[Federal Register Volume 74, Number 69 (Monday, April 13, 2009)]
[Rules and Regulations]
[Pages 17030-17065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8092]



[[Page 17029]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Fisheries of the Northeastern United States; Northeast Multispecies 
Fishery; Secretarial Interim Action; Final Rule

  Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Rules 
and Regulations  

[[Page 17030]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 080521698-9067-02]
RIN 0648-AW87


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Secretarial Interim Action

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

ACTION: Temporary final rule; interim measures; request for comments.

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SUMMARY: NMFS implements this final interim rule pursuant to its 
authority to issue interim management measures under the authority of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This action is intended to immediately reduce overfishing 
on certain stocks managed by the Northeast (NE) Multispecies Fishery 
Management Plan (FMP), without jeopardizing the likelihood that 
overfished stocks can achieve rebuilding objectives until long-term 
measures can be implemented under Amendment 16 to the FMP. Measures for 
the commercial fishery include an expanded differential days-at-sea 
(DAS) area in Southern New England (SNE), where a vessel will be 
charged 2 days for every day fished, and modified groundfish trip 
limits. In addition, this action maintains the scheduled fishing year 
(FY) 2009 DAS reduction included in the FMP, which results in an 
approximate 18-percent reduction in Category A DAS. For private 
recreational vessels fishing in the Exclusive Economic Zone (EEZ), and 
for federally permitted charter/party vessels, this action extends in 
time a seasonal prohibition on the possession of Gulf of Maine (GOM) 
cod, and prohibits the possession of SNE/Mid-Atlantic (MA) winter 
flounder. For federally permitted charter/party vessels, this action 
implements a trip limit for Georges Bank (GB) cod. In addition, this 
action implements measures to mitigate some of the negative, short-term 
economic impacts of the FMP by expanding the Closed Area I (CA I) Hook 
Gear Haddock Special Access Program (SAP); modifying the DAS Leasing 
Program, the Regular B DAS Program, and the DAS Transfer Program; 
continuing the Eastern U.S./Canada Haddock SAP; and implementing a 
reduction in the haddock minimum size to 18 inches (45 cm) for both 
commercial and recreational vessels. This action also specifies 
management measures for the U.S./Canada Management Area for FY 2009. 
NMFS anticipates that the interim measures will need to be renewed upon 
the rule's expiration for an additional 185 days. Therefore, NMFS is 
requesting public comments on these measures; comments received will be 
considered during any subsequent action to extend this final interim 
rule.

DATES: Effective May 1, 2009, through October 28, 2009. Comments must 
be received by June 12, 2009.

ADDRESSES: You may submit comments, identified by 0648-AW87, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-rulemaking portal: http://www.regulations.gov.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930-2276. Mark the 
outside of the envelope: ``Comments on NE Multispecies Final Interim 
Rule.''
     Fax: (978) 281-9135.
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF formats only.
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which 
consists of the Initial Regulatory Flexibility Analysis (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 
the Regional Administrator, NMFS, Northeast Regional Office, at the 
address noted above. Copies of the Environmental Assessment (EA) 
prepared for this rule may be found at the following Internet address: 
http://www.nero.noaa.gov/nero/regs/frdoc/08/08MultiInterimEA.pdf.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to the Northeast Regional Office and by e-mail to 
[email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, 
(978) 281-9347, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: A proposed interim rule was published in the 
Federal Register on January 16, 2009 (74 FR 2959), which includes 
detailed information on the background and reasons pertinent to the 
need to reduce fishing effort in the NE multispecies fishery for FY 
2009. Comments on the proposed rule were accepted through February 17, 
2009, which are summarized and responded to below. The FMP specifies 
the management measures for 12 species, and a total of 19 stocks of 
groundfish in Federal waters off the New England and Mid-Atlantic 
coasts. Species managed by the FMP are Atlantic cod, haddock, 
yellowtail flounder, pollock, American plaice, witch flounder, white 
hake, windowpane flounder, Atlantic halibut, winter flounder, ocean 
pout, and redfish. In 2008, the effectiveness of the management 
measures and the validity of the status determination criteria 
(biological reference points) were fully evaluated. This planned 
assessment of the biological reference points (Groundfish Assessment 
Review Meeting (GARM III)) was part of the FMP's biennial adjustment 
process to be used for setting fishery measures for FY 2009 (May 1, 
2009-April 30, 2010), and was also part of the rebuilding strategy, 
which sought to evaluate the more fundamental scientific information 
mid-way through the rebuilding period for most stocks. Although the 
Council intended to meet a required May 1, 2009, implementation date 
for Amendment 16, due to the timing and the somewhat unanticipated 
results from GARM III (September 2008), the Council developed a revised 
Amendment 16 schedule, which, if approved, is now expected to be 
implemented on May 1, 2010. In addition, the Council voted on September 
4, 2008, to request that NMFS implement an interim action for the 
duration of FY 2009, and recommended a specific suite of management 
measures for the interim action. As explained fully in Measure 12 under 
``Proposed Commercial Measures'' of the proposed rule, NMFS did not 
propose the Council's recommendations in the proposed rule

[[Page 17031]]

because NMFS believed that the Council's recommended alternative would 
allow overfishing to continue for several stocks and not achieve 
rebuilding objectives.
    A summary of the GARM III results that formed the basis for the 
proposed interim rule is in Table 1 below. Overfishing is occurring on 
stocks when the ratio of the fishing mortality rate (F) to the F that 
results in the maximum sustainable yield (MSY) (Fmsy) is greater than 
1.0, and a stock is overfished if the ratio of the biomass level (B) to 
the B that produces MSY (Bmsy) is equal to or less than 0.5.

                                          Table 1--GARM III Stock Status Determination Criteria and 2007 Status
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       2007
                                                                                                                     Fishing        2007      Estimated
                    Species                                       Stock                      Fmsy      Bmsy (mt)    mortality     Biomass        2008
                                                                                                                     (2007 F/     (2007 B/     fishing
                                                                                                                      Fmsy)        Bmsy)      mortality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cod............................................  GB....................................       0.2466      148,084          1.2         0.12         0.41
                                                 GOM...................................        0.237       58,248          1.9         0.58        0.300
Haddock........................................  GB....................................        0.350      158,873         0.49         2.05        0.083
                                                 GOM...................................        0.430        5,900          0.8         0.99        0.250
Yellowtail flounder............................  GB....................................        0.254       43,200          1.1         0.22        0.130
                                                 SNE/MA................................        0.254       27,400          1.6         0.13        0.120
                                                 CC/GOM................................        0.239        7,790          1.7         0.25        0.289
American plaice................................  ......................................        0.190       21,940          0.5         0.51        0.099
Witch flounder.................................  ......................................        0.200       11,447          1.5         0.30        0.296
Winter flounder................................  GB....................................        0.260       16,000          1.1         0.31        0.131
                                                 GOM...................................        0.283        3,792          1.5         0.29        0.317
                                                 SNE/MA................................        0.248       38,761          2.6         0.09        0.265
Redfish........................................  ......................................        0.038      271,000          0.1         0.64        0.008
White hake.....................................  ......................................        0.125       56,254          1.2         0.35        0.065
Pollock*.......................................  ......................................        5.660          2.0          1.9         0.45       10.975
Windowpane*....................................  North.................................        0.500          1.4          3.9         0.38         1.96
                                                 South.................................        1.470         0.34          1.3         0.62         1.85
Ocean pout.....................................  ......................................        0.760         4.94          0.5         0.10          N/A
Atlantic halibut...............................  ......................................        0.073       49,000          0.9         0.03         0.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Pollock and windowpane flounder information was revised subsequent to GARM III in order to utilize 3-yr averages, and incorporate the fall survey data
  for pollock; pollock Fmsy is listed in terms of relative exploitation index (catch per centered 3-yr survey index).
N/A indicates an estimate of F in 2008 was unavailable for this stock.

    Although NMFS' initial fishing mortality rate goals for the FY 2009 
interim period are unchanged, based on public comment, NMFS is 
modifying several of the measures proposed in the proposed interim 
rule, and asking for public comment on the modified final rule. This 
decision to modify measures means that, even though substantial 
reductions in F will be achieved by this rule, overfishing will 
continue on certain stocks--notably GB cod, witch flounder, pollock, 
and northern windowpane flounder--during the duration of this interim 
action. Under section 305(c) of the Magnuson-Stevens Act, NMFS may 
implement an interim rule that reduces overfishing on overfished 
stocks, without necessarily ending overfishing. In this instance, the 
purpose of the interim rule is to reduce or end overfishing and help 
ensure that stocks rebuild consistent with Amendment 13 objectives for 
FY 2009, and to reduce overfishing on the three other stocks, which 
were recently identified as being overfished. The measures implemented 
through this rule will satisfy these objectives, while at the same time 
mitigating, to the extent practicable, the impacts on the fishing 
community. As indicated by the EA and the comments received on the 
proposed rule, ending overfishing on all multispecies stocks in this 
interim rule would result in substantial negative consequences to the 
fishing industry. The Council is developing mitigating measures in 
Amendment 16, primarily through sector proposals, that should help to 
offset these negative consequences. The full range of possible 
mitigation measures cannot be implemented in this interim rule because 
they have not been fully developed and analyzed. While there is some 
decrease in the likelihood that GB cod and other stocks will rebuild 
within the time prescribed by the Amendment 13 rebuilding plan as a 
result of this final rule, the action should not significantly 
jeopardize the likelihood that Amendment 13's rebuilding objectives 
will be met, particularly given the short-term nature of this interim 
rule and the fact that additional measures will be implemented through 
Amendment 16. Therefore, in exercising the flexibility provided by 
section 305(c) of the Magnuson-Stevens Act, NMFS has determined that 
the modifications to the proposed rule as described below are 
justifiable because they are necessary to mitigate impacts on the 
fishing industry to the extent practicable, without fatally 
jeopardizing the likelihood that overfished multispecies stocks will 
achieve their rebuilding objectives through Amendment 16 measures. The 
rationale for determining the extent of acceptable changes to the 
proposed rule follows.
    Generally speaking, these final interim measures reduce overfishing 
to a lesser degree than the proposed interim action, as explained later 
in this preamble. This action includes several elements of the 
Council's proposed alternative, but contains additional measures to 
further protect stocks that are in the most critical condition, such as 
SNE/MA winter flounder. Management measures implemented under this 
action include: An expansion of the status quo 2:1 SNE Differential DAS 
Area measures; a witch flounder trip limit of 1,000 lb (453.6 kg) per 
DAS, up to 5,000 lb (2,268 kg) per trip; zero retention limits for SNE 
winter flounder (for both commercial and recreational vessels), 
northern windowpane flounder, and ocean pout; a 2-week extension of the 
seasonal prohibition on the retention of GOM cod for both private 
recreational and party/charter vessels, (i.e., revised to encompass

[[Page 17032]]

November through April 15); a bag limit of 10 GB cod per person per day 
for party/charter vessels operating in all areas; and mitigation 
measures that include modifications to the DAS Leasing, Transfer, and 
Regular B DAS Programs, expansion in area and season of the CA I Hook 
Gear Haddock SAP, renewal of the Eastern U.S./Canada Haddock SAP, and 
reduction of the haddock minimum fish size from 19 inches (48.3 cm) to 
18 inches (45.7 cm) for both commercial and recreational vessels. This 
action does not implement the proposed expansion of the GOM 
Differential DAS Area (i.e., the Interim Differential DAS Area), or the 
proposed SNE Closure Area. In addition, this action maintains the 
Amendment 13 default measure for FY 2009, whereby Category A DAS are 
reduced by 18.2 percent, and maintains the status quo 2:1 GOM 
Differential DAS Area measures.
    For reasons explained in the preamble to the proposed interim rule, 
the proposed fishing mortality targets were either Fmsy (for windowpane 
flounder, GOM winter flounder, GB winter flounder, witch flounder, 
pollock, GB haddock, GOM haddock, GOM cod, GB cod, American plaice, 
redfish, and ocean pout), or Frebuild (GB cod, GB yellowtail flounder, 
SNE/MA yellowtail flounder, Cape Cod (CC)/GOM yellowtail flounder, SNE/
MA winter flounder, white hake, and Atlantic halibut). The proposed 
interim measures would not have achieved Frebuild for GB cod; however, 
they would have achieved Fmsy for this stock. The proposed measures 
also would not have achieved the Fmsy target for northern windowpane 
flounder, or the Frebuild target for SNE/MA winter flounder.
    GARM III provided example estimates of Frebuild for overfished 
stocks, making assumptions about the rebuild period end-dates and the 
starting stock conditions at the beginning of the rebuilding periods. 
In doing so, GARM III assumed that the catch in FY 2008 will be the 
same as the catch in FY 2007. In contrast, for this interim action, an 
estimated catch in FY 2008 was used to recalculate the starting stock 
conditions in FY 2008, and the associated Frebuilds. For Amendment 16, 
the Council's Plan Development Team (PDT) estimated catch for the 
entire FY 2008 based upon an extrapolation of landings data for 
calendar year (CY) 2008 through June 2008. As explained further in the 
proposed interim rule preamble, this interim action relies on the PDT's 
estimated landings for FY 2008, and derived estimates of fishing 
mortality rates for CY 2008 and the recalculated Frebuilds. Because the 
measures implemented by this action will be effective in FY 2009, an 
estimate of fishing mortality in CY 2008 more closely represents the 
starting conditions of the remainder of the rebuilding periods. For GB 
yellowtail flounder, Frebuild was calculated utilizing an assumed catch 
in CY 2008 of 2,500 mt.
    The target reductions for pollock and the two windowpane flounder 
stocks were revised from the proposed rule in order to be consistent 
with the other stocks. In the proposed rule, the target reductions for 
all stocks except these three were based upon an estimate of fishing 
mortality in 2008. In contrast, the target reductions for pollock and 
the two stocks of windowpane flounder were based upon the fishing 
mortality in 2007. Thus, this final rule utilizes a starting fishing 
mortality estimate in 2008 for all stocks. Because the estimate of 
fishing mortality in 2008 was greater than that observed in 2007 for 
these three stocks, the effect of this change is an increase in the 
percentage reduction necessary to reduce fishing mortality to Fmsy. For 
the calculation of F in 2008, for pollock, the PDT calculated an 
assumed catch in 2008 and for the windowpane flounder stocks, catch in 
2008 was assumed to be equal to the catch in 2007.
    In contrast to the proposed interim rule, which would not have 
attained the proposed interim goals for two stocks (i.e., SNE/MA winter 
flounder and Northern windowpane flounder), nor the updated Fmsy goal 
for pollock (which was updated after the proposed interim rule was 
published), management measures implemented through this final rule do 
not attain the stated goals for five stocks (SNE/MA winter flounder, 
Northern windowpane flounder, pollock, GB cod, and witch flounder). 
However, for four of these five stocks, the rebuilding timeline extends 
beyond 2014 (a 2026 Amendment 13 end date for GB cod; and a 2017 
Amendment 16 proposed end date for Northern windowpane flounder, witch 
flounder, and pollock). Because these four stocks have longer 
rebuilding timelines associated with them, additional time is available 
to ensure that the rebuilding goals of the FMP are met. However, to 
maintain the FMP rebuilding trajectories and to meet the statutory 
rebuild dates, the Council will need to consider whether further 
adjustments in fishing mortality are needed. If further adjustments are 
needed, the Council will need to account for this in future actions, 
possibly even in Amendment 16. Given the likely rebuilding schedules 
and the original justification for the expanded differential DAS 
counting area in the GOM and northern GB in the proposed interim rule 
(primarily to protect pollock and witch flounder), NMFS is not 
implementing the proposed expanded differential DAS counting area in 
this final rule, and is maintaining the status quo inshore GOM 
Differential DAS Area. The SNE Closure Area was included in the 
proposed interim rule primarily to protect SNE/MA winter flounder. 
Although this stock has a rebuilding timeline of 2014, given the 
concern raised by the public regarding the severe economic impacts that 
would be imposed by this closure area and the potential for this 
closure to lead to shifts in effort to other areas and other stocks, 
NMFS is instead implementing in this same area, slightly modified, a 
requirement for 2:1 differential DAS counting. To strictly control 
effort on SNE/MA winter flounder, NMFS is implementing a zero landing 
limit for SNE/MA winter flounder for both commercial and recreational 
vessels throughout the range of the stock. Table 2 identifies the 2009 
target Fs as published in the proposed interim rule, and provides a 
comparison of the estimated fishing mortality reductions achieved for 
measures proposed in the proposed interim rule, and the measures 
implemented by this final interim rule.

                              Table 2--Comparison of Fishing Mortality Reductions for the Proposed and Final Interim Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      F value for               F value for
                                                                                2009     F reduction    proposed   F reduction     final     F reduction
                 Species                                Stock                proposed F   objective     interim      achieved     interim      achieved
                                                                               target                    action                    action
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cod.....................................  GB..............................        0.247         -40%        0.208         -49%        0.295         -28%
                                                                                 (Fmsy)

[[Page 17033]]

 
                                          GOM.............................        0.237         -21%        0.203         -32%        0.247         -18%
                                                                                 (Fmsy)
Haddock.................................  GB..............................        0.350         322%        0.049         -38%        0.062         -25%
                                                                                 (Fmsy)
                                          GOM.............................        0.430          72%        0.159         -36%        0.205         -18%
                                                                                 (Fmsy)
Yellowtail Flounder.....................  GB..............................        0.109         -16%        0.109         -16%        0.109         -16%
                                                                                 (Freb)
                                          SNE/MA..........................        0.072         -38%        0.017         -86%        0.073         -39%
                                                                                 (Freb)
                                          CC/GOM..........................        0.238         -18%        0.174         -40%        0.167         -42%
                                                                                 (Freb)
American Plaice.........................  ................................        0.190          92%        0.056         -43%        0.084         -15%
                                                                                 (Fmsy)
Witch Flounder..........................  ................................        0.200         -32%        0.167         -44%        0.247         -17%
                                                                                 (Fmsy)
Winter Flounder.........................  GB..............................        0.260          98%        0.108         -18%        0.114         -13%
                                                                                 (Fmsy)
                                          GOM.............................        0.283         -11%        0.286         -10%        0.265         -16%
                                                                                 (Fmsy)
                                          SNE/MA..........................        0.000        -100%        0.052         -80%        0.100         -62%
                                                                                 (Freb)
Redfish.................................  ................................        0.038         375%        0.004         -50%        0.007         -13%
                                                                                 (Fmsy)
White Hake..............................  ................................        0.084          29%        0.033         -49%        0.054         -17%
                                                                                 (Freb)
Pollock.................................  ................................        5.660         -51%        6.520           NA        9.342         -19%
                                                                                 (Fmsy)
Windowpane Flounder.....................  North...........................        0.500         -83%  ...........           NA        2.229         -22%
                                                                                 (Fmsy)
                                          South...........................        1.470         -29%  ...........           NA        1.392         -32%
                                                                                 (Fmsy)
Ocean Pout..............................  ................................        7.600           NA  ...........           NA  ...........  ...........
                                                                                 (Fmsy)
Atlantic halibut........................  ................................        0.044         -27%  ...........           NA  ...........  ...........
                                                                                 (Freb)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Because of the substantial changes made to the proposed interim 
measures, and the resulting changes in the expected Fs as a consequence 
of these changes, this final rule also implements revised target TACs 
and Incidental Catch TACs. The target TACs, and the Incidental TACs 
that are based on these targets, are specified as follows: For those 
stocks where the measures implemented by this rule are expected to 
reduce F to below the F target, the target TACs are set based on the 
estimated F achieved from the management measures in this action; for 
those stocks with Fs that are less than the proposed rule F targets, 
the target TACs will be set based on the proposed F targets. See 
Measure 3 under ``Approved Commercial Measures'' for further details on 
these final target TACs.

Management Measures

    All measures in effect prior to May 1, 2009, including the 
scheduled default DAS reduction measures, that are not amended by this 
final interim rule, will remain in effect on and after May 1, 2009. 
This interim action implements management measures to reduce fishing 
mortality on the commercial and recreational fisheries without 
compromising rebuilding objectives, and revises several management 
programs to mitigate the negative economic and social impacts. The 
interim action is intended to ensure consistency, to the extent 
practicable in an interim rule, with the national standards and 
required provisions of the Magnuson-Stevens Act. This action also 
specifies target TACs for all managed stocks, and annual specifications 
for stocks managed by the U.S./Canada Resource Sharing Understanding 
(Understanding). As is more fully discussed later in this document, 
these measures will result in both quantifiable and non-quantifiable 
reductions in fishing mortality for all of the NE multispecies stocks 
managed under the FMP.
    The interim measures are designed to work in conjunction with the 
FMP to reduce fishing mortality and continue to maintain progress 
toward achieving the rebuilding requirements of the FMP. The analysis 
of this action presumes that the measures will be in effect throughout 
FY 2009, and that a subsequent management action (Amendment 16) will be 
implemented on May 1, 2010. The FMP management measures include an FY 
2009 default measure that will change the allocation ratio of Category 
A:B DAS from 55:45 to 45:55. This measure, because it is not an action 
implemented by this interim action, is not discussed specifically in 
the description of the interim measures that follow. In addition, this 
action continues existing measures in the FMP associated with the GOM 
Differential DAS Area, as discussed further below. NMFS anticipates 
that this interim action will be renewed upon its expiration for an 
additional 185 days, given that the Council does not anticipate the 
implementation of Amendment 16 until May 2010 and that the Council 
recommended that any interim action implemented by NMFS should be in 
effect for all of FY 2009. Several measures were modified from the 
proposed to the final rule based upon public comments received and 
further analysis of proposed measures, to mitigate the negative 
economic impacts of the management measures on the fishing industry and 
fishing communities without compromising long-term rebuilding of 
overfished stocks. Although these revisions will

[[Page 17034]]

result in less reduction to fishing mortality than the measures 
proposed, such changes should not undermine efforts to rebuild stocks 
within the established timeframes. Such measures will continue to 
reduce F on all stocks and eliminate overfishing on all but four stocks 
(pollock, GB cod, witch flounder, and northern windowpane flounder). 
Three of these stocks are newly classified as overfished (pollock, 
witch flounder, and northern windowpane flounder), and the rebuilding 
programs developed by the Council in draft Amendment 16 include 
rebuilding timelines extending to 2017. The rebuilding timeline for GB 
cod extends through 2026. Given this, there should be sufficient 
opportunity for future management actions to end overfishing and 
rebuild these stocks, as necessary. The following describes the 
measures implemented by this final interim rule.

Approved Commercial Measures

1. Differential DAS Counting
    This action maintains the existing differential DAS counting area 
in the GOM, as established in the FMP. However, in SNE, the existing 
SNE Differential DAS Area is replaced by the Interim SNE Differential 
DAS Area. This area includes waters between 40[deg]30' and 41[deg]30' 
N. lat., and west of 68[deg]50' W. long. (i.e., west of the border of 
the Western U.S./Canada Area) to the shore, including all of Nantucket 
Sound and the Great South Channel. The Interim SNE Differential DAS 
Area is being implemented primarily as a means to reduce F on SNE 
winter flounder and SNE/MA yellowtail flounder.
    With the exception of vessels fishing with hook gear in the Interim 
SNE Differential DAS Area, all NE multispecies vessels declared into 
and fishing under a NE multispecies Category A DAS within either the 
GOM or Interim SNE Differential DAS Areas for any portion of a trip 
will be charged at a rate of 2:1 for the entire trip. In other words, 
with the exception noted above, if a vessel declares into, and fishes 
in, either the GOM or Interim SNE Differential DAS Area for 10 hr, the 
vessel's DAS balance would be charged 20 hr. NE multispecies vessels 
declared into and fishing under a Category A DAS in the Interim SNE 
Differential DAS Area using hook gear will be charged DAS at a rate of 
1:1, provided such vessels have only hook gear on board. The hook gear 
exception to the differential DAS counting rate is based upon data that 
indicate that the catch rate of winter flounder and yellowtail 
flounder, the primary species targeted by this measure, by hook gear is 
likely to be very low and, in conjunction with a zero retention limit 
for SNE winter flounder, will not substantially affect F reductions 
achieved by this action.
    A vessel will not be charged at the differential DAS rate if it 
declares into and transits to another area outside of one of the 
differential DAS areas. For example, if a vessel steams through the GOM 
Differential DAS Area on its way to and from the fishing grounds in the 
U.S./Canada Management Area, where DAS are not counted differentially, 
it will not be charged at the 2:1 rate for the parts of the trip spent 
steaming through the GOM Differential DAS Area. If a vessel declares 
and fishes both inside and outside of the GOM Differential DAS Area or 
the Interim SNE Differential DAS Area on the same trip, it will be 
charged differential DAS at a rate of 2:1 for the entire trip. This 
does not change the way that DAS are charged for vessels fishing in the 
GOM Differential DAS Area. However, charging differential DAS at a rate 
of 2:1 for the entire trip does represent a change in the way DAS are 
currently charged under the existing SNE Differential DAS Area 
implemented under FW 42. This change is based upon the revised area 
encompassed by the Interim Differential DAS Area, as further explained 
in the response to Comment 15.
    Consistent with current regulations, vessels are required to 
declare their intent to fish in one or both of the differential DAS 
areas via the vessel monitoring system (VMS) prior to leaving port. 
However, the Administrator, Northeast Region, NMFS (Regional 
Administrator) currently has the authority to require the fishery to 
utilize the ``call-in system'' on a temporary basis instead of the VMS 
for DAS accounting if the vessel fishes inside/outside of the VMS 
demarcation line on the same trip, if the VMS system was down for an 
extended period of time, or for some other unforeseen circumstance. In 
such a circumstance, vessels fishing any portion of a trip inside one 
or both of the differential DAS areas will be charged at the rate of 
2:1 for the entire trip.
    The interaction of current groundfish and non-groundfish regulatory 
programs and the different DAS counting rules remain unchanged under 
this action (e.g., the cod running clock, DAS charging rules for Day 
gillnet vessels, the application of daily possession limits for certain 
stocks, the Eastern U.S./Canada Area rules, use of Regular B DAS, and 
monkfish/groundfish permitted vessels fishing under a NE multispecies 
DAS). For example, a vessel fishing in the GOM Differential DAS Area 
for 25 hr that caught 1,600 lb (726 kg) of GOM cod (i.e., 2 day's 
worth) would not be required to submit the cod running clock form via 
VMS in order to account for the additional day's worth of cod 
harvested. In addition, a Day gillnet vessel declared into and fishing 
in the GOM Differential DAS Area would be charged DAS at a rate of 2:1 
for any trip less than or equal to 3 hr in duration, or greater than 
7.5 hr in duration and 15 hr for any trip greater than 3 hr, or less 
than or equal to 7.5 hr in duration. For vessels fishing in multiple 
geographic areas in which different rules apply (such as differential 
DAS counting and trip limits), the most restrictive rule would apply 
for the entire trip. The current regulations that allow monkfish 
Category C and D vessels to fish as a monkfish Category A or B vessel, 
and land monkfish under certain conditions, will still apply. As 
described in detail below under Item 9 ``Mitigating Measures,'' the DAS 
rules that apply to monkfish Category C and D vessels fishing in the 
GOM Differential DAS Area are modified by this action to minimize any 
impact these measures may have on the ability of such vessels to fish 
for monkfish.
2. Modified Trip Limits
    Under this interim rule, NE multispecies vessels are not allowed to 
fish for, possess, or land more than 1,000 lb (453.6 kg) per DAS, up to 
5,000 lb (2,268 kg) per trip of witch flounder. In addition, no 
retention of SNE winter flounder, northern windowpane flounder, or 
ocean pout is allowed. Vessels fishing for winter flounder or 
windowpane flounder in multiple stock areas are subject to the most 
restrictive possession limit for the pertinent species. In other words, 
if a vessel fishes in the SNE winter flounder stock area and the GB 
winter flounder stock area on the same trip, the vessel will be subject 
to the prohibition on retention of winter flounder for that trip. 
Lastly, as explained further under Measure 6 under ``Approved 
Commercial Measures'' of the preamble (``Annual Specifications for 
U.S./Canada Management Area''), a limit of 5,000 lb (2,268 kg) of GB 
yellowtail flounder per trip is specified. Modifications to trip limits 
are implemented as a means to reduce fishing mortality or increase 
yield because they are a management tool that can target particular 
stocks and are an important component of the current FMP.
3. Specification of Target TACs
    Target TACs are utilized in the FMP as one method of evaluating the 
success

[[Page 17035]]

of management measures and providing a way to make simple comparisons 
between different fishing years. Secondly, target TACs form the basis 
of calculating allocations of GB cod to sectors and the incidental 
catch TACs for the Special Management Programs. This final interim rule 
implements target TACs for FY 2009. The proposed rule indicated that 
the target TACs would be based upon either Fmsy or Frebuild for each 
stock. For stocks that were previously considered overfished, target 
TACs were proposed to be based upon Frebuild, with one exception for GB 
cod. For GB cod, the target TAC was proposed to be based upon Fmsy, for 
reasons specified in the proposed interim rule. In contrast, for stocks 
that have been newly classified as overfished based upon the results of 
GARM III, the target TACs were proposed to be based upon Fmsy. However, 
this final interim rule specifies target TACs based upon either the 
Ftarget for each stock (i.e., Fmsy or Frebuild) or the F resulting from 
measures implemented by this action (i.e., estimated F), whichever is 
higher. For stocks where the estimated F is lower than the Ftarget, 
implementing target TACs based upon the Ftarget allows for increased 
yield. For stocks where the estimated F is higher than the Ftarget, 
implementing target TACs based upon the estimated F more accurately 
reflects catch anticipated from measures implemented by this action. 
Table 3 lists the target TACs for FY 2009, based upon GARM III data, 
and an estimate of F for each stock during CY 2008.

