regarding 
standing by an entangled whale as these communications would likely 
occur via radio. Written requests to receive a DAS credit for standing 
by an entangled whale will cost the public $3.70 for postage, assuming 
10 such requests are submitted per year. The costs associated with 
vessel baseline downgrade requests for the DAS Leasing Program total 
$518, assuming every eligible vessel would downgrade their DAS Leasing 
Program baseline in one year and a postage cost of $0.37 per 
submission.
    Only the minimum data to meet the requirements of the above data 
needs are requested from all participants. Since all of the respondents 
are small businesses, separate requirements based on the size of the 
business have not been developed.

Economic Impacts Resulting From Disapproved Measures and Changes to the 
Proposed Rule

    As discussed in the preamble of this final rule, NMFS has 
disapproved three of the proposed management measures in FW 40B. These 
measures are: A research TAC set-aside for GB cod, the WGOM Rod/Reel 
Haddock SAP, and the minimum effective effort provision. The GB cod 
research set-aside TAC was disapproved because of insufficient detail 
regarding how to implement this measure. This lack of detail prevented 
NMFS from accurately assessing the potential biological and economic 
impacts of this measure. This disapproval will likely result in 
increased economic benefits, at least in the short-term, to the entire 
fishery compared to those specified in the proposed rule because this 
research TAC set-aside would have reduced the amount of the GB cod 
incidental catch TAC available to Category B DAS programs implemented 
under FW 40A (i.e., the Regular B DAS Pilot Program and the Eastern 
U.S./Canada Haddock SAP Pilot Program). Without this research set-aside 
TAC, participants in the Regular B DAS Pilot Program and the Eastern 
U.S./Canada Haddock SAP Pilot Program will have more opportunities to 
harvest healthier groundfish stocks because of the larger GB cod 
incidental catch TAC's allocated to these programs. Further, with 
higher incidental catch TAC's available for the 2005 fishing year, 
benefits to these vessels will be higher than anticipated in the 
proposed rule and will be equivalent with the economic benefits 
resulting from the no action alternative.
    The disapproval of the WGOM Rod/Reel Haddock SAP will reduce the 
economic benefits described in the proposed rule. The IRFA estimated 
the benefits of this SAP at $140,000, assuming that vessels would be 
able to catch the entire haddock TAC allocated for this SAP. However, 
estimated benefits from this SAP would likely have been lower as the 
catch of GOM cod in this SAP would have likely limited the potential of 
participating vessels from realizing the maximum benefits from the 
haddock TAC. The IRFA noted that this SAP would have provided an 
opportunity for vessels, particularly small vessels in the GOM, to 
target healthy groundfish stocks using a Category B DAS. Despite the 
potential economic benefits of this SAP, NMFS is required to ensure 
that such SAP's are consistent with the FMP, and meet the requirements 
of the Magnuson-Stevens Act and other applicable law. As explained in 
the preamble of this final rule, the information used to justify this 
SAP was not representative of the fishing operations proposed and the 
analysis of the proposed measures did not adequately show that the 
amount of bycatch of GOM cod were minimized to the extent practicable. 
For these reasons, the proposed SAP is inconsistent with National 
Standard 2, National Standard 9, section 303(a)(11) of the Magnuson-
Stevens Act, as well as the objectives of the FMP. The GOM cod 
incidental catch TAC that was allocated to this SAP is instead 
allocated to the Regular B DAS Pilot Program. This provides vessels 
with greater economic benefits from increased opportunities to target 
healthy groundfish stocks in the GOM under this program. These benefits 
would be equivalent with the economic benefits resulting from the no 
action alternative.
    FW 40B proposed to re-categorize 10 Category C DAS as Category B 
Reserve DAS for all vessels allocated zero Category A or B DAS under 
Amendment 13. These DAS could only have been used in specific SAP's 
that do not contain a DAS flipping provision. As described in the 
preamble of this final

[[Page 31337]]

rule, NMFS concluded that this measure posed equity concerns, not 
justified by conservation benefits, and was therefore not consistent 
with National Standard 4. The IRFA indicated that the economic benefits 
of this provision would be positive for vessels receiving a minimum DAS 
allocation. However, this measure would also reduce economic benefits 
to other vessels that were allocated Category A and B DAS under 
Amendment 13 by increasing the number of participants in specific SAP's 
and spreading the limited potential benefits of these SAP's among more 
vessels. With the disapproval of this measure, the economic impacts of 
this action would be equivalent with the economic impacts of the no 
action alternative.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

