[Federal Register Volume 70, Number 177 (Wednesday, September 14, 2005)]
[Rules and Regulations]
[Pages 54302-54309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18229]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050630174-5234-02; I.D. 062005B-X]
RIN 0648-AT08


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 41

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

ACTION: Final rule.

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SUMMARY: This final rule implements Framework Adjustment 41 (FW 41) to 
the Northeast (NE) Multispecies Fishery Management Plan (FMP), 
developed by the New England Fishery Management Council (Council), 
which expands participation in the existing Closed Area (CA) I Hook 
Gear Haddock Special Access Program (SAP) to all NE multispecies 
limited access days-at sea (DAS) vessels fishing with hook gear. This 
action also modifies some of the management measures currently 
applicable to the Georges Bank (GB) Cod Hook Sector (Sector) vessels 
when declared into the CA I Hook Gear Haddock SAP by including 
modification of the season, haddock total allowable catch (TAC), and 
restricting vessels to fishing only inside the SAP area on trips 
declared into the SAP. In addition, NMFS clarifies regulations 
pertaining to fishing in the Eastern U.S./Canada Haddock SAP Pilot 
Program Area. Specifically, during the time the SAP is open, eligible 
vessels can choose to fish in the SAP, and fish outside the SAP in the 
open areas of the Eastern U.S./Canada Area. This action is intended to 
mitigate the economic and social impacts resulting from Amendment 13 to 
the FMP and to meet the conservation and management requirements of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

DATES: Effective October 14, 2005.

ADDRESSES: Copies of FW 41, its Regulatory Impact Review (RIR), the 
Initial Regulatory Flexibility Analysis (IRFA), and the Environmental 
Assessment (EA) are available from Paul J. Howard, Executive Director, 
New England Fishery Management Council, 50 Water Street, The Tannery B-
Mill 2, Newburyport, MA 01950.
    The Final Regulatory Flexibility Analysis (FRFA) consists of the 
IRFA, public comments and responses, and the summary of impacts and 
alternatives contained in the Classification section of the preamble of 
this final rule. Copies of the small entity compliance guide are 
available from Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930-
2298. A copy of the EA/RIR/IRFA is accessible via the Internet at 
http://www.nero.noaa.gov/nero/regs/com.html.
    Comments regarding the burden-hour estimates or other aspects of 
the collection of information requirements contained in this final rule 
may be submitted in writing to NMFS (see ADDRESSES), or to David 
Rostker, OMB, by e-mail at [email protected], or by fax at 
(202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Brian Hooker, Fishery Policy Analyst, 
phone: (978) 281-9220, fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    In order to increase the fishing effort on, and yield from, healthy 
stocks, Amendment 13 to the FMP created a structure that allows for 
development of programs to target healthy fish stocks using Category B 
DAS. Amendment 13 included four specific SAPs, only two of which were 
approved and implemented on May 1, 2004. The regulations implementing 
FW 40-A (69 FR 67780, November 19, 2004) also created opportunities to 
use Category B DAS, including the CA I Hook Gear Haddock SAP. However, 
due to insufficient controls on GB cod mortality, the measures for non-
Sector vessels proposed in FW 40-A were found to be inconsistent with 
applicable law, and were thus disapproved. The purpose of this action 
is to revise the CA I Hook Gear Haddock SAP rules to allow 
participation by non-Sector vessels. This special access program will 
help mitigate the economic and social impacts caused by the fishing 
effort reductions that resulted from implementation of Amendment 13.

Management Measures

1. CA I Hook Gear Haddock SAP

Non-Sector Vessels
    FW 41 modifies the CA I Hook Gear Haddock SAP by allowing access to 
this SAP when fishing under a B DAS (either Regular B or Reserve B) for 
vessels with a NE multispecies limited access DAS permit, provided the 
vessel fishes with demersal longline or tub trawl gear. In order to 
minimize the potential of a derby fishery, participation in the SAP for 
non-Sector vessels is restricted to a participation period of November 
16 - December 31 for the 2005 fishing year, unless otherwise notified 
by NMFS. The participation period will alternate each year between 
Sector and non-Sector participants such that, in fishing year 2006, 
non-Sector vessels will be able to fish in this SAP during a 
participation period of October 1 - November 15. The currently approved 
haddock TAC of 1,000 mt for the SAP is divided evenly into two quota 
periods such that the haddock TAC for each quota period will be 500 mt. 
The SAP will be closed to all participants when the Administrator, 
Northeast Region, NMFS (Regional Administrator) projects that the 
haddock TAC (landings and discards) has been caught. The Regional 
Administrator may also adjust the start of the second participation 
period if the 500-mt haddock quota for the first participation period 
is harvested prior to November 15. Additionally, the Regional 
Administrator may adjust the 500-mt quota for the second participation 
period to account for under- or over-harvest of the 500-mt haddock 
quota (landings and discards) that occurred in the first participation 
period. Vessels fishing on a trip in which they have declared into the 
Regular B DAS Pilot Program are prohibited from fishing in this SAP on 
the same trip.
    In order to ensure that any catch of GB cod taken while using a 
Category B DAS does not threaten mortality objectives of Amendment 13, 
non-Sector vessels participating in the CA I Hook Gear Haddock SAP are 
allocated a portion of the GB cod incidental catch TAC. The GB cod 
incidental catch TACs are 50 percent, 34 percent, and 16 percent for 
the Regular B DAS Pilot Program, the Eastern U.S./Canada SAP, and the 
CA I Hook Gear Haddock SAP, respectively. Additionally, for the 2005 
fishing year, the Regional Administrator may estimate any uncaught GB 
cod incidental catch TAC from the first quarter of the Regular B DAS 
Pilot Program and add that amount to the second quarter GB cod 
incidental catch TAC for the Regular B DAS Pilot Program. This action 
is necessary because the effective date of FW 41 (October 1, 2005) is 
after the start of the Eastern U.S./Canada Haddock SAP, and the first 
period for the Regular B DAS Pilot Program (i.e., May 1, 2005). This

