[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Rules and Regulations]
[Pages 59020-59027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16599]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060209031-6092-02; I.D. 020606C]
RIN 0648-AU09


Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Emergency Secretarial Action; Extension

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

ACTION:  Temporary rule; emergency action extended.

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SUMMARY:  NMFS continues management measures implemented by an April 
13, 2006, emergency interim final rule that were set to expire on 
October 10, 2006. Specifically, this temporary rule continues 
differential days-at-sea (DAS) counting for all groundfish vessels not 
fishing exclusively within the U.S./Canada Management Area on Georges 
Bank (GB), reduced trip limits for certain species, and recreational 
possession restrictions, among other provisions. In addition, this 
action continues two programs that would otherwise have expired on 
April 30, 2006: The DAS Leasing Program and a modified Regular B DAS 
Program on GB. This action is necessary to continue measures that 
immediately reduce fishing mortality rates (F) on overfished groundfish 
stocks while maintaining specific programs designed to help mitigate 
the economic and social impacts of effort reductions under the NE 
Multispecies Fishery Management Plan (FMP). This action is intended to 
maintain the rebuilding programs established for the FMP until more 
permanent management measures can be implemented through Framework 
Adjustment (FW) 42 to the FMP.

DATES:  The amendment to 648.14(bb)(23) in this rule is effective 
October 6, 2006. The expiration date of the emergency rule published 
April 13, 2006 (71 FR 19348); is extended to April 4, 2007, or until 
superseded by another final rule, whichever occurs first.

ADDRESSES:  Copies of the Small Entity Compliance Guide, the Regulatory 
Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA), and 
the Environmental Assessment (EA) prepared for the April 13, 2006, 
emergency interim final rule are available from Patricia A. Kurkul, 
Regional Administrator, National Marine Fisheries Service, One 
Blackburn Drive, Gloucester, MA 01930. These documents are also 
accessible via the Internet at http://www.nero.nmfs.gov.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this temporary 
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

    Amendment 13 to the FMP established a process whereby the NE 
multispecies complex is routinely evaluated to determine the status of 
groundfish stocks in relation to rebuilding objectives of the FMP. 
Changes to management measures necessary to achieve rebuilding 
objectives are made through biennial adjustments to the FMP. The latest 
stock assessment, the Groundfish Assessment Review Meeting (GARM II) in 
August 2005, updated estimates of F and stock biomass for calendar year 
2004. Based on GARM II and the resulting estimates of 2005 calendar 
year F's, additional management measures are necessary to reduce F on 
six groundfish stocks for the 2006 fishing year.
    The New England Fishery Management Council (Council) developed 
management measures in FW 42 that are designed to achieve the necessary 
F reductions in the groundfish fishery for the next several fishing 
years, including the current 2006 fishing year (May 1, 2006, through 
April 30, 2007). However, because FW 42 could not be implemented by the 
start of the 2006 fishing year (FY) on May 1, 2006, and because several 
stocks required F reductions for the start of the 2006 fishing year to 
maintain the Amendment 13 rebuilding program, NMFS determined that the 
existing situation constituted an emergency, as unforeseen events could 
cause serious conservation and management problems unless addressed 
through immediate regulatory action. Accordingly, NMFS developed 
emergency management measures pursuant to the authority provided to the 
Secretary of Commerce in section 305(c) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). A proposed rule 
justifying emergency action according to agency guidelines (62 FR 
44421; August 21, 1997) and soliciting public comment on proposed 
emergency management measures published on March 3, 2006 (71 FR 11060). 
Based on additional analysis and public comment, the proposed measures 
were revised. Subsequently, an emergency interim final rule 
implementing revised emergency management measures published on April 
13, 2006 (71 FR 19348), accepting further comments on the revised 
measures through May 15, 2006. Additional background for that action, 
an explanation of the

[[Page 59021]]

management measures implemented by that action, and responses to public 
comments received during the public comment period are contained in the 
preamble of the April 13, 2006, emergency interim final rule and are 
not repeated here. Comments received on the emergency interim final 
rule are addressed in this preamble, however.
    In summary, measures implemented by the April 13, 2006, emergency 
interim final rule include differential DAS counting (i.e., counting 
each Category A DAS used at a rate of 1.4:1), restrictive trip limits 
for several species to reduce F on specific groundfish stocks (Gulf of 
Maine (GOM) cod, Cape Cod (CC)/GOM yellowtail flounder, GB winter 
flounder, and white hake), and the continuation of the DAS Leasing 
Program and a modified Regular B DAS Program to help mitigate the 
economic and social impacts of the emergency measures. These measures 
became effective on May 1, 2006, and remain in effect for a period of 
180 calendar days, expiring on October 10, 2006, unless extended or 
superseded by the implementation of FW 42. A proposed rule to implement 
measures included in FW 42 published on July 26, 2006 (71 FR 42522), 
with public comments accepted through August 25, 2006.
    Pursuant to section 305(c)(3)(B) of the Magnuson-Stevens Act, 
management measures implemented by the April 13, 2006, emergency 
interim final rule may be extended for an additional period of 180 
days, provided the public has had the opportunity to comment on the 
emergency regulations. As noted above, the public has had two 
opportunities to comment on the emergency management measures. Because 
FW 42 has yet to be implemented, NMFS has determined that it is 
necessary to continue the measures implemented by the April 13, 2006, 
emergency interim final rule for an additional 180 days, or until FW 42 
is implemented, to prevent overfishing and to maintain the Amendment 13 
rebuilding programs. The impacts of continuing the management measures 
implemented by the April 13, 2006, interim final rule for the duration 
of FY 2006 (i.e., through April 30, 2007) have already been considered 
in the EA prepared for the emergency action.