                  Table 3--Target TACs (mt) for FY 2009
------------------------------------------------------------------------
                                                                 Target
                Species                          Stock             TAC
------------------------------------------------------------------------
Cod...................................  GB....................     5,501
Cod...................................  GOM...................    10,724
Haddock...............................  GB....................    89,055
Haddock...............................  GOM...................     1,564
Yellowtail flounder...................  GB....................    *1,617
Yellowtail flounder...................  SNE/MA................       389
Yellowtail flounder...................  CC/GOM................       860
Plaice................................  ......................     3,214
Witch flounder........................  ......................     1,129
Winter flounder.......................  GB....................     2,004
Winter flounder.......................  GOM...................       379
Winter flounder.......................  SNE...................         0
Redfish...............................  ......................     8,614
White hake............................  ......................     2,376
Pollock...............................  ......................     6,346
Windowpane flounder...................  North.................       581
Windowpane flounder...................  South.................       279
Halibut...............................  ......................        68
------------------------------------------------------------------------
* A hard TAC, set through a separate process described in Measure 5 of
  this preamble.

4. Revisions to Incidental Catch TACs and Allocations to Special 
Management Programs
    This final rule revises the specification of incidental catch TACs 
applicable to the Special Management Programs of the FMP for FY 2009, 
based upon the most recent scientific information. Incidental catch 
TACs are specified for certain stocks of concern for Special Management 
Programs in order to limit the amount of catch of stocks of concern 
that can be caught under such programs, and to fully account for 
fishing mortality. The incidental catch TACs apply to catch (landings 
and discards) caught under Category B DAS (either Regular or Reserve B 
DAS) on trips that end on a Category B DAS. The catch of stocks for 
which incidental catch TACs are specified on trips that start under a 
Category B DAS and then flip to a Category A DAS do not accrue toward 
such TACs.
    A stock of concern is defined as a stock that is in an overfished 
condition or subject to overfishing. Due to the revised status of 
stocks (GARM III) that is adopted under this action, an incidental 
catch TAC is no longer appropriate for American plaice, because it is 
no longer considered a stock of concern. Further, new incidental catch 
TACs are required for GOM winter flounder and pollock because they are 
now considered stocks of concern. The percentages that the TACs are 
based on remain unchanged, with the exception of witch flounder, which 
is reduced from 5 percent to 2 percent, due to its overfished status 
and the fact that the F and total catch need to be reduced. The 
incidental catch TACs for GOM winter flounder are set at 5 percent, 
based on the rationale described in Framework (FW) 40A to the FMP: If 
the recent catch levels are less than the expected future catch levels, 
and 2009 management measures are likely to achieve more than the 
required reduction in F, then the size of an incidental catch TAC 
relative to the size of the overall TAC is larger (set as a larger 
percent). The incidental catch TAC for pollock is set at 5 percent 
because of the prevalence of pollock catch in the Special Management 
Programs, and based upon the rationale cited above. The utility of the 
Special Management Programs would be severely constrained if the 
incidental catch TAC is set too low. The number of total incidental 
catch TACs is increased from the current number (8), to 10. Due to the 
severe F reduction necessary for the SNE/MA stock of winter flounder, 
no retention of this stock is allowed, and there is no incidental catch 
TAC specified (see additional discussion under Section 9 of this 
preamble, Mitigating Measures). The calculation of incidental catch 
TACs by stock based on the target TACs is shown in Table 4.

             Table 4--Incidental Catch TACs for FY 2009 (mt)
------------------------------------------------------------------------
                                   Percentage
              Stock                 of total    Target TAC   Incidental
                                      TAC                        TAC
------------------------------------------------------------------------
GB cod..........................            2        5,501         110
GOM cod.........................            1       10,724         107.2
GB yellowtail...................            2        1,617          32.3
CC/GOM yellowtail...............            1          860           8.6
SNE/MA yellowtail...............            1          389           3.9
Pollock.........................            5        6,346         317.3
Witch flounder..................            2        1,129          22.6
GB winter flounder..............            2        2,004          40.1
White hake......................            2        2,376          47.5
GOM winter......................            5          379          19.0
------------------------------------------------------------------------


[[Page 17036]]

    This final interim rule also modifies the allocation of the 
incidental catch TACs to the various Special Management Programs due to 
the changes in status of stocks, and to optimize the design of the 
programs based on the operation of the programs since their inception. 
For example, the Eastern U.S./Canada Haddock SAP was not used at all in 
FY 2007, and only two trips were taken in the area in FY 2006. 
Therefore, the percent allocations to this SAP are reduced for GB cod, 
GB yellowtail, and GB winter flounder, and the percent allocation to 
the Regular B DAS Program is increased due to higher participation in 
that program historically. Secondly, this rule provides the Regional 
Administrator the authority to modify the allocations among programs 
in-season, or prior to the beginning of the season, because it is 
difficult to estimate the appropriate TAC, since the level of 
participation and catch rates of stocks of concern in the various 
programs is highly variable. The changes to the allocations are 
summarized in Table 5. Table 6 contains the incidental catch TACs that 
result from applying the percentages in Table 5 to the incidental TACs 
in Table 4.

                   Table 5--Modifications to the Incidental Catch TAC Allocations for FY 2009
----------------------------------------------------------------------------------------------------------------
                                      Regular B DAS Program      Eastern U.S./Canada     Closed Area I Hook Gear
                                   --------------------------        Haddock SAP               Haddock SAP
               Stock                                         ---------------------------------------------------
                                      Current        New        Current        New        Current        New
----------------------------------------------------------------------------------------------------------------
GB Cod............................          50%          70%          34%          14%          16%    No change
GB Yellowtail flounder............          50%          80%          50%          20%  ...........  ...........
GB Winter flounder................          50%          80%          50%          20%  ...........  ...........
Pollock...........................         None          90%         None           5%         None           5%
GOM Winter flounder...............         None         100%  ...........  ...........  ...........  ...........
GOM Cod...........................         100%         100%  ...........  ...........  ...........  ...........
White hake........................         100%         100%  ...........  ...........  ...........  ...........
CC/GOM Yellowtail flounder........         100%         100%  ...........  ...........  ...........  ...........
SNE/MA Yellowtail flounder........         100%         100%  ...........  ...........  ...........  ...........
Witch flounder....................         100%         100%  ...........  ...........  ...........  ...........
Plaice............................         100%         None  ...........  ...........  ...........  ...........
----------------------------------------------------------------------------------------------------------------


        Table 6--Specification of Incidental Catch TACs for Special Management Programs (mt) for FY 2009
----------------------------------------------------------------------------------------------------------------
                                                                                   Eastern U.S./   Closed Area I
                              Stock                                Regular B DAS  Canada Haddock     Hook Gear
                                                                      Program           SAP         Haddock SAP
----------------------------------------------------------------------------------------------------------------
GB Cod..........................................................              77            15.4            17.6
GOM Cod.........................................................           107.2              na              na
GB Yellowtail flounder..........................................            25.8             6.5              na
CC/GOM Yellowtail flounder......................................             8.6              na              na
SNE/MA Yellowtail flounder......................................             3.9              na              na
Pollock.........................................................           285.6            15.9            15.9
Witch flounder..................................................            22.6              na              na
GB Winter flounder..............................................            32.1             8.0              na
White hake......................................................            47.5              na              na
GOM Winter flounder.............................................            19.0              na              na
----------------------------------------------------------------------------------------------------------------

5. Annual Specifications for U.S./Canada Management Area
    In consultation with the Council, NMFS annually implements 
management measures for the U.S./Canada Management Area through 
proposed and final rules. For FY 2009, because NMFS is implementing 
management measures for the entire fishery to reduce fishing mortality 
as described above, NMFS is including the specification of the TACs and 
other measures for the U.S./Canada Management Area in this final 
interim rule in order to streamline the regulatory process.
    The FMP specifies a procedure for setting annual hard TAC levels 
(i.e., the fishery or area closes when a TAC is reached) for Eastern GB 
cod, Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada 
Management Area, which is described in the proposed interim rule. The 
specific justification for the FY 2009 TACs, which were based upon the 
most recent stock assessments, is also described in the proposed rule. 
On October 8, 2008, the Council approved, consistent with the 2008 
Guidance Document, the following U.S./TACs recommended by the 
Transboundary Management Guidance Committee: 527 mt of Eastern GB cod; 
11,100 mt of Eastern GB haddock; and 1,617 mt of GB yellowtail 
flounder. The FY 2009 TACs for the U.S./Canada Management Area 
represent a decrease for cod and yellowtail flounder, and an increase 
for haddock compared to those specified for FY 2008 (Tables 7 and 8).

                  Table 7--FY 2009 U.S./Canada TACs (mt) and Percentage Shares (in Parentheses)
----------------------------------------------------------------------------------------------------------------
                                                                                                   GB Yellowtail
                                                                      GB Cod        GB Haddock       Flounder
----------------------------------------------------------------------------------------------------------------
Total Shared TAC................................................           1,700          30,000           2,100
U.S. TAC........................................................        527 (31)     11,100 (37)      1,617 (77)

[[Page 17037]]

 
Canada TAC......................................................      1,173 (69)     18,900 (63)        483 (23)
----------------------------------------------------------------------------------------------------------------


                  Table 8--FY 2008 U.S./Canada TACs (mt) and Percentage Shares (in Parentheses)
----------------------------------------------------------------------------------------------------------------
                                                                                                   GB Yellowtail
                                                                      GB Cod        GB Haddock       Flounder
----------------------------------------------------------------------------------------------------------------
Total Shared TAC................................................           2,300          23,000           2,500
U.S. TAC........................................................        667 (29)      8,050 (35)    * 1,950 (78)
Canada TAC......................................................      1,633 (71)     14,950 (65)        550 (22)
----------------------------------------------------------------------------------------------------------------
* Adjusted downward to 1,868.7 mt due to overharvest of FY 2007 TAC.

    The regulations for the Understanding, promulgated by the final 
rule implementing Amendment 13, state that any overages of the GB cod, 
haddock, or yellowtail flounder TACs that occur in a given fishing year 
will be subtracted from the respective TAC in the following fishing 
year.
    Therefore, should an analysis of the catch of the shared stocks by 
U.S. vessels indicate that an over-harvest occurred during FY 2008, the 
pertinent TAC will be adjusted downward in order to be consistent with 
the FMP and Understanding. Although it is very unlikely, it is possible 
that a very large over-harvest could result in an adjusted TAC of zero. 
If an adjustment to one of the FY 2008 TACs of cod, haddock, or 
yellowtail flounder is necessary, the public will be notified through 
publication in the Federal Register and through a letter to permit 
holders.
    NMFS is also implementing, through the authority granted to the 
Regional Administrator by the FMP, measures to optimize the harvest of 
the shared resources. The regulations under Sec.  648.85(a)(3)(iv)(D) 
provide the Regional Administrator the authority to implement in-season 
adjustments to various measures in order to prevent over-harvesting, or 
to facilitate achieving the TAC.
    Based on the Council's vote to postpone the opening of the Eastern 
U.S./Canada Area for vessels fishing with trawl gear in FY 2008 from 
May 1, 2008, to August 1, 2008, and the success of this management 
measure in slowing the annual catch rate of cod during the early part 
of the year, NMFS is implementing this same measure for FY 2009. Thus, 
the FY 2009 opening of the Eastern U.S./Canada Area for trawl vessels 
will be August 1, 2009; more selective longline gear is allowed access 
during May through July. Such vessels will be limited to a cod catch of 
5 percent of the cod TAC, or 26.4 mt. The objective of this action is 
to prevent trawl fishing in the Eastern U.S./Canada Area during the 
time period when cod bycatch is likely to be very high. The goal of 
this measure is to prolong access to this area in order to maximize the 
catch of available cod, haddock, and yellowtail flounder.
    Secondly, the Regional Administrator is implementing a possession 
limit of 5,000 lb (2,268 kg) per trip for GB yellowtail flounder. 
Although the regulations under Sec.  648.86(a)(3)(iv)(C) indicate an 
initial trip limit of 10,000 lb (4,536 kg) at the beginning of a 
fishing year for GB yellowtail flounder, based on the yellowtail 
flounder catch rate from the U.S./Canada Management Area under a 5,000-
lb (2,268-kg) trip limit during FY 2008, and analyses conducted by NMFS 
during FY 2007, a 5,000-lb (2,268-kg) trip limit is an appropriate trip 
limit to allow harvesting of the TAC, and to increase the likelihood 
that further restrictions during the fishing year to slow the catch 
rate will be unnecessary.
    Third, the Regional Administrator is allowing the use of the Ruhle 
Trawl in the Eastern U.S./Canada Area. Under permanent regulations, 
only a flounder net and the haddock separator trawl are permanently 
authorized for such use. The Ruhle trawl, which is a modified trawl 
that substantially reduces the catch rate of most stocks of concern, 
was approved for use in the Regular B DAS Program and the Eastern U.S./
Canada Haddock SAP (73 FR 40186, July 14, 2008). Approval of the use of 
the Ruhle trawl in the Eastern U.S./Canada Area through this interim 
rule will provide another alternative for trawl vessel operators and, 
therefore, provide additional flexibility. As detailed in the July 14, 
2008 final rule, the Ruhle trawl has been demonstrated to substantially 
reduce catch of many species of groundfish, and therefore its use is 
consistent with the management objectives for the Eastern U.S./Canada 
Area.
    Lastly, the Regional Administrator is implementing zero trips into 
the CA II Yellowtail Flounder SAP during FY 2009, based on a 
determination that the available TAC of GB yellowtail flounder is 
insufficient to support a minimum level of fishing activity within the 
CA II Yellowtail Flounder SAP. The Regional Administrator has the 
authority to determine the allocation of the total number of trips into 
the CA II Yellowtail Flounder SAP based upon several criteria, 
including GB yellowtail flounder TAC level and the amount of GB 
yellowtail flounder caught outside of the SAP. As implemented by FW 
40B, zero trips to this SAP should be allocated if the available GB 
yellowtail flounder catch is not sufficient to support 150 trips with a 
15,000-lb (6,804-kg) trip limit (i.e., if the available GB yellowtail 
flounder catch is less than 1,021 mt). This calculation takes into 
account the projected catch from the area outside of the SAP. Based on 
the estimate for catch outside of the SAP utilized for FY 2008 (1,376 
mt), and the proposed GB yellowtail flounder TAC for FY 2009 (1,617 
mt), there is insufficient available catch to allow the SAP to proceed 
(i.e., 1,617 - 1,376 = 241; 241 < 1,021 mt).
6. Haddock TAC for the CA I Hook Gear Haddock SAP
    Under this action, a haddock TAC for the CA I Hook Gear Haddock SAP 
is set based upon the GARM III stock assessment and a formula 
implemented in FW 42. The haddock TAC in a particular year is based 
upon the TAC that was specified for the SAP in 2004 (1,130 mt), scaled 
according to the size of the exploitable biomass of western GB haddock 
compared to the biomass size in 2004 (35,317 mt). The size of the 
western component of the GB haddock stock is estimated at 35 percent of 
the size of the total GB haddock stock. Because the 2009 exploitable 
biomass of haddock is 321,870 mt, the formula and

[[Page 17038]]

resultant TAC is as follows: ((.35)(321,870)/35,317) x 1,130 = 3,604.5 
mt. This action implements further modifications to this SAP, as 
discussed in Item 9 below.
7. Elimination of the SNE/MA Winter Flounder SAP
    The SNE/MA Winter Flounder SAP regulations allow a limited access 
NE multispecies vessel fishing for summer flounder west of 72[deg]30' 
W. long. to retain up to 200 lb (91 kg) of winter flounder while not 
under a NE multispecies DAS, provided the vessel complies with various 
restrictions. Due to the severely depleted status of SNE/MA winter 
flounder, and the goal of reducing F to as close to zero as 
practicable, this final rule eliminates this SAP. Because the SAP could 
enable limited targeting of winter flounder, elimination of the SAP may 
prevent some catch of winter flounder from occurring.
8. Elimination of the State Waters Winter Flounder Exemption
    The State Waters Winter Flounder Exemption allows vessels issued a 
NE multispecies permit to fish in state waters for winter flounder 
using gear with mesh smaller than required for other vessels in the 
fishery (provided various requirements and criteria are met). Due to 
the severely depleted status of the SNE/MA winter flounder stock, and 
the goal of reducing F to as close to zero as practicable, this final 
rule eliminates this SAP. Because the SAP could enable limited 
targeting of winter flounder, elimination of the SAP may prevent some 
catch of winter flounder from occurring.
9. Mitigating Measures
    CA I Hook Gear Haddock SAP Expansion. For reasons explained in the 
Comments section below, this final rule implements modifications to the 
CA I Hook Gear Haddock SAP to expand its scope and change some of the 
restrictions in order to increase opportunity to access GB haddock and 
provide additional flexibility to vessels. The expansion has been 
determined to be consistent with the goals of the FMP. Specifically, 
this rule modifies the time period for the SAP from October through 
December, to May through January, and expands the area within CA I 
where vessels may fish to the east and south, to encompass the entire 
northern half of CA I. This rule eliminates the division of the SAP 
into two time periods, as well as the allocation of the haddock TAC to 
the two time periods. All limited access NE multispecies DAS vessels 
fishing with hook gear may fish in the SAP at any time (provided the 
SAP is open), regardless of whether the vessel is enrolled in a sector 
or is in the ``common pool.'' This final rule also implements a 
provision that was not included in the Council's alternative, which is 
a prohibition on the use of squid as bait when fishing in this SAP, in 
order to allow haddock to be targeted with increased likelihood that 
the catch rate of cod will be low. This prohibition is based upon 
analysis of experimental fishery data during the comment period for 
this action that indicated high bycatch of cod may occur when using 
squid as bait. This final rule also eliminates the requirement that 
vessels intending to participate in the SAP provide a yearly 
notification to the observer program in advance of the SAP season, 
because the removal of the sector and non-sector seasons for this SAP 
no longer make this notification necessary to assist in the deployment 
of observers. The requirement to notify the observer program 72 hr in 
advance of each trip is maintained. These measures were not included in 
the proposed rule and NMFS is soliciting comments on this aspect of the 
rule.
    Reduction of Haddock Minimum Size. Under this interim action, the 
haddock minimum size is reduced to 18 inches (45 cm) for both the 
commercial and recreational fisheries in order to increase yield and 
decrease bycatch (as defined by the Magnuson-Stevens Act). Information 
from GARM III indicates that the GB stock is very large and is rebuilt, 
while the GOM stock is 99-percent rebuilt. Furthermore, a portion of 
the large 2003 year class of haddock is still below the current 19-inch 
(47.5-cm) minimum size. A reduced minimum size for haddock will allow 
vessels to retain more haddock, thereby increasing yield for this 
species. Other recreational measures are described under Measure 10 
under ``Approved Commercial Measures'' of the preamble to this final 
interim rule.
    Extension of the Eastern U.S./Canada Haddock SAP. The Eastern U.S./
Canada Haddock SAP, which is set to expire at the end of FY 2008 on 
April 30, 2009, is extended through this interim action, in order to 
continue to facilitate access to GB haddock. This SAP allows vessels 
fishing with trawl gear to fish in a portion of the Eastern U.S./Canada 
Area, including a section of the northern portion of CA II (the 
``triangle''), under a Regular B DAS or a Reserve B DAS. This SAP 
allows a vessel to utilize a Category B DAS and fish in the 
``triangle,'' which is not otherwise accessible. The geographic area 
remains unchanged, and the rules that apply remain unchanged, with the 
exception of the reallocation of the incidental catch TACs (see Table 
5).
    When fishing in this SAP, vessels must fish with either a haddock 
separator trawl or a Ruhle Trawl, and are subject to restrictive 
possession limits in order to provide an incentive to correctly use the 
specialized trawl gear to help minimize bycatch of stocks of concern. 
Catch of stocks of concern on trips that end under a B DAS count toward 
the incidental catch TACs specified for pollock, GB cod, GB winter 
flounder, and GB yellowtail flounder (see Table 6). The total amount of 
these stocks of concern caught is limited by these incidental catch 
TACs and the program is typically subject to a higher level of observer 
coverage than the NE multispecies fishery at large. Furthermore, there 
are specialized rules that apply when fishing in this SAP, including 
those regarding observer notification, VMS declaration, reporting 
requirements, and a no discard provision.
    Modifications to the Regular B DAS Program. The Regular B DAS 
Program was designed to provide opportunities to target healthy stocks 
without threatening stocks for which a mortality reduction is required. 
The program allows the use of Regular B DAS under restrictions designed 
to minimize impacts of stocks of concern. Under this interim rule, in 
addition to the modifications implemented under Measure 5 under 
``Approved Commercial Measures'' of the preamble to this final interim 
rule (Revisions to Incidental Catch TACs and Allocations to Special 
Management Programs), several revisions are made to the Regular B DAS 
Program in order to address the current status of stocks and necessary 
reductions to F, as well as to maintain the usefulness of the Regular B 
DAS Program. Under current regulations, the Regional Administrator has 
the authority to close the Regular B DAS Program if it is projected 
that continuation of the Regular B DAS Program would undermine the 
achievement of the objectives of the FMP. In addition to monitoring the 
incidental TACs proposed under Section 5 of the preamble, NMFS will 
closely monitor the level of discarding of stocks that are proposed to 
have zero retention, but for which there is no incidental TAC (i.e., 
SNE/MA winter flounder, northern windowpane flounder, and ocean pout) 
to ensure that fishing mortality objectives for all stocks are not 
jeopardized.
    In order to prevent the quarterly incidental catch TACs from 
limiting the usefulness of the program, any quarterly

[[Page 17039]]

incidental catch TAC that remains uncaught from quarters one, two, and/
or three will roll over into the subsequent quarter.
    Due to the number of flatfish stocks that need reductions in F, the 
use of low profile (tie-down) gillnets under this interim action are 
prohibited on trips fishing under the Regular B DAS Program. Within the 
NE multispecies fishery, flatfish are traditionally targeted by 
reducing the vertical height of bottom-set gillnets by tying the 
floatline of a gillnet to the leadline, or modifying the construction 
of the floatline to reduce or eliminate its buoyancy. Thus, because 
most stocks of concern are flatfish and targeting stocks of concern is 
not consistent with the goals of the Regular B DAS Program, the use of 
low profile gillnet gear is prohibited under this Program. The use of 
gillnet gear to catch haddock is still allowed.
    Under current regulations, when 100 percent of the Incidental Catch 
TAC for white hake has been harvested, vessels fishing under a Regular 
B DAS are prohibited from retaining white hake. This is in contrast to 
the rules pertaining to the other Incidental Catch TACs in the Regular 
B DAS Program whereby, when the TAC is projected to be harvested, the 
use of Regular B DAS is prohibited in the pertinent stock area for the 
duration of the quarter. This final interim rule treats pollock and 
witch flounder in the same manner as white hake. Therefore, when 100 
percent of the Incidental Catch TAC for white hake, pollock, or witch 
flounder is harvested, vessels fishing under a Regular B DAS will be 
prohibited from retaining white hake, pollock, or witch flounder, 
respectively. Because white hake, pollock, and witch flounder have 
stock areas that cover the GOM, GB, and SNE/MA areas, if the harvest of 
the TAC were to trigger a shutdown of the pertinent stock area, the 
entire Regular B DAS Program would be shut down. The Regional 
Administrator is provided the authority to modify the pertinent 
possession restriction, or implement other measures, including a 
partial closure for the Regular B DAS Program, in order to prevent 
excessive discarding of the stock.
    DAS Leasing Program Modifications. Under this rule, the current 
prohibition on leasing DAS between sector and common pool vessels is 
eliminated in order to increase flexibility and efficiency in the DAS 
leasing market. Secondly, the limit on the maximum number of DAS that a 
vessel sector and common-pool vessel may lease is eliminated. Amendment 
13 implemented a restriction that a lessee may lease Category A DAS in 
an amount up to the vessel's FY 2001 allocation (excluding carry-over 
DAS from the previous year, or additional DAS associated with obtaining 
a Large Mesh permit). This restriction is removed in order to increase 
flexibility and efficiency in the DAS leasing market. These mitigation 
measures, including the DAS Transfer Program modifications described 
below, will also enhance the likelihood of compliance with the measures 
by providing additional fishing opportunities.
    DAS Transfer Program Modifications. Under this final rule, the DAS 
conservation tax is removed from the DAS Transfer Program. 
Specifically, the mandatory reduction of Category A and B DAS (20 
percent), and Category C DAS (90 percent), will no longer apply when 
vessels participate in the DAS Transfer Program. The Council is 
expected to propose modifications to the DAS Transfer Program in 
Amendment 16 in order to provide an additional incentive to permanently 
transfer groundfish DAS, provide for parity of the DAS Transfer Program 
with the DAS Leasing Program, facilitate consolidation of permits, and 
provide flexibility for vessels to mitigate the negative impacts of DAS 
reductions and other management measures. NMFS is implementing this 
temporary modification to the program for the same reasons the Council 
is expected to propose such changes. The limited duration of the tax-
free period (due to the limited duration of the proposed interim 
action) will limit the amount of any effect the change may have on 
increasing the overall DAS use rate.
    Monkfish DAS Rules to Mitigate Impacts of Groundfish Interim 
Action. Because vessels with a limited access Monkfish Category C and D 
permit are required to concurrently use a groundfish DAS in most 
circumstances, the differential DAS requirements implemented by this 
final rule impact such vessels. Although vessels fishing under 
concurrent monkfish and groundfish DAS in a differential DAS area still 
utilize monkfish DAS at a 1:1 rate, the fact that their groundfish DAS 
are used at the rate of 2:1 indirectly limits the ability for such 
vessels to fish for monkfish in the future, because once a vessel runs 
out of groundfish DAS, their ability to fish under a monkfish-only DAS 
is limited. This final rule provides economic relief to groundfish 
vessels that also possess either a Category C or D monkfish permit by 
allowing these vessels to accrue a monkfish-only DAS while fishing for 
groundfish in a 2:1 differential DAS counting area.
    For example, a limited access monkfish Category C or D vessel with 
40 groundfish DAS and 31 monkfish DAS that fished under a monkfish DAS 
exclusively in a 2:1 differential DAS counting area for 20 days would 
use all of its 40 DAS groundfish allocation and, concurrently, 20 DAS 
of its monkfish allocation (because monkfish DAS are counted on a 1:1 
basis in the differential DAS area). Thus, the vessel would have a 
remaining balance of 11 monkfish DAS, and zero groundfish DAS. Without 
a regulatory change that allows a vessel to accrue a monkfish-only DAS 
while fishing for groundfish in a 2:1 differential DAS area, once the 
vessel used up its groundfish DAS, the vessel would be unable to fish 
monkfish-only DAS and, in this example, the use of the 11 remaining 
monkfish DAS would have to be foregone. This action will restore the 
ability for the vessel to use its remaining 11 monkfish DAS, in this 
example, because the vessel would be eligible to receive up to a total 
of 20 monkfish-only DAS as a result of fishing in the 2:1 groundfish 
differential DAS area. Since the vessel in this example would only have 
11 monkfish DAS left, its monkfish-only DAS would be capped at 11. This 
measure was not included in the proposed rule, and NMFS is soliciting 
comments on this provision.
10. Recreational Measures
    This action reduces fishing mortality on the GOM cod, GB cod, and 
SNE winter flounder fisheries for private recreational vessels fishing 
in the EEZ and for federally permitted charter/party vessels, 
commensurate with the reduction proposed for the commercial fishery. 
The seasonal prohibition on the possession of GOM cod for both private 
recreational and charter/party vessels is extended from its current 
duration of November through March, to November through April 15, and a 
GB cod trip limit of 10 cod per person per day for charter/party 
vessels is implemented, consistent with the GB cod trip limit for 
private recreational vessels. Retention of winter flounder caught in 
the SNE/MA stock area is prohibited for both private recreational and 
charter/party vessels. Recreational vessels in possession of winter 
flounder caught outside of the SNE/MA winter flounder stock area may 
transit this area, provided all bait and hooks are removed from fishing 
rods, and any winter flounder on board has been gutted and stored. 
Lastly, as a mitigation measure as further described above, the minimum 
size for haddock caught by recreational vessels fishing in the EEZ and 
federally permitted charter/party vessels is reduced to 18 inches (45.7 
cm).