[[Page 54303]]

action reduces the GB cod incidental catch TAC for the second period of 
the Regular B DAS Pilot Program by 15.5 mt, and re-allocates it to the 
CA I Hook Gear Haddock SAP. This figure, 15.5 mt, is equivalent to 16 
percent of the GB cod incidental catch TAC at the beginning of the 2005 
fishing year (97 mt). This inseason adjustment is only for the GB cod 
incidental catch TAC in the 2005 fishing year.
    In order to enable the NMFS Observer Program to administer the 
deployment of observers in the SAP, any vessel intending to participate 
in this SAP is required to notify the NMFS Observer Program by 
September 1 of its intention to fish in the program that year. This 
information is intended to provide the NMFS Observer Program with an 
estimate of the total number of vessels that intend to participate in 
the SAP and to plan observer coverage accordingly. If a vessel does not 
notify the NMFS Observer Program of its intent to participate in the 
SAP by September 1, it will not be allowed to participate in the SAP 
during that fishing year. Because this is the first year of this SAP 
modification, and timing is not consistent with the September 1 
notification date for the 2005 fishing year, all non-Sector vessels 
must notify the NMFS Observer Program of its intention to fish in the 
CA I Hook Gear Haddock SAP by October 24, 2005. In addition to this 
one-time annual notification, vessels are required to notify the NMFS 
Observer Program by telephone at least 72 hours prior to leaving on a 
trip to the SAP, and are required to provide the following information: 
Vessel name; contact name for coordination of observer deployment; 
telephone number of contact; and date, time and port of departure. The 
Regional Administrator retains the authority to close the CA I Hook 
Gear Haddock Access Area for the duration of the season if the level of 
observer coverage is insufficient to project whether continuation of 
the SAP would undermine the achievement of the objectives of the FMP or 
the CA I Hook Gear Haddock SAP.
    Non-Sector vessels participating in the SAP are required to use 
Category B (either Regular B or Reserve B) DAS only. Like the Sector 
vessels, all non-Sector vessels participating in this SAP are required 
to be equipped with an approved Vessel Monitoring System (VMS). Vessels 
are required to declare into the CA I Hook Gear Haddock SAP via VMS and 
specify whether Regular B DAS or Reserve B DAS will be used, prior to 
leaving port on a trip into the SAP. All non-Sector vessels are 
required to report their catches (landings and discards) of haddock and 
cod daily via VMS. Non-Sector vessels that have declared into the CA I 
Hook Gear Haddock SAP are prohibited from fishing both inside and 
outside the SAP area on the same trip and are exempt from the current 
limitation on the number of hooks fished inside the SAP area. Non-
Sector vessels are subject to a cod possession and landing limit of 
1,000 lb (453.6 kg) per trip. Vessels are not permitted to discard 
legal-sized cod prior to reaching the catch limit, and are required to 
end their trip if the cod trip limit is achieved or exceeded. There is 
no flipping provision for this SAP (i.e., vessels may not switch from 
using Category B to Category A DAS on a trip). For species other than 
cod, non-Sector vessels are required to comply with the possession and 
trip limit restrictions currently specified in the regulations. When 
the Regional Administrator projects that either the cod incidental 
catch TAC, or the haddock TAC (landings and discards) has been caught 
for the CA I Hook Gear Haddock SAP, the SAP will close for the 
remainder of the fishing period.
Sector Vessels
    There are two changes to the current provisions for Sector vessels 
participating in the CA I Hook Gear Haddock SAP. Under this action, 
Sector vessels that have declared into the CA I Hook Gear Haddock SAP 
are prohibited from fishing both inside and outside the SAP area on the 
same trip, and Sector vessels are restricted to a participation period 
of October 1 - November 15 in the 2005 fishing year. For subsequent 
fishing years, starting in fishing year 2006, the participation period 
will alternate each year between Sector and non-Sector participants so 
that, in fishing year 2006, for example, Sector vessels may fish during 
a participation period of November 16 - December 31. The current 
haddock TAC of 1,000 mt for the SAP is divided evenly into two quota 
periods such that the haddock TAC for each quota period is 500 mt. This 
action also removes the requirement that Sector vessels shall be 
required to pay for observer coverage if the Regional Administrator 
determines that funding for observers is inadequate to provide 
sufficient coverage. The Regional Administrator may adjust the start of 
the second quota period if the 500-mt haddock quota for the first quota 
period is harvested prior to November 15. Additionally, the Regional 
Administrator may adjust the 500-mt quota for the second quota period 
to account for under- or over-harvest of the 500-mt haddock quota 
(landings and discards) that occurred in the first quota period. Other 
provisions for Sector vessels fishing in the SAP remain unchanged.

2. Clarification of Regulations Pertaining to Fishing in the Eastern 
U.S./Canada Haddock SAP Pilot Program Area

    Regulations pertaining to access to the Eastern U.S./Canada Haddock 
SAP Pilot Program and the Eastern U.S./Canada Management Area are 
clarified through this rule. Regulations at Sec.  648.85(a)(1) and 
(b)(8) allow fishing in the Eastern U.S./Canada Management Area, and 
allow fishing in the Eastern U.S./Canada Haddock SAP Area, 
respectively, and specify rules that pertain to each area. According to 
these regulations, during the time the SAP is open, eligible vessels 
may choose to fish in the SAP, and to fish outside the SAP in the open 
areas of the Eastern U.S./Canada Area. In contrast to these 
regulations, the regulations at Sec.  648.14(a)(143) and (a)(148) could 
be broadly interpreted to prohibit fishing in any part of the SAP 
unless fishing under the SAP rules. These prohibitions were 
inadvertently written in a broad way that is inconsistent with Sec.  
648.85(a)(1) and (b)(8) and the intent of NE Multispecies Framework 
Adjustment 40-A. These regulations are amended and clarified through 
this final rule.