Comments and Responses to the April 13, 2006, Emergency Interim Final 
Rule

    Eighteen comments were received in response to the April 13, 2006, 
emergency interim final rule from 13 individuals, 2 fishing industry 
groups, 1 conservation group, and 1 state resource management agency 
(Maine Department of Marine Resources (DMR)). Only comments that were 
applicable to the proposed measures, including the analyses used to 
support these measures, are addressed in this preamble.

Differential DAS Counting

    Comment 1: Three commenters, including the DMR, stated that 
differential DAS counting throughout the entire GOM Regulated Mesh Area 
(RMA) will not work, since it will force vessels to fish shorter trips 
and increase targeting of the more valuable inshore GOM cod stock, 
thereby increasing F on this stock. These commenters noted that FW 42 
shows that vessels fishing shorter trips tend to land mostly cod and 
that vessels fishing on longer trips tend to land less cod and more of 
a mix of other species. The DMR specifically stated its support for the 
measures included in FW 42 and suggested that the higher differential 
DAS counting rate in a smaller inshore area proposed in that rule would 
reduce incentives to target GOM cod.
    Response: As indicated in the response to Comment 4 in the April 
13, 2006, emergency interim final rule, the management measures 
implemented by that rule utilize differential DAS counting at a rate of 
1.4:1 throughout the GOM, in conjunction with a reduced trip limit for 
GOM cod (i.e., 600 lb (272 kg) per DAS, up to 4,000 lb (1,814 kg) per 
trip), to minimize incentives to target GOM cod without subsequently 
increasing F or discards for this stock. Effort reductions such as 
differential DAS counting, in conjunction with trip limits, should 
decrease incentives to target GOM cod, as decreasing the available 
Category A DAS and reducing the GOM cod trip limit would make trips 
less profitable. The Closed Area Model (CAM) used to analyze the 
emergency measures incorporates profit maximization behavior into its 
assessment of F impacts. This model assumes that every vessel will 
attempt to fish in a manner that maximizes the profit of fishing 
operations, thereby modeling potential changes in fishing behavior to 
adapt to changing regulations. Although competing incentives may exist 
due to the emergency measures, the results of the CAM analysis indicate 
that the emergency measures are successful at achieving the necessary F 
reductions for GOM cod. Combined with the measures proposed in FW 42, 
the results of the CAM indicate that this emergency action will 
continue to rebuild GOM cod, despite potential changes in vessel 
behavior. These measures are intended as temporary stop-gap measures 
necessary only to immediately reduce F until long-term measures can be 
implemented through FW 42. Therefore, continuation of the emergency 
measures is an appropriate strategy to offer adequate short-term 
protection for this stock until a more targeted approach reducing F on 
the inshore components of this stock can be implemented through FW 42.
    Comment 2: One commenter contended that this measure is unsafe in 
that it will force small vessels to fish further offshore in the U.S./
Canada Management Area, where differential DAS do not apply.
    Response: NMFS acknowledges that the lack of differential DAS 
counting within the U.S./Canada Management Area provides incentives for 
more vessels, including smaller vessels, to fish within this area. 
However, the emergency measures provide some means of mitigating these 
safety concerns by allowing vessels to fish inside and outside of the 
U.S./Canada Management Area on the same trip. This provision, referred 
to as ``Eastern U.S./Canada Area Flexibility'' in the emergency interim 
final rule, allows a vessel that begins a trip in the Eastern U.S./
Canada Area to choose to fish outside of this area on the same trip. 
When this measure was originally proposed during the development of FW 
42, the primary motivation was to allow a vessel to seek the safety of 
waters closer to shore, should weather conditions deteriorate. 
Therefore, while the safe operation of a fishing vessel is ultimately 
the responsibility of the master of the vessel, the emergency measures 
attempt to minimize the impact on vessel safety, to the extent 
practicable, without undermining the conservation objectives of this 
action.
    Comment 3: One commenter noted that replacement of differential DAS 
counting in the U.S./Canada Management Area with trip limits in the 
final emergency measures was an improvement over the proposed emergency 
measures, but remained strongly opposed to applying differential DAS 
counting in offshore areas of the GOM because it will increase F on GOM 
cod and will not achieve optimum yield (OY) in the fishery because of 
the excessive catch reductions of other, healthier stocks. One 
commenter stated that, because the differential DAS areas and the stock 
specific trip limits geographically overlap, the management measures in 
the emergency interim final rule far exceed what is necessary to reduce 
F on stocks of concern. Two commenters pointed out that the 
differential DAS counting measure proposed in FW 42 is specific to the 
stocks in need of an F

