Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 40B, 31323-31342 [05-10780]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

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


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

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

ACTION: Final rule.

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

DATES: Effective June 1, 2005.

ADDRESSES: Copies of FW 40B, its Regulatory Impact Review (RIR) and the 
Environmental Assessment (EA) are available from Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, The Tannery--Mill 2, Newburyport, MA 01950. NMFS prepared a 
Final Regulatory Flexibility Analysis (FRFA), which is contained in the 
Classification section of this final rule. The EA/RIR/FRFA are also 
accessible via the Internet at https://www.nero.nmfs.gov. Copies of the 
Small Entity Compliance Guide are available from the Regional 
Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, 
Gloucester, MA 01930-2298.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule should be submitted to the Regional Administrator at the 
address above and to David Rostker, Office of Management and Budget 
(OMB), by e-mail at drostker@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. Because of the mixed-stock nature of the NE multispecies fishery, 
management measures to reduce mortality on overfished stocks adopted in 
Amendment 13, including effort reductions, are expected to reduce 
fishing mortality more than is necessary on other, healthy stocks. As a 
result, yield from healthy stocks may be sacrificed and the FMP may not 
provide for the fishery to harvest the optimum yield (OY), the amount 
of fish that will provide the greatest overall benefit to the Nation, 
from all stocks managed under the FMP for a given year.
    Amendment 13 categorized the DAS allocated to each NE multispecies 
permit as Category A, B (Regular), B (Reserve), or C DAS. Category A 
DAS can be used to target any regulated groundfish stock, while 
Category B DAS are to be used only to target healthy groundfish stocks. 
Category C DAS cannot be used unless authorized at some time in the 
future. The regulations implementing Amendment 13 created one 
opportunity to use Category B DAS: A SAP designed to target GB 
yellowtail flounder in CA II. Framework Adjustment 40A (FW 40A), 
implemented November 19, 2004 (69 FR 67780), provided additional 
opportunities to use Category B DAS by creating two SAP's to target GB 
haddock and a pilot program designed for using Category B (Regular) DAS 
outside of a SAP (i.e., the Regular B DAS Pilot Program). These 
programs are intended to allow vessels to target healthy groundfish 
stocks without compromising the rebuilding programs of other groundfish 
stocks, thus enabling the industry to harvest OY from the healthy 
stocks.
    Since the implementation of Amendment 13 and submission of FW 40A, 
several issues have been raised concerning the overall approach to 
controlling effort. FW 40B proposes to address these new issues by 
improving the effectiveness of the Amendment 13 effort control program, 
including the opportunities developed to target healthy stocks and 
other measures to facilitate adaptation to the Amendment 13 effort 
reductions, as well as collect additional information regarding the 
bycatch of regulated species in the herring fishery.

Comments and Responses

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

[[Page 31324]]

DAS Transfer Program Modifications

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

DAS Leasing Program Modifications

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

Changes to Incidental Total Allowable Catches (TAC's)

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

Research Set-Aside TAC

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

[[Page 31325]]

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

WGOM Rod/Reel Haddock SAP

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

[[Page 31326]]

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

CA II Yellowtail Flounder SAP

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

[[Page 31327]]

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

Minimum Effective Effort Allocation

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

[[Page 31328]]

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

GB Cod Hook Sector Revisions

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

[[Page 31329]]

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

DAS Credit for Standing by Entangled Whales

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

Herring Vessel Interactions With Regulated Groundfish

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

Trip Gillnet Net Limitations

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

[[Page 31330]]

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

Dumping Prohibition for Vessels Under a Category B DAS

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

General Comments

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

Disapproved Measures

GB Cod Research Set-Aside TAC

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

[[Page 31331]]

WGOM Closure Area Rod/Reel SAP

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

Minimum Effective Effort Allocation

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