Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Emergency Secretarial Action, 19348-19390 [06-3504]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 71 (Thursday, April 13, 2006)]
[Rules and Regulations]
[Pages 19348-19390]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3504]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



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

Federal Register / Vol. 71, No. 71 / Thursday, April 13, 2006 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

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


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

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

ACTION: Temporary rule; emergency interim final rule and request for 
comments.

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SUMMARY: NMFS implements this interim final rule pursuant to its 
authority to issue emergency measures under the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). This 
emergency action implements measures intended to reduce immediately the 
fishing mortality rate (F) on certain groundfish species to prevent 
overfishing and maintain the rebuilding programs of the Northeast (NE) 
Multispecies Fishery Management Plan (FMP). Specifically, this 
emergency action implements differential days-at-sea (DAS) counting for 
all groundfish vessels not participating in the U.S./Canada Management 
Area on Georges Bank (GB), reduced trip limits for certain species, and 
recreational possession restrictions, among other provisions. In 
addition, this action continues two programs that would otherwise 
expire by the end of the 2005 fishing year (FY) on April 30, 2006: The 
DAS Leasing Program and a modified Regular B DAS Program on GB. Due to 
the impact of these proposed measures on the monkfish fishery, this 
emergency action also limits participation of monkfish Category C, D, 
or F permits in the Regular B DAS Program and revises the method of 
calculating available monkfish-only DAS for Category C, D, F, G, or H 
monkfish vessels. Further, this action eliminates the daily and maximum 
trip limits for haddock for FY 2006. Also, because of the substantive 
nature of this emergency rule and the necessary shortened comment 
period on the proposed rule for this action, this rule is being 
implemented as an emergency interim action and seeks additional public 
comment. This action is intended to prevent overfishing while 
maintaining specific programs designed to help mitigate the economic 
and social impacts of effort reductions under the FMP until more 
permanent management measures can be implemented through Framework 
Adjustment (FW) 42 to the FMP.

DATES: Effective May 1, 2006, through October 10, 2006, or until 
superceded by another final rule, whichever occurs first. Additional 
comments on this emergency interim action must be received by May 15, 
2006.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: MultsEmergency@NOAA.gov. Include in the subject 
line the following: ``Comments on the Proposed Rule for Groundfish 
Emergency Action.''
     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 Emergency 
Action.''
     Fax: (978) 281-9135.
    Copies of this rule, its Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), and the Environmental 
Assessment (EA) are available from Patricia A. Kurkul, Regional 
Administrator, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930. The Final Regulatory Flexibility Analysis (FRFA) 
consists of the IRFA, public comments and responses, and the summary of 
impacts and alternatives contained in the Classification section of the 
preamble of this emergency interim final rule. Copies of the small 
entity compliance guide are available from the Regional Administrator 
at the above address. The EA/RIR/IRFA prepared for this action are also 
accessible via the Internet at https://www.nero.nmfs.gov.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this emergency 
interim 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 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

    This interim final rule implements emergency measures, authorized 
by section 305(c) of the Magnuson-Stevens Act, intended to immediately 
reduce F on specific groundfish stocks beginning May 1, 2006, in order 
to maintain the rebuilding program established under Amendment 13 to 
the FMP. A proposed rule requesting public comment on this emergency 
action filed with the Federal Register on February 24, 2006, and 
published on March 3, 2006 (71 FR 11060). Public comments were accepted 
through March 9, 2006, as clarified through a correction to the 
proposed rule (71 FR 12669; March 13, 2006). A full discussion of the 
background of this emergency action was presented in the preamble to 
the proposed rule for this emergency action and is not repeated here. 
In summary, Amendment 13 established a biennial adjustment process to 
review the fishery and implement any changes necessary to ensure that 
the fishery continues to meet the Amendment 13 rebuilding objectives, 
including meeting the F targets for each year of the rebuilding 
program. The Groundfish Plan Development Team (PDT) of the New England 
Fishery Management Council (Council) utilized the results of the latest 
stock assessment, the August 2005 Groundfish Assessment Review Meeting 
(GARM II), to calculate estimates of the 2005 calendar year F for all 
groundfish stocks. This analysis indicated that F2005 for 
particular groundfish stocks, (i.e., Gulf of Maine (GOM) cod, Cape Cod 
(CC)/GOM yellowtail flounder, Southern New England (SNE)/Mid-Atlantic 
(MA) yellowtail flounder, SNE/MA winter flounder, GB winter flounder, 
white hake, and GB yellowtail flounder) is, in some cases, 
substantially less than that observed for 2004, but still higher than 
the 2006 target F specified in the Amendment 13 rebuilding program. As 
a result, F for these stocks must be reduced at the start of FY 2006 on 
May 1, 2006. The Council began the development of measures in FW 42 to 
the FMP that would achieve the necessary F reductions for FY 2006. 
However, at its November 15-17, 2005, meeting, the Council announced 
that it was not able to complete FW 42 in time for NMFS to implement 
these measures by May 1, 2006. Although at its January 31-February 2, 
2006, meeting the Council voted to adopt a suite of management measures 
under FW 42, it is not possible to implement these measures by May 1, 
2006.
    Therefore, pursuant to section 305(c) of the Magnuson-Stevens Act, 
this interim final rule implements measures