Comments and Responses

    Four letters were received regarding the proposed rule (July 18, 
2005; 70 FR 41189) to implement FW 41, including two letters from 
industry groups, one letter from the State of Maine, and one letter 
that was not germane to the proposed action. NMFS has not responded to 
the comments that were not specific to the proposed management 
measures. Both industry groups expressed overall support for expanding 
the CA I Hook Gear Haddock SAP to non-Sector vessels.

Retention of Catch History from the CA I Hook Gear Haddock SAP

    Comment 1: One industry group expressed support of the Council's 
stated intent to not use the catch history from the CA I Hook Gear 
Haddock SAP for any future allocation decisions. The industry group 
expressed its desire to have the Council's intent codified in the Code 
of Federal Regulations. Their belief is that the equal division of the 
haddock TAC between the two participation periods for the SAP is 
arbitrary and may unjustly give Sector vessels a 500-mt allocation of 
haddock that could be used as the basis for future haddock allocations. 
The State of Maine also expressed concern that the equal

[[Page 54304]]

division of haddock between the two participation periods is unfair.
    Response 1: The overall haddock TAC is divided equally between the 
participation periods since the catch rates of haddock were similar 
over the course of the experimental fishery. By dividing the haddock 
TAC in half, each group (Sector and non-Sector) has an equal 
opportunity to catch haddock. In the absence of any historic basis to 
assign an allocation, the Council viewed this division was viewed as 
the most equitable. Because the SAP is a new program, and non-Sector 
vessels have not had the opportunity to fish in the SAP, the 
alternative of basing the split on recent catch histories could not be 
used. The Council is a dynamic organization that must base its 
decisions on the best information available at the time each decision 
is being made. To restrict the Council's future decision-making ability 
by codifying the intent of the current Council members would not be in 
the best interest of the fishery, or the Council in the long term.
    Comment 2: One industry group opposed the Council's intent to not 
use catch history from the CA I Hook Gear Haddock SAP in future 
allocation decisions and asked NMFS to reject this statement by the 
Council.
    Response 2: The Council's stated intent regarding use of catch 
history is not binding on NMFS or the Council. Therefore, there is no 
need to reject (or accept) the Council's current stated intent 
regarding the use of catch data for a hypothetical, future allocation 
program, because the Council is not bound by the statement now or in 
the future.

Division of CA I Hook Gear Haddock SAP into Two Participation Periods

    Comment 1: The State of Maine expressed concern that the division 
of the SAP into two participation periods between Sector and non-Sector 
vessels promotes fragmentation in an already fragmented fishery and 
believes that it does not address the potential for a derby fishery in 
the non-Sector participation period. As an alternative, the State of 
Maine recommended that Sector and non-Sector vessels should be 
permitted to fish during whichever participation period they desire, 
provided that they declare their intent to do so prior to the start of 
the SAP fishing season. The Regional Administrator would then adjust 
the TAC of GB cod and GB haddock allocated to each participation period 
based on the number of vessels that declare their intent to fish in 
each participation period.
    Response 1: The Council considered adopting trip limits for 
controlling the derby fishery rather than divide the SAP season between 
Sector and non-Sector participation periods. However, this option was 
rejected as it did not adequately address derby effects and because it 
was believed that it could increase safety problems in the fishery. The 
Council's recommended alternative to split the SAP season into two 
participation periods was based on a solution offered by the industry. 
Although the number of non-Sector vessels that will participate in the 
CA I Hook Gear Haddock SAP is not known, it is not expected to be 
large. This suggests that the State's concerns about a potential derby 
amongst non-Sector vessels may be over-stated.
    The State of Maine's proposal to alter the SAP raises several 
questions. If all the vessels sign up for just one of the participation 
periods, then the State's proposal does nothing to address a potential 
derby fishery. Additionally, there is no guarantee that non-Sector 
vessels that want to participate in the second participation period 
would be able to do so if the cod TAC for the first participation 
period is over-harvested. Moreover, NMFS can only disapprove or approve 
measures specified in FW 41 and cannot adjust measures as recommended 
by this commenter.

Classification

    The Regional Administrator has determined that the framework 
adjustment (FW 41) that this rule implements is consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. The Regional Administrator, in making that determination, took 
into account the data, views, and comments received during the comment 
period for the proposed rule phase of this final rule.
    For the purposes of Executive Order 12866, the action is not 
considered significant. The annual effect on the economy will not meet 
the threshold criteria of $100 million and it will not have an adverse 
material affect on any sector of the economy, productivity, jobs, the 
environment, public health, or safety, or state, local, or tribal 
governments or communities.
    This final rule does not contain policies with Federalism 
implications as defined in Executive Order 13132.

Final Regulatory Flexibility Analysis (FRFA)

    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), prepared this FRFA in support of the approved measures in FW 41. 
The FRFA incorporates the economic impacts summarized in the IRFA and 
the corresponding RIR, as well as those contained in the EA, all of 
which were prepared for this action. The IRFA was published in the 
proposed rule (70 FR 41189, July 18, 2005) and is thus not repeated 
here. Copies of the IRFA, FRFA, RIR, and the EA prepared for FW 41 are 
available from the Northeast Regional Office (see ADDRESSES). A 
description of why this action was considered, the objectives of, and 
the legal basis for this rule are contained in the preamble to this 
final rule and in the FW 41 document and are thus not repeated here.