[[Page 59022]]

reduction and that the broad application of differential DAS 
implemented under the emergency action appear to intentionally impact 
as many vessels as possible rather than minimize economic impacts. 
These commenters assert that this is contrary to the decision made in 
the case of Coastal Conservation Association (CCA) v. Gutierrez 2005 
U.S. Dist LEXIS 40754 (M.D. Fla., October 18, 2005), and possibly in 
violation of National Standard 1 and National Standard 8. The commenter 
stated that NMFS did not adequately address this primary argument in 
its response to public comment on the proposed rule for this action.
    Response: Contrary to assertions by the commenters, the emergency 
measures were never intended to impact as many vessels as possible. The 
broad approach taken by the emergency action is consistent with 
previous efforts by both the Council and NMFS to reduce effort on 
overfished stocks through blanket DAS reductions (i.e., differential 
DAS counting is equivalent to a reduction in available DAS). Such 
measures treat all vessels equally, as all vessels that caught 
groundfish, particularly GOM cod or CC/GOM and Southern New England 
(SNE)/Mid-Atlantic (MA) yellowtail flounder, have contributed to the 
excessive F's observed in the recent stock assessment. As further 
detailed in the response to Comment 4 below, this approach was intended 
to protect overfished stocks across their entire geographic range, 
consistent with the National Standard 1 guidelines, and is justified in 
order to achieve the necessary F reductions.
    As noted in the response to Comment 1 above, analysis of the 
emergency measures indicates that both differential DAS counting and 
trip limits are necessary to achieve the required F reductions for 
specific stocks in FY 2006. In addition, because the emergency measures 
achieve the necessary F reductions for five out of the six stocks 
requiring F reductions in FY 2006, the emergency measures prevent 
overfishing for nearly all stocks managed by the FMP. However, in a 
mixed-stock fishery, it is impossible to reduce F and, therefore, yield 
from one stock without also affecting the yield from another stock. 
Consequently, necessary mortality reductions on one stock will also 
result in unintended mortality reductions on other stocks. As a result, 
regardless of the measures implemented, measures designed to reduce F 
for overfished stocks such as GOM cod and CC/GOM and SNE/MA yellowtail 
flounder will likely lead to decreases in yield for other healthy 
stocks beyond what is necessary to maintain the Amendment 13 rebuilding 
programs. This is particularly the case with the continued reliance 
upon DAS as the primary effort control in the groundfish fishery, as 
DAS do not facilitate the selective reduction in effort on particular 
stocks.
    While reductions in yield from healthier stocks are unintended, the 
emergency measures include provisions that are intended to facilitate 
the harvest of these stocks. The continuation of the DAS Leasing 
Program, along with the Eastern U.S./Canada Haddock Special Access 
Program (SAP) and a modified Regular B DAS Program through this 
temporary rule allow vessels greater opportunity to obtain additional 
DAS and the opportunity to utilize Category B DAS to fish for and 
target healthy groundfish stocks, respectively. In particular, the 
required use of the haddock separator trawl by trawl vessels fishing 
under the Regular B DAS Program, along with its associated performance 
standards, are intended to allow vessels to selectively target healthy 
groundfish stocks like haddock and pollock without catching substantial 
amounts of groundfish stocks of concern such as cod and flatfish 
species. Further, as outlined in the response to Comments 1 and 6 in 
the emergency interim final rule, the emergency measures were modified 
to adopt a more targeted approach that relied upon reduced trip limits 
for specific stocks on GB rather than differential DAS counting to 
achieve the necessary F reductions for this action. This was intended 
to reduce the impact of the emergency measures on other healthier 
stocks on GB and allow the fishery to better achieve OY. Thus, the 
emergency measures are consistent with National Standard 1 because they 
prevent overfishing while achieving OY from the fishery.
    In contrast to the broad approach taken by the emergency interim 
final rule, FW 42 proposes a more targeted approach to reducing F for 
overfished stocks, by only counting DAS at a differential rate of 2:1 
within discrete areas responsible for a majority of the landings for 
these stocks. In doing so, FW 42 would selectively reduce F on 
overfished stocks, while allowing vessels to target healthier stocks, 
without being charged differential DAS. NMFS believes that the use of a 
vessel monitoring system (VMS) is necessary to effectively administer 
and enforce the discrete differential DAS counting areas proposed under 
FW 42. However, NMFS could not implement the differential DAS counting 
areas proposed under FW 42, or a mandatory VMS requirement necessary to 
implement these measures, under the emergency action because there was 
insufficient time to develop the analysis of the information collection 
requirements associated with these provisions, as required by the 
Paperwork Reduction Act (PRA). The PRA requires that, before a Federal 
agency can implement regulations that require the public to submit 
information to the Federal Government, these information collection 
requirements must be approved by the Office of Management and Budget 
(OMB). OMB review of such information collections can take upwards of 
several months and are typically associated with proposed rulemaking. 
As a result, it was not possible to obtain approval for a mandatory VMS 
requirement necessary to implement the targeted approach towards 
differential DAS counting proposed by FW 42 during the time available 
to implement the emergency measures by the start of FY 2006 on May 1, 
2006. In addition, because NMFS did not anticipate that further delays 
in the review and implementation of FW 42 would necessitate the 
extension of the emergency measures, the legal and administrative 
issues preventing the implementation of a mandatory VMS requirement 
still exist, as the OMB review of the information collections 
associated with a mandatory VMS requirement proposed by FW 42 is still 
pending. Therefore, NMFS cannot implement the area-specific 
differential DAS counting areas proposed under FW 42 through this 
temporary rule.
    With respect to the CCA v. Gutierrez lawsuit, according to the 
commenters, the court found that because interim measures in the 
grouper fishery were not necessary to reduce overfishing for non-target 
species, the closure implemented in that fishery was ``overbroad'' in 
its scope. For similar reasons, the commenters believe that the 
emergency action differential DAS counting measure is ``overbroad'' 
because it reduces yield of stocks that are not subject to overfishing 
or are not overfished. According to the results of the latest stock 
assessment, only 5 of the 19 stocks managed by the FMP (pollock, 
redfish, witch flounder, GOM winter flounder, and northern windowpane 
flounder) are not subject to overfishing or are not overfished, while 
most stocks are either overfished and/or subject to overfishing. 
Although 12 stocks are currently subject to overfishing, only 6 require 
interim measures to prevent overfishing and maintain the Amendment 13 
rebuilding programs (GB yellowtail flounder is managed by a hard TAC 
and does not require