[[Page 17040]]

11. Revised FY 2009 GB Cod TACs for Sectors
    As highlighted above in Measure 3 under ``Approved Commercial 
Measures'' (``Specification of Target TACs''), this final interim rule 
revises several of the FY 2009 target TACs originally proposed for this 
action. Because the GB cod target TAC serves as the basis for 
calculating the GB cod TAC allocated to approved sectors, this final 
rule also revises the FY 2009 sector GB cod TAC allocations. Proposed 
rules specifying the 2009 GB cod TAC allocations for both the GB Cod 
Hook Sector and the GB Cod Fixed Gear Sector were published in the 
Federal Register on February 10, 2009 (74 FR 6564), and February 12, 
2009 (74 FR 7029), respectively. These allocations were based upon an 
available U.S. share of the GB cod TAC of 3,506 mt, and the proposed 
interim rule listed the GB Cod Hook Gear Sector GB cod TAC as 284 mt 
(based upon an 8.09-percent share of the U.S. portion of the TAC), and 
the GB Cod Fixed Gear Sector GB cod TAC as 408 mt (based upon an 11.64-
percent share of the U.S. portion of the TAC). Because this final 
interim rule revises the overall target TAC for GB cod from 3,506 mt to 
4,328 mt, the GB cod allocations to these sectors are increased to 
350.1 mt for the GB Cod Hook Sector and 503.8 mt for the GB Cod Fixed 
Gear Sector.
12. Extension of the Deadline for Gillnet Designation
    The current regulations at Sec.  648.4(c)(2)(iii)(A) require 
vessels fishing with gillnet gear to make an annual designation as 
either a Day or Trip gillnet vessel when the vessel is issued or renews 
a limited access NE multispecies permit. Once a vessel has elected this 
designation, the vessel may not change its declaration for the 
remainder of the fishing year. As further explained in Measure 1 under 
``Approved Commercial Measures,'' this designation dictates the manner 
in which DAS are counted for such vessels. Because these final interim 
measures will affect how DAS are counted during FY 2009, and because 
such measures were not known to the public until after many vessels had 
already selected a gillnet designation for FY 2009, this final interim 
rule allows a vessel owner to change the gillnet designation associated 
with his/her permit through June 12, 2009. This provides additional 
time for the vessel owner to review the final interim measures and 
revise the gillnet designation for his/her permit, if necessary.

Comments and Responses

    Eighty-eight comments were received during the comment period on 
the proposed interim rule and accompanying EA, from 63 individuals, 11 
commercial fishing organizations, 2 state senators, 8 U.S. Senators, 9 
U.S. Congressmen, 2 state resource management agencies (Massachusetts 
Division of Marine Fisheries (DMF) and the Maine Department of Marine 
Resources (DMR)), 2 conservation organizations, 2 municipalities (New 
Bedford, MA, and East Hampton, NY), and the Council.

Legal Authority for Interim Action

    Comment 1: Four members of the commercial fishing industry, two 
organizations representing the commercial fishing industry (Northeast 
Seafood Coalition and Westend Fisherman's Association), an 
environmental organization (The Pew Environmental Group), and seven 
U.S. Senators stated that there is no legal requirement for interim 
measures to reduce fishing effort to the extent that the interim rule 
proposes to do.
    Response: Section 305(c) of the Magnuson-Stevens Act authorizes the 
Secretary to implement interim measures to reduce or address 
overfishing if he/she finds that overfishing exists, as more fully 
explained elsewhere in this preamble. Guidelines to help clarify this 
authority (63 FR 24212; May 1, 1998) allow discretion and flexibility 
with respect to the scope and severity of the action. When proposing 
the interim measures, NMFS considered recent stock status and the need 
for substantial reductions in F to help ensure that overfished stocks 
remain on their Amendment 13 rebuilding trajectories. However, after 
review of public comments, NMFS has modified the management measures 
implemented under this final interim rule from those that were 
proposed, to target stocks in most immediate need of reductions; e.g., 
SNE winter flounder, and northern windowpane flounder; to reduce 
negative impacts on fishermen to the extent practicable in the context 
of this interim rule, without jeopardizing the likelihood of meeting 
rebuilding objectives of overfished multispecies stocks. Because NMFS 
is not implementing the proposed expanded differential DAS accounting 
in the GOM and northern portions of GB, and because this final interim 
rule replaces the SNE Closure Area with differential DAS counting, this 
final interim rule will result in smaller F reductions for several of 
the stocks than the proposed measures would have, and will not provide 
as much assurance that rebuilding goals will be met for overfished 
stocks. However, these final interim measures should not impede 
progress of attaining FMP rebuilding objectives, provided adequate 
adjustments, if necessary, are made by the Council in future years. 
This is due, in part, to the fact that several overfished stocks have 
extended rebuilding periods (GB cod--2026, Atlantic halibut--2058, and 
CC/GOM yellowtail flounder--2023), which allows more time for the 
stocks to respond to management. In addition, the Council has adopted 
draft rebuilding programs in Amendment 16 for stocks recently 
classified as overfished (pollock, witch flounder, GB winter flounder, 
and northern windowpane flounder) that will likely set a rebuilding 
end-date as 2017 for these stocks. The measures implemented by this 
final interim rule do achieve substantial reductions in F for the 
targeted stocks, including a 62-percent reduction for SNE/MA winter 
flounder and a 39-percent reduction for SNE/MA yellowtail flounder.

Goal of Interim Action and Magnitude of Management Measures

    Comment 2: Fifty-seven commenters, including commercial fishermen, 
commercial fishing organizations, municipalities, state fisheries 
organizations, and state senators questioned why such severe interim 
restrictions are necessary. Twenty commenters questioned NMFS's 
justification and compliance with the Magnuson-Stevens Act, 
particularly National Standard (NS) 8. Many characterized the proposed 
interim rule as failing to balance the need to reduce overfishing and 
rebuild stocks with the need to maintain a viable fishery and 
infrastructure. Some claimed that NMFS is ignoring the provisions of 
the Magnuson-Stevens Act that provide flexibility to achieve an 
appropriate balance. Others asked what stocks have collapsed to warrant 
such extreme measures.
    Response: Based upon the best available science (GARM III), NMFS 
believes substantial reductions in F are necessary for stocks in most 
need of protection in order to ensure that rebuilding objectives are 
not jeopardized. When determining final management measures for this 
rule, NMFS considered the requirements of the Magnuson-Stevens Act, 
including the minimization of adverse economic impacts, the status of 
stocks, and the requirements of the FMP. As stated in the proposed 
interim rule, NMFS's goal for this interim action is to implement

[[Page 17041]]

measures to reduce overfishing, while addressing the need to help 
sustain fishing communities, without compromising rebuilding objectives 
and statutory rebuilding timelines. Relying on the additional 
flexibility inherent in implementing an interim rule under section 
305(c) of the Magnuson-Stevens Act, as more fully explained elsewhere 
in this preamble, NMFS balanced the need to reduce overfishing and 
rebuild stocks with the need to minimize adverse impacts on fishing 
industry businesses and sustain fishing communities. However, based on 
public comments that the proposed management measures would create 
severe economic hardship, and further analysis of the impacts of 
several additional alternative combinations of management measures, 
NMFS is not implementing the proposed interim measures of 2:1 
differential DAS counting in the GOM and northern GB area as this 
measure was primarily intended to reduce F on pollock and witch 
flounder. Given that there is no current rebuilding program for 
pollock, witch flounder, or northern windowpane flounder, and that the 
Amendment 16 rebuilding programs likely to be proposed for these stocks 
have a rebuilding timeline of 2017, NMFS believes that there is 
additional time for the Council to ensure that these, and other newly 
overfished stocks, are rebuilt as intended under Amendment 16. Further, 
given concern raised by the public regarding the severe economic 
impacts that would be imposed by the SNE Closure Area, NMFS is not 
implementing that proposed measure, but is instead implementing a 
modified 2:1 differential DAS counting area, with a zero landing limit 
for SNE winter flounder, to discourage effort on this stock. As stated 
in response to Comment 1 above, NMFS believes that, despite these 
revisions, the FMP rebuilding goals are still achievable, although 
additional restrictions may likely be necessary in the future to 
achieve the goals.
    This action includes several measures intended to minimize the 
adverse economic impacts associated with effort reduction measures. 
These include a reduction in the haddock minimum size restriction, 
revisions to the DAS Leasing Program, elimination of the conservation 
tax in the DAS Transfer Program, continuation of the Eastern U.S./
Canada Haddock SAP, modifications to the Regular B DAS Program, and 
expansion of the CA I Hook Gear Haddock SAP. As described in the EA 
associated with this action, these measures should provide additional 
flexibility and fishing opportunity for vessels that would otherwise 
not be available.
    In summary, in response in public comments, NMFS, within the limits 
associated with implementing an interim rule under section 305(c) of 
the Magnuson-Stevens Act, has made several changes from the proposed 
rule to mitigate negative economic impacts and address industry 
concerns regarding disproportionate impacts of particular measures, 
consistent with NS 8. As described in more detail under the description 
of management measures above, the principal changes from the proposed 
rule are as follows: (1) Replacement of the SNE Closure Area with 2:1 
differential counting in this area; (2) expansion in time and area of 
the CA I SAP; (3) modification of the rules regarding monkfish DAS to 
mitigate unintended impacts of the existing GOM Differential DAS Area 
and the Interim SNE Differential DAS Area; and (4) modification of how 
vessels are charged DAS when fishing inside and outside of a 
differential DAS area on the same trip, i.e., vessels will be charged 
DAS based on the area that they are fishing in.
    Comment 3: One commenter asked how NMFS can reconcile the magnitude 
of the impacts of this rule, based on the status of the stocks, with 
its October 2007 determination that there was not a fishery resource 
disaster.
    Response: In 2007, Massachusetts, New Hampshire, and Maine 
requested that NMFS make a determination that there was a fishery 
resource disaster affecting them. NMFS denied those requests because 
the statutory requirements for such a finding were not met. Although 
the most recent stock assessments indicate that many groundfish stocks 
are overfished, several important stocks have recovered, or are close 
to recovery. The fact that substantial reductions in F are still 
necessary to rebuild stocks and eliminate overfishing is not 
inconsistent with the 2007 denial of the requests for a fishery 
resource disaster declaration. NMFS's response to the Commonwealth of 
Massachusetts included the following: ``The National Oceanic and 
Atmospheric Administration's National Marine Fisheries Service (NMFS) 
has carefully analyzed the data regarding the Massachusetts groundfish 
fishery and also the provisions regarding a commercial fishery failure 
due to a fishery resource disaster under Magnuson-Stevens Act sections 
312(a) and 315. Although we understand that there has been economic 
difficulty in the groundfish-dependent communities of Massachusetts and 
we are very sympathetic, we find that your request for a determination 
of a commercial fishery failure due to a fishery resource disaster does 
not meet the requirements for such a finding under Sections 312 or 315 
of the Magnuson-Stevens Act. Our latest research shows encouraging 
increases in most of the groundfish stocks including cod, haddock, and 
Georges Bank yellowtail. Even though fishing revenues show some 
declines, the commercial fishery itself, although diminished, has not 
failed.''

Evaluation of the Council Proposal for FY 2009

    Comment 4: Twenty-one commenters, including eight U.S. Senators and 
nine U.S. Congressmen, supported adoption of the Council's recommended 
interim measures. Some commenters questioned why NMFS disregarded the 
Council's proposal, noting their belief that the Council proposal is 
better for fishermen and the fish, and stating that the Council 
proposal would itself cause economic harm. Many commenters believed 
that the Council's proposal represents a better bridge to Amendment 16. 
Several commenters claimed that input controls such as DAS have failed 
to prevent overfishing and have increased discarding and foregone 
yield, with some supporting the TAC-payback provision of the Council's 
proposal, in particular. Three commenters suggested that NMFS implement 
a requirement for all groundfish vessels to submit daily catch reports 
through VMS as a means to improve reporting and move toward an output 
control management system.
    Response: As explained in the response to Comment 2 above, NMFS's 
goal for the interim action is to reduce F on the groundfish stocks 
while minimizing economic impacts to the extent practicable, without 
jeopardizing rebuilding objectives. NMFS carefully considered the 
Council's recommended alternative, but ultimately rejected it for 
several reasons, the principal reason being that it would not have 
reduced F sufficiently to meet NMFS's goals for 7 of 12 stocks. As part 
of the EA, NMFS analyzed the no action alternative as a proxy for the 
Council's alternative using the closed area model (CAM). The results 
indicated that F reductions achieved by the Council's alternative would 
be insufficient for a number of stocks (7 of the 12 stocks requiring F 
reductions). Subsequent to the publication of the proposed interim 
rule, NMFS analyzed the Council's alternative and the results were 
essentially the same as the results of the analysis of the no action 
alternative.

[[Page 17042]]

After the end of the comment period, NMFS conducted additional analyses 
comparing the Council's proposed interim alternative, NMFS's proposed 
measures, and other alternatives. Based on those analyses, the loss of 
yield over time is greater for the measures recommended by the Council 
than for either the measures originally proposed by NMFS or those 
implemented by this final interim rule. Accordingly, the measures 
implemented by this interim action will preserve more TAC for more 
stocks in future years than those recommended by the Council. This 
aspect is important in the context of measures included in draft 
Amendment 16, as those measures rely heavily upon TACs to control the 
fishery in the form of sector allocations or annual catch limits and 
the associated accountability measures. Finally, deductions of TAC 
overharvests in the subsequent fishing year, as specified in the 
Council's proposal, are outside the possible scope of this interim 
action (or any subsequent interim action during FY 2009), because the 
effectiveness of interim actions is limited to a maximum of 366 days.
    NMFS believes that an interim rule is not the appropriate means to 
transition toward a new management structure, or to implement novel 
management tools; it is intended to address short-term needs to end or 
reduce overfishing while the Council is developing longer-term measures 
for the fishery. NMFS cannot effectively implement new measures (such 
as an expanded VMS reporting requirement or sector management) to 
transition toward a new management system that has not yet been decided 
upon, nor can it build the foundation for a program that has not yet 
been selected by the Council. Although the Council has stated its 
intent to move toward an output-based management system, and NMFS is 
supportive of this goal, the current FMP controls fishing effort 
principally through DAS, in conjunction with trip limits and closures, 
and the Council will need to make transitions to different approaches 
through future amendments to the FMP.

Scientific Basis of Interim Action

    Comment 5: Five commenters expressed concern about the quality of 
the data and underlying science and stock assessments used to develop 
the proposed interim rule. Specific comments related to the level of 
uncertainty due to the ``retrospective patterns'' associated with some 
stock assessments, and the stock size estimate for SNE/MA winter 
flounder.
    Response: The scientific data upon which this interim action is 
based are the most recent stock assessments, referred to as GARM III, 
which were conducted from November 2007 through August 2008. GARM III 
was a regional, scientific peer review process for the purpose of 
providing benchmark assessments for the 19 groundfish stocks managed 
under the FMP. The assessments included extensive peer review from 
independent scientists. Of the 14 groundfish stocks assessed in GARM 
III based on an analytical assessment model, 7 stocks exhibited 
retrospective patterns that were considered severe enough that an 
adjustment to the population numbers and fishing mortality in 2007 was 
deemed necessary before determining current stock status and generating 
stock projections. The largest retrospective patterns were observed in 
GB yellowtail flounder, GOM winter flounder, and SNE/MA winter 
flounder. NMFS agrees that further work on the nature and causes of 
retrospective patterns is required. Notwithstanding the concerns 
regarding retrospective patterns, GARM III represents the best 
available science, and its use is consistent with NS 2. This was 
confirmed in a February 17, 2009 Department of Commerce Inspector 
General's report.

Support for Proposed Measures for Interim Action

    Comment 6: One commenter from an environmental organization (The 
Ocean Conservancy) supported the proposed interim rule and stated that 
it is consistent with the current management regime, comprehensive, and 
simple. The commenter noted that the measures fall short of preventing 
overfishing in some cases, advocated hard TAC backstops for stocks of 
concern to increase accountability, and suggested that the goal should 
be Frebuild for stocks that were newly declared overfished. The 
commenter also recommended that NMFS should take strong action in 2009, 
otherwise the measures necessary to rebuild stocks after allowing 
another year of overfishing will make the procedural and administrative 
changes outlined in draft Amendment 16 much harder to successfully 
implement. One member of the public believed that NMFS should reduce 
fishing effort more than proposed.
    Response: NMFS agrees with the commenter that strong action is 
necessary for 2009, but disagrees that the goal for newly declared 
stocks should be Frebuild and that hard TAC backstops are appropriate 
for an interim action. Although NMFS set a goal of Fmsy in the proposed 
interim action for stocks recently declared overfished (witch flounder, 
GB winter flounder, northern windowpane flounder, and pollock), the 
interim action provisions of the Magnuson-Stevens Act (section 305(c)) 
do not specifically require that an interim action end overfishing, but 
rather only reduce or address overfishing as more fully described 
elsewhere in this preamble. Despite that management measures in this 
final interim rule have been relaxed from what the proposed interim 
rule measures would have implemented, NMFS believes that the FMP 
rebuilding goals are still achievable, although additional restrictions 
in Amendment 16 or other actions will likely be necessary to achieve 
such goals.
    NMFS analyzed a hard-TAC alternative, but rejected the alternative 
because: (1) It is likely that the TACs for at least two stocks (GB cod 
and pollock) would have resulted in fishery closures relatively early 
in each trimester; and (2) the complexity of a hard TAC management 
system and the associated cost and difficulties in its implementation 
to both the fishing industry and NMFS would make it impractical, if not 
impossible, to successfully and effectively implement in the short 
period of an interim action; and it would possibly be inconsistent with 
Magnuson-Stevens Act national standards and required provisions, 
because of disproportionate impacts on the fishing industry that could 
result from such a temporary, short-term action.

Safety Concerns

    Comment 7: Four commenters, including nine U.S. Congressmen, and 
seven U.S. Senators, were concerned that the proposed interim rule did 
not adequately consider safety issues for small and mid-sized vessels. 
Specifically, they believed that the proposed differential DAS area in 
the GOM and GB, and the SNE Closure Area would create an incentive for 
vessels to steam to offshore fishing grounds or farther from their 
ports of departure and therefore be fishing in a less safe manner than 
if they were fishing closer to shore or their home port.
    Response: As explained elsewhere in this preamble, based on public 
comment, this action does not implement the proposed expansion of the 
differential DAS counting in the GOM and GB, or the SNE Closure Area, 
and, therefore, largely addresses any safety issues associated with 
these two measures that the public may have been concerned about. 
Although NMFS is implementing 2:1 counting largely in the same area as 
the proposed SNE Closure Area (referred to in the rule as the ``Interim 
SNE Differential DAS

[[Page 17043]]

Area''), this revision would not pose any additional safety concerns 
beyond those already associated with the status quo GOM Differential 
DAS Area. NMFS agrees that differential DAS areas are among the many 
factors that confront a vessel operator in trying to achieve a 
profitable fishing trip in a safe manner. However, modifications to the 
DAS Leasing and Transfer Programs implemented by this interim action 
may provide additional DAS necessary for vessels to fish within the 
differential DAS areas and remain closer to shore, reducing safety 
concerns associated with measures implemented by this action. Finally, 
because the Interim SNE Differential DAS Area abuts the coastline, 
similar to the status quo GOM Differential DAS Area, vessels that 
declare into this area will be required to burn 2 DAS for every 1 day 
fished, regardless of where they fish on that trip. This is consistent 
with the provisions of the GOM Differential DAS Area and is based upon 
the same rationale offered by the Council when the GOM Differential DAS 
Area was adopted under FW 42.

Mixed-Stock Exception

    Comment 8: Four comments were received, including one from nine 
U.S. Congressmen, that suggested that NMFS should consider the mixed-
stock exception in the NS 1 guidelines to prevent the depleted 
condition of one stock from influencing the management measures 
developed for other stocks, resulting in management measures that are 
overly restrictive and reduce yield.
    Response: NMFS agrees that, under the current FMP, the depleted 
condition of some stocks result in management measures that impact non-
depleted stocks due to the commingled nature of the fishery and the 
management tools used, particularly DAS. However, NMFS disagrees that 
reliance on the mixed-stock exception can provide relief in the current 
situation, due to the number and nature of the particular stocks that 
are driving the management measures, and the constraints and conditions 
on the use of the mixed-stock exception in NS 1. The mixed-stock 
exception provides a very limited exception, with strict criteria, for 
ending overfishing of certain stocks, but not for rebuilding 
requirements and statutory time requirements. In fact, the new NS 1 
Guidelines do not allow the mixed-stock exception to be used for 
overfished stocks. The Magnuson-Stevens Act mandates rebuilding of 
overfished stocks in most cases within 10 years. FY 2009 marks the 
midpoint of most of the rebuilding plans implemented under Amendment 
13. Data from GARM III indicate that many of the 13 overfished stocks 
are substantially below biomass levels that can produce MSY such that 
substantial reductions in F are necessary to rebuild these stocks by 
the end of the rebuilding periods (i.e., by 2014 for most stocks). 
Accordingly, these stocks are not eligible for the mixed-stock 
exception and, even if they were, continuing to subject such stocks to 
high levels of fishing effort would decrease the probability that these 
stocks will rebuild within the mandated timelines without substantial F 
reductions within the next few years.
    Based on GARM III, the only stocks that are subject to overfishing, 
and not overfished, are GOM cod and the southern stock of windowpane 
flounder. Evaluation of whether these stocks would meet the threshold 
criterion for allowing overfishing does not make sense in this 
circumstance, because both stocks require relatively small F reductions 
(21 percent), compared with most of the other stocks. The current 
status of GOM cod and southern windowpane flounder is not causing a 
situation where management measures designed for these stocks are 
resulting in excessively restrictive measures on other stocks. 
Nevertheless, this interim rule will allow overfishing to continue for 
the duration of this interim action on GB cod, witch flounder, pollock, 
and northern windowpane flounder under authority found in section 
305(c) of the Magnuson-Stevens Act, as is more fully explained 
elsewhere in this preamble. Thus, by allowing overfishing on these 
stocks, this final interim rule results in the same type of mitigation 
of negative impacts as would result if the mixed-stock exception were 
evoked.