    This final rule implements measures that will increase the economic 
efficiency of several programs implemented in previous actions to help 
mitigate some of the negative economic impacts of effort reductions 
under Amendment 13, including facilitating participation in the DAS 
Leasing and Transfer Programs and revising measures that will help 
maximize the benefits of the GB yellowtail flounder TAC in the CA II 
Yellowtail Flounder SAP.
    This final rule reduces the conservation tax for Category A and B 
DAS exchanged through the DAS Transfer Program to facilitate 
consolidation of the groundfish fleet through market-based incentives. 
Currently, Category A and B DAS exchanged through the DAS Transfer 
Program are subject to a 40 percent conservation tax, while Category C 
DAS are subject to a 90-percent conservation tax. In addition, the 
vessel selling its DAS must exit all fisheries. This action reduces the 
conservation tax for Category A and B DAS exchanged to 20 percent, but 
would retain the 90-percent conservation tax for Category C DAS and the 
requirement that the vessel selling its DAS exit all fisheries. This 
conservation tax reduction increases the potential value of a DAS 
exchanged under the DAS Transfer Program. It is currently not known 
whether the conservation tax itself has inhibited vessels from 
participating in this program to date. Unless the selling vessel holds 
no other limited access permits, the selling vessel may not be able to 
recoup the full value of the permit by selling the NE multispecies DAS 
alone. Because the vessel is required to retire from all other 
fisheries, the opportunity cost to the seller could be quite high. 
However, overall, this action is expected to increase the potential 
return to both buyers and sellers and have a beneficial impact on small 
entities of uncertain magnitude.
    This action also removes the tonnage requirement for the DAS 
Transfer Program, requiring that vessels receiving DAS exchanged 
through the DAS Transfer Program only meet the size requirements for 
length overall and horsepower. This would bring the size restrictions 
of the DAS Transfer Program in line with those of the DAS Leasing 
Program. These revisions are expected to increase participation in the 
DAS Transfer Program by increasing the potential pool of compatible 
vessels capable of exchanging DAS under the DAS Transfer Program. 
Therefore, these revisions are expected to increase the potential 
economic benefits associated with increased fleet efficiency. It is 
unknown if this provision would facilitate additional DAS transfers, 
but it is likely that economic impacts from this provision would be 
positive. Reducing the conservation tax and removing the tonnage 
criterion through this final rule will likely yield greater economic 
benefits than the no action alternative because to date no vessels have 
participated in the DAS Transfer Program under the 40 percent 
conservation tax on Category A and B DAS.
    FW 40B allows vessels the one-time opportunity to downgrade the 
permit baseline characteristics established for the DAS Leasing Program 
to reflect the physical characteristics of the vessel currently using 
the permit. This is expected to increase the potential pool of vessels 
available to lease DAS. The economic impact of this provision is likely 
to be positive compared to the no action alternative, though the number 
of vessels that might downgrade their DAS Leasing Program baseline and 
the economic value of that downgrade is not quantifiable.
    The CA II Yellowtail Flounder SAP was implemented under Amendment 
13. This final rule revises the season, adjusts the trip limit, limits 
the number of trips that could be taken during a fishing year, and 
establishes a process that allows the Regional Administrator to help 
achieve OY from the yellowtail flounder TAC and ensure that the SAP 
does not conflict with the management objectives outside of the SAP. 
Changing the start date for this SAP from June 1 to July 1 will likely 
increase the price received by vessels landing GB yellowtail flounder 
from the SAP because ex-vessel prices for GB yellowtail flounder have 
been historically lower in June compared to July. Reducing the GB 
yellowtail flounder landing limit from 30,000 lb (13,605 kg) per trip 
to 10,000 lb (4,536 kg) per trip and reducing vessels from two trips 
into the SAP per month to one trip per month will likely spread out 
landings of GB yellowtail flounder throughout the fishing year. This 
will likely lead to more consistently higher ex-vessel prices 
throughout the fishing year by avoiding dramatic drops in ex-vessel 
price that result when large amounts of yellowtail flounder are landed 
at one time. While regulating the supply of yellowtail flounder through 
restrictive trip limits may offer vessels higher ex-vessel prices, 
these restrictions could also increase costs by increasing the number 
of trips necessary to harvest the available TAC. However, current 
regulations allow vessels to fish in the CA II Yellowtail Flounder SAP 
and the Eastern U.S./Canada Haddock SAP Pilot Program and/or the 
Eastern U.S./Canada Area on the same trip, enabling vessels to target 
other species and potentially earn sufficient revenue to cover 
associated vessel costs. However, the Regional Administrator, after 
consulting with the Council, may determine that there is insufficient 
GB yellowtail flounder TAC available to support the opening of the CA 
II Yellowtail Flounder SAP without jeopardizing the GB yellowtail 
fishery outside of the SAP. If this determination is made, the Regional 
Administrator may reduce trips taken into this SAP to zero during the 
2005 fishing year. This would further ensure that the large amounts of 
GB yellowtail flounder that were landed from this SAP during the 2004 
fishing year that resulted in depressed market prices and the premature 
closing of the Eastern U.S./Canada Area do not negatively affect the 
fishery in a similar manner during the 2005 fishing year. A lower GB 
yellowtail flounder trip limit for the CA II Yellowtail Flounder SAP 
and the ability to close access to this SAP when there is insufficient 
GB yellowtail flounder TAC to support the SAP and a fishery outside the 
SAP would allow vessels greater opportunity to fully harvest the 
available GB cod and GB haddock TAC