[[Page 59023]]

additional measures to reduce F). As a result, interim measures are 
necessary to prevent overfishing for these stocks, and the measures 
included in the emergency action and extended by this temporary rule 
achieve this objective. As discussed above, because the fishery has 
historically relied upon DAS as the primary effort control, reductions 
in yields from other stocks are unavoidable when reducing F for 
overfished stocks. However, the need to reduce F for the six stocks 
requiring F reductions for FY 2006 should accelerate efforts to rebuild 
the other six overfished stocks that do not need immediate reductions 
in F, thereby providing greater assurance that these stocks will be 
rebuilt within the required rebuilding period. Further, analysis 
indicates that the other primary management measure used to regulate 
the fishery (i.e., trip limits) is unable, by itself, to achieve the 
necessary F reductions for several of the overfished stocks targeted by 
this action. As a result, the differential DAS counting measure 
implemented by the emergency interim final rule is necessary and in 
keeping with earlier efforts to prevent overfishing for several 
overfished stocks requiring immediate F reductions to maintain the 
Amendment 13 rebuilding programs and to facilitate the rebuilding of 
other overfished stocks.
    National Standard 8 requires that management measures, consistent 
with the conservation requirements of the Magnuson-Stevens Act, take 
into account the importance of fishery resources to fishing 
communities, provide for their sustained participation, and minimize 
the adverse economic impacts on such communities to the extent 
practicable. The emergency measures continue the DAS Leasing Program, 
the Eastern U.S./Canada Haddock SAP, and a modified Regular B DAS 
Program. These measures are intended to minimize the adverse economic 
impacts on fishing communities, to the extent practicable, by offering 
opportunities to obtain additional DAS, access closed areas, and use 
Regular B DAS. While differential DAS counting may adversely impact 
fishing vessels and communities, this measure is necessary to achieve 
the conservation objectives of this action. Failure to implement 
substantial effort reductions in this fishery would violate the 
conservation requirements of the Magnuson-Stevens Act, as overfishing 
would be allowed to continue. Thus, continuation of the differential 
DAS counting measure implemented by the emergency interim final rule 
mitigates adverse economic impacts to communities, to the extent 
practicable, without compromising the conservation requirements of the 
Magnuson-Stevens Act, and is consistent with National Standard 8.
    Comment 4: A commenter remarked that, in response to public comment 
on the proposed rule for the emergency action, NMFS failed to recognize 
the commenter's initial request to exempt the entire GB RMA from 
differential DAS counting and chose to address only why a broad 
differential DAS counting was applicable in the GOM and MA RMAs.
    Response: The response to the commenter's initial request was 
contained in the response to Comment 7 in the emergency interim final 
rule. In that response, NMFS explained that it is not appropriate to 
eliminate differential DAS counting from the entire GB RMA. Portions of 
the GB RMA that lie outside of the U.S./Canada Management Area include 
portions of the CC/GOM and SNE/MA yellowtail flounder stock areas. 
Because these stocks are severely overfished and require substantial F 
reductions for FY 2006, NMFS believes it is necessary to ensure that 
effort, and therefore F on these stocks, does not increase as part of 
the emergency action. Allowing the entire GB RMA to be exempt from 
differential DAS counting would likely result in effort shifting into 
these areas because they are close to shore and would not charge DAS at 
the differential rate of 1.4:1, thereby increasing effort and F on 
portions of the CC/GOM and SNE/MA yellowtail flounder stocks, in 
addition to other stocks found on GB. However, the emergency action 
limits the potential for effort shifts to increase F on these stocks by 
exempting vessels from differential DAS counting only when fishing 
exclusively within the U.S./Canada Management Area. The provisions of 
the U.S./Canada Management Area enable the Regional Administrator to 
more effectively monitor and control effort shifts, providing greater 
assurance that redirected effort onto GB would not result in excessive 
mortality for other groundfish stocks. Further, as noted in the 
response to Comment 3 of this temporary rule, because NMFS could not 
implement a mandatory VMS requirement, effective administration and 
enforcement of differential DAS counting in specific areas was not 
possible via the emergency action. Thus, to effectively prevent 
overfishing and to ensure adequate protection of these stocks 
throughout their entire range, consistent with National Standards 1 and 
3, it was necessary to implement differential DAS counting everywhere 
except the U.S./Canada Management Area.
    Comment 5: A commenter noted that, in its reasoning for a broad 
application of differential DAS counting in the entire GOM RMA, NMFS's 
response to Comments 4 and 29 in the emergency interim final rule were 
contradictory and failed to provide adequate justification. In its 
response to Comment 4, when explaining why differential DAS accounting 
throughout the entire GOM RMA would not likely increase effort on 
inshore GOM cod, NMFS asserted that vessels that historically fish 
outside of the GOM Differential DAS Area proposed in FW 42 do not take 
many trips in this area during May through July, the months that this 
action would likely be in effect (in FY 2005, less than 5 percent of 
the total trips were taken in this area) while, in its response to 
Comment 29, NMFS stated that, in its emergency action, it followed the 
same principles to reduce F when adopting differential DAS counting 
throughout the entire GOM RMA as the Council did when choosing measures 
to adopt differential DAS counting in portions of the GOM and SNE RMAs. 
The commenter contends that, if high catches of cod and yellowtail 
flounder are not of concern outside of the GOM Differential DAS Area 
proposed in FW 42, it would be counterproductive to extend the 
accounting system outside of this area.
    Response: It appears that the commenter misinterpreted the response 
to Comment 29 in the emergency interim final rule to infer that NMFS 
supported the more targeted approach to reducing F for GOM cod proposed 
in FW 42, yet advocated for the broad approach to differential DAS 
counting detailed in the response to Comment 4 of that rule. In the 
response to Comment 29, NMFS explained that the emergency measures 
follow the same principles the Council used in developing FW 42 because 
both actions rely upon differential DAS counting and trip limits as the 
primary means of reducing fishing effort and, therefore, F on 
overfished stocks. The responses offered in the emergency interim final 
rule do not contradict one another. NMFS maintains that the rationale 
provided for implementing differential DAS counting everywhere outside 
of the U.S./Canada Management Area is valid, as described in the 
response to Comments 3 and 4 of this temporary rule. The responses to 
other comments in the emergency interim final rule reflect that NMFS is 
very concerned that redirected effort could reduce the effectiveness of 
measures intended to reduce F for specific stocks and undermine the 
conservation objectives of this action.