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to immediately reduce F for specific groundfish stocks and prevent 
overfishing in the groundfish fishery for the start of FY 2006 on May 
1, 2006, until long-term management measures adopted by the Council in 
FW 42, if approved by NMFS, can be implemented. Justification of this 
emergency action for ecological, economic, and social reasons is 
contained in the preamble of the proposed rule for this action and is 
not repeated here.
    Although the management measures implemented by this emergency 
action do not, by themselves, achieve the full Amendment 13 F 
reductions for all groundfish stocks that require F reductions for FY 
2006, this action, in combination with measures adopted by the Council 
in FW 42, are intended to achieve the necessary Amendment 13 F 
objectives. To ensure that the groundfish fishery meets the Amendment 
13 rebuilding objectives, additional management measures through 
Secretarial action may be necessary during FY 2006, especially if FW 42 
is implemented later than anticipated.
    The primary objective of this emergency action is to put into place 
a suite of simple, interim management measures by the start of FY 2006 
that would immediately and substantially reduce F on several groundfish 
stocks most in need of F reductions to maintain the Amendment 13 
rebuilding program. Other objectives include: (1) Implementing 
management measures that are as fair and equitable to all vessels as 
possible, as well as easy to understand, implement, administer and 
enforce; (2) implementing measures that are similar to those adopted by 
the Council in FW 42, to the extent practicable, in order to minimize 
confusion and adjustment to those measures, if FW 42 is approved and 
implemented; and (3) minimizing the social and economic impacts of the 
emergency measures as much as practicable while still meeting the F 
reduction objectives.
    Because of the intense interest in this action and because the 
comment period for the proposed action was necessarily short, NMFS is 
implementing this as an emergency interim final rule and will accept 
public comment on the measures implemented by this action through May 
15, 2006.

Management Measures Implemented by This Emergency Interim Final Rule

    All measures in effect prior to May 1, 2006, and not amended by 
this emergency action, remain in effect. The current management 
measures include two default measures in Amendment 13 that were 
designed to go into place on May 1, 2006, unless certain conditions 
were met. One default measure for the revision of the allocation ratio 
of Category A:B DAS from 60:40 to 55:45, is not revised by this 
emergency action and will go into place on May 1, 2006. This measure, 
therefore, is not discussed specifically in the description of the 
measures implemented by this emergency action. However, the second 
default measure implemented by Amendment 13 (i.e., differential DAS 
counting at a rate of 1.5:1 throughout the SNE/MA Regulated Mesh Area 
(RMA)) is revised by this emergency action, as described further below, 
and the revised measures, not the Amendment 13 default measure, will go 
into place on May 1, 2006.
    A description of the management measures implemented by this 
emergency action follows.

