Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 40-B (FW 40B), 15803-15816 [05-6188]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 59 (Tuesday, March 29, 2005)]
[Proposed Rules]
[Pages 15803-15816]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6188]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050314072-5072-01; I.D. 030705D]
RIN 0648-AS33


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in FW 40B to 
the NE Multispecies Fishery Management Plan (FMP). FW 40B was developed 
by the New England Fishery Management Council (Council) to modify 
existing effort control programs implemented under Amendment 13 to the 
FMP to improve the effectiveness of these programs and to create 
additional opportunities for commercial fishing vessels in the fishery 
to target healthy groundfish stocks. In addition, this action includes 
measures that would increase the information available to assess 
groundfish bycatch in the herring fishery.

DATES: Comments must be received on or before April 18, 2005.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: FW40B@NOAA.gov. Include in the subject line the 
following: ``Comments on the Proposed Rule for Groundfish Framework 
40B.''
     Federal e-Rulemaking Portal: https://www.regulations.gov.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of 
the envelope, ``Comments on the Proposed Rule for Groundfish Framework 
40B.''
     Fax: (978) 281-9135.
    Copies of FW 40B, its Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), and the Environmental 
Assessment (EA) are available from Paul J. Howard, Executive Director, 
New England Fishery Management Council, 50 Water Street, The Tannery - 
Mill 2, Newburyport, MA 01950.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to David Rostker, Office of Management and Budget (OMB), by 
e-mail at David--Rotsker@omb.eop.gov, or fax to (202) 395-7285.

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

SUPPLEMENTARY INFORMATION:

Background

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

Proposed Measures

    FW 40B proposes 12 specific management measures, as described here.
1. DAS Transfer Program Modifications
    Amendment 13 created a DAS Transfer Program, which allows for the 
permanent exchange of DAS between vessels with limited access NE 
multispecies permits. Exchanges of DAS through this program are subject 
to a number of restrictions that govern which vessels can exchange DAS, 
and what happens to the other permits of the vessel that is selling its 
DAS to another vessel. As adopted in Amendment 13, Category A and B DAS 
that are permanently exchanged through the DAS Transfer Program are 
reduced by 40 percent, while Category C DAS are reduced by 90 percent. 
This reduction in DAS exchanged through the DAS Transfer Program is 
commonly referred to as a conservation tax. FW 40B would reduce the 
conservation tax on Category A or B DAS that are permanently exchanged 
through the DAS Transfer Program to 20 percent. The conservation tax on 
Category C DAS exchanged under this program would not be affected by 
this action.
    Under the existing DAS Transfer Program regulations, vessels 
involved in

[[Page 15804]]

selling and purchasing DAS must have permit baseline characteristics 
for length, horsepower, and gross tonnage that fall within the current 
size restrictions (i.e., the baseline characteristics of the vessel 
receiving DAS must be within 10 percent of the baseline length and 
gross tonnage, and within 20 percent of the baseline horsepower of the 
transferring vessel). The proposed action would remove the requirement 
that vessels transferring DAS must fall within the tonnage permit 
upgrade restrictions (i.e., the requirement that the vessel receiving 
DAS must be within 10 percent of the tonnage of the vessel selling the 
DAS). This action would make the size restrictions for the DAS Transfer 
Program consistent with the DAS Leasing Program.
    The proposed provisions included in FW 40B are intended to make the 
DAS Transfer Program more attractive to vessels and facilitate their 
participation in the Program, which would result in reductions in 
overall fishing capacity.
2. DAS Leasing Program Modifications
    Amendment 13 also implemented a DAS Leasing Program, which allows 
vessels to temporarily exchange DAS on a yearly basis. In order to 
lease DAS, the current regulations require that the permits involved in 
the transaction must have permit baseline characteristics for length 
and horsepower that fall within the current size restrictions (i.e., 
the baseline characteristics of the vessel receiving leased DAS must be 
within 10 percent of the baseline length and 20 percent of the baseline 
horsepower of the lessor vessel). The vessel baseline characteristics 
used for the DAS Leasing Program are the vessel baseline 
characteristics on file with NMFS as of January 29, 2004, the date of 
publication of the proposed rule for Amendment 13. In general, permits 
with smaller baseline characteristics have a larger pool of candidates 
with which to exchange DAS under the DAS Leasing Program.
    Some permit holders have placed permits on vessels with physical 
characteristics that are smaller than the baseline characteristics of 
the permit. These vessels are, therefore, limited in the number of 
vessels that can be candidates for leasing DAS because they can only 
lease DAS that match up with the larger baseline. The proposed action 
would allow permit holders a one-time opportunity to downgrade the 
permit baseline characteristics for the DAS Leasing Program, 
established as of January 29, 2004, to the physical characteristics of 
the vessel currently using the permit. This one-time downgrade would 
only apply to the DAS Leasing Program permit baseline and would not 
affect any other permit baselines currently specified for the permit 
(i.e., the baseline used for vessel upgrades or replacements). In 
effect, if a permit holder were to exercise this option, the permit 
would have two NE multispecies permit baselines: One for the DAS 
Leasing Program and another that applies to all other permit 
transactions (vessel upgrades or replacements or the DAS Transfer 
Program). If the permit were moved to another vessel during a vessel 
replacement, the downgraded DAS Leasing Program baseline would revert 
to the original DAS Leasing Program baseline established on January 29, 
2004, and could not be downgraded again for the purposes of the DAS 
Leasing Program. This downgraded DAS Leasing Program baseline would 
remain valid until the permit is placed on a replacement vessel as 
specified above, or until the DAS Leasing Program expires.
3. Changes to Incidental TAC's
    FW 40A implemented several programs that allow vessels to use 
Category B DAS to target healthy groundfish stocks without compromising 
the rebuilding of groundfish stocks of concern (i.e., those stocks that 
are currently overfished and/or are subject to overfishing). In order 
to limit the potential increase in fishing mortality resulting from the 
use of Category B (Regular and Reserve) DAS, FW 40A implemented 
incidental TAC amounts for each groundfish stock of concern caught by 
programs that allow the use of Category B DAS.
    This action would modify several of the incidental TAC's 
established under FW 40A. First, this action would set aside up to 10 
percent of the GB cod incidental TAC to allow for experimental fishing/
research. This would create a research set-aside of 9.7 mt of GB cod 
for the 2005 fishing year and a 12.7 mt GB cod set-aside for the 2006 
fishing year. Researchers could apply for this research TAC by 
submitting an application to the Regional Administrator by May 1. Since 
measures approved under FW 40B are not likely to be implemented before 
May 1, 2005, for the 2005 fishing year, applications would be required 
to be received by August 1, 2005. If no applications to use this TAC 
are received, the research setaside TAC of GB cod would be allocated 
among approved programs using Category B DAS and subject to an 
incidental TAC for GB cod. If applications received by May 1, do not 
require the entire research setaside TAC of GB cod, the remaining 
setaside TAC would be distributed to the Regular B DAS Pilot Program.
    As described in further detail below, FW 40B would implement a new 
SAP that would allow limited access NE multispecies vessels to target 
haddock in the WGOM Closure Area. In order to limit the potential 
fishing mortality on GOM cod from this SAP, this action would set an 
incidental TAC for GOM cod at 5 percent of the overall incidental catch 
TAC for GOM cod implemented under FW 40A. This would result in an 
incidental GOM cod TAC for the WGOM Closure Area Rod/Reel Haddock SAP 
of 6.3 mt for the 2005 fishing year and 7.5 mt for the 2006 fishing 
year. This percentage could be changed through a future management 
action.
4. WGOM Closure Area Rod/Reel SAP
    FW 40B proposes a new SAP that would allow all limited access NE 
multispecies vessels to target haddock in the WGOM Closure Area using 
hand-operated rod-and-reel gear. Vessels issued a limited access NE 
multispecies permit and subject to the DAS requirements could use 
Category A or B (Regular or Reserve) DAS to fish in this SAP. DAS would 
be charged beginning when the vessel crosses the Vessel Monitoring 
System (VMS) demarcation line when starting a trip into the SAP, and 
ending when the vessel crosses the VMS demarcation line on its return 
to port. Vessels issued a limited access Handgear A or a Small Vessel 
exemption permit and not subject to the DAS requirements could also 
participate in this SAP without the use of DAS. Vessels fishing with 
bait would be required to use circle hooks, and any jigs used in this 
SAP could not have treble hooks.
    The SAP would only be authorized for 2 months, March and April, and 
would expire 2 years after implementation, unless extended by the 
Regional Administrator. The Regional Administrator would extend this 
SAP if the monitoring and enforcement provisions prove sufficient to 
reliably document the catch of cod and haddock, if the cod and haddock 
TAC's specified for this SAP are not exceeded during each year of 
implementation; and the ratio of cod to haddock catch is less than 1:2 
by weight. The total catch (kept and discarded) of GOM haddock would be 
limited to 50 mt, while the catch of GOM cod would be limited to five 
percent of the GOM cod incidental catch TAC (6.3 mt and 7.5 mt for the 
2005 and 2006 fishing years, respectively). This SAP would close once 
the Regional Administrator projects that either the