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 from the Proposed Rule as a Result of 
Such Comments

    No comments were received in response to the IRFA. Four general 
comments were received which are addressed in the preamble of this 
final rule.

Description and Estimate of the Number of Small Entities to which this 
Proposed Rule would Apply

    This action implements changes with the potential to affect any 
vessel holding a NE multispecies limited access permit with an 
allocation of DAS (approximately 1,000 vessels). It is very likely, 
however, that the measures will impact substantially fewer than the 
total number of such permit holders, because the SAP requires 
participants to use only hook gear, there are relatively few vessels 
that fish with hook gear, and it is not likely that many vessel owners 
will switch from using another type of fishing gear to hook gear. Based 
on this, the EA estimates that there will be about 60 vessels in total 
(Sector and non-Sector) that will participate in this SAP.
    The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $ 3.5 million in gross receipts. Data 
analyzed for Amendment 13 to the FMP indicated that the maximum annual 
gross receipts for any single commercial fishing vessel in the NE 
multispecies fishery for the period 1998 to 2001 was $ 1.3 million. For 
this reason, each vessel in this analysis is treated as a single entity 
for purposes of size determination and impact assessment. All 
commercial fishing entities fall under the SBA size standard for small 
commercial fishing entities, and there are no disproportionate impacts 
between small and large entities.

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

    The reporting requirements for this final rule are as follows: (1) 
VMS purchase and installation; (2) VMS proof of installation; (3) 
automated VMS polling of vessel position once per hour when fishing in 
the CA I Hook Gear Haddock SAP; (4) SAP area and DAS use declaration 
via VMS prior to each trip into the SAP; (5) annual notification of 
intention to participate in the SAP; (6) notification for observer 
deployment prior to every trip into the CA I Hook Gear Haddock SAP; and 
(7) daily electronic catch and discard reports of stocks of concern 
when fishing in the CA I Hook Gear Haddock SAP.
    The VMS purchase and installation, and proof of VMS installation, 
are one-time cost and reporting requirements. Many vessels have already 
complied with this requirement, as it is required for other fisheries, 
including other groundfish special access programs. The automated VMS 
polling requires no additional effort on the part of the vessel 
operator. These requirements allow enforcement personnel and managers 
to monitor access to an area that is otherwise closed to certain 
fishing activities. Part of the management strategy for this SAP 
includes the use of quotas for species of concern and the target 
species. These quotas ensure that mortality targets established under 
Amendment 13 are not exceeded. In order to monitor the catches of cod 
and haddock within the SAP, vessels are required to report catches 
(kept and discarded) on a daily basis through VMS. The 72-hour observer 
notification allows the Observer Program to place an at-sea observer 
with the vessel in order to meet the programs sampling needs. At-sea 
observers perform a valuable role in collecting and validating 
fisheries data. No professional skills are necessary to report this 
data beyond those already possessed by vessel owners and operators.

Description of 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 Adapted 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

    The primary purpose of this action is to revise the CA I Hook Gear 
Haddock SAP rules to allow participation by non-Sector vessels. 
Additional access to this SAP will help mitigate the economic and 
social impacts caused by the fishing effort reductions that resulted 
from implementation of Amendment 13.
    Management measures to modify the GB cod incidental TACs and 
provide non-Sector vessel access to the SAP was compared to a No Action 
alternative. The management measure to minimize derby fishing behavior 
was compared with both a No Action alternative and an alternative that 
would have limited vessels to starting only two trips into the SAP per 
week. The No Action alternative would have resulted in the continuation 
of the management measures implemented by FW 40-A. Only Sector vessels 
would have been eligible to fish in the SAP, no incidental GB cod TAC 
would have been allocated to the SAP, and there would have been no 
measures to minimize derby fishing behavior. By dividing the season 
into two periods and thereby reducing the number of vessels eligible to 
participate during each period, the potential for a derby fishery was 
greatly reduced allowing the vessels to better plan their fishing 
activities. An option to allow vessels to start only two trips per week 
was rejected because it would only partially address the derby effects 
and, based on industry comment, could have caused safety problems for 
the fishery.
    This action reduces the allocation of GB cod to the Regular B DAS 
Pilot Program in order to establish a GB cod incidental catch TAC for 
non-Sector vessels fishing in the CA I Hook Gear Haddock SAP. This 
reallocation of incidental TAC could result in increased economic 
benefits if activities in the SAP results in a higher yield at lower 
cost than the Regular B DAS Pilot Program. However, unless the same 
vessels are the beneficiaries of the reallocation, participation by 
non-Sector vessels in this SAP could result in a transfer of benefits 
from one group of vessels to another (e.g., Regular B DAS Pilot Program 
vessels to CA I Hook Gear Haddock SAP vessels). The magnitude of the 
impacts will depend upon the amount of GB cod incidental TAC that is 
harvested under the Regular B DAS Pilot Program and the timing of the 
implementation of the SAP measures. There are minimal data to determine 
the specific impacts of the reallocation on the Regular B DAS Pilot 
Program or the fishery as a whole. During the first quarter of the 2005 
fishing year, the Regular B DAS Pilot Program caught a substantial 
portion of the GB cod incidental catch TAC. This suggests that such a 
reallocation may limit the Regular B DAS Pilot Program; however, the 
level of incidental catch of GB cod during the CA I Hook Gear Haddock 
SAP season (October - December) may be different from that realized 
earlier in the fishing year.
    This action implements measures that allow non-Sector vessels to 
use hook gear to target haddock in the SAP. In the short term, this 
opportunity may be important to the profitability of participating 
vessels and provides mitigation of the short-term adverse effects of 
the DAS reductions implemented by Amendment 13. The beneficiaries of 
the action are limited to individuals that already use bottom longline 
gear and individuals that could profitably convert to the use of bottom 
longline gear. Based upon an estimate of the number of vessels that 
would join the Sector in 2005, and empirical information, the EA 
estimates that 40 Sector vessels and 20 non-Sector vessels will 
participate in the SAP.
    Estimated total revenue for Sector and non-Sector participants is $ 
1.3 million and $ 0.6 million, respectively. Estimated surplus per 
vessel for Sector and non-Sector participants is $19,300 and $ 16,600, 
respectively. These returns are based upon the assumptions of 5,000 lb 
(2,268 kg) of haddock kept per trip, an incidental cod catch TAC of 14 
mt, a total of 441 total trips into the SAP, and the implementation of 
measures to mitigate derby fishing behavior.
    The benefits that would accrue to Sector and non-Sector vessels 
depend in part on whether measures to prevent a derby are implemented. 
Dividing the SAP into two time periods and limiting fishing in each 
period to either Sector or non-Sector vessels reduces benefits to 
Sector vessels, but provides benefits to non-Sector vessels at the same 
level. Without measures to minimize the potential of derby fishing, the 
estimated surplus per participating Sector vessel would be $29,300, 
because the Sector vessels would not be limited to a maximum haddock 
catch of 500 mt. Sector participants would be foregoing