SNE Closure Area

    Comment 9: Twenty-eight commenters supported the proposed SNE 
Closure Area, including three members of the public and four commercial 
fishermen. Although several commenters believed the proposed closure 
was a proactive measure, most stated that such a restriction was long 
overdue, and necessary to rebuild the SNE/MA stock of winter flounder. 
One commenter believed that the area between Nantucket and CA I is 
particularly important to protect. Commenters noted the importance of 
winter flounder to the ecosystem and observed that the SNE winter 
flounder stock used to support a vibrant fishery and was a source of 
employment for fishing communities. One commenter noted that a closure 
area would provide the best chance of recovery for the stock. Another 
commenter strongly supported the provision that would allow hook 
vessels to fish in the closure area due to the selectivity of the gear, 
and noted that the closure area does not exclude fishermen, but only 
certain gear types. Five commenters who did not support the proposed 
SNE Closure Area suggested restrictions on the number or type of 
gillnets fished and the required use of specialized trawl gears in 
order to reduce catch of winter flounder. Some commenters expressed 
concerns such as an effort shift to targeting lobsters, and others 
acknowledged the economic hardship such a closure would cause. 
Suggestions for modification of the closure area included reducing the 
overall size and/or allowing more access, such as allowing groundfish 
vessels to use roundfish gillnets or tended roundfish gillnets 
(provided that winter flounder are not retained).
    Response: NMFS agrees that the proposed SNE Closure Area would have 
afforded protection for winter flounder and served as an important 
factor in rebuilding the SNE/MA stock of winter flounder. Although the 
use of specialized gears may be effective in reducing the catch of 
flatfish, including winter flounder, a requirement for the use of 
specialized gear for an interim action (or limited duration) is not 
practical due to the cost of purchasing such gear and possible lack of 
availability. Further, this final action would implement a differential 
DAS area instead of a closure, and does not exclude gillnet or trawl 
gear. However, as explained in the response to Comment 10, below, NMFS 
is instead implementing an expanded differential DAS area in SNE to 
mitigate the economic impacts of the interim action without 
unnecessarily compromising efforts to rebuild overfished stocks. All 
commercial and recreational vessels fishing in the Interim SNE 
Differential DAS Area will be subject to a zero landing limit on SNE 
winter flounder to strictly control F for this stock.
    Comment 10: Thirty-two commenters, including commercial fishing 
organizations, state fishery management organizations, and elected 
officials, did not support the proposed SNE Closure Area. The principal 
concern of 14 commenters was the anticipated economic impacts. Three 
commenters noted that the closure area is important fishing grounds for 
16 vessels, and predicted a loss of 30 percent of income for fishermen, 
with a severe impact on the ports of Point Pleasant and Belford, NJ, 
where the majority of groundfish are landed in NJ. Several commenters 
noted that winter flounder is the only available groundfish off NJ, and 
stated that it is an important component of the

[[Page 17044]]

mix of species targeted. Their concern was heightened by the potential 
for cumulative negative impacts of the recent regulatory changes in 
other fisheries such as the Atlantic scallop fishery on such vessels. 
Two commenters expressed concern regarding the potential negative 
economic impact on the port of New Bedford, due to its reliance on 
winter flounder. Two commenters noted that there may be 
disproportionate impact on small, groundfish-dependent vessels with 
home ports near the proposed SNE Closure Area that are too small, or 
lack adequate manpower to transit long distances and fish in areas 
outside of the closure.
    Response: Based on its economic analysis, NMFS agrees that 
groundfish-dependent vessels would be more severely impacted by the 
proposed interim measures than vessels that rely on groundfish for a 
lower percentage of their income, and that vessels that would have 
fished for groundfish in the area of the proposed SNE Closure Area 
would be substantially impacted if they fish with gillnets or trawl 
gear. For those vessels that would have been most impacted by the 
proposed interim rule, medium and large boats would be slightly more 
impacted than small vessels; but, in general, the analysis indicated 
that the impacts among small, medium, and large vessels would be 
similar. In order to mitigate impacts on vessels that fish in this 
geographic area, but still provide a substantial reduction in fishing 
mortality for SNE/MA winter flounder and other stocks in this area 
consistent with rebuilding objectives, NMFS is implementing 2:1 
differential DAS counting instead of the proposed closure. In addition 
to differential DAS counting, all vessels will be prohibited from 
retaining winter flounder throughout the SNE winter flounder stock 
area. Vessels fishing with hook gear will not be charged DAS at the 
differential rate due to the low catch rates of winter flounder by hook 
gear.
    Although this change from the proposed rule will not allow vessels 
to target or land winter flounder in this area, there is the potential 
for vessels to land other species, such as haddock, pollock, and cod. 
This would allow for at least some groundfish landings from all gears 
fishing in this area and reduce the economic impacts of the interim 
measures compared to those anticipated from the proposed measures. In 
addition, this change is likely to reduce the potential for effort 
shifts into other geographic areas or other fisheries by maintaining a 
smaller directed fishery within SNE. The estimated reduction in F 
resulting from this change will be closer to the objectives of this 
action and reduce the amount of lost yield for several stocks, 
particularly GB haddock, SNE/MA yellowtail flounder, American plaice, 
and white hake.
    Comment 11: Seven commenters, including DMR, the Monkfish Defense 
Fund, and the Garden State Seafood Association, expressed concern about 
potential harmful impacts that the proposed SNE Closure Area would have 
on vessels with limited access Monkfish Category C and D permits (those 
with both a limited access monkfish and a NE multispecies permit). The 
commenters stated that there is a robust monkfish fishery in the area, 
and asserted that the large mesh (10-12 inch (25-30 cm, respectively)) 
gear used does not catch winter flounder or yellowtail flounder in 
meaningful quantities. Further, some asserted that the impact on such 
vessels would be unfair because Category A and B vessels would still be 
allowed to fish in the area. One commenter was concerned about the 
proposed exemptions, which would allow other non-groundfish fisheries 
to occur in the proposed closure area.
    Response: NMFS agrees that, as proposed, the SNE Closure Area would 
have negatively impacted vessels with a limited access Monkfish 
Category C or D permit, because, under current groundfish rules, such 
vessels may not fish in the SNE Monkfish and Skate Gillnet Exemption 
Area (which overlapped the proposed SNE Closure Area) unless they are 
fishing under a ``monkfish only'' DAS. Because this final rule does not 
implement the proposed SNE Closure Area, NMFS believes that negative 
impact on monkfish Category C and D vessels is greatly reduced. To 
avoid further negative impact on the monkfish fishery that could occur 
because Monkfish Category C and D vessels will use groundfish DAS at a 
higher rate in the differential DAS counting areas (both in the GOM and 
SNE), this final rule allows vessels to fish their additional monkfish 
DAS as ``monkfish only'' DAS. As explained in detail in Measure 9 under 
``Approved Commercial Measures'' of the preamble to this rule 
(``Mitigating Measures''), Monkfish Category C and D vessels fishing in 
either the GOM Differential DAS Area or the Interim SNE Differential 
DAS Area will accrue a monkfish-only DAS at the rate of one monkfish 
DAS for every two groundfish DAS used in the differential areas.
    The regulatory exemptions enable non-groundfish fisheries to 
continue to fish in the proposed closure area to continue, due to the 
nature of the exemptions and the restrictions associated with the 
exemptions. Exempted fisheries are required to maintain an incidental 
catch of regulated species that is less than or equal to 5 percent of 
the weight of fish on board and must not jeopardize groundfish fishing 
mortality objectives. Further, the exemptions and exempted fisheries 
have strict limitations that minimize the potential for adversely 
impacting groundfish, including gear, area, and seasonal restrictions 
designed to decrease interaction with groundfish stocks. Because the 
closure area has been revised to a differential DAS counting area, the 
concern about allowing exempted fishery participants into the SNE 
Closure Area while groundfish vessels fishing with certain gears are 
excluded should be addressed.
    Comment 12: Five commenters were concerned that the proposed SNE 
Differential DAS Area would be ineffective at achieving its objective 
of reducing fishing mortality on winter flounder, and instead suggested 
DAS or trip limits as a better means of controlling fishing effort. 
Some commenters believed that overfishing is not responsible for the 
depleted status of winter flounder, but instead attributed the low 
stock size to habitat loss; or predation by striped bass, spiny 
dogfish, or gray seals.
    Response: NMFS acknowledges that the proposed SNE Closure Area 
would not have completely eliminated F on winter flounder, because the 
potential for unavoidable bycatch of winter flounder from other 
fisheries, although limited, would result in some level of fishing 
mortality on this stock. Both DAS and trip limits have advantages and 
disadvantages as management tools. DAS restrictions such as 
differential DAS counting will allow more fishing opportunity in the 
area than a closure, but, depending upon a vessel's DAS allocation and 
its ability to lease DAS, such measures may not cause a particular 
vessel to reduce its fishing effort in the geographic area proposed for 
the 2:1 DAS counting. Overall, however, such measures do reduce fishing 
effort and are effective at reducing F on stocks predominantly caught 
in a particular area. Trip limits can be effective at limiting a 
vessel's catch of a particular species, and may influence fishing 
behavior, but can cause regulatory discarding or high-grading. As 
explained in the response to Comment 10, NMFS modified the measures of 
this interim rule from those originally proposed. This final rule 
implements a differential DAS counting area in SNE in order to reduce F 
on SNE/MA winter flounder and other stocks in the area that also 
require

[[Page 17045]]

reductions in F. In addition, this rule implements a zero retention 
limit for SNE/MA winter flounder to further reduce F on this stock. 
Thus, in conjunction with the overall DAS reduction, NMFS has relied 
upon DAS and trip limits to reduce F on SNE winter flounder to the 
extent possible, short of the proposed closure area. Although this 
measure does not reduce fishing mortality on SNE/MA winter flounder to 
a level necessary for rebuilding (which is an F of zero), it does end 
overfishing on this stock. Further restrictions may be needed in 
Amendment 16 to reduce F in this stock to a level consistent with 
rebuilding objectives.
    With respect to whether there are other factors responsible for the 
depleted status of the stock, the major non-fishing impact that has 
been identified and documented is a correlation between warmer winter/
early spring water temperatures and increased predation on winter 
flounder larvae by Crangon shrimp and some other planktonic predators. 
These factors may have negatively impacted recruitment levels since the 
early 1990s. Notwithstanding environmental factors, fishing mortality 
has been, and remains at a level that is not sustainable, and not 
compatible with stock rebuilding. Thus, further reductions in fishing 
effort are necessary to rebuild this stock, as required by the 
Magnuson-Stevens Act.
    Interim Differential DAS Area
    Comment 13: Five comments, including one from a commercial fishery 
organization (Associated Fisheries of Maine), suggested that the DAS 
reduction proposed by the interim rule, including that from the Interim 
Differential DAS Area, is too drastic and that the Interim Differential 
DAS Area is larger than necessary to achieve the target fishing 
mortality reductions, resulting in loss of optimum yield (OY) in the 
fishery. One respondent indicated that, because the proposed Interim 
Differential DAS Area is so large, there would be no incentive for 
vessels to fish outside of the area, resulting in increased F on 
species within the area such as GOM cod.
    Response: Because many of the stocks managed by the FMP co-occur, 
and much of the fishing gear used to harvest groundfish stocks is 
limited in its ability to selectively target particular stocks, it is 
very difficult to design management measures that precisely achieve 
different conservation objectives for every stock. Management measures 
designed to achieve a particular F reduction for one stock will likely 
achieve larger than necessary reductions in F for other stocks. DAS, 
one of the principal tools of the FMP controlling fishing effort in the 
fishery, is a difficult and often blunt tool with which to target F 
reductions on specific stocks.
    As explained elsewhere in this preamble, including in the response 
to Comments 2 and 10, NMFS is not implementing the proposed interim 
measures of an expanded differential DAS area in the GOM and northern 
portions of GB based upon public comment and additional analysis. 
Although the revised measures implemented by this final interim rule do 
not achieve the target F reductions for all stocks, these measures 
achieve substantial F reductions for all stocks, particularly those 
that are severely overfished, including SNE/MA winter flounder and SNE/
MA yellowtail flounder. In addition, according to the analysis 
conducted to support this action, the measures implemented by this 
final interim rule are expected to result in more yield of all stocks 
than the measures included in the proposed interim rule. Finally, this 
analysis suggests that measures implemented by this final interim rule 
are not likely to result in additional shifts in effort and will not 
increase F on stocks such as GOM cod.
    Comment 14: Ten comments, including those from two commercial 
fishery organizations (Northeast Seafood Coalition and Associated 
Fisheries of Maine), suggested that fishing effort will shift inshore 
because the size of the proposed Interim Differential DAS Area, which 
includes all of the GOM and northern portions of GB, limits the areas 
not subject to differential DAS counting. Four commenters indicated 
that this would increase fishing pressure on GOM cod, CC/GOM yellowtail 
flounder, and winter flounder stocks, as well as discards of other 
stocks, possibly resulting in more onerous regulations for FY 2010. One 
individual recommended that no changes should be made to existing 
differential DAS areas and believed that shifting effort inshore as 
part of the interim action would result in reduced yield of offshore 
stocks.
    Response: As noted above in the discussion of Comment 13, this 
final interim rule does not implement the proposed Interim Differential 
DAS Area, but rather maintains the existing GOM Differential DAS Area 
and an expanded differential DAS area in SNE. Analysis of these 
measures utilized the CAM, which estimates shifts in fishing effort to 
maximize vessel profit in response to management measures. This 
analysis indicates that the measures implemented by this final interim 
rule would not increase F on inshore stocks, but would continue to 
decrease F on GOM cod, CC/GOM yellowtail flounder, and GOM winter 
flounder. By maintaining the existing GOM Differential DAS Area closer 
to shore, yield of offshore stocks will not likely be reduced by this 
interim action.
    NMFS acknowledges that more onerous restrictions may be necessary 
in FY 2010 and beyond to ensure that stocks rebuild within established 
rebuilding timeframes. However, even though the revised measures 
implemented by this final interim rule are less restrictive than those 
originally proposed and may not achieve Frebuild or Fmsy for all 
stocks, such measures continue to reduce F on all stocks and would help 
continue to rebuild overfished stocks.
    Comment 15: One individual recommended that the interim action 
should be revised to only charge DAS at a rate of 2:1 for the time 
spent within the Interim Differential DAS Area, suggesting that VMS has 
the capacity to support such a measure, as reflected in the measures 
for the SNE Differential DAS Area implemented under FW 42.
    Response: NMFS acknowledges that VMS has the capacity to identify 
the time a vessel spends in particular areas and could implement the 
recommendations made by the commenter. However, NMFS is concerned that 
failing to charge DAS at a rate of 2:1 for the entire trip, regardless 
of area fished, would undermine the effectiveness of this measure by 
allowing vessels to fish for short durations within the differential 
DAS areas on their return to port and, thereby, minimize the resulting 
DAS charge. This was the rationale provided in the Council's 
recommendation on how to count DAS in the GOM Differential DAS Area 
implemented under FW 42. As a result, this final interim rule does not 
change the manner in which the differential DAS counting rate is 
applied in the GOM, but adopts the same approach for the Interim SNE 
Differential DAS Area based upon the same rationale.
    Comment 16: Three individuals, including one commercial fishery 
organization (Associated Fisheries of Maine), recommended that, in lieu 
of differential DAS counting in the GOM and northern portions of GB, 
the F objectives of the interim action would be better achieved by 
implementing trip limits on particular stocks, including witch flounder 
and pollock, and reducing the trip limit for GB cod. In addition, the 
representative from the DMR recommended implementing zero possession 
limits for SNE/MA winter

[[Page 17046]]

flounder, ocean pout, and both stocks of windowpane flounder.
    Response: NMFS did not analyze an alternative that relies solely on 
trip limits instead of differential DAS counting in the GOM because it 
is unlikely that reliance upon trip limits alone would achieve the 
stated objectives for the stocks in the GOM. The Plan Development Team 
analyzed the daily trip limits that would be necessary to achieve the 
Amendment 16 rebuilding objectives for each stock. However, that 
analysis also incorporated a 24-hour minimum DAS charge in order to 
achieve the conservation objectives for each stock. Reliance upon a 
combination of measures, including DAS as the principal effort 
reduction measure, is necessary to achieve the F reductions required to 
rebuild overfished stocks as much as practicable in this interim 
action. Trip limits frequently result in regulatory discarding and must 
be balanced with other measures to minimize unnecessary bycatch, as 
mandated by the Magnuson-Stevens Act. This interim action implements a 
suite of measures, including both differential DAS counting and trip 
limits to reduce F and continue to rebuild overfished stocks.
    One of the objectives of this interim action is to implement 
measures that are consistent, to the maximum extent practicable, with 
measures being considered in the Council's development of Amendment 16, 
the action that will follow this interim action. Mirroring the 
Amendment 16 measures will reduce uncertainty and impacts associated 
with transitioning from interim measures to the long-term management 
measures under Amendment 16. Draft effort-control measures currently 
included in Amendment 16 for non-sector vessels incorporate 
differential DAS counting in four large areas encompassing an area 
larger than the Interim Differential DAS Area and the SNE Closure Area 
originally proposed for this interim action. Although the draft 
Amendment 16 measures do not include a trip limit for witch flounder, 
this final interim rule implements a trip limit of 1,000 lb (453.6 kg) 
per DAS, up to 5,000 lb (2,268 kg) per trip of witch flounder to 
further reduce F on this stock based upon recommendations from the 
public and the Council. In addition, both draft Amendment 16 measures 
and this interim action include zero retention limits for SNE/MA winter 
flounder and northern windowpane flounder. This interim action also 
includes a zero possession limit for ocean pout. For southern 
windowpane flounder, the GOM Differential DAS Area, in conjunction with 
the Interim SNE Differential DAS Area, is sufficient to achieve the 
necessary F reductions for this stock and a zero retention limit for 
this stock is unnecessary.
    Comment 17: Two individuals, including one commercial fishery 
organization (Associated Fisheries of Maine) suggested that 
differential DAS counting is not needed in the Eastern U.S./Canada Area 
due to the existence of hard TAC management in the area.
    Response: NMFS agrees that differential DAS counting is not 
necessary in the Eastern U.S./Canada Area. As noted above, this final 
interim rule does not implement the Interim Differential DAS Area, as 
proposed, and, when replacing the SNE Closure Area with 2:1 
differential DAS counting, removed differential DAS counting from that 
area of the Interim SNE Differential DAS Area that overlapped with the 
U.S./Canada Management Area.
    Comment 18: One commercial fisherman noted an error in the 
description of the economic impacts of the proposed measures in the 
preamble of the proposed interim rule. This commenter indicated that, 
for vessels fishing exclusively within the GOM, an 18-percent reduction 
in DAS combined with differential DAS counting at a rate of 2:1 would 
result in a 59-percent reduction in available DAS, not 36 percent, as 
stated in the preamble of the proposed interim rule.
    Response: NMFS acknowledges this error in the preamble of the 
proposed rule, but notes that the impacts were correctly reported in 
the EA supporting this action. The Final Regulatory Flexibility 
Analysis developed for this action and summarized in this preamble 
correctly describes the revised impacts of this action.

CA I Hook Gear Haddock SAP

    Comment 19: Eighteen commenters supported expanding the CA I Hook 
Gear Haddock SAP, as requested by the Council. Supporters noted that an 
expansion of the SAP would be an important means of mitigating the 
negative impacts of the interim action and enable more access to the 
healthy stock of GB haddock, while not undermining the status of GB 
cod. Some commenters noted the existence of pertinent data supporting 
the contention that the expanded SAP would be consistent with the FMP, 
and wondered whether an oversight by NMFS had resulted in its 
conclusions stated in the proposed rule. One commenter estimated that 
the economic benefits of the expanded SAP would be tens of millions of 
dollars, and another noted that it offered mitigation with very little 
associated risk. One commenter noted that the SAP benefits vessels in 
the 40- to 50-ft (18-22-m) range, but not smaller vessels, due to the 
distance of the SAP from shore. Lastly, one commenter was confused by 
the calculation of the haddock TAC.
    Response: Pertinent data that support expanding the CA I Hook Gear 
Haddock SAP as recommended were not available to NMFS prior to the 
publication of the proposed rule, but were brought to the attention of 
NMFS during the public comment period by the Cape Cod Commercial Hook 
Fishermen's Association. This information includes the results of 
research in CA I that has been reviewed by the Council's Research 
Steering Committee (RSC) and supported in its May 30, 2007, report. 
Although the RSC cautioned against the broad application of the results 
of this research outside of the season and areas tested, a review of 
the relevant research, including a review by the DMF, indicated that 
catch rates of haddock with hook gear using a range of baits was 
significantly higher than cod, and that the catch rates of species in 
the proposed expanded area are not higher than in the current SAP. 
Based on this information, NMFS is implementing revisions to the CA I 
Hook Gear Haddock SAP, including the expansion of both the season and 
the SAP area in this final interim rule. NMFS is also prohibiting the 
use of squid as bait, based upon recent research indicating that squid 
caught higher amounts of cod than any other bait, but is soliciting 
further comments on this prohibition. The expansion of this SAP will 
help mitigate some of the negative economic impacts of this action on 
vessels fishing with hook gear. The elimination of the rules separating 
sector and common-pool vessels into separate seasons will also provide 
additional flexibility for all participants. Finally, the calculation 
of the haddock TAC for this SAP is described in Measure 6 under 
``Approved Commercial Measures'' of the preamble of this final interim 
rule. However, further explanation about the derivation of the formula 
used to calculate the haddock TAC for this SAP is available in the EA 
supporting FW 42 to the FMP.
    Comment 20: One commercial fisherman requested that, because of the 
uncertainty associated with the final interim measures and when such 
measures would be made public, the final interim rule should allow 
gillnet vessels the opportunity to change the gillnet designation 
associated with their permit (i.e., as either a Day or Trip gillnet 
vessel) after the permit has been

[[Page 17047]]

issued, citing a similar allowance in a 2002 interim final rule.
    Response: NMFS agrees with the commenter. Since gillnet vessel 
owners may have renewed their groundfish permits and selected a 
particular gillnet designation for FY 2009 without knowledge of the 
final interim measures, and because this designation is effective for 
the remainder of the fishing year and defines how gillnet vessels can 
operate, NMFS will allow a vessel owner that has already elected a 
gillnet designation prior to May 1, 2009, to change the gillnet 
designation associated with his/her permit through June 12, 2009. This 
will provide additional time for the vessel owner to review the final 
interim measures and revise the gillnet designation for his/her permit, 
if necessary.
    Comment 21: Two commenters did not support the termination of the 
SNE Winter Flounder SAP because they asserted that the SAP works to 
reduce discarding in the summer flounder fishery in the spring and 
fall. Further, they suggested a requirement that vessels fishing in the 
SAP use mesh size consistent with the FMP.
    Response: The SNE/MA Winter Flounder SAP currently allows a limited 
access NE multispecies vessel fishing for summer flounder west of 
72[deg] 30' W. long. to retain up to 200 lb (91 kg) of winter flounder 
while not under a NE multispecies DAS, provided the vessel complies 
with various restrictions. Due to the severely depleted status of SNE/
MA winter flounder, and the goal of reducing F to as close to zero as 
practicable, elimination of this SAP is justified. Although the SAP can 
be effective at reducing discarding, the SAP may also enable limited 
targeting of winter flounder. Vessels are more likely to modify their 
fishing practices and attempt to avoid encountering winter flounder if 
winter flounder possession is not allowed.
    Comment 22: One commenter stated that NMFS should prepare an 
Environmental Impact Statement (EIS) in order to analyze the potential 
impacts of the alternatives considered, instead of an EA.
    Response: NMFS believes that its analysis of the impacts of the 
alternatives complies with the National Environmental Policy Act 
(NEPA). NEPA provides a mechanism for identifying and evaluating 
environmental impacts associated with Federal actions, and for 
considering a reasonable range of alternatives to avoid or minimize 
adverse environmental impacts. As fully explained in the EA, NMFS 
concluded that the preparation of an EIS for this action is not 
necessary.
    Comment 23: One commercial fisherman supported the delayed opening 
of the Eastern U.S./Canada Area until August 1.
    Response: NMFS agrees that it is prudent and consistent with 
Council intent to delay the opening of the Eastern U.S./Canada Area for 
trawl gear until August 1, 2009. As fully explained in the proposed 
interim rule, a delayed opening of the Eastern U.S./Canada Area is 
intended to maximize the harvest of cod and other species from the area 
by reducing the catch rate of cod, and avoiding early closure of the 
area.
    Comment 24: Three comments were received, including one from the GB 
Cod Fixed Gear Sector, one from the GB Cod Hook Sector, and one from a 
commercial fishery organization (Cape Cod Commercial Hook Fisherman's 
Association), requesting that the interim action include a provision 
that would allow the GB Cod Hook Sector to transfer or lease GB cod 
quota to the GB Cod Fixed Gear Sector. Respondents cited the 
substantially reduced FY 2009 target TAC for GB cod and the likelihood 
that the GB Cod Fixed Gear will catch its allocation of that stock and 
be shut down prior to the end of FY 2009.
    Response: Under the current regulations, existing sectors are 
allocated a portion of the yearly GB cod TAC based upon the landings 
histories of participating vessels. A sector can only change its share 
of the GB cod TAC by adding or removing participating vessels from its 
roster. The draft measures in Amendment 16 include provisions that 
would allow the transfer of sector allocations of particular stocks, 
but these provisions have not been selected as a preferred alternative 
or formally adopted by the Council. As indicated in the response to 
Comment 4, NMFS believes that an interim rule is not the appropriate 
means to implement novel management tools such as sector quota trading; 
it is intended to address short-term needs to end or reduce overfishing 
while the Council is developing longer-term measures for the fishery. 
Moreover, as detailed above in Measure 12 under ``Approved Commercial 
Measures'' of this preamble, because this final interim rule revises 
the 2009 GB cod target TAC to reflect estimated F rather than Fmsy, the 
GB cod TAC allocations to both sectors will increase by 66.1 mt for the 
GB Cod Hook Sector and by 95.8 mt for the GB Cod Fixed Gear Sector. As 
a result, this revised measure should help address the concerns 
identified by the commenters.

DAS Leasing

    Comment 25: One commercial fisherman and one representative of the 
GB Cod Fixed Gear Sector opposed the removal of the DAS leasing cap, 
indicating that it would activate latent effort and undermine the 
intent of the interim action to reduce overfishing. In addition, the 
respondents objected to the apparent contradiction between drastically 
cutting DAS through allocation reductions and differential DAS 
counting, but increasing the access to DAS by allowing vessels to lease 
an unlimited number of DAS from other vessels.
    Response: NMFS disagrees that the removal of the DAS leasing cap 
conflicts with the objectives of the interim action. The objectives of 
this interim action include ending overfishing and rebuilding 
overfished stocks. However, because effort reductions necessary to 
achieve the conservation objectives of this action impose substantial 
economic impacts on the groundfish fishery, another objective of this 
interim action is to mitigate the economic impacts of effort controls 
as much as practicable. Analysis supporting this action indicates that 
some vessels, particularly those with low DAS allocations and high 
expenses, will require additional DAS to remain economically viable. 
Because nearly 15 percent of vessels participating in the DAS Leasing 
Program in recent years were limited by the DAS leasing cap, 
eliminating this cap through the interim action would enable groundfish 
vessels greater opportunity to obtain additional DAS and remain 
economically viable. In conjunction with DAS reductions and 
differential DAS counting, the measures implemented by this interim 
action would not increase F on overfished stocks and would achieve both 
the conservation and mitigation objectives of this action.
    Comment 26: Representatives of both the GB Cod Hook and Fixed Gear 
Sectors and one commercial fishery organization (Cape Cod Commercial 
Hook Fisherman's Association) supported changes to the DAS Leasing 
Program to allow sector vessels to lease DAS to and from non-sector 
vessels, citing the limited number of DAS available to sector vessels 
and the need to continue to acquire more DAS to operate under the DAS 
system until sectors could be allocated quota for all groundfish stocks 
under Amendment 16.
    Response: NMFS agrees. Currently, sector effort is managed by a 
hard TAC on GB cod and by DAS for all other stocks. Accordingly, 
sectors are

[[Page 17048]]

impacted by DAS restrictions nearly as much as common pool vessels. As 
noted in the response to Comment 25, analysis supporting this interim 
action indicates that some vessels will need to acquire additional DAS 
to remain economically viable. Because the DAS Leasing Program already 
imposes size restrictions on which vessels can lease to and from one 
another, continuing to prohibit vessels participating in sectors from 
leasing to non-sector vessels limits the pool of DAS available for 
leasing, especially considering the fact that sectors are only 
restricted by hard TACs for one stock at this time. Therefore, in order 
to increase flexibility and efficiency in the DAS market and provide 
greater access to available DAS, this interim action allows groundfish 
DAS vessels to lease DAS to and from any other groundfish DAS vessel.
    Comment 27: One commercial fishery organization (West End 
Fisherman's Association) recommended the interim action implement 
measures in the recreational fishery. One party/charter operator 
indicated that party/charter vessels fishing on multiple day trips will 
benefit from being able to take advantage of double bag limits for 
trips over 15 hours, but suggested that it was not supported by any 
analysis. This commenter also highlighted that previous efforts to 
impose such a bag limit on party/charter vessels was not included 
because it would have resulted in severe economic impacts to such 
operations and noted that similar measures are currently not being 
considered by the Council under Amendment 16. The party/charter 
operator further indicated that the decrease in size limit for haddock 
will not help party/charter vessels operating on GB, as most haddock 
are found in closed areas inaccessible to recreational vessels.
    Response: The measures implemented by this interim action include 
restrictions on the recreational fishery, namely a daily GB cod bag 
limit for party/charter vessels and, for both private recreational 
vessels and party/charter vessels, extension of the closed season for 
GOM cod and a possession prohibition for SNE/MA winter flounder. NMFS 
disagrees that the GB cod bag limit for party/charter vessels is not 
supported by any analysis. In fact, the biological, economic, and 
social analyses supporting this provision are detailed in Sections 
17.1, 17.2, and 17.3 of the EA supporting this action, respectively. 
The respondent is correct that the measures proposed under Amendment 16 
may not include a similar provision, but that does not mean that the 
measures included in this interim action are unnecessary. In fact, such 
measures are necessary to ensure a similar reduction in F on GB cod 
across both the commercial and recreational fisheries, consistent with 
the objectives of this action. Finally, despite the fact that charter/
party vessels cannot access closed areas on GB, the reduced haddock 
size limit is expected to increase opportunities for recreational 
vessels to retain haddock in all areas open to such vessels. A similar 
size reduction for GOM haddock is proposed under Amendment 16 for 
consideration at public hearings.
    Comment 28: One commenter stated that the proposed GB cod TAC was 
too low, and noted the economic impacts of a lower TAC.
    Response: Typically, the size of the GB cod target TAC is set based 
upon a projection of the catch that will be associated with a 
particular F and stock size for a given year. As noted in Measure 3 
under ``Approved Commercial Measures'' of this preamble, this final 
interim rule has changed the manner in which target TACs were 
calculated from that in the proposed rule. In the case of the GB cod 
target TAC for FY 2009, this target TAC is based upon the F expected to 
result from measures implemented by this action and the GARM III 
estimation of stock size for 2009 and is specified as 5,501 mt. 
Although this is an increase to the TAC specified in the proposed rule, 
it is a decrease in the size of the TAC relative to the past TACs. This 
is due to the reductions in F estimated to be achieved by measures 
implemented by this final interim rule. The estimated 2009 F is lower 
than the objective set during the first 5 years of the rebuilding 
period. Although the stock size is increasing, the relatively low 
estimated 2009 F results in a lower target TAC. The proposed rule 
incorrectly stated that the FY 2009 GB cod TAC would be 3,506 mt, 
because the Canadian TAC of 1,173 mt had been subtracted. The FMP 
precedent for specifying the GB cod target TAC is to specify the TAC 
that corresponds to the whole stock, including the Canadian portion of 
the TAC, resulting in a total GB cod target TAC of 5,501 mt (4,328 mt 
available to U.S. vessels, plus 1,173 mt available to Canadian vessels) 
for FY 2009.
    Comment 29: Three commenters believed that the economic analysis 
underestimated the economic impacts, and noted specific concerns 
regarding the analysis of impacts on the states of New York and Maine. 
One commenter referenced a break-even analysis that NMFS had prepared, 
and noted that many vessels will not be able to break even. One 
commenter stated that the revenue analysis is flawed, and one commenter 
noted that a 31-percent reduction in revenue is enough to destroy most 
small businesses.
    Response: NMFS believes that the economic analysis provides 
sufficient information for decision makers to compare the potential 
economic impacts among alternatives in order to select an alternative 
that best complies with the Magnuson-Stevens Act. The aggregate 
economic impacts of the alternatives are included in the EA, including 
estimates of revenue reductions, by state, for each alternative. For 
each alternative, the estimated changes in groundfish trip revenue and 
total trip revenue are provided, and expressed as a percent change in 
revenue and the estimated revenue in dollars by state. As noted above, 
this final interim rule implements measures that are changed from those 
in the proposed rule. Therefore, the estimated economic impacts 
reported for the preferred alternative in the EA prepared for this 
action and summarized in this preamble reflect impacts associated with 
revised measures and will not be consistent with the impacts cited by 
the commenters. For example, the original analysis indicated that, for 
Maine groundfish vessels, the average total revenue would decline by 34 
percent and the estimated total revenue would be $12,277,101. However, 
the updated economic analysis based upon revised measures indicates 
that the impacts to Maine would be a 12.2-percent reduction in total 
revenue, and the revised estimate of total revenue would be 
$16,419,523. This revised analysis indicates that, for New York, 
groundfish vessels would see a decline in average total revenue of 
about 4.2 percent (6 percent was estimated in the proposed rule), and 
the estimated total revenue would be $13,710,083 ($13,430,633 was 
estimated in the proposed rule) under the measures implemented by this 
final interim rule. Although the estimates of percentage reductions in 
the EA represent the best estimation of the relative amount of revenue 
reduction anticipated, the estimated revenue in dollars, by state, that 
would result from each alternative is an underestimation, because the 
analysis used only a subset of the total fishery data due to missing 
information.
    Comparisons of past economic analyses of FMP management measures 
with the realized economic impacts have shown that the CAM tends to 
overestimate the economic impacts of management measures. NMFS 
acknowledges that an analysis of the short-term impacts on the regional 
economy was not conducted (input/

[[Page 17049]]

output model analysis). An input/output analysis provides an estimation 
of how changes in the economic activity of a particular industry would 
affect other industries from which it purchases and to which it sells 
goods and services. Thus, in addition to reductions in harvesting 
revenues, this analysis captures losses associated with the commercial 
fishing industry buying fewer inputs and the upstream losses that 
result from less product being available to local seafood dealers and 
processors. Such secondary and tertiary impacts are proportional to the 
direct impacts on the fishing industry (which have been estimated), and 
the lack of an input/output analysis does not prevent a reasonable and 
informed comparison of management alternatives.
    The economic analysis for the measures implemented by this final 
interim rule indicates that the total reduction in groundfish trip 
revenue would be approximately 14.7 percent, or $14.8 million. Based on 
the break-even analysis, NMFS agrees that some small businesses may not 
be able to remain profitable, and many will have to lease DAS in order 
to remain profitable. However, as stated above, the CAM tends to 
overestimate revenue reductions. Vessels typically modify their fishing 
behavior in response to new regulations, and increase fishing effort on 
other non-groundfish species. Some vessels will be able to lease 
additional DAS and continue fishing at a level that produces a similar 
amount of revenue as in the past, but at a reduced profit margin, while 
other vessels will either continue to fish at an economic loss, or 
cease fishing.