[[Page 15805]]

GOM haddock or GOM cod TAC specified for this SAP has been caught. In 
addition, the Regional Administrator could close this SAP if the catch 
of cod to haddock exceeds a ratio of 1:2, by weight.
    In order to enable the NMFS Observer Program to deploy the 
appropriate amount of observers to accurately monitor catch in this 
SAP, a vessel intending to participate in this SAP would be required to 
notify the NMFS Observer Program by telephone at least 72 hours prior 
to leaving port. Vessels would be required to provide the following 
information: Vessel name; contact name for coordination of observer 
deployment; telephone number of contact; and date, time, and port of 
departure.
    All vessels participating in this SAP would be required to use an 
approved VMS. Vessels would be required to declare their intent to fish 
in this SAP via VMS and specify the type of DAS that would be used, if 
appropriate, prior to leaving port on a trip into the SAP. Once 
declared into this SAP, vessels would not be allowed to fish in any 
other area on the same trip. Vessels would be required to submit daily 
catch reports via VMS specifying the amount of haddock caught and 
discarded and the amount of cod discarded. Vessels would be subject to 
the landing limits for haddock and other species as specified in the 
regulations. All cod caught would have to be discarded.
    Vessels with a limited access NE multispecies DAS permit that elect 
to fish in this SAP would be required to participate in this SAP for a 
minimum of 7 days by obtaining a letter of authorization from the 
Regional Administrator. While enrolled to participate in this SAP, 
limited access NE multispecies DAS vessels would not be allowed to fish 
for groundfish or monkfish, including setting gear capable of catching 
groundfish or monkfish, in any other area.
5. CA II Yellowtail Flounder SAP
    Amendment 13 created a SAP to target GB yellowtail flounder in the 
southern half of CA II from June 1 through December 31. A total of 320 
trips was authorized, with vessels limited to two trips per month. The 
possession limit for yellowtail flounder was set at 30,000 lb (13,608 
kg) per trip.
    This SAP is regulated by the maximum number of trips and by the 
availability of the GB yellowtail flounder TAC allocated to the U.S./
Canada Management Area. During the 2004 fishing year, the total number 
of trips allowed into this SAP was used by September 3, 2004, prompting 
NMFS to close the SAP for the remainder of the fishing year (69 FR 
54593, September 9, 2004). In addition, the high rate of GB yellowtail 
flounder caught in this SAP triggered reductions in the GB yellowtail 
flounder trip limit and the eventual closure of the Eastern U.S./Canada 
Area by October 1, 2004 (69 FR 59815, October 6, 2004). This area has 
since been reopened under a restrictive GB yellowtail flounder trip 
limit of 15,000 lb (6,804 kg) per trip (70 FR 2820, January 18, 2005), 
which was then reduced to 5,000 lb (2,268 kg) per trip (70 FR 7050, 
February 10, 2005).
    FW 40B would modify this SAP by changing the start date for the SAP 
and enabling the Regional Administrator to adjust SAP provisions to 
adapt to changing stock and fishery conditions. Specifically, this 
action would change the start date for this SAP from June 1 to July 1. 
June is a spawning month for yellowtail flounder on GB and the fish are 
in relatively poor condition and bring low prices during that period. 
In addition, FW 40B would limit vessels to one trip per month, reduce 
the possession limit to 10,000 lb (4,536 kg), and establish criteria by 
which the Regional Administrator may set the GB yellowtail flounder 
landing limit (not to exceed 30,000 lb (13,608 kg)) and the total 
number of trips into this SAP based upon the amount of GB yellowtail 
flounder TAC (set in accordance with the U.S./Canada Resource Sharing 
Understanding) and the amount of GB yellowtail flounder caught outside 
of the SAP.
    Using specific criteria, a formula was developed in FW 40B to 
assist the Regional Administrator in determining the appropriate number 
of trips for this SAP on a yearly basis. The suggested formula offered 
by the Council is as follows: Number of trips = (GB yellowtail flounder 
TAC - 4,000 mt)/4.54 mt. Note that 4.54 mt is equivalent to 10,000 lb. 
This formula assumes that approximately 4,000 mt of GB yellowtail 
flounder would be caught by vessels operating in the U.S./Canada 
Management Area outside of the CA II Yellowtail Flounder SAP. FW 40B 
would authorize the Regional Administrator to not allow any trips into 
this SAP if the available GB yellowtail flounder catch (i.e., the GB 
yellowtail flounder TAC - 4,000 mt) is not sufficient to support 150 
trips with a 15,000-lb (6,804-kg) GB yellowtail flounder trip limit. 
Based on the preliminary GB yellowtail flounder TAC recommended by the 
Transboundary Management Guidance Committee and the Council for the 
2005 fishing year (4,260 mt), and using the formula proposed in FW 40B 
to determine the appropriate number of trips for fishing year 2005, 
there would be insufficient GB yellowtail flounder TAC to support the 
CA II Yellowtail Flounder SAP for the 2005 fishing year.
    These measures are intended to allow the SAP to be adjusted for 
changing stock conditions to help achieve OY for GB yellowtail 
flounder. These changes would help increase product quality by 
beginning the SAP after the spawning season and help reduce the 
possibility that a derby fishery would occur, resulting in low prices 
and an early closure of the Eastern U.S./Canada Area.
6. Minimum Effective Effort Allocation
    Amendment 13 categorized the DAS allocated to each permit based on 
recent fishing history. Under Amendment 13, about 400 vessels did not 
receive any Category A or B DAS, and thus have no opportunity to fish 
for groundfish with their limited access permit. The proposed action 
would re-categorize 10 Category C DAS as Category B (Reserve) DAS for 
these permits. These DAS can only be used in approved SAP's that do not 
have a DAS flipping requirement. Only the WGOM Closure Area Rod/Reel 
Haddock SAP as proposed in FW 40B would not have a DAS flipping 
requirement. Therefore, vessels allocated 10 Category B (Reserve) DAS 
under this proposed action would only be able to participate in the 
WGOM Closure Area Rod/Reel Haddock SAP, if approved.
7. GB Cod Hook Sector Revisions
    Amendment 13 established the GB Cod Hook Sector and allocated GB 
cod to the Sector based on the history of the Sector participants. As 
implemented, only permitted vessels with a past history of using hook 
gear can join the Sector, and only GB cod landed using hook gear is 
used to determine the Sector's GB cod allocation. The proposed action 
would modify these requirements by allowing any vessel to join the 
Sector and allow all GB cod landings of Sector participants, regardless 
of gear, to be used to determine the Sector's GB cod allocation. Sector 
participants are required to use hook gear once in the Sector. The 
maximum share of the GB cod TAC that the Sector could obtain would 
remain 20 percent of the overall GB cod TAC.
8. DAS Credit for Standing By Entangled Whales
    Rescue teams that attempt to free entangled whales are often 
frustrated by an inability to relocate the whale after the initial 
report. In order to encourage fishing vessels to report entangled