1. Differential DAS Counting

    Measures adopted by the Council in FW 42 rely upon reduced trip 
limits for GB winter flounder, GB yellowtail flounder, and white hake, 
rather than differential DAS counting, to achieve the necessary F 
reductions for these species during FY 2006. In response to public 
comment/concerns and further analysis, in order to more closely mirror 
the measures adopted by the Council in FW 42 and to more effectively 
achieve OY in the fishery, the differential DAS counting measure 
specified in the proposed rule for this action is revised to remove 
differential DAS counting for vessels participating in the U.S./Canada 
Management Area on GB and replace that proposed measure with trip 
limits for GB winter flounder and white hake adopted by the Council in 
FW 42 (see measures 5 and 6 below). This revision will allow vessels to 
more readily target healthy groundfish stocks on GB without 
compromising the rebuilding efforts of overfished stocks, particularly 
CC/GOM and SNE/MA yellowtail flounder stocks just outside the U.S./
Canada Management Area along the South Channel. In addition to 
replacing the differential DAS counting measure on GB with trip limits 
for specific stocks needing F reductions for FY 2006, the Regional 
Administrator is able to exert additional controls that limit the F 
effects from potential redirected effort onto GB through the authority 
provided in the current regulations at Sec.  648.85(a)(3)(iv) to modify 
access to the U.S./Canada Management Area, as well as trip limits for 
GB cod, GB haddock, and GB yellowtail flounder. This management 
strategy is consistent with the approach taken to restrict 
participation in the Regular B DAS Program to the U.S./Canada 
Management Area, as described in the proposed rule for this action.
    Therefore, under this emergency action, all NE multispecies 
Category A DAS used by a vessel issued a limited access NE multispecies 
DAS permit, with the exception noted below, will be charged at a rate 
of 1.4:1, unless the vessel is participating in the U.S./Canada 
Management Area. Any Category A DAS used by a groundfish vessel that 
declares its intent to fish, and fishes, exclusively within in the 
U.S./Canada Management Area will be charged at a rate of 1:1. A vessel 
fishing both inside and outside of the U.S./Canada Management Area on 
the same trip must abide by the more restrictive regulations in either 
area. With respect to DAS, this means that any vessel that declares its 
intent to fish some or all of its trip, or fishes some or all of its 
trip other than for transiting purposes, inside and outside of either 
the Eastern or the Western U.S./Canada Area on the same trip will be 
charged Category A DAS at the rate of 1.4:1 for the entire trip, 
whether or not the vessel actually harvests fish from outside of the 
U.S./Canada Management Area. A vessel intending to fish, or fishing, 
within the Eastern U.S./Canada Area that also elects to fish within the 
Western U.S./Canada Area on the same trip must declare its intent to do 
so via VMS and will be charged Category A DAS at a rate of 1:1 for the 
entire trip (see measure 11 for further details). A vessel intending to 
fish, or fishing both inside and outside of the Western or Eastern 
U.S./Canada Areas must declare its intent to do so via VMS prior to 
leaving the dock and/or prior to leaving the Eastern U.S./Canada Area, 
respectively, and will be charged NE multispecies Category A DAS at a 
rate of 1.4:1 for the entire trip. For example, a groundfish trawl 
vessel fishing exclusively in the GOM on a 5-day (120-hr) trip would be 
charged for 7 DAS (168 hr) (120 hr x 1.4) of DAS use. A groundfish 
trawl vessel fishing exclusively in the Western U.S./Canada Area on a 
5-day (120-hr) trip would be charged for 5 days (120 hr) of DAS use. A 
groundfish trawl vessel that steams to and fishes both inside and 
outside of the Western U.S./Canada Area on a 5-day (120-hr) trip would 
be charged for 7 days (168 hr) (120 hr x 1.4) of DAS use. A groundfish 
trawl vessel fishing in the Eastern U.S./Canada Area that elects to 
fish in the Western U.S./Canada Area on the same trip of 5 days (120 
hr) would be charged for 5 days (120 hr) of DAS use. For further 
examples of the impact of fishing inside and outside of the