[[Page 31338]]

allocated to the Eastern U.S./Canada Area and achieve the full economic 
benefit from the U.S./Canada Management Area for vessels operating 
under a Category A DAS. These revisions may help mitigate the derby 
effects and the resulting decreases in economic benefits from the U.S./
Canada Management Area experienced during the 2004 fishing year and 
would result in increased economic benefits than the no action 
alternative.
    FW 40B also changes the manner in which the GB Cod Hook Sector 
allocation is calculated by allowing all vessels and all landings, 
regardless of gear, to count towards the Sector's GB cod allocation. 
This will increase the Sector's share of the overall GB cod TAC for the 
2005 fishing year. While Sector vessels would be able to increase 
overall fishing revenues from the increased allocation of GB cod, this 
provision may reduce the amount of GB cod target TAC available to non-
Sector vessels. Even though the TAC available to non-Sector vessels is 
a target TAC and would not automatically result in area closures, the 
diminished non-Sector GB cod target TAC could potentially slightly 
increase the probability that the GB cod target TAC would be exceeded, 
necessitating possible additional restrictions on non-Sector vessels to 
ensure the target TAC is not exceeded. Therefore, compared to the no 
action alternative, this action would result in positive economic 
benefits to members of the GB Cod Hook Sector associated with an 
increase in the TAC of 0.33-percent, or 14 mt for the 2005 fishing 
year. Non-Sector vessels may potentially see future minimal 
restrictions on fishing and income opportunities associated with a 
decrease in available TAC of 14 mt for the 2005 fishing year. However, 
any reduction in fishing opportunities for non-Sector vessels caused by 
additional vessels joining the GB Cod Hook Sector and therefore 
increasing the GB Cod Hook Sector's GB cod TAC allocation could 
potentially be offset by the resulting reduction in the number of non-
Sector vessels.
    This final rule implementing FW 40B establishes a mechanism to 
provide a DAS credit for vessels standing by an entangled whale. This 
incentive for vessels to report and stand by an entangled whale is 
expected to increase the likelihood that entangled whales could be 
found, tracked, and potentially disentangled. Increasing the 
possibility that an entangled whale could be successfully tracked and 
disentangled would result in positive existence and non-consumptive use 
values to the public.
    FW 40B requires that Category 1 herring vessels notify the NMFS 
Observer Program at least 72 hours prior to fishing for herring in the 
GOM or GB RMA's. In addition, if an observer is not provided for the 
trip, the vessel must notify NMFS Office of Law Enforcement via VMS at 
least 12 hours prior to offloading the catch. These requirements are 
likely to impose some costs associated with reduced trip flexibility. 
However, it is not known the extent to which this provision would 
compromise economic efficiency of herring vessel operations.
    Finally, this action removes the net limit for Trip gillnet 
vessels. Removing the net limit also eliminates the need for vessels to 
purchase gillnet tags for groundfish gillnets (a reduction in costs of 
$180 per vessel). This also eliminates the need to switch the limited 
number of gillnet tags over to different sized nets during vessel 
operations. This provides greater flexibility in vessel operations, 
resulting in unknown positive economic benefits. This provision could 
increase the number of gillnets used by Trip gillnet vessels leading to 
potential increases in vessel revenue associated with higher landings.
    FW 40B analyzed the aggregate economic benefits of four other non-
selected alternatives. These alternatives consisted of various 
combinations of all of the provisions described in FW 40B, including 
some that were not specified in the selected alternative. Alternative 
1, includes every provision described in FW 40B, including additional 
options for the DAS Leasing and Transfer Programs, the GB Haddock SAP 
North of CA I, an option that would restrict participation in the WGOM 
Closure Area Rod/Reel Haddock SAP to only NE multispecies DAS vessels, 
options to prohibit herring vessels from fishing in the NE multispecies 
closed areas, and a minimum observer requirement for vessels to 
participate in Category B DAS programs. Some of the provisions included 
in Alternative 1 (specifically, the GB Haddock SAP North of CA I and 
options to revise the DAS Transfer Program) would have resulted in 
greater economic benefits than the selected alternative, while others 
would have resulted in greater adverse impacts to specific groups of 
vessels. Given the restrictive measures and monitoring requirements 
involved with the GB Haddock SAP North of CA I, this measure would 
likely provide few additional opportunities for fishermen at the cost 
of considerable additional complexity in the fishery. Further, under 
Alternative 1, vessels participating in the DAS Leasing Program would 
have been adversely affected by a conservation tax for the DAS Leasing 
Program as well as Category 1 herring vessels that would have been 
prohibited from fishing in the NE multispecies closed areas. Finally, 
the minimum observer requirements to participate in a SAP would have 
likely resulted in greater costs to smaller vessels that do not have 
the required safety equipment necessary to carry an observer. These 
measures would have resulted in substantial adverse economic impacts 
than the selected alternative.
    Alternative 2 is identical to the selected alternative without 
specifying certain options for the measures included, and would have 
resulted in the same economic impacts.
    Alternative 3 differs from the selected alternative in that it 
would not change the current conservation tax for the DAS Leasing and 
Transfer Programs, includes modifications to the non-groundfish permit 
transfer provisions of the DAS Transfer Program, and does not include 
modifications to the GB Cod Hook Sector allocation calculation. This 
alternative would likely result in economic benefits similar to the no 
action alternative, although modifications to the DAS Transfer Program 
would have likely increased the value of DAS exchanged under that 
program. Alternative 4 differs from the proposed alternative in that it 
includes the GB Haddock SAP North of CA I, but does not include 
modifications to the GB Cod Hook Sector allocation calculation. 
Alternative 4 would result in greater economic benefit than the 
selected alternative because of the GB Haddock SAP North of CA I; 
however, as specified above, this measure would have likely provided 
few additional fishing opportunities for fishermen at the cost of 
considerable additional complexity in the fishery. The measures 
implemented by this final rule will provide greater economic efficiency 
than the non-selected alternatives without increasing the complexity of 
the fishery, compromising opportunities for Category 1 herring vessels 
to fish in the GOM or GB RMA's, or increasing the costs for vessels to 
comply with Observer Program requirements.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) 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