[[Page 15806]]

whales, the proposed action would provide a mechanism for a limited 
access groundfish vessel to obtain DAS credit for the time spent 
standing by an entangled whale. Vessels requesting such a credit would 
be required to notify the USCG and the appropriate organization of the 
entangled whale (currently, the Center for Coastal Studies); remain in 
contact with the Center for Coastal Studies; be available to answer 
questions on the condition of the animal, including, but not limited 
to, possible species identification, severity of entanglement, and gear 
entangling the animal; and request the Regional Administrator to issue 
a DAS credit.
9. Herring Vessel Interactions With Regulated Groundfish
    Recent reports of the catch of regulated groundfish by herring 
fishing vessels (most notably mid-water trawl vessels) have prompted an 
interest in gaining a better understanding of the scope of this 
problem. To date, very few data are available to adequately document 
groundfish bycatch from the herring fishery. The proposed action would 
require vessels with a Category I herring permit that intend to fish in 
the GOM or GB RMA's to notify the NMFS Observer Program at least 72 
hours before beginning a trip. In addition, if an observer is not 
provided for the trip, the vessel must notify NMFS Office of Law 
Enforcement via VMS of the time and place of landing prior to crossing 
the VMS demarcation line on returning to port. These provisions are 
intended to improve the ability to place an observer on herring vessels 
to monitor groundfish bycatch.
10. Trip Gillnet Net Limitations
    Prior to May 1, 2002, Trip gillnet vessels did not have a 
regulatory limit on the number of nets that could be fished, but rather 
were limited by the number of nets that could be physically carried on 
board the vessel. Effort was thus limited by the size of the vessel, as 
well as the number of DAS allocated to that vessel, similar to the 
approach used for trawl gear. Net limits were first adopted for Trip 
gillnet vessels under the interim regulations implemented on August 1, 
2002 (67 FR 50292) in response to the Settlement Agreement in the case 
Conservation Law Foundation, et al., v. Evans. Amendment 13 revised the 
number of nets that could be carried aboard and fished, but did not 
remove the new limit completely. The proposed action would remove the 
limit on the number of nets that could be carried onboard by Trip 
gillnet vessels, because this measure is now considered unnecessary. 
Thus, this measure would restore the net limits for Trip gillnet 
vessels that were in place prior to the Settlement Agreement. In doing 
so, this action would also remove the tagging requirements for Trip 
gillnet vessels.
11. Dumping Prohibition for Vessels Under a Category B DAS
    FW 40A implemented two programs (the Eastern U.S./Canada Haddock 
SAP Pilot Program and the Regular B DAS Pilot Program) that allow 
vessels to use Category B DAS to target healthy groundfish stocks 
without compromising the rebuilding objectives of the FMP. To minimize 
the mortality on stocks of concern from vessel activities in these new 
programs, as well as the CA II Yellowtail Flounder SAP implemented 
under Amendment 13, FW 40A implemented measures that prohibit vessels 
from discarding legal-sized cod and other regulated groundfish when 
fishing under a Category B DAS. These measures also require vessels to 
initiate a DAS flip (i.e., change the category of DAS used on that trip 
to Category A DAS) if vessels harvest more legal-sized cod or other 
regulated groundfish than the applicable maximum landing limits per 
trip under a Category B DAS. The current regulations, however, do not 
explicitly address whether dumping the contents of a net before 
bringing the net on board constitutes discarding. Through this action, 
NMFS proposes to implement an explicit measure to clarify that dumping 
of the contents of a net when operating under a Category B DAS in the 
CA II Yellowtail Flounder SAP, the Eastern U.S./Canada Haddock SAP 
Pilot Program, or the Regular B DAS Pilot Program is prohibited because 
it is considered to be discarding as defined at 50 CFR 600.10.
12. Corrections
    In addition to the proposed measures described here, the following 
changes are proposed to correct inaccurate references in the 
regulations. The proposed changes listed below are in the order in 
which they currently appear in the regulations.
    In Sec.  648.10, the periods ending paragraphs (b)(1)(vi) and 
(b)(1)(vii) would be corrected to semicolons.
    In Sec.  648.14, the reference to the restrictions and conditions 
for the CA II Yellowtail Flounder SAP in paragraph (a)(136) would be 
expanded to include Sec.  648.85(b)(3)(xi).
    In Sec.  648.14, under paragraph (a)(139), the reference to the 
number of trips specified under Sec.  648.85(b)(3)(vii) would be 
expanded to include the monthly trip limits for vessels specified in 
Sec.  648.85(b)(3)(vi).
    In Sec.  648.82, paragraphs (k)(4)(ix) and (l)(1)(ii) would be 
revised to clarify that vessels can lease or transfer DAS to a vessel 
with a baseline length overall and horsepower that is no more than 10 
percent and 20 percent greater than the baseline length overall and 
horsepower of the lessor or transferor vessel, respectively. This 
revision would correct the regulations to maintain consistency with the 
intent of Amendment 13 as outlined in the FSEIS.