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Eastern U.S./Canada Area, refer to the description of measure 11, 
Eastern U.S./Canada Area Flexibility.
    Day gillnet vessels not participating in the U.S./Canada Management 
Area will be charged at a rate of 1.4:1 for the actual hours used for 
any trip of 0-3 hours in duration, and for any trip of greater than 11 
hours. For Day gillnet trips outside of the U.S./Canada Management Area 
of between 3 and 11 hours duration, vessels will be charged 15 hours. A 
Day gillnet vessel fishing inside of the U.S./Canada Management Area 
will be charged DAS at a rate of 1:1 for the actual hours used for any 
trip of 0-3 hours in duration, and for any trip of greater than 15 
hours. For Day gillnet trips inside the U.S./Canada Management Area of 
between 3 and 15 hours duration, vessels will be charged 15 hours. A 
Day gillnet vessel fishing in the GOM or the Western U.S./Canada Area 
for 10 hours would be charged for 15 hours of DAS use; a Day gillnet 
vessel fishing in the GOM for 10 hours would be charged for 14 hours of 
DAS use (10 hours x 1.4). A Day gillnet vessel fishing exclusively 
within the Western U.S./Canada Area for 20 hours would be charged for 
20 hours of DAS use.
    A vessel issued a limited access monkfish Category C, D, F, G, or H 
permit and fishing under a monkfish DAS will have its NE multispecies 
DAS charged at a rate of 1.4:1 when fishing outside of the U.S./Canada 
Management Area on any trip or portion of a trip, but its monkfish DAS 
will continue to be charged at a rate of 1:1, regardless of area 
fished. Because differential DAS counting of NE multispecies DAS could 
result in a net allocation of NE multispecies Category A DAS that is 
less than the number of monkfish DAS allocated, a Category C, D, F, G, 
or H monkfish vessel may fish under a monkfish-only DAS when groundfish 
DAS are no longer available, provided the vessel fishes under the 
provisions of the monkfish Category A or B permit. The number of 
monkfish-only DAS that may be used by a vessel is equal to the 
difference between the number of its net monkfish DAS allocation and 
the number of its net NE multispecies Category A DAS allocation. See 
Sec.  648.92(b)(2)(iv) for definitions of net monkfish DAS and net NE 
multispecies Category A DAS. For any vessel that fishes any of its 
allocated NE multispecies Category A DAS outside of the U.S./Canada 
Management Area and is, therefore, subject to differential counting of 
NE multispecies DAS at a rate of 1.4:1, the number of monkfish-only DAS 
that may be used by that vessel is increased by 0.286 DAS for every NE 
multispecies DAS charged when fishing in the differential DAS area to 
adjust for differential DAS counting of NE multispecies DAS. This 
adjustment factor is equal to the rate at which monkfish-only DAS 
increase for each additional NE multispecies Category A DAS charged 
when fishing outside of the U.S./Canada Management Area at a rate of 
1.4:1, using the formula: Monkfish-only DAS = Net Monkfish DAS 
Allocation-(Net Groundfish DAS Allocation / 1.4). This adjustment is 
necessary to ensure that a monkfish Category C and D vessel is able to 
use its full allocation of monkfish DAS despite differential DAS 
counting of NE multispecies DAS. For example, if a vessel has an annual 
allocation of 40 monkfish DAS and 30 NE multispecies DAS, the vessel 
has an annual allocation of 10 monkfish-only DAS. If this vessel uses 2 
NE multispecies DAS outside of the U.S./Canada Management Area, the 
vessel is actually charged 2.8 NE multispecies DAS (2 DAS x 1.4), and 
its monkfish-only DAS are adjusted upwards by 0.57 DAS (2 DAS x 0.286). 
If this same vessel fishes exclusively within the U.S./Canada 
Management Area, the vessel would not be allocated any additional 
monkfish-only DAS and would be allowed to use only 10 monkfish-only 
DAS. All groundfish DAS must be used before a vessel can use any 
available monkfish-only DAS.
    The proposed rule for this emergency action inadvertently failed to 
specify how differential DAS counting would affect the current cod 
running-clock requirement. The current cod running-clock requirements 
at Sec.  648.86(b)(1)(ii) and (b)(2)(ii) mandate that any vessel that 
has been called into only part of an additional 24-hour DAS block, and 
possesses an additional day's worth of cod on board must keep its DAS 
clock running until the appropriate amount of time has elapsed. This 
measure was intended to ensure that the proper number of DAS were 
charged for the amount of cod landed. For example, a vessel that fishes 
in the GOM for 25 hours and lands 1,200 lb (544 kg) of cod (2 DAS of 
cod), would have been required to keep its DAS clock running until 48 
hours had elapsed to cover the amount of cod landed. Under this 
emergency action, the cod running-clock provision is revised to account 
for differential DAS counting. Vessels fishing any part of a NE 
multispecies DAS trip in an area requiring differential DAS counting 
and that are using a vessel monitoring system (VMS) must declare that 
they have caught an additional day's worth of cod via VMS. Vessels 
fishing any part of a NE multispecies DAS trip in an area requiring 
differential DAS counting and that are not required to use VMS must 
call out of the DAS program upon landing and declare that they have 
caught an additional day's worth of cod via the Interactive Voice 
Response (IVR), or call-in system. Any trip of between 24-34 hours in 
duration will be charged 48 hours of DAS use because any trip of 
between 24-34 actual hours in duration, when charged at a rate of 
1.4:1, calculates to less than the minimum of 48 hours of DAS use 
required to fully account for the amount of cod caught. For example, a 
trip that fished for 25 hours in the GOM could land up to 1,200 lb (544 
kg) of GOM cod (2 day's worth), but would be charged 48 hours. This 
same trip, if charged at a rate of 1.4:1, would only be charged for 35 
hours. Any trip greater than 34 hours would be charged at a rate of 
1.4:1 for the entire trip. For example, a vessel that fished for 35 
hours in the GOM could land up to 1,200 lb (544 kg) of GOM cod, but 
would be charged 49 hours (35 hours x 1.4 = 49 hours). Similarly, 
vessels fishing exclusively in the U.S./Canada Management Area under a 
Category A DAS for the entire trip will be required to declare that 
they have caught an additional day's worth of cod via VMS and will be 
charged additional DAS, rounded to the next whole DAS, at a rate of 
1:1. For example, a vessel that fishes for 25 hours in the Western 
U.S./Canada Area could land up to 2,000 lb (907 kg) of GB cod (2 days' 
worth), but would be charged 48 hours. This strategy ensures that the 
original intent of the cod running-clock provision (i.e., that vessels 
could land an additional day's worth of cod, provided they are charged 
up to an additional 24 hours of DAS use) is maintained, without 
compromising the conservation objectives of the differential DAS 
counting measure.