[[Page 31339]]

or group of rules. In conjunction with this rule making process, a 
small entity complaince guide was prepared. Copies of the guide will be 
sent to all holders of limited access multispecies permits and Category 
1 herring permits. The guide will be available on the Internet at 
http://www.nero.noaa.gov. Copies of the guide can also be obtained from 
the Regional Administrator (see ADDRESSES).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 25, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 15 CFR part 902, and 50 CFR 
part 648 are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority: 44 U.S.C. 3501 et seq.

0
2. In Sec.  902.1, the table in paragraph (b) under 50 CFR is amended 
by:
0
a. Revising the existing entries for Sec.  648.4, Sec.  648.9, Sec.  
648.10, Sec.  648.14, Sec.  648.80, Sec.  648.81, Sec.  648.82, Sec.  
648.86, Sec.  648.89, Sec.  648.94, and Sec.  648.322; and
0
b. Adding new entries for Sec.  648.85, Sec.  648.87, and Sec.  648.88 
to read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) Display.

------------------------------------------------------------------------
                                              Current OMB control number
  CFR part or section where the information     (all numbers begin with
      collection requirement is located                 0648-)
------------------------------------------------------------------------
 
                                * * * * *
50 CFR
 
                                * * * * *
648.4.......................................  -0202, -0212, and -0489.
 
                                * * * * *
648.9.......................................  -0202, -0404, -0489 and -
                                               0501.
648.10......................................  -0202, -0489, and -0501.
 
                                * * * * *
648.14......................................  -0202, -0212, -0469, -
                                               0489, -0501, and -0502.
 
                                * * * * *
648.80......................................  -0202, -0422, -0489, and -
                                               0521.
648.81......................................  -0202, -0412, and -0489.
648.82......................................  -0202, -0457, -0489, and -
                                               0521.
 
                                * * * * *
648.85......................................  -0212, -0489, -0501, and -
                                               0502.
648.86......................................  -0202, -0391, -0457, and -
                                               0489.
648.87......................................  -0489.
648.88......................................  -0489.
648.89......................................  -0412 and -0489.
 
                                * * * * *
648.94......................................  -0202 and -0489.
 
                                * * * * *
648.322.....................................  -0480 and -0489.
 