[[Page 54306]]

potential economic gains in order to minimize derby fishing behavior 
and competition for the haddock TAC. The economic analysis also noted 
that there are potential costs of derby fishing, such as price 
depression, loss of gear through gear conflicts, and the costs of 
unsafe fishing practices.
    In contrast, the non-Sector vessels may be limited by the GB cod 
incidental catch TAC, with or without measures to address derby 
fishing. In other words, the constraining factor on the catch of non-
Sector vessels may be the GB cod incidental catch TAC, and not the 
haddock TAC. If non-Sector participants are able to reduce incidental 
catches of cod and take all of the haddock available to them, the 
estimated net return per vessel would double.
    Dividing the season into two periods has other implications due to 
the seasonal variations in the availability and price of haddock. Based 
upon experimental data, catch rates of haddock may be highest in the 
beginning of the SAP season and subsequently decline, while average 
haddock prices may increase over the SAP season. The increase in 
average price may mitigate the effect of a reduced catch rate in the 
latter part of the SAP season.
    It is likely that most or all participating vessels will experience 
positive economic results. The potential economic benefits of the 
measures would represent only a small increase in the total value of 
the NE region groundfish sales, however it is unknown where the 
economic benefits that result from the participation of non-Sector 
vessels will accrue.

Public Reporting Burden

    This rule contains collection of information requirements subject 
to review and approval by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act (PRA) that have been approved by OMB 
under OMB control numbers 0648-0501 and 0648-0502. The current 
expiration date for the reporting requirements under this collection is 
June 30, 2008. Public comment on this collection of information was 
solicited in the proposed rule to Framework Adjustment 40-A (69 FR 
55388, September 14, 2004) and in the renewal of the collection of 
information for OMB control number 0648-0501 (69 FR 61344, October 18, 
2004) and OMB control number 0648-0502 (69 FR 61346, October 18, 2004). 
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 approved reporting requirements for this rule and the estimated 
average time for a response are as follows:
    1. VMS purchase and installation, OMB control number 0648-0501 (1 
hr/response);
    2. VMS proof of installation, OMB control number 0648-0501 (5 min/
response);
    3. Automated VMS polling of vessel position once per hour when 
fishing in the Regular B DAS pilot program, OMB control number 0648-
0501 (5 sec/response);
    4. Automated VMS polling of vessel position once per hour when 
fishing in the CA I Hook Gear Haddock SAP, OMB control number 0648-0501 
(5 sec/response);
    5. SAP area and DAS use declaration via VMS prior to each trip into 
a SAP, OMB control number 0648-0501 (5 min/response);
    6. Revised estimate of the area and DAS use declaration via VMS 
prior to each trip into the CA I Hook Gear Haddock SAP, OMB control 
number 0648-0501 (5 min/response);
    7. Revised estimate of the notice requirements for observer 
deployment prior to every trip into the CA I Hook Gear Haddock SAP, OMB 
control number 0648-0202 (2 min/response);
    8. Annual declaration of participation in the CA I Hook Gear 
Haddock SAP, OMB control number 0648-0501 (2 min/response);
    9. Daily electronic catch and discard reports of stocks of concern 
when fishing in the CA I Hook Gear Haddock SAP, OMB control number 
0648-0502 (0.25 hr/response).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to a penalty for 
failure to comply with a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 8, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

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2. In Sec.  648.10, paragraphs (b)(3)(i)(C) and (D) are revised to read 
as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (3) * * *
    (i) * * *
    (C) Fish under the Regular B DAS Pilot Program specified at Sec.  
648.85(b)(6); or
    (D) Fish in the CA I Hook Gear Haddock SAP specified in Sec.  
648.85(b)(7).
* * * * *