2. GOM Cod Trip Limit

    For vessels operating under a NE multispecies DAS, the possession 
limit of GOM cod is reduced to 600 lb (272 kg) per DAS, up to 4,000 lb 
(1,814 kg) per trip. For vessels operating under the limited access NE 
multispecies Handgear A permit regulations, the GOM cod possession 
limit is reduced to 250 lb (113 kg) per trip. The GOM cod trip limit 
for vessels operating under the open access Handgear B provisions is 
maintained at 75 lb (34 kg) per trip.

3. GB Yellowtail Flounder Trip Limit

    The GB yellowtail flounder trip limit is reduced to 10,000 lb 
(4,536 kg) per trip. The Regional Administrator may increase or 
decrease the GB yellowtail

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flounder trip limit to ensure that the GB yellowtail flounder total 
allowable catch (TAC) in the U.S./Canada Management Area is not under- 
or overharvested during FY 2006, pursuant to the authority provided in 
the existing regulations.

4. CC/GOM and SNE/MA Yellowtail Flounder Trip Limit

    The CC/GOM and SNE/MA yellowtail flounder trip limits are revised 
as follows: 500 lb (227 kg) per DAS, up to 2,000 lb (907 kg) per trip 
during July, August, September, December, January, February, March, and 
April; 250 lb (113 kg) per trip during May, June, October, and 
November.

5. GB Winter Flounder Trip Limit

    Partially in response to public comment/concerns, the proposed 
emergency action was revised to include a trip limit for GB winter 
flounder of 5,000 lb (2,268 kg) per trip. This trip limit will serve as 
the primary means to achieve the necessary F reduction for this stock 
for FY 2006, rather than the differential DAS counting measure on GB in 
the proposed rule for this action.

6. White Hake Trip Limit

    Similar to the trip limit for GB winter flounder, partially in 
response to public comment/concerns, the proposed emergency action was 
revised to include a trip limit for white hake of 1,000 lb (454 kg) per 
DAS, up to 10,000 lb (4,536 kg) per trip. This trip limit would serve 
as the primary means to achieve the necessary F reduction for this 
stock for FY 2006, rather than the differential DAS counting measure on 
GB in the proposed rule for this action.