[[Page 59024]]

As a result, the emergency measures have attempted to minimize the 
impacts to F resulting from redirected effort as much as possible. This 
concern is heightened by additional comments on the emergency interim 
final rule (see Comments 1 and 2 in this temporary rule) indicating 
that effort would shift to areas where differential DAS counting is not 
applied. However, as noted in the responses to Comment 1 above, NMFS 
asserts that the differential DAS counting measure and other measures 
implemented by the emergency action offer adequate protection to 
overfished stocks and would achieve the necessary F reductions for 
nearly all of the stocks requiring F reductions in FY 2006.

CC/GOM Yellowtail Flounder Trip Limit

    Comment 6: One commenter recommended that the monthly schedule of 
high and low trip limits for CC/GOM yellowtail flounder established 
under the final rule implementing Amendment 13 (69 FR 22906, April 27, 
2006) be retained, allowing vessels to land 500 lb/DAS (226.8 kg/DAS), 
up to 2,000 lb/trip (907.2 kg/trip) in June, instead of the low trip 
limit of 250 lb/trip (113.4 kg/trip) implemented by the April 13, 2006, 
emergency interim final rule. This commenter stated that the higher 
trip limit in June would avoid discards caused by increased effort 
during this month and would maximize the balance of conservation and 
economic objectives for this action.
    Response: This issue is moot, as June has passed and this action 
will expire prior to June 2007. However, FW 42 also proposes lower trip 
limits of 250 lb/DAS (113.4 kg/DAS), up to 1,000 lb/trip (453.6 kg/
trip) throughout the entire fishing year. The trip limits implemented 
by the emergency interim final rule are expected to be superseded by 
measures approved in FW 42.

GB Winter Flounder Trip Limit

    Comment 7: One commenter supported the 5,000-lb/trip (2,268-kg/
trip) GB winter flounder trip limit implemented by the emergency 
interim final rule. One commenter suggested revising this trip limit to 
10,000 lb/trip (4,536 kg/trip) to be consistent with the trip limit 
implemented for GB yellowtail flounder. The commenter suggested that 
the commingled nature of the two species and confusion caused by the 
different trip limits for these species will undermine compliance with 
this provision and will increase discards. In addition, the commenter 
suggested that the management of GB winter flounder should be 
consistent with the management of GB yellowtail flounder within the 
U.S./Canada Management Area, including allowing the Regional 
Administrator to modify the trip limits for GB winter flounder based on 
similar TAC triggers implemented for GB yellowtail flounder.
    Response: A trip limit of 10,000 lb/trip (4,536 kg/trip) for GB 
winter flounder was never contemplated or analyzed by either this 
emergency action or FW 42. Therefore, the impacts of this revised trip 
limit are unknown. However, it is likely that this revised trip limit 
would not likely achieve the necessary F reductions for this stock 
based on the suite of measures implemented by the emergency interim 
final rule, as catch, and therefore, F on this stock would likely 
increase due to the higher trip limit suggested by the commenter. 
Therefore, the suggested revised trip limit is inconsistent with the 
conservation objectives of this action and is not implemented through 
this temporary rule.
    Amendment 13 provided the Regional Administrator with the authority 
to modify management measures necessary to ensure that the hard TACs 
associated with stocks managed under the U.S./Canada Resource Sharing 
Understanding (Understanding) (i.e., GB cod, GB haddock, and GB 
yellowtail flounder) are not over- or under-harvested during a fishing 
year. Because GB winter flounder is not a part of the Understanding, 
NMFS does not have the authority to incorporate this stock into the 
management regime designed to implement the Understanding. Moreover, 
because neither the emergency proposed rule, nor the emergency interim 
final rule proposed that GB winter flounder should be managed in a 
manner similar to GB yellowtail flounder within the U.S./Canada 
Management Area, NMFS does not have the authority to modify the trip 
limits and management strategy for this stock, as suggested, through 
this temporary rule. A subsequent action soliciting public comments on 
such a proposal would be necessary, which is beyond the scope of this 
temporary extension of emergency management measures.

White Hake Trip Limit

    Comment 8: The DMR supported the trip limit implemented for white 
hake as the preferred method of reducing F for this species.
    Response: NMFS supports the white hake trip limit as an integral 
component in a suite of measures necessary to effectively reduce F for 
this species and continues this measure through this temporary rule.