Request for Comments

    The public is invited to comment on any of the measures proposed in 
this rule. NMFS is especially interested in receiving comments on 
several proposed measures for which the agency has concern, 
particularly regarding whether these measures are consistent with 
achieving the objectives of the FMP and the fishing mortality reduction 
objectives established in Amendment 13, whether there is sufficient 
analysis in the EA to support the proposed measures, and whether there 
are equity concerns involving specific measures. The reasons for these 
concerns are described below:

WGOM Closure Area Rod/Reel Haddock SAP

    FW 40B proposes to implement a SAP in the WGOM Closure Area. 
Amendment 13 states that the purpose of a SAP is to enable vessels to 
target regulated groundfish while minimizing impacts of fishing on 
overfished stocks. The proposed WGOM Closure Area Rod/Reel Haddock SAP 
would allow rod/reel vessels to target GOM haddock in the WGOM Closure 
Area while minimizing the bycatch of GOM cod (GOM cod is currently 
considered overfished). However, the analysis in the EA, based on the 
best scientific information available, indicates that rod/reel vessels 
may not be able to target GOM haddock in the WGOM Closure Area without 
also catching substantial amounts of GOM cod. In addition, available 
catch information used for this analysis is not consistent with vessel 
operations as proposed in FW 40B. Although this action proposes several 
measures that would limit the potential impact of this SAP (e.g., 
limited season, 2-year pilot program duration, small incidental cod 
TAC, and the authority for the Regional Administrator to close this 
SAP, etc.), there may not be sufficient data to justify this SAP given 
the Amendment 13 objective to minimize bycatch and the potential 
impacts of SAP's on overfished stocks.

[[Page 15807]]

 Furthermore, the WGOM Closure Area Rod/Reel Haddock SAP appears to 
represent substantial administrative and industry burdens without 
significant benefits to the fishery.

GB Cod Research Set-aside

    FW 40B proposes to set aside up to 10 percent of the GB cod 
incidental catch TAC to facilitate research. This TAC would be 
distributed to research proposals submitted to NMFS by May 1 of every 
year. However, the FW 40B document does not specify criteria for 
determining which proposals should be allocated this setaside research 
TAC. Further, the document does not describe a mechanism by which this 
TAC should be distributed to researchers. Without sufficient detail 
about how to administer this provision, including the process and 
mechanism by which proposals to use the GB incidental cod TAC research 
set-aside will be considered and TAC distributed, there may not be 
sufficient information to implement this provision.

Minimum Effective Effort Allocation

    FW 40B would re-categorize 10 Category C DAS to Category B Reserve 
DAS for any vessel allocated zero Category A or B (Regular and Reserve) 
DAS under Amendment 13. This would result in approximately 400 vessels 
with a minimum of 10 Category B Reserve DAS. However, there are a 
number of vessels that have been allocated Category A and B (Regular 
and Reserve) DAS under Amendment 13, but were allocated less than 10 
Category B Reserve DAS. Therefore, not every vessel in the NE 
multispecies fishery would have an equal minimum number of Category B 
Reserve DAS under this provision. NMFS raises this issue due to 
concerns over whether this provision is fair and equitable as required 
under National Standard 4 of the Magnuson-Stevens Act.
    Finally, NMFS specifically invites comments on whether NMFS should 
post vessels' DAS allocation information on the Northeast Regional 
Office website for the purposes of facilitating participation in the 
DAS Leasing/Transfer Programs.

Classification

    At this time, NMFS has not determined that the framework adjustment 
that this proposed rule would implement is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with Federalism or 
``takings'' implications as defined in E.O. 13132 and E.O. 12630, 
respectively.
    NMFS prepared an IRFA as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained in the preamble to this proposed rule and in the 
Executive Summary and Section 3.2 of FW 40B.
    As described above, the proposed action would implement one new SAP 
and modify existing effort control programs implemented under Amendment 
13 to help mitigate the economic impacts resulting from effort 
reductions in Amendment 13 and to improve the effectiveness of these 
effort control programs, respectively. The proposed alternative was 
compared to the No Action alternative and four other non-selected 
alternatives. In this analysis, the baseline (No Action alternative) is 
the set of measures currently in place for the NE multispecies fishery 
through the November 19, 2004, implementation of measures contained in 
FW 40A. The non-selected alternatives contained in FW 40B include 
various combinations of the measures proposed in this action, as well 
as other provisions that are not included in the proposed alternative. 
The provisions in these non-selected alternatives that are not included 
in the proposed alternative are described in further detail below.