7. Modified Regular B DAS Program

    The Regular B DAS Pilot Program was originally implemented by the 
FW 40A final rule (69 FR 67780; November 19, 2004), and was intended to 
provide opportunities to use Regular B DAS outside of a special access 
program (SAP) (and outside of closed areas) to target stocks that can 
withstand additional fishing effort. This emergency action continues a 
modified Regular B DAS Program that allows eligible vessels to target 
healthy groundfish stocks (primarily GB haddock) under a NE 
multispecies Regular B DAS without compromising the objectives of this 
emergency action. Because stocks in the GOM and SNE RMAs require 
substantial F reductions for FY 2006, participation in the Regular B 
DAS Program is restricted to the U.S./Canada Management Area on GB. A 
vessel participating in the Regular B DAS Program trip may fish under a 
NE multispecies Regular B DAS in the Eastern U.S./Canada Area and/or 
the Western U.S./Canada Area on the same trip, but may not fish in an 
approved SAP, in a closed area, or outside of the U.S./Canada 
Management Areas on the same trip.
    All vessels issued a limited access NE multispecies permit and 
allocated Regular B DAS are eligible to participate in this program. To 
reduce F on monkfish resulting from the use of Regular B DAS, Category 
C, D, or F monkfish vessels may not use a NE multispecies Regular B DAS 
and a monkfish DAS under the Regular B DAS Program on the same trip. 
These vessels may still participate in the Regular B DAS Program, but 
they are required to fish under a NE multispecies DAS only and are 
subject to the incidental catch limits for monkfish when fishing under 
a NE multispecies Regular B DAS.
    In order to limit the potential biological impacts of the program, 
only 500 Regular B DAS may be used during the first quarter of the 
calendar year (May through July), while 1,000 Regular B DAS may be used 
in subsequent quarters (August through October, November through 
January, and February through April). Only trips that were completed 
under a NE multispecies Regular B DAS (i.e., trips that were not 
flipped to a Category A DAS) are counted towards the quarterly Regular 
B DAS limit. NMFS will administer the quarterly Regular B DAS maximum 
by monitoring the number of Regular B DAS accrued on trips that end 
under a Regular B DAS. Declaration of the trip through VMS does not 
serve to reserve a vessel's right to fish under a Regular B DAS. Once 
the maximum number of Regular B DAS are used in a quarter, the Regular 
B DAS Program will end for that quarter. These DAS are not allocated to 
individual vessels, but are used by participating vessels on a first-
come, first-served basis. Regular B DAS used under this program accrue 
at the rate of 1 DAS for each calendar day, or part of a calendar day, 
fished. For example, a vessel that left on a trip 1 hour before 
midnight on one day, and fished until 1 hour after midnight on the next 
calendar day, would be charged 48 hours of B Regular DAS.
    Vessels participating in this program must be equipped with an 
approved and operational VMS. The vessel owner or operator must notify 
the NMFS Observer Program at least 72 hours in advance of a trip in 
order to facilitate observer coverage. This notice must provide the 
following information: Vessel name, contact name for coordination of 
observer deployment, telephone number of contact, date, time, and port 
of departure. Prior to departing on the trip, the vessel owner or 
operator must notify NMFS via VMS that the vessel intends to 
participate in the Regular B DAS Program. Vessels fishing in the 
Regular B DAS Program are required to report their catches of 
groundfish stocks of concern (i.e., cod, yellowtail flounder, winter 
flounder, American plaice, white hake, witch flounder) daily through 
VMS, including the amount of fish kept and discarded, by statistical 
area fished. Vessels fishing for species managed by other fishery 
management plans, and not landing groundfish, are not subject to this 
reporting requirement.
    Vessels fishing in this program are prohibited from discarding 
legal-sized regulated groundfish, and will be limited to landing no 
more than 100 lb (45.4 kg) of each groundfish species of concern (cod, 
American plaice, white hake, winter flounder, witch flounder, and 
yellowtail flounder) per DAS, unless further restricted (see below). 
Vessels fishing with trawl gear must use a haddock separator trawl when 
participating in this program. For vessels fishing with trawl gear, 
possession of flounders (all species, combined); monkfish (whole 
weight), unless otherwise specified below; and skates is limited to 500 
lb (227 kg) each, and possession of lobsters is prohibited to ensure 
the proper utilization of the haddock separator trawl; a properly 
configured haddock separator trawl should not catch large quantities of 
these species. To further reduce the targeting of monkfish under this 
program, Category C, D, G and H monkfish vessels participating in this 
program are restricted by the monkfish incidental catch limits. In the 
Northern Fishery Management Area specified under the monkfish FMP, the 
limit is 400 lb (181 kg) tail weight per NE multispecies DAS, or 50 
percent of the total weight of fish on board, whichever is less. In the 
Southern Fishery Management Area specified under the monkfish FMP, the 
incidental catch limit is 50 lb (23 kg) tail weight per NE multispecies 
DAS. Discarding of legal-sized monkfish is prohibited when fishing 
under this program. If a vessel harvests and brings on board legal-
sized groundfish species of concern or monkfish in excess of these 
landing limits, the vessel operator must retain the excess catch, and 
notify NMFS via VMS in order to change its DAS category from a Regular 
B DAS to a Category A DAS (``DAS flip'') prior to crossing the VMS 
demarcation line on its return trip to port. If a vessel flips from a 
Regular B DAS to a Category A

[[Page 19352]]

DAS, it will be charged Category A DAS at a rate of 1.4:1 for the 
entire trip if fishing any part of its trip outside of the U.S./Canada 
Management Area, or 1:1 if fishing exclusively within the U.S./Canada 
Management Area for the entire trip; will be subject to the possession 
and landing restrictions that apply to the fishery as a whole (i.e., 
not the Regular B DAS Program limits); and may discard species to 
maintain compliance with possession and landing restrictions outside of 
the Regular B DAS Program.
    In order to ensure that a vessel always has the ability to flip to 
a Category A DAS while fishing under a Regular B DAS (should it catch a 
groundfish species of concern in an amount that exceeded the trip 
limit), in the case of a vessel that fishes all of its DAS outside of 
the U.S./Canada Management Area, the number of Regular B DAS that may 
be used on a trip is limited to the number of Category A DAS that the 
vessel has at the start of the trip divided by 1.4. For example, if a 
vessel plans a trip under the Regular B DAS Program and has 5 Category 
A DAS available, the maximum number of Regular B DAS that the vessel 
could fish on that trip under the Regular B DAS Program would be 5 
divided by 1.4, or 3.6 days. However, to ensure that there is an 
adequate amount of Category A DAS available should the vessel be 
required to ``flip'' its DAS, it is advisable that a vessel owner, when 
planning a Regular B DAS Program trip, fish a lower number of Regular B 
DAS than the required maximum number.
    In order to limit the potential impact on F that the use of 
Category B DAS (Regular or Reserve) may have on groundfish stocks of 
concern, a quarterly incidental catch TAC is set for groundfish stocks 
of concern for each program allowing the use of Category B DAS (Regular 
or Reserve). This action adds GB winter flounder and GB yellowtail 
flounder to the list of groundfish stocks of concern, based on the 
results of GARM II, and allocates a portion of the incidental TAC to 
the Regular B DAS Program, as specified in further detail below. The 
Regular B DAS Program quarterly incidental catch TACs are divided to 
correspond to the allocation of Regular B DAS among quarters, such that 
the 1st quarter (May-July) receives 13 percent of the incidental TACs, 
and the remaining quarters (August-October, November-January, and 
February-April) will each receive 29 percent of the incidental TACs. 
The specific TACs specified for this program has been proposed by a 
concurrent agency action, which published in the Federal Register on 
March 13, 2006 (71 FR 12665). If the incidental TAC for any one of 
these species were caught during a quarter (landings plus discards), 
use of Regular B DAS in the U.S./Canada Management Area are prohibited 
for the remainder of that quarter. Vessels would be able to once again 
use Regular B DAS under this program at the beginning of the subsequent 
quarter.
    The Regional Administrator has the authority to prohibit the use of 
Regular B DAS for the duration of a quarter or fishing year, if it is 
projected that continuation of the Regular B DAS Program would 
undermine the achievement of the objectives of the FMP or the Regular B 
DAS Program, or if the level of observer coverage were insufficient to 
make such a projection.