                                * * * * *
------------------------------------------------------------------------

50 CFR Chapter VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

0
4. In Sec.  648.2, a new definition for ``Category 1 herring vessel'' 
is added in alphabetical order, to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Category 1 herring vessel, means a vessel issued a permit to fish 
for Atlantic herring that is required to have an operable VMS unit 
installed on board pursuant to Sec. 648.205(b).
* * * * *

0
5. In Sec.  648.10, paragraphs (b)(1)(vi) through (b)(1)(viii) are 
revised to read as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (vi) A vessel issued a limited access NE multispecies permit 
electing to fish under the U.S./Canada Resource Sharing Understanding, 
as specified in Sec.  648.85(a);
    (vii) A vessel electing to fish under the Regular B DAS Pilot 
Program, as specified in Sec.  648.85(b)(6);
    (viii) A vessel electing to fish in the Closed Area I Hook Gear 
Haddock SAP, as specified in Sec.  648.85(b)(7); and
* * * * *

0
6. In Sec.  648.14, paragraphs (a)(136), (a)(139), and (c)(14) are 
revised; and paragraphs (a)(165), (c)(80), (bb)(19), and (bb)(20) are 
added to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (136) If fishing under the Closed Area II Yellowtail Flounder SAP, 
fish for, harvest, possess or land any regulated NE multispecies from 
the area specified in Sec.  648.85(b)(3)(ii), unless in compliance with 
the restrictions and conditions specified in Sec. Sec.  648.85(b)(3)(i) 
through (xi).
* * * * *
    (139) If fishing in the Closed Area II Yellowtail Flounder SAP 
specified in Sec.  648.85(b)(3), exceed the number of trips specified 
under Sec.  648.85(b)(3)(vi) or (vii).
* * * * *
    (165) If a vessel is fishing under a Category B DAS in the Closed 
Area II Yellowtail Flounder SAP specified in Sec.  648.85(b)(3), the 
Regular B DAS Pilot Program specified in Sec.  648.85(b)(6), or the 
Eastern U.S./Canada Haddock SAP Pilot Program specified in Sec.  
648.85(b)(8), remove any fish caught with any gear, including dumping 
the contents of a net, except on board the vessel.
* * * * *
    (c) * * *
    (14) If the vessel has been issued a limited access NE multispecies 
permit and fishes under a NE multispecies DAS with gillnet gear, fail 
to comply with gillnet tagging requirements specified in Sec. Sec.  
648.80(a)(3)(iv)(B)(4), (a)(3)(iv)(C), (a)(4)(iv)(B)(3), 
(b)(2)(iv)(B)(3), and (c)(2)(v)(B)(3), or fail to produce, or cause to 
be produced, gillnet tags when requested by an authorized officer.
* * * * *
    (80) Provide false information on the application to downgrade the 
DAS Leasing Program baseline, as required under Sec.  648.82(k)(4)(xi).
* * * * *
    (bb) * * *
    (19) If the vessel has been issued a Category 1 herring permit and 
is fishing

[[Page 31340]]

for herring in the GOM/GB Exemption Area specified in Sec.  
648.80(a)(17), fail to notify NMFS at least 72 hours prior to departing 
on a trip for the purposes of observer deployment.
    (20) If the vessel has been issued a Category 1 herring permit and 
is fishing for herring in the GOM/GB Exemption Area specified in Sec.  
648.80(a)(17), fail to notify the NMFS Office of Law Enforcement of the 
time and date of landing via VMS at least 12 hours prior to landing or 
crossing the VMS demarcation line on its return trip to port if issued 
an observer waiver pursuant to Sec.  648.80(d)(7) or (e)(6).
* * * * *