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3. In Sec.  648.14, paragraphs (a)(143), (a)(148), (c)(67), (c)(68), 
(c)(70), and (c)(73) through (c)(77) are revised to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (143) If fishing under a NE multispecies DAS, fish in the Eastern 
U.S./Canada Haddock SAP Pilot Program specified in Sec.  648.85(b)(8), 
unless declared into the program in accordance with Sec.  
648.85(b)(8)(v)(D).
* * * * *
    (148) If fishing under a NE multispecies DAS in the Eastern U.S./
Canada Haddock SAP Pilot Program specified in Sec.  648.85(b)(8), in 
the area specified in Sec.  648.85(b)(8)(ii), during the season 
specified in Sec.  648.85(b)(8)(iv), fail to comply with the 
restrictions specified in Sec.  648.85(b)(8)(v).
* * * * *
    (c) * * *
    (67) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the requirements and conditions 
specified in Sec.  648.85(b)(7)(iv), and (b)(7)(v) or (b)(7)(vi), 
whichever is applicable.
    (68) If fishing in the CA I Hook Gear Haddock Access Area specified 
in Sec.  648.85(b)(7)(ii), fail to comply with the requirements and 
conditions specified in Sec.  648.85(b)(7)(iv), and (b)(7)(v) or 
(b)(7)(vi), whichever is applicable.
* * * * *
    (70) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the DAS use restrictions 
specified in Sec.  648.85(b)(7)(iv)(A), and (b)(7)(v)(A) or 
(b)(7)(vi)(A), whichever is applicable.
* * * * *
    (73) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the

[[Page 54307]]

VMS declaration requirement specified in Sec.  648.85(b)(7)(iv)(D).
    (74) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the gear restrictions specified 
in Sec.  648.85(b)(7)(iv)(E), and (b)(7)(v)(B) or (b)(7)(vi)(B), 
whichever is applicable.
    (75) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the landing limits specified in 
Sec.  648.85(b)(7)(iv)(H), and (b)(7)(v)(C) or (b)(7)(vi)(C), whichever 
is applicable.
    (76) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(7), fail to comply with the reporting requirement 
specified in Sec.  648.85(b)(7)(v)(D) or (b)(7)(vi)(D), whichever is 
applicable.
    (77) Fish in the CA I Hook Gear Haddock Access Area specified in 
Sec.  648.85(b)(7)(ii), if that area is closed as specified in Sec.  
648.85(b)(7)(iv)(I) or (b)(7)(vi)(F).
* * * * *

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4. In Sec.  648.85, paragraph (a) introductory text and paragraphs 
(b)(5)(ii), (b)(7)(i), (b)(7)(iii), (b)(7)(iv), (b)(7)(v), 
(b)(8)(v)(A)(2), (b)(8)(v)(A)(3), (b)(8)(v)(B), (b)(8)(v)(C), 
(b)(8)(v)(E), (b)(8)(v)(H), and (b)(8)(v)(L) are revised, and paragraph 
(b)(7)(vi) is added to read as follows:


Sec.  648.85  Special management programs.

    (a) U.S./Canada Resource Sharing Understanding. No NE multispecies 
fishing vessel, or person on such vessel, may enter, fish in, or be in 
the U.S./Canada Resource Sharing Understanding Management Areas (U.S./
Canada Management Areas), as defined in paragraph (a)(1) of this 
section, unless the vessel is fishing in accordance with the 
restrictions and conditions of this section. These restrictions do not 
preclude fishing under an approved Special Access Program specified 
under paragraph (b) of this section.
* * * * *
    (b) * * *
    (5) * * *
    (ii) GB cod. The incidental TAC for GB cod specified in this 
paragraph (b)(5), shall be subdivided as follows: 50 percent to the 
Regular B DAS Pilot Program, described in paragraph (b)(6) of this 
section; 16 percent to the CA I Hook Gear Haddock SAP, described in 
paragraph (b)(7) of this section; and 34 percent to the Eastern U.S./
Canada Haddock SAP Pilot Program, described in paragraph (b)(8) of this 
section.
* * * * *
    (7) * * *
    (i) Eligibility. Vessels issued a valid limited access NE 
multispecies DAS permit are eligible to participate in the CA I Hook 
Gear Haddock SAP, and may fish in the CA I Hook Gear Haddock Access 
Area, as described in paragraph (b)(7)(ii) of this section, for the 
season specified in paragraph (b)(7)(iii) of this section, provided 
such vessels comply with the requirements of this section, and provided 
the SAP is not closed according to the provisions specified under 
paragraph (b)(7)(iv)(I) or (b)(7)(vi)(F) of this section. Copies of a 
chart depicting this area are available from the Regional Administrator 
upon request.
* * * * *