Recreational Restrictions

    Comment 9: Ten commenters requested that the 24-inch (61.0-cm) 
minimum fish size on GOM cod be reinstated to 22 inches (55.9 cm), 
stating that many fish between 22 and 24 inches (55.9 cm and 61.0 cm) 
are currently being caught and must now be thrown back. These 
commenters contended that the impact of this measure to the charter/
party fleet is equivalent to a 50 - 80 percent reduction in GOM cod 
landings, rather than the intended reduction. Several of these 
commenters stated that this measure, in combination with a seasonal 
closure area to protect GOM cod, is causing great economic hardship to 
the charter/party sector, since customers are going elsewhere to fish.
    Response: Based on analysis conducted to support both the emergency 
action and FW 42, the recreational measures implemented by the 
emergency interim final rule are necessary to achieve similar F 
reductions for GOM cod (F on GOM cod needs to be reduced by 32 percent 
to maintain the Amendment 13 rebuilding program during FY 2006) from 
both the charter/party and private recreational fishing sector and the 
commercial fishing sector. This analysis indicates that such measures 
would reduce F on GOM cod for the charter/party industry by 23-40 
percent, depending upon various assumptions of release mortality. 
Assuming that 50 percent of the fish caught would die upon release, 
these measures would reduce F on GOM cod by 23.5 percent from charter/
party vessels. Assuming that no fish die upon release, these measures 
would reduce F by 40.8 percent from charter/party vessels. The economic 
impacts of such measures were considered by the emergency action and 
detailed in the accompanying EA. These provisions were recommended by 
the Council's Recreational Advisory Panel during the development of FW 
42. During the development of these measures, the shortest possible 
seasonal prohibition and the smallest possible size limit that would 
achieve the necessary F reductions from this sector of the fishery were 
selected in lieu of reducing the recreational bag limit for GOM cod. 
Therefore, the recreational measures mitigate the economic impacts as 
much as practicable without compromising the conservation objectives of 
this action.
    Comment 10: Six commenters suggested that the fish size for GOM cod 
should be increased to 23 inches (58.4 cm) for recreational vessels, 
with some commenting only in conjunction with

[[Page 59025]]

no seasonal closure, and two commenters suggesting that a 23-inch 
(58.4-cm) fish size should apply to both recreational and commercial 
vessels. One of these comments also suggested that the 24-inch (61.0-
cm) fish size for GOM cod should apply to all sectors and in all areas.
    Response: According to analysis of the recreational measures 
prepared for both the emergency action and FW 42, a 23-inch (58.4-cm) 
minimum size limit for GOM cod, in combination with the seasonal GOM 
cod prohibition, would not achieve the necessary F reductions for the 
recreational fishing sector under most of the assumptions of discard 
mortality (see Section 7.2.1.1.3 of the EA prepared for FW 42). Thus, a 
23-inch (58.4-cm) minimum size limit, without the seasonal prohibition, 
as recommended by some commenters, would also not achieve the necessary 
F from the recreational fishing sector. The measures implemented to 
achieve a similar F reduction for GOM cod from the commercial fishing 
sector (e.g., differential DAS counting and default DAS reductions) 
achieve the necessary F reduction for this stock despite the smaller 
size limit allowed in the commercial fishery. Increasing the commercial 
size limit for GOM cod would likely exceed the necessary F reductions 
for this stock, based upon the existing suite of measures, and would 
impose unnecessary adverse economic impacts to the commercial vessels. 
The Council could elect to pursue this revision through a future 
management action, however. Finally, because GB cod does not require 
additional F reductions for FY 2006, it is not necessary to revise trip 
limits for this stock at this time, as it would cause unnecessary 
adverse economic impact to both the recreational and commercial fishing 
sectors without sufficient biological justification to further protect 
this stock.
    Comment 11: One commenter pointed out that the long-term effect of 
the 24-inch (61.0-cm) minimum size measure is that vessels are now 
forced to fish on larger, breeding codfish and thereby harvest a larger 
percentage of the cod biomass due to the heavier fish.
    Response: As discussed in the responses to Comments 9 and 10, the 
recreational measures implemented by the emergency interim final rule 
achieve the necessary F reduction for GOM cod from the recreational 
fishing sector. Assuming that F is maintained at the target levels 
established by Amendment 13, the GOM cod stock should rebuild, 
including increasing GOM cod biomass to levels consistent with the 
maximum sustainable yield, within the required rebuilding period, 
despite increasing landings of larger cod.

DAS Leasing Program

    Comment 12: The DMR supported continuation of the DAS Leasing 
Program because it is the only way many vessels are able to acquire 
enough DAS to continue fishing.
    Response: NMFS supports the continuation of the DAS Leasing Program 
because it is an important means by which the economic impacts of 
recent and continuing effort reductions in the fishery can be mitigated 
and has, therefore, continued this program under this temporary rule.