0
7. In Sec.  648.80, paragraphs (a)(3)(iv)(A)(2), (a)(4)(iv)(A), 
(b)(2)(iv) introductory paragraph, (b)(2)(iv)(A), (c)(2)(v)(A), (d)(2), 
(d)(4), (d)(5), and (e)(2) through (e)(4) are revised; paragraphs 
(a)(3)(iv)(A)(3) and (a)(3)(iv)(A)(4) are removed; and paragraphs 
(d)(6), (d)(7), (e)(5), and (e)(6) are added to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (a) * * *
    (3) * * *
    (iv) * * *
    (A) * * *
    (2) Net size requirements. Nets may not be longer than 300 ft (91.4 
m), or 50 fathoms (91.4 m) in length.
* * * * *
    (4) * * *
    (iv) * * *
    (A) Trip gillnet vessels. A Trip gillnet vessel fishing under a NE 
multispecies DAS and fishing in the GB Regulated Mesh Area may not fish 
with nets longer than 300 ft (91.4 m), or 50 fathoms (91.4 m) in 
length.
* * * * *
    (b) * * *
    (2) * * *
    (iv) Gillnet vessels. For Day and Trip gillnet vessels, the minimum 
mesh size for any sink gillnet not stowed and not available for 
immediate use in accordance with Sec.  648.23(b), when fishing under a 
DAS in the NE multispecies DAS program in the SNE Regulated Mesh Area, 
is 6.5 inches (16.5 cm) throughout the entire net. This restriction 
does not apply to nets or pieces of nets smaller than 3 ft (0.9 m) x 3 
ft (0.9 m), (9 sq ft (0.81 sq m)), or to vessels that have not been 
issued a NE multispecies permit and that are fishing exclusively in 
state waters. Day gillnet vessels must also abide by the tagging 
requirements in paragraph (a)(3)(iv)(C) of this section.
    (A) Trip gillnet vessels. A Trip gillnet vessel fishing under a NE 
multispecies DAS and fishing in the SNE Regulated Mesh Area may not 
fish with nets longer than 300 ft (91.4 m), or 50 fathoms (91.4 m) in 
length.
* * * * *
    (c) * * *
    (2) * * *
    (v) * * *
    (A) Trip gillnet vessels. A Trip gillnet vessel fishing under a NE 
multispecies DAS and fishing in the MA Regulated Mesh Area may not fish 
with nets longer than 300 ft (91.4 m), or 50 fathoms (91.4 m) in 
length.
* * * * *
    (d) * * *
    (2) When fishing under this exemption in the GOM/GB Exemption Area, 
as defined in paragraph (a)(17) of this section, and in the area 
described in Sec.  648.81(c)(1), the vessel has on board a letter of 
authorization issued by the Regional Administrator, and complies with 
all restrictions and conditions thereof;
* * * * *
    (4) The vessel does not fish for, possess, or land NE multispecies;
    (5) The vessel must carry a NMFS-approved sea sampler/observer, if 
requested by the Regional Administrator;
    (6) To fish for herring under this exemption in the GOM/GB 
Exemption Area as defined in paragraph (a)(17) of this section, vessels 
issued a Category 1 herring permit pursuant to Sec.  648.205(b) must 
provide notice to NMFS of the vessel name; contact name for 
coordination of observer deployment; telephone number for contact; and 
the date, time, and port of departure, at least 72 hours prior to 
beginning any trip into these areas for the purposes of observer 
deployment; and
    (7) Any vessel issued an observer waiver pursuant to paragraph 
(d)(6) of this section must notify NMFS Office of Law Enforcement 
through VMS of the time and place of offloading at least 12 hours prior 
to crossing the VMS demarcation line on its return trip to port, or, 
for vessels that have not fished seaward of the VMS demarcation line, 
at least 12 hours prior to landing.
* * * * *
    (e) * * *
    (2) When fishing under this exemption in the GOM/GB Exemption Area, 
as defined in paragraph (a)(17) of this section, the vessel has on 
board a letter of authorization issued by the Regional Administrator;
    (3) The vessel only fishes for, possesses, or lands Atlantic 
herring, blueback herring, mackerel, or menhaden;
    (4) The vessel does not fish for, possess, or land NE multispecies; 
and
    (5) To fish for herring under this exemption in the GOM/GB 
Exemption Area as defined in paragraph (a)(17) of this section, vessels 
issued a Category 1 herring permit pursuant to Sec.  648.205(b) must 
provide notice to NMFS of the vessel name; contact name for 
coordination of observer deployment; telephone number for contact; and 
the date, time, and port of departure, at least 72 hours prior to 
beginning any trip into these areas for the purposes of observer 
deployment; and
    (6) Any vessel issued an observer waiver pursuant to paragraph 
(e)(5) of this section must notify NMFS Office of Law Enforcement 
through VMS of the time and place of offloading at least 12 hours prior 
to crossing the VMS demarcation line on its return trip to port, or, 
for vessels that have not fished seaward of the VMS demarcation line, 
at least 12 hours prior to landing.
* * * * *

0
8. In Sec.  648.82, paragraphs (k)(4)(ix), (l)(1)(ii), and (l)(1)(iv) 
are revised, and paragraphs (k)(4)(xi), and (m) are added to read as 
follows:


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

* * * * *
    (k) * * *
    (4) * * *
    (ix) Size restriction of Lessee vessel. A Lessor vessel only may 
lease DAS to a Lessee vessel with a baseline main engine horsepower 
rating that is no more than 20 percent greater than the baseline engine 
horsepower of the Lessor vessel. A Lessor vessel may only lease DAS to 
a Lessee vessel with a baseline length overall that is no more than 10 
percent greater than the baseline length overall of the Lessor vessel. 
For the purposes of this program, the baseline horsepower and length 
overall specifications of vessels are those associated with the permit 
as of January 29, 2004, unless otherwise modified according to 
paragraph (k)(4)(xi) of this section.
* * * * *
    (xi) One-time downgrade of DAS Leasing Program baseline. For the 
purposes of determining eligibility for leasing DAS only, a vessel 
owner may elect to make a one-time downgrade to the vessel's DAS 
Leasing Program baseline length and horsepower as specified in 
paragraph (k)(4)(ix) of this section to match the length overall and 
horsepower specifications of the vessel that is currently issued the 
permit.
    (A) Application for a one-time DAS Leasing Program baseline 
downgrade.

[[Page 31341]]

To downgrade the DAS Leasing Program baseline, eligible NE multispecies 
vessels must submit a completed application form obtained from the 
Regional Administrator. An application to downgrade a vessel's DAS 
Leasing Program baseline must contain at least the following 
information: Vessel owner's name, vessel name, permit number, official 
number or state registration number, current vessel length overall and 
horsepower specifications, an indication whether additional information 
is included to document the vessel's current specifications, and the 
signature of the vessel owner.
    (B) Duration and applicability of one-time DAS Leasing Program 
baseline downgrade. The downgraded DAS Leasing Program baseline remains 
in effect until the DAS Leasing Program expires or the permit is 
transferred to another vessel via a vessel replacement. Once the permit 
is transferred to another vessel, the DAS Leasing Program baseline 
reverts to the baseline horsepower and length overall specifications 
associated with the permit prior to the one-time downgrade. Once the 
DAS Leasing Program baseline is downgraded for a particular permit, no 
further downgrades may be authorized for that permit. The downgraded 
DAS Leasing Program baseline may only be used to determine eligibility 
for the DAS Leasing Program and does not affect or change the baseline 
associated with the DAS Transfer Program specified in paragraph 
(l)(1)(ii) of this section, or the vessel replacement or upgrade 
restrictions specified at Sec.  648.4(a)(1)(i)(E) and (F), or any other 
provision, respectively.
    (l) * * *
    (1) * * *
    (ii) NE multispecies DAS may be transferred only to a vessel with a 
baseline main engine horsepower rating that is no more than 20 percent 
greater than the baseline engine horsepower of the transferor vessel. 
NE multispecies DAS may be transferred only to a vessel with a baseline 
length overall that is no more than 10 percent greater than the 
baseline length overall of the transferor vessel. For the purposes of 
this program, the baseline horsepower and length overall are those 
associated with the permit as of January 29, 2004.
* * * * *
    (iv) NE multispecies Category A and Category B DAS, as defined 
under paragraphs (d)(1) and (d)(2) of this section, shall be reduced by 
20 percent upon transfer.
* * * * *
    (m) DAS credit for standing by entangled whales. Limited access 
vessels fishing under the DAS program that report and stand by an 
entangled whale may request a DAS credit for the time spent standing by 
the whale. The following conditions and requirements must be met to 
receive this credit:
    (1) At the time the vessel begins standing by the entangled whale, 
the vessel operator must notify the USCG and the Center for Coastal 
Studies, or another organization authorized by the Regional 
Administrator, of the location of the entangled whale and that the 
vessel is going to stand by the entangled whale until the arrival of an 
authorized response team;
    (2) Only one vessel at a time may receive credit for standing by an 
entangled whale. A vessel standing by an entangled whale may transfer 
its stand-by status to another vessel while waiting for an authorized 
response team to arrive, provided it notifies the USCG and the Center 
for Coastal Studies, or another organization authorized by the Regional 
Administrator, of the transfer. The vessel to which stand-by status is 
transferred must also notify the USCG and the Center for Coastal 
Studies or another organization authorized by the Regional 
Administrator of this transfer and comply with the conditions and 
restrictions of this part;
    (3) The stand-by vessel must be available to answer questions on 
the condition of the animal, possible species identification, severity 
of entanglement, etc., and take photographs of the whale, if possible, 
regardless of the species of whale or whether the whale is alive or 
dead, during its stand-by status and after terminating its stand-by 
status. The stand-by vessel must remain on scene until the USCG or an 
authorized response team arrives, or the vessel is informed that an 
authorized response team will not arrive. If the vessel receives notice 
that a response team is not available, the vessel may discontinue 
standing-by the entangled whale and continue fishing operations; and
    (4) To receive credit for standing by an entangled whale, a vessel 
must submit a written request to the Regional Administrator. This 
request must include at least the following information: Date and time 
when the vessel began its stand-by status, date of first communication 
with the USCG, and date and time when the vessel terminated its stand-
by status. DAS credit shall not be granted for the time a vessel fishes 
when standing by an entangled whale. Upon a review of the request, NMFS 
shall consider granting the DAS credit based on information available 
at the time of the request, regardless of whether an authorized 
response team arrives on scene or a rescue is attempted. NMFS shall 
notify the permit holder of any DAS adjustment that is made or explain 
the reasons why an adjustment will not be made.