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

    The proposed action would affect any vessel currently issued a 
limited access NE multispecies permit, vessels issued a Category 1 
herring permit, and researchers interested in conducting research 
impacting GB cod. Currently, there are approximately 1,500 vessels 
issued a limited access NE multispecies permit and 105 vessels issued a 
Category 1 herring permit. However, it is very unlikely that every 
vessel issued a limited access NE multispecies permit or a Category 1 
herring permit would be affected by this proposed action because of 
past and recent participation in the fishery, the voluntary nature of 
specific programs proposed in this action, and the associated 
regulatory and economic cost burdens for some of the proposed 
provisions. Except for the notification requirements for Category 1 
herring vessels, all of the provisions in the proposed rule are 
voluntary. Therefore, vessels that participate in these programs would 
likely have determined that the benefits of their participation 
outweigh costs associated with these programs. Based upon the 
information in the EA prepared for FW 40B, all 1,500 vessels issued a 
limited access NE multispecies permit would be eligible to participate 
in the DAS Leasing and DAS Transfer Programs, up to 91 vessels may 
participate in the WGOM Closure Area Rod/Reel Haddock SAP, up to 1,409 
vessels (i.e., vessels issued a limited access NE multispecies DAS 
permit) may participate in the CA II Yellowtail Flounder SAP or elect 
to stand by an entangled whale; and up to 1,351 vessels issued a 
limited access NE multispecies DAS permit that are currently not 
members of the GB Cod Hook Sector would be eligible to enter the GB Cod 
Hook Sector. Currently, the 53 vessels designated as Trip gillnet 
vessels would be affected by the removal of the net limit proposed in 
this action.
    The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $ 3.5 million in gross receipts and 
would apply to limited access NE multispecies permit holders and 
vessels issued a Category 1 herring permit. Data analyzed for Amendment 
13 indicated that the maximum gross receipt for any single commercial 
fishing vessel for the period 1998 to 2001 was $ 1.3 million. Data 
analyzed in FW 40B indicate that Category 1 herring vessels averaged 
approximately $1.26 million in gross sales. For this reason, each 
vessel in this analysis is treated as a single entity for the purposes 
of size determination and impact assessment. All commercial fishing 
entities affected by this proposed rule would fall under the SBA size 
standard for small commercial fishing entities, and there would be no 
disproportionate impacts between small and large entities.

Economic Impacts of the Proposed Acton

    The proposed action would reduce the conservation tax for Category 
A and B DAS exchanged through the DAS Transfer Program to facilitate 
consolidation of the groundfish fleet through market-based incentives. 
Currently, Category A and B DAS exchanged through the DAS Transfer 
Program are subject to a 40 percent conservation tax, while Category C 
DAS are subject to a 90-percent conservation tax. In addition, the 
vessel selling its

[[Page 15808]]

DAS must exit all fisheries. This action would reduce the conservation 
tax for Category A and B DAS exchanged to 20 percent, but would retain 
the 90-percent conservation tax for Category C DAS. This reduction 
would increase the potential value of a DAS exchanged under the DAS 
Transfer Program, but it is not known whether the conservation tax 
itself prohibits vessels from participating in this program. Unless the 
selling vessel holds no other limited access permits, the selling 
vessel may not be able to recoup the full value of the permit by 
selling the NE multispecies DAS alone. This is because the opportunity 
cost to the seller may be quite high if the vessel is required to 
retire from all other fisheries. However, overall, this action would be 
expected to increase the potential return to both buyers and sellers 
and have a beneficial impact on small entities of uncertain magnitude.
    FW 40B would also remove the tonnage criterion for the DAS Transfer 
Program. This would make the DAS Transfer Program subject to the same 
baseline size conditions as the DAS Leasing Program. Removal of the 
tonnage criterion is expected to make it more likely that vessels would 
be able to find compatible vessels to exchange DAS under the DAS 
Transfer Program. It is unknown if this provision would facilitate 
additional DAS transfers, but it is likely that economic impacts from 
this provision would be positive.
    FW 40B proposes to allow vessels a one-time opportunity to 
downgrade the permit baseline characteristics established for the DAS 
Leasing Program to reflect the physical characteristics of the vessel 
currently using the permit. This is expected to increase the potential 
pool of vessels available to lease DAS. The economic impact of this 
provision is likely to be positive, though the number of vessels that 
might downgrade their DAS Leasing Program baseline and the economic 
value of that downgrade is not quantifiable.
    The proposed action would set aside 10 percent of the GB cod 
incidental catch TAC to facilitate research. In addition, this action 
would change the allocation of incidental catch TAC's to accommodate 
the proposed bycatch of GOM cod in the WGOM Closure Area Rod/Reel 
Haddock SAP. Although this action would reduce the allocation of 
incidental catch TAC's to the Category B DAS programs implemented under 
FW 40A (i.e., the Regular B DAS Pilot Program and the approved SAP's), 
the overall target TAC's for the fishery, and therefore the incidental 
catch TAC's, would be higher in fishing year 2005 than in fishing year 
2004 (as specified in Amendment 13). As a result, despite the 
reallocation of the incidental catch TAC's, the amount of catch 
available to the Category B DAS programs would actually increase, 
thereby increasing the economic opportunities of both the previously 
approved programs and the SAP proposed under this action.
    FW 40B proposes to implement the WGOM Closure Area Rod/Reel Haddock 
SAP, which would allow all limited access NE multispecies vessels to 
target haddock in the GOM in fishing years 2005 and 2006. This SAP 
would help mitigate some of the economic impacts resulting from the 
effort reductions in Amendment 13 and provide an opportunity for 
vessels, particularly small vessels in the GOM, to use Category B DAS 
to target healthy groundfish stocks. This SAP would be able to use 
hand-tended rod/reel gear to fish for haddock within the WGOM Closure 
Area during March and April. SAP participants could catch up to 50 mt 
of GOM haddock and up to 6.3 mt GOM cod, though vessels would not be 
able to retain any cod. Once these TAC's are caught, the SAP would be 
closed. The 50 mt TAC for haddock caught in this SAP would limit 
economic benefits to $140,000, based on the value of $1.27 per pound, 
the average price for the 2003 fishing year. Given that hook gear 
primarily catches cod and haddock, there is unlikely to be sufficient 
other catch to contribute to potential trip income. Limited information 
is available that would accurately assess whether vessels could 
selectively catch haddock without also catching substantial amounts of 
cod. Therefore, there is the potential that the 6.3-mt GOM cod bycatch 
TAC could limit the achievement of the full economic benefits from this 
SAP.
    The CA II Yellowtail Flounder SAP was implemented under Amendment 
13. The proposed action would revise the season, adjust the trip limit, 
limit the number of trips that could be taken, and establish a process 
that would allow the Regional Administrator to help achieve OY from the 
yellowtail flounder TAC and ensure that the SAP does not conflict with 
the management objectives outside of the SAP. In general, most of the 
proposed changes to the SAP would help mitigate the derby effects by 
spreading out landings over time and help ensure that the GB yellowtail 
flounder TAC is available throughout the fishing year. Limiting the 
number of trips that could be taken, in addition to lowering the trip 
limit to 10,000 lb (4,536 kg), could potentially avoid dramatic drops 
in ex-vessel price that result when large amounts of yellowtail 
flounder are landed at one time. Beginning the SAP in July instead of 
June would also contribute to higher landings prices, as prices for 
yellowtail flounder have historically been lower in June than other 
months. While regulating the supply of yellowtail flounder may offer 
vessels higher landings prices, these restrictions could also increase 
costs by increasing the number of trips necessary to harvest the 
available TAC. However, the proposed measures could help avoid the 
premature closing of the Eastern U.S./Canada Area due to the 
achievement of the GB yellowtail flounder TAC. This would enable 
vessels greater opportunity to fully harvest the available GB cod and 
GB haddock TAC allocated to the Eastern U.S./Canada Area and achieve 
the full economic benefit from the U.S./Canada Management Area for 
vessels operating under a Category A DAS.
    This action proposes to re-categorize 10 Category C DAS as Category 
B (Reserve) DAS for vessels allocated zero Category A or B DAS under 
Amendment 13. These DAS could only be used in a SAP that does not 
include a DAS flipping provision (currently, only the WGOM Closure Area 
Rod/Reel SAP proposed in this action). The economic impact of this 
provision is expected to be positive for vessels receiving a minimum 
allocation. However, this provision could adversely affect other 
vessels that were allocated Category A or B DAS under Amendment 13 by 
increasing the number of potential participants in SAP's and spreading 
the limited potential benefits of these SAP's among more vessels.
    FW 40B would also change the manner in which the GB Cod Hook Sector 
allocation is calculated by allowing all vessels and all landings, 
regardless of gear, to count towards the Sector's GB cod allocation. 
This could increase the Sector's share of the overall GB cod TAC. While 
Sector vessels would be able to increase overall fishing revenues from 
the increased allocation of GB cod, this provision would subsequently 
reduce the amount of GB cod TAC available to non-Sector vessels. Even 
though the TAC available to non-Sector vessels is a target TAC and 
would not result in area closures, the diminished non-Sector GB cod TAC 
could potentially result in a small increase in the probability that 
the GB cod target TAC would be exceeded.
    The proposed action would provide an incentive for vessels to 
report and stand by an entangled whale by allowing vessels to receive a 
DAS credit for the time spent standing by an entangled whale. 
Increasing the