Changes From the Proposed Rule

    NMFS has made several changes to the proposed rule, including 
changes as a result of public comment. Some of these changes are 
substantive changes, whereas others are administrative in nature, 
clarify new management measures, or correct inadvertent errors or 
omissions in the proposed rule. These changes are listed below in the 
order that they appear in the regulations.
    In Sec.  648.4, paragraph (c)(2)(iii)(C) is added to allow gillnet 
vessels that have already elected a gillnet designation as a Day or 
Trip gillnet vessel to change this designation through June 31, 2009.
    In Sec.  648.81, the proposed addition of paragraph (n) has been 
removed because the proposed SNE Closure Area is not implemented by 
this final interim rule.
    In Sec.  648.82, paragraph (e)(4) has been revised to retain the 
existing GOM Differential DAS Area, rather than implementing the 
proposed Interim Differential DAS Area and to insert an additional 
Interim SNE Differential DAS Area. In addition, paragraph (e)(4)(iii) 
has been revised to include provisions for applying the differential 
DAS counting rate to vessels fishing in either the GOM Differential DAS 
Area or the Interim SNE differential DAS Area, including measures to 
reflect that NE multispecies vessels fishing with hook gear in the 
Interim SNE Differential DAS Area will not be charged DAS at a rate of 
2:1.
    In Sec.  648.85, paragraph (a)(3)(viii) has been revised to reflect 
revised declaration requirements associated with declaring into one or 
both of the differential DAS areas defined under Sec.  648.82(e)(4). 
Proposed revisions to paragraph (b)(7) of this section have been 
removed and paragraph (b)(7) has been suspended in its entirety. 
Instead, paragraph (b)(11) has been added in order to revise the CA I 
Hook Gear Haddock SAP regulations to expand the scope of the SAP in 
both season and area, eliminate the split in the season and TAC between 
sector and non-sector vessels, and prohibit the use of squid as bait. 
Paragraph (b)(10)(i)(F) has been revised to reflect the implementation 
of differential DAS counting in SNE. Paragraphs (b)(10)(v)(G) through 
(I) have been added to identify the GB yellowtail flounder, GB winter 
flounder, and GOM winter flounder stock areas, respectively, for the 
purposes of the Regular B DAS Program.
    In Sec.  648.86, paragraph (l) has been revised to include 
references the Interim SNE Differential DAS Area implemented under this 
final interim rule. In addition, paragraph (m) has been revised to 
reflect a new trip limit for witch flounder instead of a revised trip 
limit for white hake. The existing trip limit for white hake specified 
at Sec.  648.86(e) will remain in effect.
    In Sec.  648.92, paragraphs (b)(1)(i), (b)(1)(iii)(A), (b)(2), and 
(b)(8)(v) have been suspended; and paragraphs (b)(1)(iii)(C), 
(b)(1)(vi), (b)(8)(vi), and (b)(10) have been added to mitigate the 
impacts of the interim management measures on the monkfish fishery.
    In Sec.  648.95, paragraph (h) has been suspended and paragraph (i) 
has been added to replace reference to paragraph Sec.  648.92(b)(2), 
because that paragraph has been suspended, and to insert reference to 
the newly added Sec.  648.92(b)(10).

Classification

    NMFS has determined that the management measures implemented by 
this final interim rule are necessary for the conservation and 
management of the NE multispecies fishery, and are consistent with the 
Magnuson-Stevens Act and other applicable laws.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for the measures implemented by this final 
interim rule. This final interim rule would immediately reduce fishing 
mortality for all stocks managed under the FMP in order to continue to 
rebuild overfished stocks. As a result of the January 23, 2009, 
February 17, 2009, and February 23, 2009, Federal Court Orders in the 
case of Commonwealth of Massachusetts and State of New Hampshire v. 
Carlos M. Gutierrez (Civil Action No.: 06-12110-EFH), several critical 
conservation measures in the NE multispecies fishery have been vacated 
for the latter portion of FY 2008. While the precise impacts of these 
Court Orders are unknown at this time, it is likely that the vacation 
of these measures, particularly restrictive trip limits and 
differential DAS counting, caused fishing mortality to increase on 
overfished stocks due to increased fishing effort. Because such 
increases in fishing effort occurred during peak spawning periods for 
particular overfished stocks, the impacts of these Court Orders could 
affect efforts to rebuild such stocks. As a result, it is imperative 
that interim measures designed to reduce fishing mortality on all 
groundfish stocks be implemented quickly. In order to avoid unnecessary 
confusion about which regulations are in effect, and, thereby, increase 
compliance with, and the effectiveness of, conservation measures 
implemented under this final interim rule, such measures must become 
effective by the start of the fishing year on May 1, 2009. While this 
final interim rule implements measures that will reduce fishing effort 
in the NE multispecies fishery, such measures are necessary to ensure 
long-term economic benefits associated with rebuilt stocks. Thus, it 
would be contrary to the public interest to delay the effectiveness of 
measures implemented by this final interim rule.
    In addition, while NOAA believes there is sufficient support in the 
record to justify the changes between the proposed and final interim 
rule, NOAA nonetheless believes there is good cause to waive notice and 
opportunity to comment on these changes under 5 U.S.C. 553(b)(B). This 
good cause waiver is based upon the same reasons described above 
concerning the waiver of the 30-day delay in effective date.
    An EA was prepared for this action that analyzed the environmental 
impacts of the measures being implemented, as well as alternatives to 
such measures. This EA was revised

[[Page 17050]]

since the publication of the proposed rule to include further analysis 
of several additional alternative combinations of management measures. 
A copy of the Finding of No Significant Impact for the EA prepared for 
this action is available from the Regional Administrator (see 
ADDRESSES).
    This final interim rule has been determined to be significant for 
the purposes of Executive Order (E.O.) 12866.
    This final interim rule does not contain policies with Federalism 
or ``takings'' implications as those terms are defined in E.O. 13132 
and E.O. 12630, respectively.

Final Regulatory Flexibility Analysis (FRFA)

    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), prepared this FRFA in support of the measures implemented by 
this final interim rule. The FRFA incorporates the updated economic 
impacts summarized in the IRFA, but revised this final interim rule to 
account for changes from the proposed rule measures implemented by this 
final action. A summary of the IRFA was published in the proposed rule 
for this action and is not repeated here. A description of why this 
action was considered, the objectives of, and the legal basis for this 
rule are contained in the preamble to the proposed and this final rule 
and are not repeated here. A copy of this analysis is available from 
the Regional Administrator (see ADDRESSES).

Summary of the Issues Raised by 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

    Comment A: One commenter estimated that the economic benefits of an 
expanded CA I Hook Gear Haddock SAP would be tens of millions of 
dollars and recommended that NMFS implement measures to expand this 
SAP.
    Response: As highlighted in the response to Comment 19 above, NMFS 
has implemented several revisions to the CA I Hook Gear Haddock SAP 
through this final interim rule. Because this final interim rule would 
substantially increase both the size and extend the season of this SAP, 
it is unclear how such revisions would affect participation in this 
SAP. It is likely that participation would increase in both the number 
of participants and the number of fishing trips throughout the expanded 
season. As a result, it is difficult to accurately predict the economic 
impacts associated with this measure. Qualitatively, the economic 
impacts are likely to be positive, as this measure provides greater 
access to available haddock resources and at a higher catch rate than 
would otherwise be experienced outside of the SAP because of its 
location within CA I.
    Comment B: As highlighted in Comment 29 above, three commenters 
believed that the economic analysis underestimated the economic impacts 
of the proposed measures, highlighted specific concerns regarding the 
analysis of impacts on New York and Maine, and noted that many vessels 
will not be able to break even. One commenter stated that the revenue 
analysis is flawed and one commenter noted that a 31-percent reduction 
in revenue is enough to destroy most small businesses.
    Response: The response to Comment 29 explains that economic impacts 
were underestimated due to missing data and the fact that an analysis 
of secondary and tertiary economic impacts of the proposed measures on 
other industries that interact with the fishing industry was not 
conducted. However, when compared to assessments of economic impacts 
associated with previous actions, the estimated economic impacts to the 
directed fishery often overestimated realized impacts.

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

    The Preferred Alternative would affect regulated entities engaged 
in commercial fishing for groundfish and entities that provide 
recreational fishing services to anglers. These entities include any 
vessel that has been issued either an open access or a limited access 
Federal permit under the FMP. During FY 2007, 2,822 vessels were issued 
commercial limited access and open access NE multispecies permits. Of 
these, only 739 actually landed groundfish. A total of 762 NE 
multispecies party/charter permits were issued during FY 2007. 
Additionally, limited access permit holders (1,525 during FY 2007) may 
take passengers for hire, but do not possess a party/charter permit, 
since the FMP prohibits issuing both an open access and a limited 
access permit to the same vessel. Of the 762 vessels issued an open 
access party/charter permit, only 128 reported taking at least one for-
hire trip, and only 74 reported keeping groundfish on one or more 
trips.
    The size standard for commercial fishing entities is $4 million in 
sales, while the size standard for party/charter operators is $7 
million in sales. Available data indicate that, based on 2005-2007 
average conditions, median gross sales by commercial fishing vessels 
were just over $200,000, and no single fishing entity earned more than 
$2 million. Available data are not adequate to identify affiliated 
vessels, so each operating unit is considered a small entity for 
purposes of the RFA. For regulated party/charter operators, the median 
value of gross receipts from passengers was just over $9,000, and did 
not exceed $500,000 in any year during 2001 to 2007. Therefore, all 
regulated commercial fishing and all regulated party/charter operators 
are determined to be small entities under the RFA, and, accordingly, 
there are no differential impacts between large and small entities 
under this rule. The remaining discussion describes the number of 
regulated entities, the number of participating regulated entities, and 
the potential economic impacts on participating regulated entities for 
party/charter operators and for commercial fishing vessels.

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

    This final interim rule contains collection-of-information 
requirements that have previously been subject to review and approval 
by OMB under control number 0648-0202 and 0648.0212. Public reporting 
burden for these collections of information are estimated as follows:
    1. VMS purchase and installation, OMB 0648-0202 (1 hr/
response);
    2. VMS proof of installation, OMB 0648-0202 (5 min/
response);
    3. Automated VMS polling of vessel position, OMB 0648-0202 
(5 sec/response);
    4. Declaration of intent to participate in the Regular B DAS 
Program, or fish in the U.S./Canada Management Areas and any associated 
SAPs, and the DAS type to be used via VMS prior to each trip into the 
one of these programs, OMB 0648-0202 (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 Areas and 
associated SAPs OMB 0648-0202, (2 min/response);
    6. Standardized catch reporting requirements while participating in 
the Regular B DAS Program, the CA I Hook Gear Haddock SAP, or the U.S./
Canada Management Area and its associated SAPs, OMB 0648-0212 
(15 min/response);
    7. Standardized reporting of Universal Data I.D. while 
participating in the

[[Page 17051]]

Regular B DAS Program or fishing in the U.S./Canada Management Area, 
associated SAPs, and CA I SAP, OMB 0648-0212 (15 min/
response);
    8. DAS ``flip'' notification via VMS for the Regular B DAS Program, 
OMB 0648-0202 (5 min/response);
    9. Sector Manager daily reports for CA I Hook Gear Haddock SAP, 
OMB 0648-0212 (2 hr/response);
    10. DAS Leasing Program application, OMB 0648-0202 (10 
min/response);
    11. DAS Transfer Program application, OMB 0648-0202 (10 
min/response); and
    12. Declaration of intent to fish inside and outside of the Eastern 
U.S./Canada Area on the same trip, OMB 0648-0202 (5 min/
response).
    13. Declaration of area and gear via VMS when fishing under a NE 
multispecies DAS, OMB 0648-0202 (5 min/response); and
    14. Declaration of entry into the GOM and SNE Differential DAS Area 
when not fishing or transiting via VMS, OMB 0648-0202 (5 min/
response).
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding these burden estimates or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and by e-mail to [email protected], or 
fax to 202-395-7285.
    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.

Description of Steps the Agency Has Taken To Minimize the Significant 
Economic Impact on Small Entities Consistent With the Stated Objectives 
of Applicable Statutes

    During the development of this final interim rule, NMFS considered 
and fully analyzed five alternatives, including the no action 
alternative, a differential DAS alternative, a DAS reduction and closed 
area alternative, the original proposed measures, and the measures 
implemented by this final interim rule. Three other alternatives were 
considered, but rejected, including the measures recommended by the 
Council, an expanded Regular B DAS Program alternative, and a hard TAC 
alternative. The reasons behind rejecting the Council's preferred 
alternative are explained in the preamble of the proposed interim rule 
and further discussed in the response to Comment 4 above. The expanded 
Regular B DAS Program alternative was rejected because it would have 
required vessels to use specialized nets that would have been costly to 
acquire. In addition, this alternative would have resulted in 
unnecessary loss of yield from several groundfish stocks. The hard TAC 
alternative was an attempt to increase the effectiveness of the 
Council's recommended measures. However, this alternative was rejected 
because it would likely have resulted in early closure of the fishery 
and would have been complex, costly, and impractical to implement for 
the short duration of an interim action.
    In response to comments emphasizing the economic impacts of the 
proposed measures, NMFS partially analyzed three additional 
alternatives that included various combinations of differential DAS 
areas, closure areas, and trip limits in order to minimize the economic 
impacts of this action without compromising the ability of the fishery 
to achieve the long-term rebuilding objectives in the FMP. One of these 
alternatives was selected as the preferred alternative for this action 
and is implemented by this final interim rule. As discussed in the 
responses to comments, the measures implemented by this final interim 
rule reduce F on all stocks, but do not achieve the F objectives for GB 
cod and witch flounder. However, this will not compromise the ability 
of the fishery to rebuild overfished stocks, provided additional 
measures to end overfishing and rebuild overfished stocks are 
implemented through future management actions, as necessary. While the 
no action alternative would result in the fewest economic impacts (a 
reduction of total trip revenue of approximately 7.7 percent, or $12.2 
million, and a reduction of groundfish trip revenue of 12.1 percent, or 
$12.2 million), that alternative would also achieve the least amount of 
reduction in F. In contrast, the measures implemented by this final 
interim rule would result in substantially higher reductions in F for 
some stocks, while minimizing reductions in both groundfish and total 
revenue than the other alternatives considered. It is estimated that 
these measures would achieve much lower reductions in both total trip 
revenue (a reduction of 9.4 percent, or $14.8 million) and groundfish 
trip revenue (a reduction of 14.7 percent, or $14.8 million) when 
compared to the other three alternatives considered, including the 
originally proposed measures (see the Classification section of the 
preamble of the proposed interim rule for a full discussion of the 
economic impacts associated with those alternatives). This is true 
across all states. This action is expected to result in positive 
economic impacts to vessels operating out of New Jersey due to the 
replacement of the existing SNE Differential DAS Area with the Interim 
SNE Differential DAS Area. In addition, the measures implemented by 
this action achieve a higher yield from several groundfish stocks as a 
result of higher landings than the other alternatives. As noted in the 
response to Comment 4, preserving future yield in the fishery becomes 
increasingly important as the fishery moves toward quota-driven 
management regimes such as sector management, as proposed in draft 
Amendment 16, and annual catch limits mandated by the recent revision 
to the Magnuson-Stevens Act.
    In addition to revisions designed to continue to reduce 
overfishing, this action also implements a number of measures intended 
to mitigate the economic impacts of effort reductions associated with 
conservation measures. These measures include revisions to the DAS 
Leasing and Transfer Programs, modifications to the Regular B DAS 
Program, continuation of the Eastern U.S./Canada Haddock SAP, expansion 
of the CA I Hook Gear Haddock SAP in both area and season, and a 
reduction in the minimum size of haddock for both recreational and 
commercial vessels. Modifications to the DAS Leasing Program attempt to 
remove administrative barriers that would unnecessarily limit the 
ability of vessels to lease DAS to one another. This increases 
flexibility and efficiency in the program by providing greater 
opportunities for vessels to acquire and sell DAS to other similar-
sized vessels. In addition, analysis indicates that 15 percent of 
vessels participating in the DAS Leasing Program were affected by the 
DAS leasing cap in FY 2007. Elimination of this cap through this final 
interim rule eliminates that restriction and will help enable vessels 
to acquire sufficient DAS to remain economically viable. Modifications 
to the DAS Transfer Program eliminate the DAS conservation tax. This is 
expected to encourage transfers and will likely result in more 
efficient operations, as vessel owners could combine DAS and other 
fishing permits from multiple vessels onto one operational platform. 
Revisions to the Regular B DAS Program, including the redistribution of 
incidental catch TACs and quarterly

[[Page 17052]]

TAC roll-over, are intended to increase the efficiency of the program 
and provide more opportunities for vessels to take advantage of this 
program. Because the original intent of the Regular B DAS Program was 
to encourage the selective harvest of healthy stocks while minimizing 
the catch of overfished stocks, increasing participation in this 
program is one additional means of accomplishing the dual objectives of 
this action: Ensuring continued progress toward rebuilding overfished 
stocks while mitigating the economic impacts to the extent practicable. 
Measures to expand the CA I Hook Gear Haddock SAP would also contribute 
toward achieving these two objectives by greatly increasing 
opportunities to harvest the abundant haddock resource on GB using gear 
proven to selectively harvest this stock, while minimizing the bycatch 
of cod. The extension of the season from 3 months to 9 months also 
enables vessels to take advantage of market conditions to maximize 
economic return on trips into this SAP. Finally, although slower growth 
rates delayed recruitment of recent large year classes of haddock into 
the fishery, most of these fish have reached sizes susceptible to 
capture by existing mesh sizes. This action reduces the minimum size 
limit for haddock from 19 inches (48.3 cm) to 18 inches (45.7 cm) to 
increase yield from this species and increase revenue in the groundfish 
fishery.
    In summary, the measures implemented by this action attempt to 
strike a balance, under the authority of section 305(c) of the 
Magnuson-Stevens Act, between continuing efforts to reduce overfishing 
and rebuild overfished stocks and minimizing economic impacts to 
affected entities, as required by the Magnuson-Stevens Act and other 
applicable law. While this action does not implement measures that 
would, by themselves, achieve all of the mortality objectives outlined 
in the preamble, together with measures in draft Amendment 16 and 
potential future actions, these measures will assist the fishery to 
meet the requirements to rebuild overfished stocks and maintain 
participation of fishing communities in the groundfish fishery, as 
required by the Magnuson-Stevens Act, during the transition to more 
sustainable fishing practices in future years, without jeopardizing 
rebuilding objectives.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
the small entity compliance guide (the guide) was prepared. Copies of 
this final rule are available from the Northeast Regional Office (see 
ADDRESSES), and the guide, i.e., permit holder letter, will be sent to 
all holders of permits for the multispecies and monkfish fisheries. The 
guide and this final rule will be available upon request.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 6, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.4, paragraph (c)(2)(iii)(A) is suspended and paragraph 
(c)(2)(iii)(C) is added to read as follows:


Sec.  648.4  Vessel permits.

* * * * *
    (c) * * *
    (2) * * *
    (iii) * * *
    (C) For vessels fishing for NE multispecies with gillnet gear, with 
the exception of vessels fishing under the Small Vessel permit 
category, an annual declaration as either a Day or Trip gillnet vessel 
designation as described in Sec.  648.82(j). A vessel owner electing a 
Day or Trip gillnet designation must indicate the number of gillnet 
tags that he/she is requesting, and must include a check for the cost 
of the tags. For the 2009 fishing year, a vessel owner that has already 
elected this designation prior to May 1, 2009, may change this 
designation through June 12, 2009. For the 2009 fishing year only, a 
vessel may fish under more than one gillnet category. A permit holder 
letter will be sent to the owner of each eligible gillnet vessel, 
informing him/her of the costs associated with this tagging requirement 
and providing directions for obtaining tags. Incomplete applications, 
as described in paragraph (e) of this section, will be considered 
incomplete for the purpose of obtaining authorization to fish in the NE 
multispecies gillnet fishery and will be processed without a gillnet 
authorization.
* * * * *

0
3. In Sec.  648.14:
0
A. Paragraphs (a)(50), (53), (121), (129), (130), (132), (146), (153), 
(165), (173) through (175), and (177) are suspended.
0
B. Paragraphs (c)(7), (23) through (26), (33), (39), (50), (51), (57) 
through (78), (81) through (83), (85), (86), (88), and (89) are 
suspended.
0
C. Paragraphs (g)(4) and (5) are suspended.
0
D. Paragraphs (a)(181) through (188), (c)(90) through (134), and (g)(6) 
and (7) are added.
    The additions read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (a) * * *
    (181) Enter or fish in the Western U.S./Canada Area or Eastern 
U.S./Canada Area specified in Sec.  648.85(a)(1), unless declared into 
the area in accordance with Sec.  648.85(a)(3)(viii).
    (182) If declared into one of the areas specified in Sec.  
648.85(a)(1), fish during that same trip outside of the declared area, 
unless in compliance with the applicable restrictions specified under 
Sec.  648.85(a)(3)(viii)(A) or (B).
    (183) Fail to notify NMFS via VMS prior to departing the Eastern 
U.S./Canada Area, when fishing inside and outside of the area on the 
same trip, in accordance with Sec.  648.85(a)(3)(viii) (A)(1).
    (184) When fishing inside and outside of the Eastern U.S./Canada 
Area on the same trip, fail to abide by the most restrictive DAS 
counting, trip limits, and reporting requirements that apply, as 
described in Sec.  648.85(a)(3)(viii)(A).
    (185) If fishing inside the Eastern U.S./Canada Area and in 
possession of fish in excess of what is allowed under the most 
restrictive regulations that apply outside of the Eastern U.S./Canada 
Area, fish outside of the Eastern U.S./Canada Area on the same trip, as 
prohibited under Sec.  648.85(a)(3)(viii)(A).
    (186) Fail to comply with the reporting requirements under Sec.  
648.85(a)(3)(viii)(A)(2) when fishing inside and outside of the Eastern 
U.S./Canada Area on the same trip.
    (187) If fishing with trawl gear under a NE multispecies DAS in the 
Eastern U.S./Canada Area defined in Sec.  648.85(a)(1)(ii), fail to 
fish with a haddock separator trawl, flounder trawl net, or Ruhle 
trawl, as specified in

[[Page 17053]]