    (iii) Season. The overall season for the CA I Hook Gear Haddock SAP 
is October 1 through December 31, which is divided into two 
participation periods, one for Sector and one for non-Sector vessels. 
For the 2005 fishing year, the only participation period in which 
eligible Sector vessels may fish in the CA I Hook Gear Haddock SAP is 
from October 1 through November 15. For the 2005 fishing year, the only 
participation period in which eligible non-Sector vessels may fish in 
the SAP is from November 16 through December 31. For the 2006 fishing 
year and beyond, these participation periods shall alternate between 
Sector and non-Sector vessels such that, in fishing year 2006, the 
participation period for non-Sector vessels is October 1 through 
November 15, and the participation period for Sector vessels is 
November 16 through December 31. The Regional Administrator may adjust 
the start date of the second participation period prior to November 16 
if the haddock TAC for the first participation period specified in 
paragraph (b)(7)(iv)(G) of this section is harvested prior to November 
15.
    (iv) General program restrictions. General program restrictions 
specified in this paragraph (b)(7)(iv) apply to all eligible vessels as 
specified in paragraph (b)(7)(i) of this section. Further program 
restrictions specific to Sector and non-Sector vessels are specified in 
paragraphs (b)(7)(iii), (v), and (vi) of this section.
    (A) DAS use restrictions. A vessel fishing in the CA I Hook Gear 
Haddock SAP may not initiate a DAS flip. A vessel is prohibited from 
fishing in the CA I Hook Gear Haddock SAP while making a trip under the 
Regular B DAS Pilot Program described under paragraph (b)(6) of this 
section.
    (B) VMS requirement. An eligible NE multispecies DAS vessel fishing 
in the CA I Hook Gear Haddock SAP specified in this paragraph (b)(7) 
must have installed on board an operational VMS unit that meets the 
minimum performance criteria specified in Sec. Sec.  648.9 and 648.10.
    (C) Observer notifications. Starting in the 2006 fishing year, to 
be eligible to participate in the CA I Hook Gear Haddock SAP, a vessel 
must notify the NMFS Observer Program by September 1 of its intent to 
participate in that year. For the 2005 fishing year, for non-Sector 
vessels to be eligible to participate, non-Sector vessels must notify 
the NMFS Observer Program by October 24. This notification need not 
include specific information about the date of the trip. For the 
purpose of selecting vessels for observer deployment, a vessel must 
provide notice to NMFS of the vessel name; contact name for 
coordination of observer deployment; telephone number for contact; and 
date, time, and port of departure at least 72 hours prior to the 
beginning of any trip that it declares into the CA I Hook Gear Haddock 
SAP, as required in paragraph (b)(7)(iv)(D) of this section, and in 
accordance with instructions provided by the Regional Administrator.
    (D) VMS declaration. Prior to departure from port, a vessel 
intending to participate in the CA I Hook Gear Haddock SAP must declare 
into the SAP via VMS, and indicate the type of DAS that it intends to 
fish. A vessel declared into the CA I Hook Gear Haddock SAP may fish 
only on a declared trip in the CA I Hook Gear Haddock Special Access 
Area described under paragraph (b)(7)(ii) of this section.
    (E) Gear restrictions. A vessel declared into and fishing in the CA 
I Hook Gear Haddock SAP may fish with and possess on board demersal 
longline gear or tub trawl gear only, unless further restricted as 
specified under paragraph (b)(7)(v)(B) of this section.
    (F) Haddock TAC. The maximum total amount of haddock that may be 
caught (landings and discards) in the CA I Hook Gear Haddock SAP Area 
in any fishing year is 1,000 mt. The maximum amount of haddock that may 
be caught is divided between the two participation periods as follows: 
500 mt for the October 1 - November 15 participation period, and 500 mt 
for the November 16 - December 31 participation period, as specified in 
paragraph (b)(7)(iii) of this section. The Regional Administrator may 
adjust the 500-mt quota for the second participation period to account 
for under- or over-harvest of the 500-mt haddock quota (landings and 
discards) that occurred in the first participation period, not to 
exceed the overall haddock TAC specified in this paragraph 
(b)(7)(iv)(F).