0
9. In Sec.  648.85, paragraphs (b)(3)(iii), and (b)(3)(vi) through 
(b)(3)(viii) are revised to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (b) * * *
    (3) * * *
    (iii) Season. Eligible vessels may fish in the Closed Area II 
Yellowtail Flounder SAP during the period July 1 through December 31.
* * * * *
    (vi) Number of trips per vessel. Unless otherwise authorized by the 
Regional Administrator as specified in paragraph (a)(3)(iv)(D) of this 
section, eligible vessels are restricted to one trip per month, during 
the season described in paragraph (b)(3)(iii) of this section.
    (vii) Maximum number of trips per fishing year. Unless otherwise 
authorized by the Regional Administrator as specified in paragraph 
(a)(3)(iv)(D) of this section, the total number of allowed trips by all 
vessels combined that may be declared into the Closed Area II 
Yellowtail Flounder SAP shall be as announced by the Regional 
Administrator, after consultation with the Council, for each fishing 
year, prior to June 1, through rulemaking consistent with the 
Administrative Procedure Act. The total number of trips by all vessels 
combined that may be declared into this SAP shall not exceed 320 trips 
per year. When determining the total number of trips, the Regional 
Administrator shall consider the available yellowtail flounder TAC 
under the U.S./Canada Resource Sharing Understanding, the potential 
catch of GB yellowtail flounder by all vessels fishing outside of the 
SAP, recent discard estimates in all fisheries that catch yellowtail 
flounder, and the expected number of SAP participants. If the Regional 
Administrator determines that the available catch, as determined by 
subtracting the potential catch of GB yellowtail flounder by all 
vessels outside of the SAP from the GB yellowtail flounder TAC 
allocation specified in paragraph (a)(2) of this section, is 
insufficient to allow for at least 150 trips with a possession limit of 
15,000 lb (6,804 kg) of yellowtail flounder per trip, the Regional 
Administrator may choose not to

[[Page 31342]]

authorize any trips into the SAP during a fishing year.
    (viii) Trip limits--(A) Yellowtail flounder trip limit. Unless 
otherwise authorized by the Regional Administrator as specified in 
paragraph (a)(3)(iv)(D) of this section, a vessel fishing in the CA II 
Yellowtail Flounder SAP may fish for, possess, and land up to 10,000 lb 
(4,536 kg) of yellowtail flounder per trip. The Regional Administrator 
may adjust this limit to a maximum of 30,000 lb (13,608 kg) per trip 
after considering the factors listed in paragraph (b)(3)(vii) of this 
section for the maximum number of trips.
    (B) Cod and haddock trip limit. Unless otherwise restricted, a NE 
multispecies vessel fishing any portion of a trip in the Closed Area II 
Yellowtail Flounder SAP may not fish for, possess, or land more than 
1,000 lb (453.6 kg) of cod per trip, regardless of trip length. A NE 
multispecies vessel fishing in the Closed Area II Yellowtail Flounder 
SAP is subject to the haddock requirements described under Sec.  
648.86(a), unless further restricted under paragraph (a)(3)(iv) of this 
section.
* * * * *

0
10. In Sec.  648.87, paragraphs (d)(1)(ii) and (d)(1)(iii)(A) are 
revised to read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (d) * * *
    (1) * * *
    (ii) Eligibility. All vessels issued a valid limited access NE 
multispecies DAS permit are eligible to participate in the GB Cod Hook 
Sector, provided they have documented landings through valid dealer 
reports submitted to NMFS of GB cod during the fishing years 1996 to 
2001, regardless of gear fished.
    (iii) * * *
    (A) Sum of the total accumulated landings of GB cod by vessels 
identified in the Sector's Operation Plan specified under paragraph 
(b)(2) of this section, for the fishing years 1996 through 2001, 
regardless of gear used, as reported in the NMFS dealer database.
* * * * *
[FR Doc. 05-10780 Filed 5-25-05; 4:29 pm]
BILLING CODE 3510-22-P