Regular B DAS Program

    Comment 13: The DMR expressed concern that the emergency interim 
final rule prevents many smaller vessels from Maine from participating 
in the Regular B DAS Program because the program is limited to GB, even 
though it acknowledged and understood the reasons behind restricting 
this program to GB. The DMR supported the reduction in Category B 
(regular) DAS allocated to the first quarter of this program, along 
with the haddock separator trawl requirement and its associated gear 
performance incentives.
    Response: The reasons for limiting participation in the Regular B 
DAS Program to the U.S./Canada Management Area on GB are detailed in 
the response to Comment 18 in the emergency interim final rule. NMFS 
continues to believe that concerns over the ability to effectively 
monitor and administer the Regular B DAS Program within the GOM and SNE 
RMAs, given the very small Incidental Catch TACs for specific stocks, 
warrant continued restriction of this program to the U.S./Canada 
Management Area at this time. While the Incidental Catch TACs for all 
groundfish stocks of concern in Quarters 2-4 of FY 2006 (i.e., August - 
April) are double what they were during the first quarter of FY 2006 
(May - July), they are still very small (e.g., the Incidental Catch TAC 
for SNE/MA yellowtail flounder during Quarters 2-4 of the 2006 FY is 
882 lb (400 kg)) and would be difficult to effectively monitor within 
the GOM and SNE/MA RMAs. As proposed, FW 42 would allow vessels to fish 
under the Regular B DAS Program in all RMAs. Therefore, smaller vessels 
may be able to fish under this program in all areas during FY 2006, 
provided FW 42 is approved as proposed.
    NMFS believes that the reduced number of Category B (regular) DAS 
allocated to the first quarter of the FY in this program is necessary 
to ensure that additional fishing effort from this program does not 
compromise spawning aggregations of particularly vulnerable overfished 
stocks such as CC/GOM and SNE/MA yellowtail flounder. The haddock 
separator trawl requirement and its associated performance incentives 
provide added protection to groundfish stocks of concern by allowing 
trawl vessels to more selectively target healthier stocks under the 
Regular B DAS Program.

General Comments

    Comment 14: One commenter contended that FW 42 violates several 
provisions of the Magnuson-Stevens Act and, therefore, is not 
approvable. Based on this contention, the commenter urged the Secretary 
to work with the Council and industry to promulgate alternative 
emergency measures for the remainder of the fishing year that more 
effectively meet the necessary F reductions while reducing adverse 
economic impact on the fishing industry.
    Response: The measures proposed under FW 42 are currently under 
review by NMFS to determine whether they are consistent with the 
Magnuson-Stevens Act and other applicable law. Final determinations 
will be made prior to the publication of the final rule for that 
action. In the meantime, NMFS is required by the Magnuson-Stevens Act 
to prevent overfishing and ensure that stocks continue to rebuild, 
consistent with the other provisions of the Act. Therefore, interim 
management measures such as those implemented by the emergency interim 
final rule are necessary to reduce F immediately for six overfished 
stocks to maintain the Amendment 13 rebuilding programs.
    The commenter suggested that NFMS work with the Council and 
industry to develop and implement more effective management measures 
than those proposed in FW 42, yet did not recommend particular measures 
that would be more effective than those in FW 42. The development of FW 
42 incorporated input from conservation groups, fishing industry 
representatives, shoreside processors, and NMFS through public meetings 
and the solicitation of public comment in the proposed rule published 
for FW 42 (71 FR 42522, July 26, 2006). During the development of FW 
42, the Council considered nine alternatives (including the industry 
proposal submitted to the Council in April) to manage the fishery and 
adopted the suite of measures proposed in FW 42. Therefore, NMFS has 
already worked with the Council and the fishing industry to develop 
measures that would achieve the biological objectives and minimize

[[Page 59026]]

adverse economic impact of fishing communities, as requested by the 
commenter. The Council adopted the measures proposed in FW 42 because 
it concluded that these measures represent the most effective means of 
achieving the necessary F reductions for FY 2006 and maintaining the 
Amendment 13 rebuilding plans.
    Comment 15: One commenter supported the emergency measures, but 
expressed general concern about whether the emergency measures and the 
proposed FW 42 measures will be effective at achieving the necessary F 
reductions for 2006. This commenter suggested that NMFS consider 
implementing additional management measures to ensure that the F 
objectives are achieved for 2006, especially if implementation of FW 42 
is further delayed.
    Response: According to the analysis prepared for the emergency 
measures, because the fishery will be subject to two different sets of 
management measures during FY 2006, it is difficult to precisely 
determine the expected biological impacts from both the emergency 
action and measures proposed by FW 42. The EA prepared to support the 
emergency measures evaluated the combined biological impacts of the 
measures implemented by the emergency interim final rule and those 
proposed by FW 42. NMFS concluded that the emergency measures, in 
conjunction with those proposed under FW 42, will achieve the full F 
reductions necessary for FY 2006. This conclusion is based upon the 
assumption that the suite of measures adopted by the Council in FW 42 
would achieve all of the required F reductions to maintain the 
Amendment 13 rebuilding programs, the fact that analyses under the CAM 
are conducted on an annual basis, and the fact that the effort-
reduction strategy implemented by the emergency interim final rule 
(i.e., differential DAS counting) is similar to that adopted by the 
Council under FW 42. However, the EA cautioned that implementation of 
additional management measures by the Secretary of Commerce may be 
necessary to further reduce F and meet FMP requirements, especially if 
the implementation of FW 42 is delayed further than anticipated. NMFS 
will continue to monitor the fishery to determine if additional 
measures to maintain the Amendment 13 rebuilding programs are 
warranted.