8. Redefinition of Incidental Catch TACs and Allocation to Special 
Programs

    Incidental catch TACs were first adopted in FW 40A in order to 
limit the catch of stocks of concern while vessels were using Category 
B DAS. As a result of groundfish assessments completed under GARM II, 
FW 42 proposes to modify the number of incidental catch TACs, as well 
as the size and allocation of such incidental catch TACs. FW 42 
proposes the creation of two new stocks of concern (GB yellowtail 
flounder and GB winter flounder) and the specification of incidental 
catch TACs for these two species, as well as the modification of the 
size of the incidental catch TACs with respect to the target TACs from 
which they are calculated (see Table 1). These incidental catch TACs 
limit the impact of the use of Category B DAS on stocks of concern.
    Because FW 42 has been delayed, the definition of the two new 
stocks of concern, the creation of two new incidental catch TACs, and 
the reallocation of incidental catch TACs among special programs is 
implemented through this action (see Table 2) on an interim basis. 
Although this action does not impact many stocks of concern, in order 
to simplify the process of TAC specification for FY 2006, as well as 
reduce confusion in the industry, this action defines the incidental 
catch TACs for all stocks of concern, and allocates TAC among programs 
consistent with FW 42 proposals. This action does not specify values 
for TACs for FY 2006. A separate action will specify all TACs for the 
FMP for FY 2006 (Incidental Catch TACs, Target TACs, and U.S./Canada 
Management Area TACs for GB), as proposed in the Federal Register on 
March 13, 2006 (71 FR 12665).

              Table 1.--Definition of Incidental Catch TACs
------------------------------------------------------------------------
                                                              Percentage
                           Stock                               of total
                                                              target TAC
------------------------------------------------------------------------
GB cod.....................................................            2
GOM cod....................................................            1
GB yellowtail flounder.....................................            2
CC/GOM yellowtail flounder.................................            1
SNE/MA yellowtail flounder.................................            1
American plaice............................................            5
Witch flounder.............................................            5
SNE/MA winter flounder.....................................            1
GB winter flounder.........................................            2
White hake.................................................            2
------------------------------------------------------------------------

These incidental catch TACs will be distributed to the various programs 
that utilize Category B DAS and catch these stocks of concern. The 
incidental catch TACs are proposed to be distributed among the Category 
B DAS programs as indicated in Table 2:

   Table 2.--Distribution of Incidental Catch TACs for Category B DAS
                                Programs
------------------------------------------------------------------------
                                    Regular B   Closed area    Eastern
                                       DAS      I hook gear  U.S./Canada
        Stocks of concern            program    haddock SAP  haddock SAP
                                    (percent)     (percent)    (percent)
------------------------------------------------------------------------
GB cod...........................           50           16           34
GB yellowtail flounder...........          100           NA           NA
GB winter flounder...............          100           NA           NA
Witch flounder...................          100           NA           NA
American plaice..................           50           NA           50
White hake.......................           50           NA           50
------------------------------------------------------------------------


[[Page 19353]]

9. DAS Leasing Program

    The DAS Leasing Program was implemented by Amendment 13 to help 
mitigate the economic and social impacts of effort reductions in the 
fishery, and will expire on April 30, 2006. This action continues the 
DAS Leasing Program, without change, to help mitigate the economic and 
social impacts resulting from the current FMP regulations that strictly 
limit fishing effort.