[[Page 15809]]

possibility that an entangled whale could be successfully tracked and 
disentangled would result in positive existence and non-consumptive use 
values to the public.
    Under the proposed action, Category 1 herring vessels would be 
required to notify the NMFS Observer Program at least 72 hours prior to 
fishing for herring in the GOM or GB RMA's. In addition, if an observer 
is not provided for the trip, the vessel must notify NMFS Office of Law 
Enforcement via VMS prior to offloading the catch. These requirements 
are likely to impose some costs associated with reduced trip 
flexibility. However, it is now known the extent to which this 
provision would compromise economic efficiency of herring vessel 
operations.
    Finally, this action would remove the net limit for Trip gillnet 
vessels. Removing the net limit would eliminate the need for gillnet 
tags for groundfish gillnets (a reduction in costs of $180 per vessel), 
reducing time required to switch tags over to different sized nets 
during vessel operations. This would provide greater flexibility in 
vessel operations, resulting in unknown positive economic benefits. 
This provision could increase the number of gillnets used by Trip 
gillnet vessels leading to potential increases in vessel revenue 
associated with higher landings.

Economic Impacts of Alternatives to the Proposed Action

    The No Action alternative would provide no new opportunities for 
economic benefits above the current level. Under the No Action 
alternative, the economic impacts likely to result are those specified 
in the analysis for FW 40A as implemented on November 19, 2004. By 
selecting the No Action alternative, incentives to participate in the 
DAS Leasing or DAS Transfer Programs proposed under this action, such 
as the reduction in the conservation tax, removal of the tonnage 
criterion, and the opportunity to downgrade the DAS Leasing Program 
baseline, would not be available. This could continue to limit vessel 
participation in these programs and the associated potential economic 
benefits associated with increased fleet efficiency. Under the No 
Action alternative, vessels would not be able to participate in the 
WGOM Closure Area Rod/Reel Haddock SAP and would forego potential 
associated revenues. Selection of the No Action alternative would mean 
that the derby effects in the CA II Yellowtail Flounder SAP would 
continue and the GB yellowtail flounder TAC could be harvested before 
the end of the fishing year. This could result in decreased prices for 
yellowtail flounder and reduced economic opportunities for the U.S./
Canada Management Area by limiting the potential for vessels to fully 
harvest the GB cod and GB haddock TAC's in the Eastern U.S./Canada 
Area. In addition, vessels allocated zero Category A or B DAS would not 
be allocated additional DAS and would therefore not be able to increase 
revenue through participation in the NE multispecies fishery. Vessels 
that have previously used gear other than hook gear would have fewer 
incentives to join the GB Cod Hook Sector and Sector vessels would 
continue to fish under the current lower GB cod TAC level under the No 
Action alternative. Finally, Trip gillnet vessels would continue to be 
restricted to net limitations and the gillnet tag requirements, 
resulting in increased operational costs and reduced efficiency.
    FW 40B considered four other non-selected alternatives. These 
alternatives consisted of various combinations of all of the provisions 
described in FW 40B, including some that were not specified in the 
proposed alternative. The first non-selected alternative, Alternative 
1, includes every provision described in FW 40B. Alternative 1 differs 
from the proposed alternative by including additional options for the 
DAS Leasing and Transfer Programs conservation tax, modifications to 
the non-groundfish permit transfer provisions of the DAS Transfer 
Program, the GB Haddock SAP North of CA I, an option that would allow 
only NE multispecies DAS vessels to participate in the WGOM Closure 
Area Rod/Reel Haddock SAP, options to recalculate the baseline DAS 
allocation implemented under Amendment 13, options to prohibit herring 
vessels from fishing in the NE multispecies closed areas, and a minimum 
observer requirement for vessels to participate in Category B DAS 
programs. Alternative 2 is identical to the proposed alternative 
without identifying specific options for several of the proposed 
measures. Alternative 3 differs from the proposed alternative in that 
it would not change the current conservation tax for the DAS Leasing 
and Transfer Programs, includes modifications to the non-groundfish 
permit transfer provisions of the DAS Transfer Program, and does not 
include modifications to the GB Cod Hook Sector allocation calculation. 
Alternative 4 differs from the proposed alternative in that it includes 
the GB Haddock SAP North of CA I, but does not include modifications to 
the GB Cod Hook Sector allocation calculation. For this analysis, the 
economic impacts of the provisions not included in the preferred 
alternative are considered and described below.
    The non-selected options for revising the conservation tax for the 
DAS Leasing and Transfer Programs in FW 40B would have adopted either a 
10 or a 20-percent conservation tax for both the DAS Leasing and 
Transfer Programs. This would represent reductions in the conservation 
tax for the DAS Transfer Program, but an increase in the conservation 
tax for the DAS Leasing Program. Reducing the conservation tax for the 
DAS Transfer Program would increase the value of DAS exchanged through 
this program. Conversely, increasing the conservation tax for the DAS 
Leasing Program would likely decrease the market value of DAS exchanged 
through this program. The conservation tax on leased DAS would likely 
result in greater adverse economic impact on small entities as compared 
to any economic gains resulting from greater incentives to participate 
in the DAS Transfer Program. Since the proposed alternative would 
reduce the conservation tax for the DAS Transfer Program, but not 
implement a conservation tax for the DAS Leasing Program, greater 
economic benefits are expected from the proposed measure than the non-
selected measures for this provision.
    Non-selected measures to modify non-groundfish permit transfers 
under the DAS Transfer Program include allowing vessels receiving DAS 
under this program to also accept other non-groundfish permits, 
allowing vessels to refuse other non-groundfish permits in lieu of a 
conservation tax on DAS exchanged, and allowing for the removal of a 
proxy vessel instead of requiring the transferring vessel to retire 
from all fisheries. These options would likely increase the potential 
value of DAS exchanged under the DAS Transfer Program. The economic 
impact of each of these non-selected measures is uncertain, but 
expected to be positive compared to the current DAS Transfer Program 
restrictions and, therefore, the proposed alternative. While the 
economic benefits of these non-selected measures would likely be 
greater than the proposed alternative, a lack of sufficient detail 
regarding the application of these measures and the implications of 
these measures on catch history and other FMP's prevented further 
consideration.
    Another SAP to target GB cod in an area north of CA I was not 
selected for this proposed action. This SAP would allow all NE 
multispecies vessels equipped with a VMS to fish for up to 2,000 mt of 
haddock using a haddock