Changes From the April 13, 2006, Emergency Interim Final Rule

    The April 13, 2006, emergency interim final rule suspended the 
prohibition at 50 CFR 648.14(bb)(22) and added paragraph (bb)(23) to 
that section to correct a cross reference in paragraph (bb)(22) to 
reflect the regulations revised by the April 13, 2006, emergency 
interim final rule. The prohibition at Sec.  648.14(bb)(22) was first 
implemented by a temporary emergency rule (June 13, 2005; 70 FR 34055) 
and extended through June 6, 2006 (December 8, 2005; 70 FR 72934). That 
prohibition was later incorporated into a revised prohibition at Sec.  
648.14(bb)(21) by the final rule implementing FW 43 to the FMP (August 
15, 2006; 71 FR 46871). Therefore, because the prohibition at Sec.  
648.14(bb)(22) expired on June 6, 2006, and was later incorporated into 
the prohibition at Sec.  648.14(bb)(21) by the FW 43 final rule, the 
prohibition at Sec.  648.14(bb)(23) implemented by the April 13, 2006, 
emergency interim final rule is no longer necessary and is removed by 
this temporary rule.

Classification

    Pursuant to the procedures established to implement section 6 of 
E.O. 12866, the Office of Management and Budget has determined that 
this temporary rule is not significant.
    The Regional Administrator has determined that the emergency 
management measures extended by this temporary rule are necessary for 
the conservation and management of the NE multispecies fishery, and are 
consistent with the Magnuson-Stevens Act and other applicable law. 
Relevant analyses and determinations required by applicable law, 
including the Regulatory Flexibility Act prepared for the April 13, 
2006, emergency interim final rule, were summarized in the 
classification section of that rule and are not repeated here. An EA 
and a subsequent addendum to this EA were prepared for the emergency 
action implemented by the April 13, 2006, interim final rule. These 
analyses assessed the impacts of implementing the emergency measures 
for the entire FY 2006. Because the conditions that existed at the time 
this emergency action was implemented have not changed, the impacts of 
continuing emergency management measures through this temporary rule 
have already been considered. A copy of the EA and the Finding of No 
Significant Impact prepared for the emergency action are available from 
the Regional Administrator (see ADDRESSES).
    The Assistant Administrator for Fisheries, NOAA (AA) finds good 
cause under U.S.C. 553(b)(B) to waive prior notice and the opportunity 
for public comment on this action. This action would continue emergency 
measures implemented on April 13, 2006, for up to 180 days beyond the 
current expiration date of October 10, 2006. The conditions prompting 
the initial emergency action still remain, as FW 42 has not been 
implemented to date. Immediate reductions in F for several stocks are 
needed to achieve the rebuilding programs implemented by Amendment 13. 
In addition, there were two opportunities to comment on the emergency 
measures continued by this temporary rule, including the March 3, 2006, 
proposed rule and the April 13, 2006, emergency interim final rule. 
Therefore, the AA finds that it would be impracticable and contrary to 
the public interest to delay the implementation of these measures by 
providing additional opportunities for public comment.
    The AA also finds good cause under U.S.C. 553(d)(3) to waive the 
delayed effectiveness of this temporary rule. A 30-day delayed 
effectiveness period would allow overfishing to continue on specific 
stocks. Continued overfishing of these stocks would likely require more 
restrictive management measures in the future to ensure that stocks 
continue to rebuild according to the Amendment 13 rebuilding programs. 
Therefore, a full 30-day delayed effectiveness would be impracticable 
and contrary to the public interest, because it would: (1) Prevent the 
agency from immediately reducing mortality on overfished groundfish 
stocks to maintain the Amendment 13 rebuilding programs; (2) result in 
continued overfishing of severely depleted groundfish stocks, 
potentially leading to more restrictive management measures in the 
future; (3) allow two special management programs designed to help 
mitigate the economic and social impacts of continued effort reduction 
in the groundfish fishery to expire (i.e., the DAS Leasing Program and 
the Regular B DAS Program); and (4) further delay the implementation of 
measures necessary to minimize incentives to fish in an unsafe manner 
in the Eastern U.S./Canada Area.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirement

    This emergency rule continues collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA) that have 
been previously approved by OMB under control numbers 0648-0202, 0648-
0212, and 0648-0475. These requirements include: (1) Vessel Monitoring 
System (VMS) purchase and installation (1 hr/response); (2) VMS proof 
of installation (5 min/response); (3) automated VMS polling of vessel 
position (5 sec/

[[Page 59027]]

response); (4) declaration of intent to participate in the Regular B 
DAS Program or fish in the U.S./Canada Management Area and associated 
SAPs and DAS to be used via VMS prior to each trip into the Regular B 
DAS Program or a particular SAP (5 min/response); (5) notice 
requirements for observer deployment prior to every trip into the 
Regular B DAS Program or the U.S./Canada Management Area and associated 
SAPs (2 min/response); (6) daily electronic reporting of kept and 
discarded catch of stocks of concern and GB haddock while participating 
in the Regular B DAS Program or fishing in the U.S./Canada Management 
Area and associated SAPs (15 min/response); (7) daily electronic catch 
and discard reports of GB yellowtail flounder when fishing on a 
combined trip into the Western U.S./Canada Area (15 min/response); (8) 
DAS ``flip'' notification via VMS for the Regular B DAS Program, (5 
min/response); (9) DAS Leasing Program application (10 min/response); 
and (10) declaration of intent to fish inside and outside of the 
Eastern U.S./Canada Area on the same trip (5 min/response). 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. 
Notwithstanding any other provision of the law, no person is required 
to respond to, and no person shall be subject to penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA, unless that collection of information displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 2, 2006.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

0
2. In Sec.  648.14, paragraph (bb)(23) is removed and reserved.
[FR Doc. E6-16599 Filed 10-5-06; 8:45 am]
BILLING CODE 3510-22-S