Sec.  648.85(a)(3)(ix) and (b)(10)(iv)(J)(3), unless otherwise allowed 
under the Eastern U.S./Canada Haddock SAP rules in Sec.  
648.85(b)(8)(v)(E).
    (188) Possess, land, or fish for regulated species while in 
possession of scallop dredge gear on a vessel not fishing under the 
scallop DAS program as described in Sec.  648.53, or fishing under a 
general scallop permit, unless the vessel and the dredge gear conform 
with the stowage requirements of Sec.  648.23(b), or unless the vessel 
has not been issued a multispecies permit and fishes for NE 
multispecies exclusively in state waters.
* * * * *
    (c) * * *
    (90) If fishing under the Eastern U.S./Canada Haddock SAP, fish 
for, harvest, possess, or land any regulated NE multispecies from the 
area specified in Sec.  648.85(b)(8)(ii), unless in compliance with the 
restrictions and conditions specified in Sec.  648.85(b)(8)(v)(A) 
through (M).
    (91) If fishing under a Category B DAS in the Closed Area II 
Yellowtail Flounder SAP specified in Sec.  648.85(b)(3), the Regular B 
DAS Pilot Program specified in Sec.  648.85(b)(10), or the Eastern 
U.S./Canada Haddock SAP Pilot Program specified in Sec.  648.85(b)(8), 
remove any fish caught with any gear, including dumping the contents of 
a net, except on board the vessel.
    (92) Possess or land per trip more than the possession or landing 
limits specified under Sec. Sec.  648.86(a), (c), (e), (g), (h), (j), 
(l), (m), and (n) and 648.82(b)(5) and (6), if the vessel has been 
issued a limited access NE multispecies permit or open access NE 
multispecies permit, as applicable.
    (93) Fail to declare through VMS the intent to be exempt from the 
GOM cod trip limit under Sec.  648.86(l)(1), as required under Sec.  
648.86(l)(4), or fish north of the exemption line if in possession of 
more than the GOM cod trip limit specified under Sec.  648.86(l)(1).
    (94) Enter port, while on a NE multispecies DAS trip, in possession 
of more than the allowable limit of cod specified in Sec.  
648.86(l)(1), unless the vessel is fishing under the cod exemption 
specified in Sec.  648.86(l)(4).
    (95) For vessels fishing in the NE multispecies DAS program under 
the provisions of Sec.  648.10(c), the call-in system, fail to remain 
in port for the appropriate time specified in Sec.  
648.86(l)(1)(ii)(A), except for transiting purposes, provided the 
vessel complies with Sec.  648.86(l)(3). For vessels fishing in the NE 
multispecies DAS program under the provisions of Sec.  648.10(b), the 
VMS system, fail to declare through VMS that insufficient DAS have 
elapsed in order to account for the amount of cod on board the vessel 
as required under Sec.  648.86(l)(1)(ii)(B).
    (96) Enter port, while on a NE multispecies DAS trip, in possession 
of more than the allowable limit of cod specified in Sec.  
648.86(l)(2).
    (97) For vessels fishing in the NE multispecies DAS program under 
the provisions of Sec.  648.10(c), the call-in system, fail to remain 
in port for the appropriate time specified in Sec.  
648.86(l)(2)(ii)(A), except for transiting purposes, provided the 
vessel complies with Sec.  648.86(l)(3). For vessels fishing in the NE 
multispecies DAS program under the provisions of Sec.  648.10(b), the 
VMS system, fail to declare through VMS that insufficient DAS have 
elapsed in order to account for the amount of cod on board the vessel 
as required under Sec.  648.86(l)(2)(ii)(B).
    (98) Discard legal-sized NE regulated multispecies, ocean pout, 
Atlantic halibut, or monkfish while fishing under a Regular B DAS in 
the Regular B DAS Program, as described in Sec.  648.85(b)(10)(iv)(E).
    (99) If fishing under a Regular B DAS in the Regular B DAS Program, 
fail to comply with the DAS flip requirements of Sec.  
648.85(b)(10)(iv)(E) if the vessel harvests and brings on board more 
than the landing limit for a groundfish stock of concern specified in 
Sec.  648.85(b)(10)(iv)(D), other groundfish specified under Sec.  
648.86, or monkfish under Sec.  648.94.
    (100) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the requirements and restrictions 
specified in Sec.  648.85(b)(10)(iv)(A) through (F), (I), and (J).
    (101) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the VMS requirement specified in 
Sec.  648.85(b)(10)(iv)(A).
    (102) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the observer notification 
requirement specified in Sec.  648.85(b)(10)(iv)(B).
    (103) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the VMS declaration requirement 
specified in Sec.  648.85(b)(10)(iv)(C).
    (104) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the landing limits specified in 
Sec.  648.85(b)(10)(iv)(D).
    (105) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the no discard and DAS flip 
requirements specified in Sec.  648.85(b)(10)(iv)(E).
    (106) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the minimum Category A DAS and 
Category B DAS accrual requirements specified in Sec.  
648.85(b)(10)(iv)(F).
    (107) Use a Regular B DAS in the Regular B DAS Program specified in 
Sec.  648.85(b)(10), if the program has been closed as specified in 
Sec.  648.85(b)(10)(iv)(H) or (b)(10)(vi).
    (108) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), use a Regular B DAS after the program has closed, as 
required under Sec.  648.85(b)(10)(iv)(G) or (H).
    (109) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to comply with the reporting requirements specified 
in Sec.  648.85(b)(10)(iv)(I).
    (110) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the requirements and 
conditions specified in Sec.  648.85(b)(11)(iv), and (b)(11)(v) or 
(b)(11)(vi), whichever is applicable.
    (111) If fishing in the CA I Hook Gear Haddock Access Area 
specified in Sec.  648.85(b)(11)(ii), fail to comply with the 
requirements and conditions specified in Sec.  648.85(b)(11)(iv), and 
(b)(11)(v) or (b)(11)(vi), whichever is applicable.
    (112) Fish in the CA I Hook Gear Haddock SAP specified in Sec.  
648.85(b)(11), outside of the season specified in Sec.  
648.85(b)(11)(iii).
    (113) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the DAS use restrictions 
specified in Sec.  648.85(b)(11)(iv)(A), and (b)(11)(v)(A) or 
(b)(11)(vi)(A), whichever is applicable.
    (114) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the VMS requirements specified 
in Sec.  648.85(b)(11)(iv)(B).
    (115) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the observer notification 
requirements specified in Sec.  648.85(b)(11)(iv)(C).
    (116) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the VMS declaration 
requirement specified in Sec.  648.85(b)(11)(iv)(D).
    (117) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the gear restrictions 
specified in Sec.  648.85(b)(11)(iv)(E), and (b)(11)(v)(B) or 
(b)(11)(vi)(B), whichever is applicable.
    (118) If fishing in the CA I Hook Gear Haddock SAP specified in

[[Page 17054]]

Sec.  648.85(b)(11), fail to comply with the landing limits specified 
in Sec.  648.85(b)(11)(iv)(H), and (b)(11)(v)(C) or (b)(11)(vi)(C), 
whichever is applicable.
    (119) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fail to comply with the reporting requirement 
specified in Sec.  648.85(b)(11)(v)(D) or (b)(11)(vi)(D), whichever is 
applicable.
    (120) Fish in the CA I Hook Gear Haddock Access Area specified in 
Sec.  648.85(b)(11)(ii), if that area is closed as specified in Sec.  
648.85(b)(11)(iv)(I) or (b)(11)(vi)(F).
    (121) If fishing in the CA I Hook Gear Haddock SAP specified in 
Sec.  648.85(b)(11), fish with squid as bait, as prohibited at Sec.  
648.85(b)(11)(iv)(J).
    (122) Fish in the Eastern U.S./Canada Haddock SAP specified in 
Sec.  648.85(b)(8), if the SAP is closed as specified in Sec.  
648.85(b)(8)(v)(L) or (N).
    (123) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to use a haddock separator trawl as described under 
Sec.  648.85(a)(3)(iii)(A), or other approved gear as described under 
Sec.  648.85(b)(10)(iv)(J).
    (124) If fishing under a NE multispecies Category A DAS in one or 
both of the differential DAS areas defined under Sec.  648.82(e)(4)(i), 
fail to declare into one or both of the areas through VMS, as required 
under Sec.  648.82(e)(4)(ii).
    (125) If fishing under a NE multispecies Category A DAS in one or 
both of the differential DAS areas defined in Sec.  648.82(e)(4)(i), 
and under the restrictions of one or more of the Special Management 
Programs under Sec.  648.85, fail to comply with the most restrictive 
regulations.
    (126) Possess or land more witch flounder than allowed under Sec.  
648.86(m).
    (127) Retain or land zero retention stocks as specified under Sec.  
648.86(n).
    (128) If possessing a Ruhle Trawl, either at sea or elsewhere, as 
allowed under Sec.  648.85(b)(10)(iv)(J)(1) or (b)(8)(v)(E)(1), fail to 
comply with the net specifications under Sec.  648.85(b)(10)(iv)(J)(3).
    (129) If fishing as a private recreational and charter/party vessel 
in the SNE/MA winter flounder stock area defined in Sec.  
648.85(b)(10)(v)(E), fish for or retain winter flounder or transit this 
area in possession of winter flounder caught outside this area, unless 
all bait and hooks are removed from fishing rods and any winter 
flounder on board has been gutted and stored.
    (130) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(10), fail to use a haddock separator trawl as described under 
Sec.  648.85(a)(3)(ix)(A), or other approved gear as described under 
Sec.  648.85(b)(10)(iv)(J).
    (131) For vessels fishing inside and outside the Eastern U.S./
Canada Area on the same trip, fail to comply with the most restrictive 
regulations that apply on the trip as required under Sec.  
648.85(a)(3)(viii)(A).
    (132) For vessels fishing inside and outside the Eastern U.S./
Canada Area on the same trip, fail to notify NMFS via VMS that the 
vessel is electing to fish in this manner, as required by Sec.  
648.85(a)(3)(viii)(A)(1).
    (133) Fail to comply with the restrictions on fishing and gear 
specified in Sec.  648.80(a)(3)(v), (a)(4)(v), (b)(2)(v), and 
(c)(2)(iv) if the vessel has been issued a limited access NE 
multispecies permit and fishes with hook-gear in areas specified in 
Sec.  648.80(a), (b), or (c), unless allowed under Sec.  
648.85(b)(11)(iv)(F).
    (134) Discard legal-sized NE regulated multispecies, ocean pout, or 
Atlantic halibut while fishing under a Special Access Program, as 
described in Sec. Sec.  648.85(b)(3)(xi), 648.85(b)(11)(iv)(H) or 
648.85(b)(8)(v)(I).
* * * * *
    (g) * * *
    (6) If the vessel is a private recreational fishing vessel, fail to 
comply with the seasonal GOM cod possession prohibition described in 
Sec.  648.89(c)(1)(vi), or, if the vessel has been issued a charter/
party permit or is fishing under charter/party regulations, fail to 
comply with the prohibition on fishing under Sec.  648.89(c)(5)(v).
    (7) If fishing under the recreational or charter/party regulations, 
fish for or possess cod caught in the GOM Regulated Mesh Area during 
the seasonal GOM cod possession prohibition under Sec.  
648.89(c)(1)(vi) or (c)(5)(v), or fail to abide by the appropriate 
restrictions if transiting with cod on board.
* * * * *


Sec.  648.80  [Amended]

0
4. In Sec.  648.80, paragraph (i) is suspended.
0
5. In Sec.  648.81, paragraph (b)(2)(iv)(B) is suspended, and paragraph 
(b)(2)(iv)(C) is added to read as follows:


Sec.  648.81  NE multispecies closed areas and measures to protect EFH.

* * * * *
    (b) * * *
    (2) * * *
    (iv) * * *
    (C) The vessel has declared into the Eastern U.S./Canada Area as 
specified in Sec.  648.85(a)(3)(viii) and is transiting CA II in 
accordance with the provisions of Sec.  648.85(a)(3)(vii).
* * * * *

0
6. In Sec.  648.82:
0
A. Paragraphs (e)(2) and (3); (j)(1)(iii)(A) through (D); (k)(4)(iv) 
and (x); and (l)(1)(iv) and (ix) are suspended.
0
B. Paragraphs (e)(4) and (5), and (j)(1)(iii)(E), (F), and (G) are 
added.
    The additions read as follows:


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

* * * * *
    (e) * * *
    (4) Differential DAS. For a NE multispecies DAS vessel that intends 
to fish some or all of its trip, or fishes some or all of its trip 
other than for transiting purposes, under a Category A DAS in one or 
both of the differential DAS areas, as defined in paragraphs 
(e)(4)(i)(A) and (B) of this section, with the exception of Day gillnet 
vessels, which accrue DAS in accordance with paragraph (j)(1)(iii) of 
this section, each Category A DAS, or part thereof, shall be counted at 
the differential DAS rate described in paragraph (e)(4)(iii) of this 
section, and be subject to the restrictions defined in this paragraph 
(e).
    (i) Differential DAS Areas.--(A) GOM Differential DAS Area. The GOM 
Differential DAS Area is defined by straight lines connecting the 
following points in the order stated:

------------------------------------------------------------------------
              Point                    N. lat.             W. long.
------------------------------------------------------------------------
GMD1............................  43[deg]30'.......  Intersection with
                                                      Maine Coastline.
GMD2............................  43[deg]30'.......  69[deg]30'.
GMD3............................  43[deg]00'.......  69[deg]30'.
GMD4............................  43[deg]00'.......  69[deg]55' eastern
                                                      boundary, WGOM
                                                      Closed Area.
GMD5............................  42[deg]30'.......  69[deg]55'.
GMD6............................  42[deg]30'.......  69[deg]30'.
GMD7............................  41[deg]30'.......  69[deg]30'.
GMD8............................  41[deg]30'.......  70[deg]00'.
                                 ---------------------------------------
GMD9............................   North to intersection with Cape Cod,
                                    Massachusetts, coast and 70[deg]00''
                                                     W.
------------------------------------------------------------------------

    (B) Interim SNE Differential DAS Area. The Interim SNE Differential 
DAS Area is defined by straight lines connecting the following points 
in the order stated (a chart depicting this area is available from the 
Regional Administrator upon request):

[[Page 17055]]



                    Interim SNE Differential DAS Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
SNECA1........................................        (\1\)   70[deg]00'
SNECA2........................................   41[deg]30'   70[deg]00'
SNECA3........................................   41[deg]30'   68[deg]50'
SNECA4........................................   40[deg]30'   68[deg]50'
SNECA5........................................   40[deg]30'        (\2\)
------------------------------------------------------------------------
\1\ Intersection of the shoreline of Cape Cod, Massachusetts, and
  70[deg]00' W. long.
\2\ Intersection of the shoreline of Staten Island, New York, and
  40[deg]30' N. lat.

    (ii) Declaration. A NE multispecies DAS vessel that intends to 
fish, or fishes under a Category A DAS in one of the differential DAS 
areas described in paragraph (e)(4)(i) of this section, must, prior to 
leaving the dock, declare through the VMS, in accordance with 
instructions to be provided by the Regional Administrator, that the 
vessel will fish in the GOM Differential DAS Area, the Interim SNE 
Differential DAS Area, or both areas. A DAS vessel that fishes in the 
Eastern U.S./Canada Area and intends to fish, or fishes, subsequently 
in one or both of the differential DAS areas under a Category A DAS, 
must declare its intention to do so through its VMS prior to leaving 
the dock at the start of the trip, or prior to leaving the Eastern 
U.S./Canada Area, as specified in Sec.  648.85(a)(3)(viii)(A)(3).
    (iii) Differential DAS counting.--(A) Differential DAS counting 
when fishing in the GOM Differential DAS Area. For a NE multispecies 
vessel that intends to fish, or fishes for some or all of its trip 
other than for transiting purposes under a Category A DAS in the GOM 
Differential DAS Area, each Category A DAS, or part thereof, shall be 
counted at the ratio of 2 to 1 for the entire trip, even if only a 
portion of the trip is spent fishing in the GOM Differential DAS Area. 
A vessel that has not declared its intent to fish in the GOM 
Differential DAS Area and that is not transiting, as specified in 
paragraph (e)(4)(v) of this section, may be in the GOM Differential DAS 
Area, provided the vessel's fishing gear is stowed in accordance with 
the provisions of Sec.  648.23(b) for the entire time the vessel is in 
the area, and the vessel declares immediately upon entering the GOM 
Differential DAS Area, via VMS, that it is in the area. A vessel that 
fishes in both the GOM Differential Area and the Interim SNE 
Differential DAS Area on the same trip will be charged DAS at the rate 
of 2:1 for the entire trip.
    (B) Differential DAS counting when fishing in the Interim SNE 
Differential DAS Area. With the exception of a vessel fishing with hook 
gear, a NE multispecies DAS vessel that intends to fish or fishes some 
or all of its trip other than for transiting purposes under a Category 
A DAS in the Interim SNE Differential DAS Area shall have each Category 
A DAS, or part thereof, counted at the ratio of 2 to 1 for the entire 
trip, even if only a portion of the trip is spent fishing in the 
Interim SNE Differential DAS Area. Unless otherwise specified in 
paragraph (e)(4)(iii) of this section, a NE multispecies DAS vessel 
fishing with hook gear that intends to fish or fishes some or all of 
its trip other than for transiting purposes under a Category A DAS in 
the Interim SNE Differential DAS Area shall have each Category A DAS, 
or part thereof, counted at the ratio of 1 to 1 for the entire trip. A 
vessel that has not declared its intent to fish in the Interim SNE 
Differential DAS Area and that is not transiting, as specified in 
paragraph (e)(4)(v) of this section, may be in the Interim SNE 
Differential DAS Area, provided the vessel's fishing gear is stowed in 
accordance with the provisions of Sec.  648.23(b) for the entire time 
the vessel is in the area and the vessel declares immediately upon 
entering the Interim SNE Differential DAS Area, via VMS, that it is in 
the area. A vessel that fishes in both the GOM Differential Area and 
the Interim SNE Differential DAS Area on the same trip will be charged 
DAS at the rate of 2:1 for the entire trip.
    (iv) Restrictions. A NE multispecies vessel fishing under a 
Category A DAS in one or both of the differential DAS areas defined in 
paragraph (e)(4)(i) of this section, under the restrictions of this 
paragraph (e)(4) and under the restrictions of one or more of the 
Special Management Programs under Sec.  648.85, must comply with the 
most restrictive DAS counting, trip limits, and reporting requirements, 
specified in this paragraph (e)(4) and in Sec.  648.85, under the 
pertinent Special Management Program.
    (v) Transiting. A vessel may transit either one or both of the 
differential DAS areas, as defined in paragraph (e)(4)(i) of this 
section, provided the gear is stowed in accordance with the provisions 
of Sec.  648.23(b).
    (5) Regular B DAS Program 24-hr clock. For a vessel electing to 
fish in the Regular B DAS Program, as specified at Sec.  648.85(b)(10), 
and that remains fishing under a Regular B DAS for the entire fishing 
trip (without a DAS flip), DAS used shall accrue at the rate of 1 full 
DAS for each calendar day, or part of a calendar day fished. For 
example, a vessel that fished on one calendar day from 6 a.m. to 10 
p.m. would be charged 24 hr of Regular B DAS, not 16 hr; a vessel that 
left on a trip at 11 p.m. on the first calendar day and returned at 10 
p.m. on the second calendar day would be charged 48 hr of Regular B DAS 
instead of 23 hr, because the fishing trip would have spanned 2 
calendar days. For the purpose of calculating trip limits specified 
under Sec.  648.86, the amount of DAS deducted from a vessel's DAS 
allocation shall determine the amount of fish the vessel can legally 
land. For a vessel electing to fish in the Regular B DAS Program, as 
specified at Sec.  648.85(b)(10), while also fishing in one or both of 
the differential DAS areas defined in paragraph (e)(4) of this section, 
Category B DAS shall accrue at the rate described in this paragraph 
(e)(5), unless the vessel flips to a Category A DAS, in which case the 
vessel is subject to the pertinent DAS accrual restrictions of 
paragraph (e)(4)(iii) of this section for the entire trip. For vessels 
electing to fish in both the Regular B DAS Program, as specified in 
Sec.  648.85(b)(10), and in the Eastern U.S./Canada Area, as specified 
in Sec.  648.85(a), DAS counting will begin and end according to the 
DAS accounting rules specified in Sec.  648.10(b)(2)(iii).
* * * * *
    (j) * * *
    (1) * * *
    (iii) * * *
    (E) A Day gillnet vessel fishing with gillnet gear that has elected 
to fish in the Regular B DAS Program, as specified in Sec.  
648.85(b)(10), under a Category B DAS, is subject to the DAS accrual 
provisions of paragraph (e)(5) of this section.
    (F) A Day gillnet vessel fishing with gillnet gear under a NE 
multispecies Category A DAS, when not subject to differential DAS 
counting as specified under paragraph (e)(4) of this section, shall 
accrue 15 hr of DAS for each trip of more than 3 hr, but less than or 
equal to 15 hr. Such vessel shall accrue actual DAS time at sea for 
trips less than or equal to 3 hr, or more than 15 hr.
    (G) A Day gillnet vessel fishing with gillnet gear under a NE 
multispecies Category A DAS that is fishing in one or both of the 
differential DAS areas specified in paragraph (e)(4)(i) of this section 
and, therefore, subject to differential DAS counting as specified under 
paragraph (e)(4)(iii) of this section, shall accrue DAS at a 
differential DAS rate of 2 to 1 for the actual hours used for any trip 
of less than or equal to 3 hr in duration, and for any trip of greater 
than 7.5 hr. For such vessels fishing on any trip of more than 3 hr, 
but less than or equal to 7.5 hr duration, vessels will be charged a 
full 15 hr. For example, a Day gillnet

[[Page 17056]]

vessel fishing in the Interim SNE Differential DAS Area for 8 actual hr 
would be charged 16 hr of DAS, or if fishing for 5 actual hr, would be 
charged 15 hr of DAS.
* * * * *

0
7. In Sec.  648.83, paragraph (a)(1) and (a)(3) are suspended and 
paragraph (a)(4) is added to read as follows:A


Sec.  648.83  Multispecies minimum fish sizes.

    (a) * * *
    (4) Minimum fish sizes for recreational vessels and charter/party 
vessels that are not fishing under a NE multispecies DAS are specified 
in Sec.  648.89. Except as provided in Sec.  648.17, all other vessels 
are subject to the following minimum fish sizes, determined by total 
length (TL):

             Minimum Fish Sizes (TL) for Commercial Vessels
------------------------------------------------------------------------
                 Species                          Sizes  (inches)
------------------------------------------------------------------------
Cod......................................  22 (55.9 cm)
Haddock..................................  18 (45.7 cm)
Pollock..................................  19 (48.3 cm)
Witch flounder (gray sole)...............  14 (35.6 cm)
Yellowtail flounder......................  13 (33.0 cm)
American plaice..........................  14 (35.6 cm)
Atlantic halibut.........................  36 (91.4 cm)
Winter flounder (blackback)..............  12 (30.5 cm)
Redfish..................................  9 (22.9 cm)
------------------------------------------------------------------------

* * * * *

0
8. In Sec.  648.85:
0
A. Paragraphs (a)(3)(ii) and (iii); and (a)(3)(v)(A), (B), and (C) are 
suspended.
0
B. Paragraphs (b)(4), (5), (6) and (7); (b)(8)(v)(E)(2); and 
(b)(8)(v)(H) are suspended.
0
C. Paragraphs (a)(3)(v)(D), (E), and (F); (a)(3)(viii) and (ix); 
(b)(8)(v)(E)(3); (b)(8)(v)(M) and (N); and (b)(9), (10), and (11) are 
added.
    The additions read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (a) * * *
    (3) * * *
    (v) * * *
    (D) Total pounds of cod, haddock, yellowtail flounder, winter 
flounder, witch flounder, pollock, windowpane flounder, and white hake 
kept;
    (E) Date fish were caught and statistical area in which fish were 
caught; and
    (F) Vessel Trip Report (VTR) serial number, as instructed by the 
Regional Administrator.
* * * * *
    (viii) Declaration. To fish in the U.S./Canada Management Area 
under a groundfish DAS, a NE multispecies DAS vessel, prior to leaving 
the dock, must declare through the VMS, in accordance with instructions 
to be provided by the Regional Administrator, which specific U.S./
Canada Management Area described in paragraphs (a)(1)(i) or (ii) of 
this section, or which specific SAP, described in paragraph (b) of this 
section, within the U.S./Canada Management Area the vessel will fish 
in, and comply with the restrictions and conditions in paragraphs 
(a)(3)(viii)(A) through (C) of this section. Vessels other than NE 
multispecies DAS vessels are not required to declare into the U.S./
Canada Management Areas.
    (A) A vessel fishing under a NE multispecies DAS in the Eastern 
U.S./Canada Area may fish both inside and outside of the Eastern U.S./
Canada Area on the same trip, provided it complies with the most 
restrictive DAS counting, trip limits, and reporting requirements for 
the areas fished for the entire trip, and provided it complies with the 
restrictions specified in paragraphs (a)(3)(viii)(A)(1) through (4) of 
this section. On a trip when the vessel operator elects to fish both 
inside and outside of the Eastern U.S./Canada Area, all cod, haddock, 
and yellowtail flounder caught on the trip shall count toward the 
applicable hard TAC specified for the U.S./Canada Management Area.
    (1) The vessel operator must notify NMFS via VMS any time prior to 
leaving the dock at the start of the trip or prior to leaving the 
Eastern U.S./Canada Area (including at the time of initial declaration 
into the Eastern U.S./Canada Area) that it is also electing to fish 
outside the Eastern U.S./Canada Area. With the exception of vessels 
participating in the Regular B DAS Program and fishing under a Regular 
B DAS, once a vessel that has elected to fish outside of the Eastern 
U.S./Canada Area leaves the Eastern U.S./Canada Area, Category A DAS 
shall accrue from the time the vessel crosses the VMS demarcation line 
at the start of its fishing trip until the time the vessel crosses the 
demarcation line on its return to port, in accordance with Sec.  
648.10(b)(2)(iii).
    (2) The vessel must comply with the reporting requirements of the 
U.S./Canada Management Area specified under paragraph (a)(3)(v) of this 
section for the duration of the trip.
    (3) If the vessel fishes or intends to fish in one or both of the 
differential DAS areas defined under Sec.  648.82(e)(4)(i), it must 
declare its intent to do so prior to leaving the Eastern U.S./Canada 
Area (including at the time of initial declaration into the Eastern 
U.S./Canada Area), and must not have exceeded the CC/GOM or SNE/MA 
yellowtail flounder trip limits, specified in Sec.  648.86(g), for the 
respective areas.
    (4) If a vessel possesses yellowtail flounder in excess of the trip 
limits for CC/GOM yellowtail flounder or SNE/MA yellowtail flounder, as 
specified in Sec.  648.86(g), the vessel may not fish in either the CC/
GOM or SNE/MA yellowtail flounder stock area during that trip (i.e., 
may not fish outside of the U.S./Canada Management Area).
    (B) A vessel fishing under a NE multispecies DAS in the Western 
U.S./Canada Area may fish inside and outside the Western U.S./Canada 
Area on the same trip, provided it complies with the most restrictive 
regulations applicable to the area fished for the entire trip (e.g., 
the possession restrictions specified in paragraph (a)(3)(iv)(C)(4) of 
this section), and the reporting requirements specified in paragraph 
(a)(3)(v) of this section.
    (C) For the purposes of selecting vessels for observer deployment, 
a vessel fishing in either of the U.S./Canada Management Areas 
specified in paragraph (a)(1) of this section must provide notice to 
NMFS of the vessel name; contact name for coordination of observer 
deployment; telephone number for contact; and the date, time, and port 
of departure, at least 72 hr prior to the beginning of any trip that it 
declares into the U.S./Canada Management Area, as required under this 
paragraph (a)(3)(viii).
    (ix) Gear requirements. NE multispecies vessels fishing with trawl 
gear in the Eastern U.S./Canada Area defined in paragraph (a)(1)(ii) of 
this section, unless otherwise provided in paragraphs (b)(8) and 
(b)(10) of this section, must fish with a Ruhle trawl, as described in 
paragraph (b)(10)(iv)(J)(1) of this section, or a haddock separator 
trawl or a flounder trawl net, as described in paragraphs (a)(3)(ix)(A) 
and (B) of this section (all three nets may be onboard the fishing 
vessel simultaneously). Gear other than the Ruhle trawl, haddock 
separator trawl, or the flounder trawl net as described in paragraph 
(a)(3)(ix) of this section, or gear authorized under paragraphs (b)(8) 
and (b)(10) of this section, may be on board the vessel during a trip 
to the Eastern U.S./Canada Area, provided the gear is stowed according 
to the regulations at Sec.  648.23(b). The description of the Ruhle 
trawl, the haddock separator trawl, and the flounder trawl net in 
paragraph (b)(10)(iv)(J)(1) of this section and in this paragraph 
(a)(3)(ix) may be further specified by the Regional Administrator 
through publication of such specifications in the Federal Register,