[[Page 15810]]

separator trawl. Information detailing the performance of the haddock 
separator trawl is not available. However, previous landings by vessels 
fishing in the area encompassed by the SAP with conventional trawl gear 
provides an estimate of the potential economic benefits from this 
provision. Using an average revenue of $5,700 per day and assuming that 
the 1,000 mt haddock TAC would be caught in 238 DAS, the potential 
revenue from this SAP is estimated at $1.4 million. Increasing the 
haddock TAC to 2,000 mt through the authority of the Regional 
Administrator would generate approximately $2.4 million in potential 
revenues. Current regulations allow vessels to fish in the area defined 
for this SAP. As a result, given the restrictive measures and 
monitoring requirements involved with this SAP, this measure would 
likely provide few additional opportunities for fishermen at the cost 
of considerable additional complexity in the fishery.
    The non-selected option for the eligible participants in the WGOM 
Closure Area Rod/Reel Haddock SAP would have limited participation in 
this SAP to only limited access NE multispecies DAS vessels. This would 
exclude vessels issued a limited access Handgear A or a Small Vessel 
Exemption permit from participating in this SAP, resulting in unknown 
impacts on small entities.
    Two options for changing the effective effort calculation (i.e., 
DAS baselines) implemented under Amendment 13 were considered for this 
action. One option would calculate effective effort based on the 
maximum number of DAS between 1996-2001 without being limited by the 
2001 DAS allocation, but including carry-over DAS. The other option 
would calculate effective effort in the same manner, without 
considering carry-over DAS. These options would increase the total 
baseline allocation for the fishery. However, to remain consistent with 
the conservation objectives of Amendment 13, the split between Category 
A and B DAS would need to be adjusted. These options would reduce 
Category A DAS for at least 80 percent of all vessels with a non-zero 
effective effort baselines, resulting in an average loss of $5,200 per 
vessel. For the remaining vessels that would gain Category A DAS under 
these options, the average revenue gains would total $35,000 per 
vessel. As a result, the net economic benefits for these options total 
$2.8 million and $2.2 million, respectively. These benefits would have 
distributive effects as benefits would accrue to larger vessels and 
would shift between states. Given the distributive effects of these 
options and the fact that an overwhelming majority of small entities 
would be negatively affected by these options, neither option was 
selected for this action.
    Three options were considered to prohibit herring vessels from 
fishing in groundfish closed areas. Option 1 would prohibit only 
herring mid-water trawl vessel access to the closed areas, Option 2 
would prohibit herring mid-water and purse seine vessel access to the 
closed areas, and Option 3 would prohibit only herring purse seine 
vessel access to the closed areas. Aggregate economic impacts were only 
estimated for Option 2, as confidentiality concerns prevent reporting 
the economic impacts of Options 1 and 3. Option 2 would result in an 
average revenue loss of $52,000 per vessel affected. Although the 
economic impacts for Option 1 and 3 are not specified, these options 
would likely result in smaller adverse economic impacts to affected 
vessels. As a result, these options would have larger adverse economic 
impacts on small entities fishing for herring than the proposed 
alternative.
    Finally, FW 40B considered a measure that would prevent a vessel 
that is not capable of carrying aboard an observer from participating 
in an approved SAP. This would likely result in greater costs to 
smaller vessels that do not have the required safety equipment 
necessary to carry an observer.