[[Page 54308]]

    (G) Trip restrictions. A vessel is prohibited from deploying 
fishing gear outside of the CA I Hook Gear Haddock SAP Area on the same 
fishing trip on which it is declared into the CA I Hook Gear Haddock 
SAP.
    (H) Landing limits. For all eligible vessels declared into the CA I 
Hook Gear Haddock SAP described in paragraph (b)(7)(i) of this section, 
landing limits for NE multispecies other than cod, which are specified 
at paragraphs (b)(7)(v)(C) and (b)(7)(vi)(C) of this section, are as 
specified at Sec.  648.86.
    (I) Mandatory closure of CA I Hook Gear Haddock Access Area. When 
the Regional Administrator determines that the haddock TAC specified in 
paragraph (b)(7)(iv)(F) of this section has been caught, NMFS shall 
close, through rulemaking consistent with the Administrative Procedure 
Act, the CA I Hook Gear Haddock SAP Area as specified in paragraph 
(b)(7)(ii) of this section, to all eligible vessels.
    (v) Sector vessel program restrictions. In addition to the general 
program restrictions specified at paragraph (b)(7)(iv) of this section, 
the restrictions specified in this paragraph (b)(7)(v) apply only to 
Sector vessels declared into the CA I Hook Gear Haddock SAP.
    (A) DAS use restrictions. Sector vessels fishing in the CA I Hook 
Gear Haddock SAP may use Category A, Regular B, or Reserve B DAS, in 
accordance with Sec.  648.82(d).
    (B) Gear restrictions. A vessel enrolled in the Sector is subject 
to the gear requirements of the Sector Operations Plan as approved 
under Sec.  648.87(d).
    (C) Landing limits. A Sector vessel declared into the CA I Hook 
Gear Haddock SAP described in paragraph (b)(7)(i) of this section is 
subject to the cod landing limit in effect under the Sector's 
Operations Plan as approved under Sec.  648.87(d).
    (D) Reporting requirements. The owner or operator of a Sector 
vessel declared into the CA I Hook Gear Haddock SAP must submit reports 
to the Sector Manager, with instructions to be provided by the Sector 
Manager, for each day fished in the CA I Hook Gear Haddock SAP Area. 
The Sector Manager will provide daily reports to NMFS, including at 
least the following information: Total weight (lb/kg) of cod and 
haddock kept, and total weight (lb/kg) of cod and haddock discarded.
    (E) GB cod incidental catch TAC. There is no GB cod incidental 
catch TAC specified for Sector vessels declared into the CA I Hook Gear 
Haddock SAP. All cod caught by Sector vessels fishing in the SAP count 
toward the Sector's annual GB cod TAC, specified in Sec.  
648.87(d)(1)(iii).
    (vi) Non-Sector vessel program restrictions. In addition to the 
general program restrictions specified in paragraph (b)(7)(iv) of this 
section, the restrictions specified in this paragraph (b)(7)(vi) apply 
only to non-Sector vessels declared into the CA I Hook Gear Haddock 
SAP.
    (A) DAS use restrictions. Non-Sector vessels fishing in the CA I 
Hook Gear Haddock SAP may use Regular B or Reserve B DAS, in accordance 
with Sec.  648.82(d)(2)(i)(A) and (d)(2)(ii)(A). A non-Sector vessel is 
prohibited from using A DAS when declared into the SAP.
    (B) Gear restrictions. A non-Sector vessel declared into the CA I 
Hook Gear Haddock SAP is exempt from the maximum number of hooks 
restriction specified in Sec.  648.80(a)(4)(v).
    (C) Landing limits. A non-Sector vessel declared into the CA I Hook 
Gear Haddock SAP described in paragraph (b)(7)(i) of this section may 
not land, fish for, or possess on board more than 1,000 lb (453.6 kg) 
of cod per trip. A non-Sector vessel is not permitted to discard legal-
sized cod prior to reaching the landing limit, and is required to end 
its trip if the cod trip limit is achieved or exceeded.
    (D) Reporting requirements. The owner or operator of a non-Sector 
vessel declared into the CA I Hook Gear Haddock SAP must submit reports 
via VMS, in accordance with instructions to be provided by the Regional 
Administrator, for each day fished in the CA I Hook Gear Haddock SAP 
Area. The reports must be submitted in 24-hr intervals for each day 
fished, beginning at 0000 hr and ending at 2400 hr. The reports must be 
submitted by 0900 hr of the day following fishing. The reports must 
include at least the following information: Total weight (lb/kg) of cod 
and haddock kept, and total weight (lb/kg) of cod and haddock 
discarded.
    (E) GB cod incidental catch TAC. The maximum amount of GB cod 
(landings and discards) that may be cumulatively caught by non-Sector 
vessels from the CA I Hook Gear Haddock Access Area in a fishing year 
is the amount specified under paragraph (b)(5)(ii) of this section.
    (F) Mandatory closure of CA I Hook Gear Haddock Access Area due to 
catch of GB cod incidental catch TAC. When the Regional Administrator 
determines that the GB cod incidental catch TAC specified in paragraph 
(b)(7)(vi)(E) of this section has been caught, NMFS shall close, 
through rulemaking consistent with the Administrative Procedure Act, 
the CA I Hook Gear Haddock Access Area to all non-Sector fishing 
vessels.
    (8) * * *
    (v) * * *
    (A) * * *
    (2) A vessel that is declared into the Eastern U.S./Canada Haddock 
SAP Pilot Program, described in paragraph (b)(8)(i) of this section, 
may fish, on the same trip, in the Eastern U.S./Canada Haddock SAP Area 
and in the CA II Yellowtail Flounder Access Area, described in 
paragraph (b)(3)(ii) of this section, under either a Category A DAS or 
a Category B DAS.
    (3) A vessel may choose, on the same trip, to fish in either/both 
the Eastern U.S./Canada Haddock SAP Program and the CA II Yellowtail 
Flounder Access Area, and in that portion of the Eastern U.S./Canada 
Area described in paragraph (a)(1)(ii) of this section that lies 
outside of these two SAPs, provided the vessel fishes under a Category 
A DAS and abides by the VMS restrictions of paragraph (b)(8)(v)(D) of 
this section.
* * * * *
    (B) VMS requirement. A NE multispecies DAS vessel fishing in the 
Eastern U.S./Canada Haddock SAP Program specified under paragraph 
(b)(8)(i) of this section, must have installed on board an operational 
VMS unit that meets the minimum performance criteria specified in 
Sec. Sec.  648.9 and 648.10.
    (C) Observer notifications. For the purpose of selecting vessels 
for observer deployment, a vessel must provide notice to NMFS of the 
vessel name; contact name for coordination of observer deployment; 
telephone number for contact; areas to be fished; and date, time, and 
port of departure at least 72 hours prior to the beginning of any trip 
that it declares into the Eastern U.S./Canada Haddock SAP Program 
specified in paragraph (b)(8)(i) of this section, as required under 
paragraph (b)(8)(v)(D) of this section, and in accordance with 
instructions provided by the Regional Administrator.
* * * * *
    (E) Gear restrictions. A NE multispecies vessel fishing in the 
Eastern U.S./Canada Haddock SAP Pilot Program must use one of the 
haddock separator trawl nets authorized for the Eastern U.S./Canada 
Area, as specified in paragraph (a)(3)(iii)(A) of this section. No 
other type of fishing gear may be on the vessel when participating on a 
trip in the Eastern U.S./Canada Haddock SAP Program, with the exception 
of a flounder net as described in paragraph (a)(3)(iii) of this 
section, provided the

[[Page 54309]]

flounder net is stowed in accordance with Sec.  648.23(b).
* * * * *
    (H) Incidental cod TAC. The maximum amount of GB cod (landings and 
discards) that may be caught when fishing in the Eastern U.S./Canada 
Haddock SAP Program in a fishing year, by vessels fishing under a 
Category B DAS, as authorized in paragraph (b)(8)(v)(A) of this 
section, is the amount specified in paragraph (b)(5)(ii) of this 
section.
* * * * *
    (L) General closure of the Eastern U.S./Canada Haddock SAP Area. 
The Regional Administrator, based upon information required under Sec.  
648.7, 648.9, 648.10, or 648.85, and any other relevant information 
may, through rulemaking consistent with the Administrative Procedure 
Act, close the Eastern U.S./Canada Haddock SAP Pilot Program for the 
duration of the season, if it is determined that continuation of the 
Eastern U.S./Canada Haddock SAP Pilot Program would undermine the 
achievement of the objectives of the FMP or the Eastern U.S./Canada 
Haddock SAP Pilot Program.
* * * * *
[FR Doc. 05-18229 Filed 9-9-05; 12:44 pm]
BILLING CODE 3510-22-S