[[Page 17057]]

consistent with the requirements of the Administrative Procedure Act.
    (A) Haddock separator trawl. A haddock separator trawl is defined 
as a groundfish trawl modified to a vertically oriented trouser trawl 
configuration, with two extensions arranged one over the other, where a 
codend shall be attached only to the upper extension, and the bottom 
extension shall be left open and have no codend attached. A horizontal 
large-mesh separating panel constructed with a minimum of 6.0-inch 
(15.2-cm) diamond mesh must be installed between the selvedges joining 
the upper and lower panels, as described in this paragraph 
(a)(3)(ix)(A) and in paragraph (B) of this section, extending forward 
from the front of the trouser junction to the aft edge of the first 
belly behind the fishing circle.
    (1) Two-seam bottom trawl nets. For two-seam nets, the separator 
panel will be constructed such that the width of the forward edge of 
the panel is 80-85 percent of the width of the after edge of the first 
belly of the net where the panel is attached. For example, if the belly 
is 200 meshes wide (from selvedge to selvedge), the separator panel 
must be no wider than 160-170 meshes.
    (2) Four-seam bottom trawl nets. For four-seam nets, the separator 
panel will be constructed such that the width of the forward edge of 
the panel is 90-95 percent of the width of the after edge of the first 
belly of the net where the panel is attached. For example, if the belly 
is 200 meshes wide (from selvedge to selvedge), the separator panel 
must be no wider than 180-190 meshes. The separator panel will be 
attached to both of the side panels of the net along the midpoint of 
the side panels. For example, if the side panel is 100 meshes tall, the 
separator panel must be attached at the 50th mesh.
    (B) Flounder trawl net. A flounder trawl net is defined as bottom 
trawl gear meeting one of the following two net descriptions:
    (1) A two-seam, low-rise net constructed with mesh size in 
compliance with Sec.  648.80(a)(4), where the maximum footrope length 
is not greater than 105 ft (32.0 m) and the headrope is at least 30-
percent longer than the footrope. The footrope and headrope lengths 
shall be measured from the forward wing end.
    (2) A two-seam, low-rise net constructed with mesh size in 
compliance with Sec.  648.80(a)(4), with the exception that the top 
panel of the net contains a section of mesh at least 10 ft (3.05 m) 
long and stretching from selvedge to selvedge, composed of at least 12-
inch (30.5-cm) mesh that is inserted no farther than 4.5 meshes behind 
the headrope.
    (b) * * *
    (8) * * *
    (v) * * *
    (E) * * *
    (3) Approval of additional gear. The Regional Administrator may 
authorize additional gear for use in the Eastern U.S./Canada Haddock 
SAP in accordance with the standards and requirements specified at 
paragraph (b)(10)(iv)(J)(2) of this section.
* * * * *
    (M) Incidental TACs. The maximum amount of GB cod, and the amount 
of GB yellowtail flounder, GB winter flounder, and pollock, both 
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 paragraphs (b)(9)(ii), (iii), and 
(iv) of this section, respectively.
    (N) Mandatory closure of Eastern U.S./Canada Haddock SAP. When the 
Regional Administrator projects that one or more of the TAC allocations 
specified in paragraph (b)(8)(v)(M) of this section has been caught by 
vessels fishing under Category B DAS, NMFS shall prohibit the use of 
Category B DAS in the Eastern U.S./Canada Haddock SAP, through 
publication in the Federal Register consistent with the Administrative 
Procedure Act. In addition, the closure regulations described in 
paragraph (a)(3)(iv)(E) of this section shall apply to the Eastern 
U.S./Canada Haddock SAP Program.
    (9) Incidental Catch TACs. Unless otherwise specified in this 
paragraph (b)(9), Incidental Catch TACs shall be specified through the 
periodic adjustment process described in Sec.  648.90, and allocated as 
described in this paragraph (b)(9), for each of the following stocks: 
GOM cod, GB cod, GB yellowtail flounder, GB winter flounder, GOM 
winter, white hake, CC/GOM yellowtail flounder, SNE/MA yellowtail 
flounder, witch flounder, and pollock. NMFS shall send letters to 
limited access NE multispecies permit holders notifying them of such 
TACs.
    (i) Stocks other than GB cod, GB yellowtail flounder, GB winter 
flounder, and pollock. With the exception of GB cod, GB yellowtail 
flounder, GB winter flounder, and pollock, the Incidental Catch TACs 
specified under this paragraph (b)(9) shall be allocated to the Regular 
B DAS Program described in paragraph (b)(10) of this section.
    (ii) GB cod. The Incidental TAC for GB cod specified under this 
paragraph (b)(9) shall be subdivided as follows: 70 percent to the 
Regular B DAS Program described in paragraph (b)(10) of this section; 
16 percent to the CA I Hook Gear Haddock SAP described in paragraph 
(b)(7) of this section; and 14 percent to the Eastern U.S./Canada 
Haddock SAP described in paragraph (b)(8) of this section.
    (iii) GB yellowtail flounder and GB winter flounder. Each of the 
Incidental Catch TACs for GB yellowtail flounder and GB winter flounder 
specified under this paragraph (b)(9) shall be subdivided as follows: 
80 percent to the Regular B DAS Program described in paragraph (b)(10) 
of this section; and 20 percent to the Eastern U.S./Canada Haddock SAP 
described in paragraph (b)(8) of this section.
    (iv) Pollock. The Incidental TAC for pollock specified under this 
paragraph (b)(9) shall be subdivided as follows: 90 percent to the 
Regular B DAS Program described in paragraph (b)(10) of this section; 5 
percent to the CA I Hook Gear Haddock SAP described in paragraph (b)(7) 
of this section; and 5 percent to the Eastern U.S./Canada Haddock SAP 
described in paragraph (b)(8) of this section.
    (10) Regular B DAS Program.--(i) Eligibility. Vessels issued a 
valid limited access NE multispecies DAS permit and allocated Regular B 
DAS are eligible to participate in the Regular B DAS Program and may 
elect to fish under a Regular B DAS, provided they comply with the 
requirements and restrictions of this paragraph (b)(10), and provided 
the use of Regular B DAS is not restricted according to paragraphs 
(b)(10)(iv)(G) or (H) of this section, or paragraph (b)(10)(vi) of this 
section. Vessels are required to comply with the no discarding and DAS 
flip requirements specified in paragraph (b)(10)(iv)(E) of this section 
and the DAS balance and accrual requirements specified in paragraph 
(b)(10)(iv)(F) of this section. Vessels may fish under the B Regular 
DAS Program and in the U.S./Canada Management Area on the same trip, 
but may not fish under the Regular B DAS Program and in a SAP on the 
same trip.
    (ii) [Reserved]
    (iii) Quarterly Incidental Catch TACs. The Incidental Catch TACs 
specified in accordance with paragraph (b)(9) of this section shall be 
divided into quarterly catch TACs as follows: The first quarter shall 
received 13 percent of the Incidental Catch TACs and the remaining 
three quarters shall each receive 29 percent of the Incidental Catch 
TACs. When the Regional Administrator projects that there is uncaught 
TAC in quarters one, two, or

[[Page 17058]]

three, the uncaught TAC will be added to the TAC allocated for the 
subsequent quarter. Uncaught TAC at the end of the fishing year will 
not be added to allocations in subsequent fishing years. NMFS shall 
send letters to all limited access NE multispecies permit holders 
notifying them of such TACs and any adjustments to such TACs.
    (iv) Program requirements.--(A) VMS requirement. A NE multispecies 
DAS vessel fishing in the Regular B DAS Program described in paragraph 
(b)(10)(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.
    (B) Observer notification. For the purposes 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; the date, time, and port of departure; 
and the planned fishing area or areas (GOM, GB, or SNE/MA) at least 72 
hr prior to the beginning of any trip that it declares into the Regular 
B DAS Program, as required under paragraph (b)(10)(iv)(C) of this 
section, and in accordance with instructions provided by the Regional 
Administrator. Providing notice of the area that the vessel intends to 
fish does not restrict the vessel's activity to only that area on that 
trip (i.e., the vessel operator may change his/her plans regarding 
planned fishing area).
    (C) VMS declaration. To participate in the Regular B DAS Program 
under a Regular B DAS, a vessel must declare into the Program via VMS 
prior to departure from port, in accordance with instructions provided 
by the Regional Administrator. A vessel declared into the Regular B DAS 
Program cannot fish in an approved SAP described under this section on 
the same trip. Mere declaration of a Regular B DAS Program trip does 
not reserve a vessel's right to fish under the Program, if the vessel 
has not crossed the VMS demarcation line.
    (D) Landing limits. Unless otherwise specified in this paragraph 
(b)(10)(iv)(D), a NE multispecies vessel fishing in the Regular B DAS 
Program described in this paragraph (b)(10), and fishing under a 
Regular B DAS, may not land more than 100 lb (45.5 kg) per DAS, or any 
part of a DAS, up to a maximum of 1,000 lb (454 kg) per trip of any of 
the following species/stocks from the areas specified in paragraph 
(b)(10)(v) of this section: Cod, pollock, white hake, witch flounder, 
GB winter flounder, GB yellowtail flounder, and southern windowpane 
flounder; and may not land more than 25 lb (11.3 kg) per DAS, or any 
part of a DAS, up to a maximum of 250 lb (113 kg) per trip of CC/GOM or 
SNE/MA yellowtail flounder. In addition, trawl vessels that are 
required to fish with a haddock separator trawl or Ruhle trawl, as 
specified under paragraph (b)(10)(iv)(J) of this section, and other 
gear that may be required in order to reduce catches of stocks of 
concern as described under paragraph (b)(10)(iv)(J) of this section, 
are restricted to the following trip limits: 500 lb (227 kg) of all 
flatfish species (American plaice, witch flounder, winter flounder (GOM 
or GB), windowpane flounder (south), and yellowtail flounder), 
combined; 500 lb (227 kg) of monkfish (whole weight); 500 lb (227 kg) 
of skates (whole weight); and zero possession of lobsters, ocean pout, 
SNE/MA winter flounder, and windowpane flounder (north), unless 
otherwise restricted by Sec.  648.94(b)(3).
    (E) No-discard provision and DAS flips. A vessel fishing in the 
Regular B DAS Program under a Regular B DAS may not discard legal-sized 
regulated species, Atlantic halibut, or monkfish, unless otherwise 
specified in this paragraph (b)(10)(iv)(E). This prohibition on 
discarding does not apply to ocean pout, windowpane (north), or SNE 
winter flounder, or in areas or times where the possession or landing 
of regulated species is prohibited. If such a vessel harvests and 
brings on board legal-sized regulated NE multispecies, or Atlantic 
halibut unless exempted, as specified in this paragraph (b)(10)(iv)(E), 
in excess of the allowable landing limits specified in paragraph 
(b)(10)(iv)(D) of this section, or Sec.  648.86, the vessel operator 
must notify NMFS immediately via VMS to initiate a DAS flip from a B 
DAS to an A DAS. Once this notification has been received by NMFS, the 
vessel shall automatically be switched by NMFS to fishing under a 
Category A DAS for its entire fishing trip. Thus, any Category B DAS 
that accrued between the time the vessel declared into the Regular B 
DAS Program at the beginning of the trip (i.e., at the time the vessel 
crossed the demarcation line at the beginning of the trip) and the time 
the vessel declared its DAS flip shall be accrued as Category A DAS, 
and not Regular B DAS. After flipping to a Category A DAS, the vessel 
is subject to the applicable trip limits specified under Sec.  648.86 
or paragraph (a) of this section and may discard fish in excess of the 
applicable trip limits.
    (F) Minimum Category A DAS and B DAS accrual. For a vessel fishing 
under the Regular B DAS Program, the number of Regular B DAS that may 
be used on a trip cannot exceed the number of Category A DAS that the 
vessel has at the start of the trip. If a vessel is fishing any part of 
a trip in one or both of the differential DAS areas, as described in 
Sec.  648.82(e)(4)(i), the number of Regular B DAS that may be used on 
a trip cannot exceed the number of Category A DAS that the vessel has 
at the start of the trip divided by two. For example, if a vessel plans 
a trip under the Regular B DAS Program into the Interim SNE 
Differential DAS Area and has 10 Category A DAS available at the start 
of the trip, the maximum number of Regular B DAS that the vessel may 
fish under the Regular B DAS Program is 5. A vessel fishing in the 
Regular B DAS Program for its entire trip shall accrue DAS in 
accordance with Sec.  648.82(e)(5).
    (G) Restrictions when 100 percent of the incidental catch TAC is 
harvested. With the exception of white hake, witch flounder, and 
pollock, when the Regional Administrator provides notification through 
methods consistent with the Administrative Procedure Act that 100 
percent of one or more of quarterly incidental TACs specified under 
paragraph (b)(10)(iii) of this section have been projected to have been 
harvested, the use of Regular B DAS shall be prohibited in the 
pertinent stock area(s) as defined under paragraph (b)(10)(v) of this 
section for the duration of the calendar quarter. The closure of a 
stock area to all Regular B DAS use shall occur even if the quarterly 
incidental catch TACs for other stocks in that stock area have not been 
completely harvested. When the Regional Administrator projects that 100 
percent of the quarterly white hake, witch flounder, or pollock 
incidental catch TAC specified under paragraph (b)(10)(iii) of this 
section has been harvested, vessels fishing under a Regular B DAS, or 
that complete a trip under a Regular B DAS, shall be prohibited from 
retaining white hake, witch flounder, or pollock, respectively.
    (H) Closure of Regular B DAS Program and quarterly DAS limits. 
Unless otherwise closed as a result of the harvest of an Incidental 
Catch TAC as described in paragraph (b)(10)(iv)(G) of this section, or 
as a result of an action by the Regional Administrator under paragraph 
(b)(10)(vi) of this section, the use of Regular B DAS shall, in a 
manner consistent with the Administrative Procedure Act, be prohibited 
when 500 Regular B DAS have been used during the first quarter of the 
fishing year (May-July), or when 1,000 Regular B DAS have been used 
during any of the remaining quarters of the fishing year, in accordance 
with Sec.  648.82(e)(5).
    (I) Reporting requirements. The owner or operator of a NE 
multispecies DAS vessel must submit catch reports via

[[Page 17059]]

VMS in accordance with instructions provided by the Regional 
Administrator, for each day fished when declared into the Regular B DAS 
Program. The reports must be submitted in 24-hr intervals for each day, 
beginning at 0000 hr and ending at 2400 hr. The reports must be 
submitted by 0900 hr of the following day. For vessels that have 
declared into the Regular B DAS Program in accordance with paragraph 
(b)(10)(iv)(C) of this section, the reports must include at least the 
following information: Statistical area fished; total pounds of cod, 
haddock, yellowtail flounder, winter flounder, witch flounder, pollock, 
and white hake kept; date fish were caught; and VTR serial number, as 
instructed by the Regional Administrator. Daily reporting must continue 
even if the vessel operator is required to flip, as described under 
paragraph (b)(10)(iv)(E) of this section.
    (J) Gear requirement.--(1) Vessels fishing with trawl gear in the 
Regular B DAS Program must use a haddock separator trawl or Ruhle 
trawl, as described under paragraphs (a)(3)(iii)(A) and 
(b)(10)(iv)(J)(3) of this section, respectively, or other type of gear, 
if approved, as described under this paragraph (b)(10)(iv)(J). Other 
gear may be on board the vessel, provided it is stowed when the vessel 
is fishing under the Regular B DAS Program. Vessels fishing with 
gillnet gear in the Regular B DAS Program may not use a low profile 
(``tie-down'' type) gillnet.
    (2) Approval of additional gear. At the request of the Council or 
Council's Executive Committee, the Regional Administrator may authorize 
additional gear for use in the Regular B DAS Program, through notice 
consistent with the Administrative Procedure Act. The proposed gear 
must satisfy standards specified in paragraphs (b)(10)(iv)(J)(2)(i) or 
(ii) of this section in a completed experiment that has been reviewed 
according to the standards established by the Council's research policy 
before the gear can be considered and approved by the Regional 
Administrator. Comparisons of the criteria specified in this paragraph 
(b)(10)(iv)(J)(2) will be made to an appropriately selected control 
gear.
    (i) The gear must show a statistically significant reduction in 
catch of at least 50 percent (by weight, on a trip-by-trip basis) of 
each regulated species stock of concern, unless otherwise allowed in 
this paragraph (b)(10)(iv)(J)(2)(i), or other non-groundfish stocks 
that are overfished or subject to overfishing identified by the 
Council. This requirement does not apply to regulated species 
identified by the Council as not being subject to gear performance 
standards; or
    (ii) The catch of each regulated species stock of concern, unless 
otherwise allowed in this paragraph (b)(10)(iv)(J)(2)(ii), or other 
non-groundfish stocks that are overfished or subject to overfishing 
identified by the Council, must be less than 5 percent of the total 
catch of regulated groundfish by weight, on a trip-by-trip basis. This 
requirement does not apply to regulated species identified by the 
Council as not being subject to gear performance standards.
    (3) Ruhle Trawl. The Ruhle Trawl is a four-seam bottom groundfish 
trawl designed to reduce the bycatch of cod while retaining or 
increasing the catch of haddock, when compared to traditional 
groundfish trawls. A Ruhle Trawl must be constructed in accordance with 
the standards described and referenced in this paragraph 
(b)(10)(iv)(J)(3). The mesh size of a particular section of the Ruhle 
Trawl is measured in accordance with Sec.  648.80(f)(2), unless 
insufficient numbers of mesh exist, in which case the maximum total 
number of meshes in the section will be measured (between 2 and 20 
meshes).
    (i) The net must be constructed with four seams (i.e., a net with a 
top and bottom panel and two side panels), and include at least the 
following net sections as depicted in Figure 1 of this part A 
``Nomenclature for 4-seam Ruhle Trawl'' (this figure is also available 
from the Regional Administrator): Top jib, bottom jib, jib side panels 
(x 2), top wing, bottom wing, wing side panels (x 2), square, bunt, 
square side panels (x 2), first top belly, first bottom belly, first 
belly side panels (x 2), second top belly, second bottom belly, second 
belly side panels (x 2), and third bottom belly.
    (ii) The first bottom belly, bunt, the top and bottom wings, and 
the top and bottom jibs, jib side panels, and wing side panels (the 
first bottom belly and all portions of the net in front of the first 
bottom belly, with the exception of the square and the square side 
panels) must be at least two meshes long in the fore and aft direction. 
For these net sections, the stretched length of any single mesh must be 
at least 7.9 ft (240 cm), measured in a straight line from knot to 
knot.
    (iii) Mesh size in all other sections must be consistent with mesh 
size requirements specified under Sec.  648.80 and meet the following 
minimum specifications: Each mesh in the square, square side panels, 
and second bottom belly must be 31.5 inches (80 cm); each mesh in the 
first and second top belly, the first belly side panels, and the third 
bottom belly must be at least 7.9 inches (20 cm); and 6 inches (15.24 
cm) or larger in sections following the second top belly and third 
bottom belly sections, all the way to the codend. The mesh size 
requirements of the top sections apply to the side panel sections.
    (iv) The trawl must have a fishing circle of at least 398 ft (121.4 
m). This number is calculated by separately counting the number of 
meshes for each section of the net at the wide, fore end of the first 
bottom belly, and then calculating a stretched length as follows: For 
each section of the net (first bottom belly, two belly side panels and 
first top belly) multiply the number of meshes times the length of each 
stretched mesh to get the stretched mesh length for that section, and 
then add the sections together. For example, if the wide, fore end of 
the bottom belly of the Ruhle Trawl is 22 meshes (and the mesh is at 
least 7.9 ft (240 cm)), the stretched mesh length for that section of 
the net is derived by multiplying 22 times 7.9 ft (240 cm) and equals 
173.2 ft (52.8 m). The top and sides (x 2) of the net at this point in 
the trawl are 343 meshes (221 + 61 + 61, respectively) (each 7.9 inches 
(20 cm)), which equals 225.1 ft (68.6 m) stretched length. The 
stretched lengths for the different sections of mesh are added together 
(173.2 ft + 225.1 ft (52.8 m + 68.6 m)) and result in the length of the 
fishing circle, in this case 398.3 ft (121.4 m).
    (v) The trawl must have a single or multiple kite panels with a 
total surface area of at least 29.1 sq. ft. (2.7 sq. m) on the forward 
end of the square to help maximize headrope height, for the purpose of 
capturing rising fish. A kite panel is a flat structure, usually semi-
flexible used to modify the shape of trawl and mesh openings by 
providing lift when a trawl is moving through the water.
    (vi) The sweep must include rockhoppers of various sizes, which are 
arranged along the sweep in size order, graduated from 16-inch (40-cm) 
diameter in the sweep center down to 12-inch (30-cm) diameter at the 
wing ends. There must be six or fewer 12- to 16-inch (30- to 40-cm) 
rockhopper discs over any 10-ft (3.0-m) length of the sweep. The 12- to 
16- inch (30- to 40-cm) discs (minimum size) must be spaced evenly, 
with one disc placed approximately every 2 ft (60 cm) along the sweep. 
The 12- to 16-inch (30- to 40-cm) discs must be separated by smaller 
discs, no larger than 3.5 inches (8.8 cm) in diameter.
    (v) Definition of incidental TAC stock areas. For the purposes of 
the Regular B DAS Program, including the stocks

[[Page 17060]]

that may not be retained by vessels as specified under Sec.  648.86, 
the species stock areas are defined in paragraphs (b)(10)(v)(A) through 
(I) of this section. Copies of a chart depicting these areas are 
available from the Regional Administrator upon request.
    (A) GOM cod stock area. The GOM cod stock area for the purposes of 
the Regular B DAS Program is the area defined by straight lines 
connecting the following points in the order stated:

                      Gulf of Maine Cod Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
GOM1..........................................        (\1\)   70[deg]00'
GOM2..........................................   42[deg]20'   70[deg]00'
GOM3..........................................   42[deg]20'   67[deg]40'
GOM4..........................................   43[deg]50'   67[deg]40'
GOM5..........................................   43[deg]50'   66[deg]50'
GOM6..........................................   44[deg]20'   66[deg]50'
GOM7..........................................   44[deg]20'   67[deg]00'
GOM8..........................................        (\2\)   67[deg]00'
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg]00' W. Long.
\2\ Intersection of the south-facing Maine coastline and 67[deg]00' W.
  Long.

    (B) GB cod stock area. The GB cod stock area for the purposes of 
the Regular B DAS Program is the area defined by straight lines 
connecting the following points in the order stated:

                       Georges Bank Cod Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
GB1...........................................        (\1\)   70[deg]00'
GB2...........................................   42[deg]20'   70[deg]00'
GB3...........................................   42[deg]20'   66[deg]00'
GB4...........................................   42[deg]10'   66[deg]00'
GB5...........................................   42[deg]10'   65[deg]50'
GB6...........................................   42[deg]00'   65[deg]50'
GB7...........................................   42[deg]00'   65[deg]40'
GB8...........................................   40[deg]30'   65[deg]40'
GB9...........................................   39[deg]00'   65[deg]40'
GB10..........................................   39[deg]00'   70[deg]00'
GB11..........................................   35[deg]00'   70[deg]00'
GB12..........................................   35[deg]00'        (\2\)
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg]00' W. Long.
\2\ Intersection of the east-facing coastline of Outer Banks, NC, and
  35[deg]00' N. Lat.

    (C) CC/GOM yellowtail flounder stock area. The CC/GOM yellowtail 
flounder stock area for the purposes of the Regular B DAS Program is 
the area defined by straight lines connecting the following points in 
the order stated:

                  CC/GOM Yellowtail Flounder Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
CCGOM1........................................   43[deg]00'        (\1\)
CCGOM 2.......................................   42[deg]20'   70[deg]00'
CCGOM 3.......................................   42[deg]20'   66[deg]00'
CCGOM 4.......................................   42[deg]10'   66[deg]00'
CCGOM 5.......................................   42[deg]10'   65[deg]50'
CCGOM 6.......................................   42[deg]00'   65[deg]50'
CCGOM 7.......................................   42[deg]00'   65[deg]40'
CCGOM 8.......................................   40[deg]30'   65[deg]40'
CCGOM 9.......................................   39[deg]00'   65[deg]40'
CCGOM 10......................................        (\2\)  ...........
CCGOM 11......................................   35[deg]00'        (\3\)
CCGOM 12......................................   35[deg]00'        (\4\)
CCGOM 13......................................        (\3\)  ...........
------------------------------------------------------------------------
\1\ Intersection with the New Hampshire coastline.
\2\ Intersection of the south-facing shoreline of Cape Cod, MA.
\3\ Intersection with the east-facing shoreline of Cape Cod, MA.
\4\ Intersection with the west-facing shoreline of Massachusetts.

    (D) SNE/MA yellowtail flounder stock area. The SNE/MA stock area 
for the purposes of the Regular B DAS Program is the area bounded on 
the north, east, and south by straight lines connecting the following 
points in the order stated:

                  SNE/MA Yellowtail Flounder Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
SNEMA1........................................   40[deg]00'   74[deg]00'
SNEMA2........................................   40[deg]00'   72[deg]00'
SNEMA3........................................   40[deg]30'   72[deg]00'
SNEMA4........................................   40[deg]30'   69[deg]30'
SNEMA5........................................   41[deg]00'   69[deg]30'
SNEMA6........................................   41[deg]00'   69[deg]00'
SNEMA7........................................   41[deg]30'   70[deg]00'
SNEMA8........................................   39[deg]00'   70[deg]00'
SNEMA9........................................   41[deg]00'   70[deg]00'
SNEMA10.......................................   41[deg]00'   70[deg]30'
SNEMA11.......................................   41[deg]30'   70[deg]30'
SNEMA12.......................................        (\1\)   72[deg]00'
SNEMA13.......................................        (\2\)   72[deg]00'
SNEMA14.......................................        (\3\)   73[deg]00'
SNEMA15.......................................   40[deg]30'   73[deg]00'
SNEMA16.......................................   40[deg]30'   74[deg]00'
SNEMA17.......................................   40[deg]00'   74[deg]00'
------------------------------------------------------------------------
\1\ South-facing shoreline of Connecticut.
\2\ North-facing shoreline of Long Island, New York.
\3\ South-facing shoreline of Long Island, New York.

    (E) SNE/MA winter flounder stock area. The SNE winter flounder 
stock area, for the purposes of the Regular B DAS Program and the 
prohibition on retention of winter flounder specified under Sec.  
648.86, is the area defined by straight lines connecting the following 
points in the order stated:

      Southern New England/Mid-Atlantic Winter Flounder Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
SNEW1.........................................        (\1\)  70[deg]00[m
                                                                     in]
SNEW2.........................................  42[deg]20[m  70[deg]00[m
                                                        in]          in]
SNEW3.........................................  42[deg]20[m  68[deg]50[m
                                                        in]          in]
SNEW4.........................................  39[deg]50[m  68[deg]50[m
                                                        in]          in]
SNEW5.........................................  39[deg]50[m  71[deg]40[m
                                                        in]          in]
SNEW6.........................................  39[deg]00[m  71[deg]40[m
                                                        in]          in]
SNEW7.........................................  39[deg]00[m  70[deg]00[m
                                                        in]          in]
SNEW8.........................................  35[deg]00[m  70[deg]00[m
                                                        in]          in]
SNEW9.........................................  35[deg]00[m        (\2\)
                                                        in]
------------------------------------------------------------------------
\1\ Intersection of the north-facing Coastline of Cape Cod, MA, and
  70[deg]00[min] W. Long.
\2\ The intersection of the east-facing coastline of Outer Banks, NC,
  and 35[deg]00[min] N. Lat.

    (F) Windowpane flounder northern stock area. The windowpane 
flounder northern stock area, for the purposes of prohibition on 
retention of northern windowpane flounder specified under Sec.  648.86, 
is the area defined by straight lines connecting the following points 
in the order stated:

                 Windowpane Flounder Northern Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
G12...........................................        (\1\)  70[deg]00[m
                                                                     in]
WIN1..........................................  41[deg]20[m  70[deg]00[m
                                                        in]          in]
WIN2..........................................  41[deg]20[m  69[deg]50[m
                                                        in]          in]
WIN3..........................................  41[deg]10[m  69[deg]50[m
                                                        in]          in]
WIN4..........................................  41[deg]10[m  69[deg]30[m
                                                        in]          in]
WIN5..........................................  41[deg]00[m  69[deg]30[m
                                                        in]          in]
WIN6..........................................  41[deg]00[m  68[deg]50[m
                                                        in]          in]
WIN7..........................................  39[deg]50[m  68[deg]50[m
                                                        in]          in]
WIN8..........................................  39[deg]50[m  69[deg]00[m
                                                        in]          in]
WIN9..........................................  39[deg]00[m  69[deg]00[m
                                                        in]          in]
WIN10.........................................  39[deg]00[m        (\2\)
                                                        in]
------------------------------------------------------------------------
\1\ South-facing coastline of Cape Cod, MA.
\2\ Intersection of 39[deg]00[min] N. Lat. and the boundary of the EEZ.