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

Reporting and Recordkeeping Requirements
    The proposed measures in FW 40B include the following provisions 
requiring either new or revised reporting and recordkeeping 
requirements: (1) GB cod research set-aside TAC request; (2) VMS 
purchase and installation; (3) VMS proof of installation; (4) automated 
VMS polling of vessel position; (5) declaration of intent to 
participate in the WGOM Closure Area Rod/Reel Haddock SAP and DAS to be 
used via VMS prior to each trip into this SAP; (6) LOA request to 
participate in the WGOM Closure Area Rod/Reel Haddock SAP; (7) notice 
requirements for observer deployment prior to every trip into the WGOM 
Closure Area Rod/Reel Haddock SAP; (8) notice requirements for observer 
deployment prior to every trip for Category 1 herring vessels intending 
to fish in the GOM or GB RMA's; (9) NMFS Office of Law Enforcement 
landings notice requirement for Category 1 herring vessels operating 
with an observer waiver; (10) Notification and communication with USCG 
and Center for Coastal Studies for standing by an entangled whale; (11) 
Request for DAS Credit for standing by an entangled whale; (12) daily 
VMS catch reports for vessels participating in the WGOM Closure Area 
Rod/Reel Haddock SAP; and (13) vessel baseline downgrade request for 
the DAS Leasing Program.
    The measures proposed under FW 40B would result in several costs to 
participants. Researchers would be subject to postage costs of $2 per 
year for submitting requests for portions of the GB cod research set-
aside TAC. To participate in the WGOM Closure Area Rod/Reel Haddock 
SAP, vessels would be required to use VMS. Costs not previously 
authorized under the Paperwork Reduction Act (PRA) involved with VMS 
operation include monthly operational costs associated with fees 
charged by the individual VMS vendor for satellite connection, as well 
as service and maintenance charges. The cost of the purchase and 
installation of VMS units to vessels participating in the NE 
multispecies fishery have already been considered and approved in a 
previous PRA submission. NMFS has currently certified two vendors to 
provide VMS services. A conservative cost estimate, based on 
operational charges for the Boatracs VMS vendor, is approximately $150 
per month for each NE multispecies vendor. These monthly operational 
costs have previously been considered and approved in a previous PRA 
submission for most of the NE multispecies fishery. However, for this 
action, an additional 50 vessels are likely to use VMS that were not 
considered previously. Therefore, for this action, the yearly VMS 
operational costs, per vessel, for VMS usage under the proposed 
provisions in FW 40B are $1,800. Costs associated with VMS 
notifications to NMFS Office of Law Enforcement for Category 1 herring 
vessels not issued an observer waiver total approximately $3 per 
vessel, assuming a 50- percent observer coverage rate and a total of 
1,337 trips per year. There would be no costs associated with 
communicating with the USCG or the Center for Coastal Studies regarding 
standing by an entangled whale. Written requests to receive a DAS 
credit for standing by an entangled whale would cost the public $3.70 
for postage, assuming 10 such requests would be submitted per year. 
Daily catch reports submitted for the WGOM Closure Area Rod/Reel 
Haddock SAP

[[Page 15811]]

total approximately $116 per year for all vessels participating in this 
SAP. The costs associated with vessel baseline downgrade requests for 
the DAS Leasing Program total $518, assuming every vessel would 
downgrade their DAS Leasing Program baseline in one year.
Public Reporting Burden
    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the PRA. This requirement 
has been submitted to OMB for approval. Public reporting burden for 
these collections of information are estimated as specified below.
    1. GB cod research set-aside TAC request, OMB 0648-0202 
(30 min/response);
    2. VMS purchase and installation, OMB 0648-0202, (1 hr/
response);
    3. VMS proof of installation, OMB 0648-0202, (5 min/
response);
    Automated VMS polling of vessel position, OMB 0648-0202, 
(5 sec/response);
    4. Declaration of intent to participate in the WGOM Closure Area 
Rod/Reel Haddock SAP and DAS to be used via VMS prior to each trip into 
this SAP, OMB 0648-0202, (5 min/response);
    5. LOA request to participate in the WGOM Closure Area Rod/Reel 
Haddock SAP, OMB 0648-0202, (5 min/response);
    6. Notice requirements for observer deployment prior to every trip 
into the WGOM Closure Area Rod/Reel Haddock SAP, OMB 0648-
0202, (2 min/response);
    7. Notice requirements for observer deployment prior to every trip 
for Category 1 herring vessels intending to fish in the GOM or GB 
RMA's, OMB 0648-0202, (2 min/response);
    8. NMFS Office of Law Enforcement landings notice requirement for 
Category 1 herring vessels operating with an observer waiver, 
OMB 0648-0202, (5 min/response);
    9. Notification and Communication with USCG and Center for Coastal 
Studies, OMB 0648-0202, (10 min/response);
    10. Written requests to receive a DAS credit for standing by an 
entangled whale, OMB 0648-0202, (30 min/response);
    11. Daily electronic reporting of kept and discarded catch while 
participating in the WGOM Closure Area Rod/Reel Haddock SAP, 
OMB 0648-0212, (15 min/response); and
    12. Vessel baseline downgrade request for the DAS Leasing Program, 
OMB 0648-0475, (1 hr/response).
    These estimates include the time required for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS and 
to OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 23, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.9, paragraph (c)(1)(ii) is revised to read as 
follows:


Sec.  648.9  VMS requirements.

* * * * *
    (c) * * *
    (1) * * *
    (ii) NMFS may initiate, at its discretion, the transmission of a 
signal indicating the vessel's accurate position, at least twice per 
hour, 24 hours a day, for all NE multispecies DAS vessels that elect to 
fish with a VMS specified in Sec.  648.10(b) or that are required to 
fish with a VMS as specified in Sec.  648.85(a), for each groundfish 
DAS trip that the vessel has elected to fish in the U.S./Canada 
Management Areas, and as specified in Sec.  648.85(b) for each 
groundfish trip that the vessel has elected to fish in either the CA II 
Yellowtail Flounder SAP, the CA I Hook Gear Haddock SAP, the Regular B 
DAS Pilot Program, the Eastern U.S./Canada Haddock SAP Pilot Program, 
or the WGOM Closure Area Rod/Reel Haddock SAP.
* * * * *
    3. In Sec.  648.10, paragraphs (b)(1)(vi) through (viii) and 
(b)(3)(i)(D) are revised, and paragraphs (b)(1)(ix) and (b)(3)(i)(E) 
are added to read as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (vi) A vessel issued a limited access NE multispecies permit 
electing to fish under the U.S./Canada Resource Sharing Understanding, 
as specified in Sec.  648.85(a);
    (vii) A vessel electing to fish under the Regular B DAS Pilot 
Program, as specified in Sec.  648.85(b)(6);
    (viii) A vessel electing to fish in the Closed Area I Hook Gear 
Haddock SAP, as specified in Sec.  648.85(b)(7); and
    (ix) A vessel electing to fish in the WGOM Closure Area Rod/Reel 
Haddock SAP, as specified in Sec.  648.85(b)(9).
* * * * *
    (3) * * *
    (i) * * *
    (D) Fish in the CA I Hook Gear Haddock SAP specified in Sec.  
648.85(a)(7); or
    (E) Fish in the WGOM Closure Area Rod/Reel Haddock SAP specified in 
Sec.  648.85(b)(9).
* * * * *
    4. In Sec.  648.14, paragraphs (a)(136), (a)(139), and (c)(14) are 
revised; and paragraphs (a)(1