    (G) GB yellowtail flounder stock area. The GB yellowtail flounder 
stock area, for the purposes of the Regular B DAS Program, is the area 
defined as the U.S./Canada Management Areas, as specified in paragraphs 
(a)(1)(i) and (ii) of this section.
    (H) GB winter flounder stock area. The GB winter flounder stock 
area, for the purposes of the Regular B DAS Program, is the area 
defined as the U.S./Canada Management Areas, as specified in paragraphs 
(a)(1)(i) and (ii) of this section.
    (I) GOM winter flounder stock area. The GOM winter flounder stock 
area, for the purposes of the Regular B DAS Program, is the area 
defined by straight lines connecting the following points in the order 
stated:

[[Page 17061]]



                     GOM Winter Flounder Stock Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
GOM1..........................................        (\1\)  70[deg]00[m
                                                                     in]
GOM2..........................................  42[deg]20[m  70[deg]00[m
                                                        in]          in]
GOM3..........................................  42[deg]20[m  67[deg]40[m
                                                        in]          in]
GOM4..........................................  43[deg]50[m  67[deg]40[m
                                                        in]          in]
GOM5..........................................  43[deg]50[m  66[deg]50[m
                                                        in]          in]
GOM6..........................................  44[deg]20[m  66[deg]50[m
                                                        in]          in]
GOM7..........................................  44[deg]20[m  67[deg]00[m
                                                        in]          in]
GOM8..........................................        (\2\)  67[deg]00[m
                                                                     in]
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg]00[min] W. Long.
\2\ Intersection of the south-facing Maine coastline and 67[deg]00[min]
  W. Long.

    (vi) Closure and in-season modification to the Regular B DAS 
Program. The Regional Administrator, based upon information required 
under Sec. Sec.  648.7, 648.9, 648.10, or this paragraph (b)(10)(vi), 
and any other relevant information, in a manner consistent with the 
Administrative Procedure Act, may prohibit the use of Regular B DAS, 
modify possession restrictions, or implement other measures, including 
a partial closure for the Regular B DAS Program, for the duration of a 
quarter or fishing year, if it is projected that continuation of the 
Regular B DAS Program would undermine the achievement of the objectives 
of the FMP or Regular B DAS Program. Reasons for modification or 
termination of the program include, but are not limited to, the 
following: Inability to constrain catches to the Incidental Catch TACs; 
evidence of excessive discarding; a significant difference in flipping 
rates between observed and unobserved trips; or insufficient observer 
coverage to adequately monitor the program.
    (11) CA I Hook Gear Haddock SAP.--(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)(11)(ii) of 
this section, for the season specified in paragraph (b)(11)(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)(11)(iv)(I) or (b)(11)(vi)(F) 
of this section. Copies of a chart depicting this area are available 
from the Regional Administrator upon request.
    (ii) CA I Hook Gear Haddock Access Area. The CA I Hook Gear Haddock 
Access Area is the area defined by straight lines connecting the 
following points in the order stated:

                   CA I Hook Gear Haddock Access Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
Hook 1........................................  41[deg]09[m  68[deg]30[m
                                                        in]          in]
CI4...........................................  41[deg]30[m  68[deg]30[m
                                                        in]          in]
CI1...........................................  41[deg]30[m  69[deg]23[m
                                                        in]          in]
Hook 2........................................  41[deg]04[m  69[deg]01[m
                                                        in]          in]
------------------------------------------------------------------------

    (iii) Season. The overall season for the CA I Hook Gear Haddock SAP 
is May 1 through January 31.
    (iv) General program restrictions. General program restrictions 
specified in this paragraph (b)(11)(iv) apply to all eligible vessels 
as specified in paragraph (b)(11)(i) of this section. Further program 
restrictions specific to Sector and non-Sector vessels are specified in 
paragraphs (b)(11)(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)(10) of this 
section. DAS will be charged as described in Sec.  648.10.
    (B) VMS requirement. An eligible NE multispecies DAS vessel fishing 
in the CA I Hook Gear Haddock SAP specified in this paragraph (b)(11) 
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; and date, time, and port of departure at 
least 72 hr prior to the beginning of any trip that it declares into 
the CA I Hook Gear Haddock SAP, as required in paragraph (b)(11)(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)(11)(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)(11)(v)(B) of this section.
    (F) Haddock TAC.--(1) Allocation and distribution. The maximum 
total amount of haddock that may be caught (landings and discards) in 
the CA I Hook Gear SAP Area in any fishing year is based upon the size 
of the TAC allocated for the 2004 fishing year (1,130 mt live weight), 
adjusted according to the growth or decline of the western GB (WGB) 
haddock exploitable biomass (in relationship to its size in 2004), 
according to the following formula: BiomassYEAR X = (1,130 mt live 
weight) x (Projected WGB Haddock ExploitableBiomassYEAR X/WGB Haddock 
Exploitable Biomass2004). The size of the western component of the 
stock is considered to be 35 percent of the total stock size, unless 
modified by a stock assessment. The Regional Administrator shall 
specify the haddock TAC for the SAP, in a manner consistent with 
applicable law.
    (2) [Reserved]
    (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, and must exit the SAP if the vessel exceeds the applicable landing 
limits described in paragraph (b)(11)(iv)(H) of this section.
    (H) Landing limits. For all eligible vessels declared into the CA I 
Hook Gear Haddock SAP described in paragraph (b)(11)(i) of this 
section, landing limits for NE multispecies other than cod, which are 
specified at paragraphs (b)(11)(v)(C) and (b)(11)(vi)(C) of this 
section, are as specified at Sec.  648.86. Unless otherwise specified 
in this part, such vessels are prohibited from discarding legal-sized 
regulated NE multispecies, Atlantic halibut, and ocean pout, and must 
exit the SAP and cease fishing if any trip limit is achieved or 
exceeded.
    (I) Mandatory closure of CA I Hook Gear Haddock Access Area. When 
the Regional Administrator determines that the haddock TAC specified in 
paragraph (b)(11)(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)(11)(ii) of this section, to all eligible vessels.
    (J) Bait restriction. A vessel declared into and fishing in the CA 
I Hook Gear Haddock SAP is prohibited from using squid as bait when 
participating in the CA I Hook Gear Haddock SAP.
    (v) Sector vessel program restrictions. In addition to the general 
program restrictions specified at paragraph

[[Page 17062]]

(b)(11)(iv) of this section, the restrictions specified in this 
paragraph (b)(11)(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)(11)(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 shall provide daily reports to NMFS, including at 
least the following information: Total pounds of haddock, cod, 
yellowtail flounder, winter flounder, witch flounder, pollock, and 
white hake kept; total pounds of haddock, cod, yellowtail flounder, 
winter flounder, witch flounder, pollock, and white hake discarded; 
date fish were caught; and VTR serial number, as instructed by the 
Regional Administrator. Daily reporting must continue even if the 
vessel operator is required to exit the SAP as required under paragraph 
(b)(11)(iv)(F) of this section.
    (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)(11)(iv) of this 
section, the restrictions specified in this paragraph (b)(11)(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)(11)(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) 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)(11)(ii) of this section.
    (E) Incidental catch TACs. The maximum amount of GB cod and pollock 
(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 paragraphs (b)(9)(ii) and (iv) of this 
section, respectively.
    (F) Mandatory closure of CA I Hook Gear Haddock Access Area due to 
catch of any incidental catch TAC. When the Regional Administrator 
determines that either the GB cod or pollock incidental catch TAC 
specified in paragraph (b)(11)(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.
* * * * *

0
9. In Sec.  648.86, paragraph (b) is suspended; and paragraphs (l), 
(m), and (n) are added to read as follows:


Sec.  648.86  NE multispecies possession restrictions

* * * * *
    (l) Cod.--(1) GOM cod landing limit. (i) Except as provided in 
paragraphs (l)(1)(ii) and (l)(4) of this section, or unless otherwise 
restricted under Sec.  648.85, a vessel fishing under a NE multispecies 
DAS may land only up to 800 lb (362.9 kg) of cod during the first 24-hr 
period after the vessel has started a trip on which cod were landed 
(e.g., a vessel that starts a trip at 6 a.m. may call out of the DAS 
program at 11 a.m. and land up to 800 lb (362.9 kg), but the vessel 
cannot land any more cod on a subsequent trip until at least 6 a.m. on 
the following day). For each trip longer than 24 hr, a vessel may land 
up to an additional 800 lb (362.9 kg) for each additional 24-hr block 
of DAS fished, or part of an additional 24-hr block of DAS fished, up 
to a maximum of 4,000 lb (1,814.4 kg) per trip (e.g., a vessel that has 
been called into the DAS program for more than 24 hr, but less than 48 
hr, may land up to, but no more than, 1,600 lb (725.7 kg) of cod). A 
vessel that has been called into only part of an additional 24-hr block 
of a DAS (e.g., a vessel that has been called into the DAS program for 
more than 24 hr, but less than 48 hr) may land up to an additional 800 
lb (362.9 kg) of cod for that trip, provided the vessel complies with 
the provisions of paragraph (l)(1)(ii) of this section. Cod on board a 
vessel subject to this landing limit must be separated from other 
species of fish and stored so as to be readily available for 
inspection.
    (ii) A vessel that has been called into or declared into only part 
of an additional 24-hr block may come into port with and offload cod up 
to an additional 800 lb (362.9 kg), provided that the vessel operator, 
with the exception of vessels fishing in one or both of the two 
differential DAS areas under the restrictions of Sec.  648.82(e)(4), 
complies with the following:
    (A) For a vessel that is subject to the VMS provisions specified 
under Sec.  648.10(b), the vessel declares through VMS that 
insufficient DAS have elapsed in order to account for the amount of cod 
onboard and, after returning to port, does not depart from a dock or 
mooring in port, unless transiting as allowed under paragraph (l)(3) of 
this section, until the rest of the additional 24-hr block of the DAS 
has elapsed, regardless of whether all of the cod on board is offloaded 
(e.g., a vessel that has been in the DAS program for 25 hr prior to 
crossing the VMS demarcation line on the return to port may land only 
up to 1,600 lb (725.7 kg) of cod, provided the vessel does not declare 
another trip or leave port until 48 hr have elapsed from the beginning 
of the trip).
    (B) For a vessel that has been authorized by the Regional 
Administrator to utilize the DAS call-in system, as specified under 
Sec.  648.10(c), in lieu of VMS, the vessel does not call out of the 
DAS program as described under Sec.  648.10(c)(3) and does not depart 
from a dock or mooring in port, unless transiting as allowed in 
paragraph (l)(3) of this section, until the rest of the additional 24-
hr block of DAS has elapsed, regardless of whether all of the cod on 
board is offloaded (e.g., a vessel that has been called into the DAS 
program for 25 hr at the time of landing

[[Page 17063]]

may land only up to 1,600 lb (725.6 kg) of cod, provided the vessel 
does not call out of the DAS program or leave port until 48 hr have 
elapsed from the beginning of the trip).
    (2) GB cod landing and maximum possession limits. (i) Unless 
otherwise restricted under Sec.  648.85 or the provisions of paragraph 
(l)(2)(ii) of this section, or unless exempt from the landing limit 
under paragraph (l)(1) of this section as authorized under the Sector 
provisions of Sec.  648.87, a NE multispecies DAS vessel may land up to 
1,000 lb (453.6 kg) of cod per DAS, or part of a DAS, provided it 
complies with the requirements specified at paragraph (l)(4) of this 
section and this paragraph (l)(2). A NE multispecies DAS vessel may 
land up to 1,000 lb (453.6 kg) of cod during the first 24-hr period 
after such vessel has started a trip on which cod were landed (e.g., a 
vessel that starts a trip at 6 a.m. may call out of the DAS program at 
11 a.m. and land up to 1,000 lb (453.6 kg) of cod, but the vessel 
cannot land any more cod on a subsequent trip until at least 6 a.m. on 
the following day). For each trip longer than 24 hr, a vessel may land 
up to an additional 1,000 lb (453.6 kg) of cod for each additional 24-
hr block of DAS fished, or part of an additional 24-hr block of DAS 
fished, up to a maximum of 10,000 lb (4,536 kg) of cod per trip (e.g., 
a vessel that has been called into the DAS program for more than 24 hr, 
but less than 48 hr, may land up to, but no more than, 2,000 lb (907.2 
kg) of cod). A vessel that has been called into only part of an 
additional 24-hr block of a DAS (e.g., a vessel that has been called 
into the DAS program for more than 24 hr, but less than 48 hr) may land 
up to an additional 1,000 lb (453.6 kg) of cod for that trip, provided 
the vessel complies with the provisions of paragraph (l)(2)(ii) of this 
section. Cod on board a vessel subject to this landing limit must be 
separated from other species of fish and stored so as to be readily 
available for inspection.
    (ii) A vessel that has been called into or declared into only part 
of an additional 24-hr block may come into port with and offload cod up 
to an additional 1,000 lb (453.6 kg), provided that the vessel 
operator, with the exception of vessels fishing in one or both of the 
differential DAS areas under the restrictions of Sec.  648.82(e)(4), 
complies with the following:
    (A) For a vessel that has been authorized by the Regional 
Administrator to utilize the DAS call-in system as specified under 
Sec.  648.10(c), in lieu of VMS, the vessel does not call out of the 
DAS program as described under Sec.  648.10(c)(3) and does not depart 
from a dock or mooring in port, unless transiting, as allowed in 
paragraph (l)(3) of this section, until the rest of the additional 24-
hr block of DAS has elapsed, regardless of whether all of the cod on 
board is offloaded (e.g., a vessel that has been called into the DAS 
program for 25 hr at the time of landing may land only up to 2,000 lb 
(907.2 kg) of cod, provided the vessel does not call out of the DAS 
program or leave port until 48 hr have elapsed from the beginning of 
the trip.)
    (B) For a vessel that is subject to the VMS provisions specified 
under Sec.  648.10(b), the vessel declares through VMS that 
insufficient DAS have elapsed in order to account for the amount of cod 
onboard, and after returning to port does not depart from a dock or 
mooring in port, unless transiting, as allowed under paragraph (l)(3) 
of this section, until the rest of the additional 24-hr block of the 
DAS has elapsed, regardless of whether all of the cod on board is 
offloaded (e.g., a vessel that has been in the DAS program for 25 hr 
prior to crossing the VMS demarcation line on the return to port may 
land only up to 2,000 lb (907.2 kg) of cod, provided the vessel does 
not declare another trip or leave port until 48 hr have elapsed from 
the beginning of the trip.)
    (3) Transiting. A vessel that has exceeded the cod landing limit as 
specified in paragraphs (l)(1) and (2) of this section, and that is, 
therefore, subject to the requirement to remain in port for the period 
of time described in paragraphs (l)(1)(ii)(A) and (l)(2)(ii)(A) of this 
section, may transit to another port during this time, provided that 
the vessel operator notifies the Regional Administrator, either at the 
time the vessel reports its hailed weight of cod, or at a later time 
prior to transiting, and provides the following information: Vessel 
name and permit number, destination port, time of departure, and 
estimated time of arrival. A vessel transiting under this provision 
must stow its gear in accordance with one of the methods specified in 
Sec.  648.23(b) and may not have any fish on board the vessel.
    (4) Exemption. A vessel fishing under a NE multispecies DAS is 
exempt from the landing limit described in paragraph (l)(1) of this 
section when fishing south of the Gulf of Maine Regulated Mesh Area, 
defined in Sec.  648.80(a)(1), provided that it complies with the 
requirement of this paragraph (l)(4).
    (i) Declaration. With the exception of vessels declared into the 
U.S./Canada Management Area, as described under Sec.  
648.85(a)(3)(viii), a NE multispecies DAS vessel that fishes or intends 
to fish south of the line described in this paragraph (l)(4)(i) under 
the cod trip limits described under paragraph (l)(2) of this section, 
must, prior to leaving the dock, declare its intention to do so through 
the VMS, in accordance with instructions to be provided by the Regional 
Administrator. In lieu of a VMS declaration, the Regional Administrator 
may authorize such vessels to obtain a letter of authorization. If a 
letter of authorization is required, such vessel may not fish north of 
the exemption area for a minimum of 7 consecutive days (when fishing 
under the NE multispecies DAS program), and must carry the 
authorization letter on board.
    (ii) A vessel exempt from the GOM cod landing limit may not fish 
north of the line specified in this paragraph (l)(4)(ii) for the 
duration of the trip, but may transit the GOM Regulated Mesh Area, 
provided that its gear is stowed in accordance with the provisions of 
Sec.  648.23(b). A vessel fishing north and south of the line on the 
same trip is subject to the most restrictive applicable cod trip limit.
    (m) Witch flounder. Unless otherwise restricted under this part, a 
vessel issued a NE multispecies DAS permit, a limited access Handgear A 
permit, an open access Handgear B permit, or a monkfish limited access 
permit and fishing under the monkfish Category C or D permit provisions 
may land up to 1,000 lb (453.6 kg) of witch flounder per DAS, or any 
part of a DAS, up to 5,000 lb (2,268.1 kg) per trip.
    (n) Zero retention stocks.--(1) SNE winter flounder. Vessels issued 
a NE multispecies permit may not fish for, possess, or land winter 
flounder caught in the SNE/MA winter flounder stock area, as defined in 
Sec.  648.85(b)(10)(v)(E). Vessels may transit this area with GOM or GB 
winter flounder on board the vessel, provided that gear is stowed in 
accordance with the provisions of Sec.  648.23(b). Vessels fishing for 
winter flounder in multiple stock areas are subject to the most 
restrictive winter flounder possession limit.
    (2) Northern windowpane flounder. Vessels issued a NE multispecies 
permit may not fish for, possess, or land windowpane flounder caught in 
the northern windowpane flounder stock area, as defined in Sec.  
648.85(b)(10)(v)(F). Vessels may transit this area with southern 
windowpane flounder on board, provided that gear is stowed in 
accordance with the provisions of Sec.  648.23(b). Vessels fishing for 
windowpane flounder in multiple stock areas would be subject to the 
most restrictive windowpane flounder possession limit.

[[Page 17064]]

    (3) Ocean pout. Vessels issued a NE multispecies permit may not 
fish for, possess or land ocean pout.

0
10. In Sec.  648.89, paragraphs (b)(1), (c)(1)(v), and (c)(2) are 
suspended, and paragraphs (b)(5), (c)(1)(vi), (c)(5), and (f) are added 
to read as follows:


Sec.  648.89  Recreational and charter/party vessel restrictions.

* * * * *
    (b) * * *
    (5) Minimum fish sizes. Unless further restricted under paragraph 
(b)(3) of this section, persons aboard charter or party vessels 
permitted under this part and not fishing under the NE multispecies DAS 
program, and recreational fishing vessels in or possessing fish from 
the EEZ, may not possess fish smaller than the minimum fish sizes, 
measured in total length (TL), as follows:

  Minimum Fish Sizes (TL) for Charter, Party, and Private Recreational
                                 Vessels
------------------------------------------------------------------------
                Species                               Sizes
------------------------------------------------------------------------
Cod....................................  22 in (58.4 cm)
Haddock................................  18 in (45.7 cm)
Pollock................................  19 in (48.3 cm)
Witch flounder (gray sole).............  14 in (35.6 cm)
Yellowtail flounder....................  13 in (33.0 cm)
Atlantic halibut.......................  36 in (91.4 cm)
American plaice (dab)..................  14 in (35.6 cm)
Winter flounder (blackback)............  12 in (30.5 cm)
Redfish................................  9 in (22.9 cm)
------------------------------------------------------------------------

    (c) * * *
    (1) * * *
    (vi) Seasonal GOM cod possession prohibition. Persons aboard 
private recreational fishing vessels fishing in the GOM Regulated Mesh 
Area specified under Sec.  648.80(a)(1) may not fish for, possess, or 
land any cod from November 1 through April 15. Private recreational 
vessels in possession of cod caught outside the GOM Regulated Mesh Area 
may transit this area, provided all bait and hooks are removed from all 
fishing rods, and any cod on board has been gutted and stored.
* * * * *
    (5) Charter/party vessels. Charter/party vessels are subject to the 
following possession limit restrictions:
    (i) Unless further restricted by the Seasonal GOM Cod Possession 
Prohibition, specified under paragraph (c)(5)(v) of this section, each 
person on a charter/party vessel may possess no more than 10 cod per 
day in, or harvested from, the EEZ.
    (ii) For purposes of counting fish, fillets shall be converted to 
whole fish at the place of landing by dividing the number of fillets by 
two. If fish are filleted into a single (butterfly) fillet, such fillet 
shall be deemed to be from one whole fish.
    (iii) Cod harvested by charter/party vessels with more than one 
person aboard may be pooled in one or more containers. Compliance with 
the possession limits will be determined by dividing the number of fish 
on board by the number of persons on board. If there is a violation of 
the possession limits on board a vessel carrying more than one person, 
the violation shall be deemed to have been committed by the owner and 
operator of the vessel.
    (iv) Cod must be stored so as to be readily available for 
inspection.
    (v) Seasonal GOM cod possession prohibition. Persons aboard 
charter/party fishing vessels fishing in the GOM Regulated Mesh Area 
specified under Sec.  648.80(a)(1) may not fish for or possess any cod 
from November 1 through April 15. Charter/party vessels in possession 
of cod caught outside the GOM Regulated Mesh Area may transit this 
area, provided all bait and hooks are removed from all fishing rods, 
and any cod on board has been gutted and stored.
* * * * *
    (f) SNE/MA winter flounder retention prohibition. Private 
recreational and charter/party vessels fishing in the SNE/MA winter 
flounder stock area, as defined in Sec.  648.85(b)(10)(v)(E), may not 
fish for, possess, or land winter flounder. Recreational vessels in 
possession of winter flounder caught outside of the SNE/MA winter 
flounder may transit this area, provided all bait and hooks are removed 
from all fishing rods, and any winter flounder on board has been 
stored.

0
11. In Sec.  648.92, paragraphs (b)(1)(i), (b)(1)(iii)(A), (b)(2), and 
(b)(8)(v) are suspended; and paragraphs (b)(1)(iii)(C), (b)(1)(vi), 
(b)(8)(vi), and (b)(10) are added to read as follows:


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

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (C) Vessels that change their DAS declaration from a NE 
multispecies Category A DAS to a monkfish DAS during the course of a 
trip remain subject to the NE multispecies DAS usage requirements 
(i.e., use a NE multispecies Category A DAS in conjunction with the 
monkfish DAS) described in paragraph (b)(10)(i) of this section.
* * * * *
    (vi) General provision. Limited access monkfish permit holders 
shall be allocated 31 monkfish DAS each fishing year to be used in 
accordance with the restrictions of this paragraph (b), unless 
otherwise restricted by paragraph (b)(1)(ii) of this section or 
modified by Sec.  648.96(b)(3), or unless the vessel is enrolled in the 
Offshore Fishery Program in the SFMA, as specified in paragraph 
(b)(1)(iv) of this section. The annual allocation of monkfish DAS shall 
be reduced by the amount calculated in paragraph (b)(1)(v) of this 
section for the research DAS set-aside. Limited access NE multispecies 
and limited access sea scallop permit holders who also possess a 
limited access monkfish permit must use a NE multispecies or sea 
scallop DAS concurrently with each monkfish DAS utilized, except as 
provided in paragraph (b)(10) of this section, unless otherwise 
specified under this subpart F.
* * * * *
    (8) * * *
    (vi) Method of counting DAS. A vessel fishing with gillnet gear 
under a monkfish DAS shall accrue 15 hr of monkfish DAS for all trips 
less than or equal to 15 hr in duration. Such vessels shall accrue 
monkfish DAS based on actual time at sea for trips greater than 15 hr 
in duration. A vessel fishing with gillnet gear under only a monkfish 
DAS is not required to remove gillnet gear from the water upon 
returning to the dock and calling out of the DAS program, provided the 
vessel complies with the requirements and conditions of paragraphs 
(b)(8)(i)-(vi) of this section. A vessel fishing with gillnet gear 
under a joint monkfish and NE multispecies DAS, as required under Sec.  
648.92(b)(10)(i), that is declared as a trip gillnet vessel under the 
NE Multispecies FMP, must remove its gillnet gear from the water prior 
to calling out of the DAS program, as specified at Sec.  648.82(j)(2).
* * * * *
    (10) Category C, D, F, G, or H limited access monkfish permit 
holders--(i) Unless otherwise specified in paragraph (b)(10)(ii) of 
this section, each monkfish DAS used by a limited access NE 
multispecies or scallop DAS vessel holding a Category C, D, F, G, or H 
limited access monkfish permit shall also be counted as a NE 
multispecies or scallop DAS, as applicable, except when a Category C, 
D, F, G, or H vessel with a limited access NE multispecies DAS permit 
has an allocation of NE multispecies Category A DAS, specified under 
Sec.  648.82(d)(1), that is less than the number of monkfish DAS 
allocated for the fishing year May 1 through April 30. Under this 
circumstance, the vessel may fish under the monkfish limited

[[Page 17065]]

access Category A or B provisions, as applicable, for the number of DAS 
that equal the difference between the number of its allocated monkfish 
DAS and its allocated NE multispecies Category A DAS. For such vessels, 
when the total allocation of NE multispecies Category A DAS has been 
used, a monkfish DAS may be used without concurrent use of a NE 
multispecies DAS, provided that the vessel fishes under the regulations 
pertaining to a Category B vessel and does not retain any regulated NE 
multispecies. For example, if a monkfish Category D vessel's NE 
multispecies Category A DAS allocation is 20, and the monkfish 
allocation is 31, the vessel may use up to 11 of its monkfish DAS 
without concurrently using a groundfish DAS (31-20 = 11), after all 20 
NE multispecies Category A DAS are used. In addition, Category C and D 
vessels that are fishing in one or both of the 2:1 differential DAS 
areas specified in Sec.  648.82(e)(4)(i) shall accrue monkfish-only DAS 
to account for those monkfish DAS that are ``lost'' as a result of 
fishing in the differential DAS area (resulting from the use of 
groundfish DAS at a higher rate). These vessels shall accrue monkfish-
only DAS at a rate of 1 monkfish DAS for every 2 NE multispecies DAS 
used in the differential area (2:1 rate). These monkfish-only DAS may 
later be used without concurrent use of a NE multispecies DAS, provided 
that the vessel fishes under the regulations pertaining to a Category A 
or Category B vessel and does not retain any regulated NE multispecies. 
A vessel holding a Category C, D, F, G, or H limited access monkfish 
permit may not use a NE multispecies Category B Regular DAS under the 
NE Multispecies Regular B DAS Program, as specified under Sec.  
648.85(b)(10), in order to satisfy the requirement of this paragraph 
(b)(10)(i) to use a NE multispecies DAS concurrently with a monkfish 
DAS.
    (ii) Category C, D, F, G, or H vessels that lease NE multispecies 
DAS.--(A) A monkfish Category C, D, F, G, or H vessel that has 
``monkfish-only'' DAS, as specified in paragraph (b)(2)(i) of this 
section, and that leases NE multispecies DAS from another vessel 
pursuant to Sec.  648.82(k), is required to fish its available 
``monkfish-only'' DAS in conjunction with its leased NE multispecies 
DAS, to the extent that the vessel has NE multispecies DAS available.
    (B) A monkfish Category C, D, F, G, or H vessel that leases DAS to 
another vessel(s), pursuant to Sec.  648.82(k) must forfeit a monkfish 
DAS for each NE multispecies DAS that the vessel leases, equal in 
number to the difference between the number of remaining NE 
multispecies DAS and the number of unused monkfish DAS at the time of 
the lease. For example, if a lessor vessel that had 31 unused monkfish 
DAS and 35 allocated NE multispecies DAS leased 10 of its NE 
multispecies DAS to another vessel, the lessor would forfeit 6 of its 
monkfish DAS (10 - (35 NE multispecies DAS - 31 monkfish DAS) = 6).
* * * * *

0
12. In Sec.  648.95, paragraph (h) is suspended and paragraph (i) is 
added to read as follows:


Sec.  648.95  Offshore Fishery Program in the SFMA.

* * * * *
    (i) DAS usage by NE multispecies or sea scallop limited access 
permit holders. A vessel issued a Category F permit that also has been 
issued either a NE multispecies or sea scallop limited access permit, 
and is fishing on a monkfish DAS, is subject to the DAS usage 
requirements specified in Sec.  648.92(b)(10).

[FR Doc. E9-8092 Filed 4-10-09; 8:45 am]
BILLING CODE 3510-22-P