10. Eastern U.S./Canada Haddock SAP Pilot Program

    This emergency action delays the opening of the Eastern U.S./Canada 
Haddock SAP Pilot Program from May 1 until August 1 and allocates a 
portion of the GB yellowtail flounder and GB winter flounder incidental 
catch TAC to the Eastern U.S./Canada Haddock SAP Pilot Program (see 
Table 2). Once any of these incidental catch TACs is caught, the use of 
Category B (Regular or Reserve) DAS in this SAP are prohibited. As 
explained above, the value of these new incidental catch TACs are being 
proposed through a concurrent agency action for implementation by May 
1, 2006. Finally, possession of flounders (all species, combined); 
monkfish (whole weight); and skates is limited to 500 lb (227 kg) each, 
and possession of lobsters is prohibited to ensure the proper 
utilization of the haddock separator trawl in this SAP.

11. Eastern U.S./Canada Area Flexibility

    This emergency action allows a vessel that begins a fishing trip in 
the Eastern U.S./Canada Area to choose to fish in other areas on the 
same trip. If a vessel chooses to fish outside of the Eastern U.S./
Canada Area after fishing inside that area, the operator must notify 
NMFS via VMS either prior to leaving the dock, or prior to leaving the 
Eastern U.S./Canada Area on its return to port, and must comply with 
the most restrictive possession limits and DAS charge for the areas 
fished. A vessel electing to fish inside and outside of the Eastern 
U.S./Canada Area is charged Category A DAS at a rate of 1:1 for the 
entire trip, if fishing only within the Eastern and Western U.S./Canada 
Area; or at a rate of 1.4:1 for the entire trip, if the vessel fishes 
outside of the U.S./Canada Management Area at any time during the trip; 
and the vessel will not receive any steaming time credit. In addition, 
all cod and haddock caught on the entire trip is applied against the 
Eastern U.S./Canada Area TACs for these species; all yellowtail 
flounder caught is applied to the overall U.S./Canada Management Area 
TAC for this species. For example, if a vessel elects to fish inside of 
the Eastern U.S./Canada Area and in the GOM on the same trip, the 
vessel would be charged Category A DAS at a rate of 1.4:1 for the 
entire trip (i.e., dock to dock) and would have to abide by the more 
restrictive trip limits for CC/GOM yellowtail flounder (i.e., 500 lb 
(227 kg) per DAS, up to 2,000 lb (907 kg) per trip) and GB cod in the 
Eastern U.S./Canada Area (i.e., 500 lb (227 kg) per DAS, up to 5,000 lb 
(2,268 kg) per trip). Conversely, if a vessel elects to fish inside of 
the Eastern and Western U.S./Canada Area for the entire trip, the 
vessel would be charged Category A DAS at a rate of 1:1 for the entire 
trip (i.e., dock to dock) and would have to abide by the more 
restrictive trip limits for GB cod in the Eastern U.S./Canada Area 
(i.e., 500 lb (227 kg) per DAS, up to 5,000 lb (2,268 kg) per trip). 
The vessel must comply with reporting requirements for the Eastern 
U.S./Canada Area for the entire trip. A vessel is prohibited from 
fishing outside of the Eastern U.S./Canada Area on the same trip if it 
has already exceeded the restrictive possession limits for a particular 
species outside of the Eastern U.S./Canada Area. For example, if a 
vessel fishing in the Eastern U.S./Canada Area in June has already 
caught 500 lb (226.8 kg) of GB yellowtail flounder, the vessel operator 
would be prohibited from fishing in the GOM RMA or SNE/MA RMA on the 
same trip because the vessel has already exceeded the June SNE/MA and 
GOM yellowtail flounder possession limit of 250 lb per trip (113.4 kg 
per trip) proposed by this action. However, the vessel could continue 
to fish within the Western U.S./Canada Area for the remainder of the 
trip.

12. Recreational Restrictions

    Private recreational vessels and vessels fishing under the charter/
party regulations of the FMP are prohibited from possessing or 
retaining any cod from the GOM RMA from November 1-March 31. Also, the 
minimum size of cod for private recreational vessels and charter/party 
vessels fishing in the GOM is increased from 22 inches (56 cm) to 24 
inches (61 cm) for the duration of this emergency action. Private 
recreational and charter/party vessels are allowed to transit the GOM 
RMA with cod caught from outside this area, provided all bait and hooks 
are removed from fishing rods and all cod are stored in coolers or ice 
chests.

13. Removal of the Haddock Trip Limits

    FW 33 to the FMP, which became effective May 1, 2000 (65 FR 21658), 
implemented the current haddock trip limit regulations at Sec.  
648.86(a). To ensure that haddock landings do not exceed the target 
TAC, FW 33 established a haddock trip limit of 3,000 lb (1,360.8 kg) 
per NE multispecies DAS and a maximum trip limit of 30,000 lb (13,608 
kg) of haddock for the period May 1 through September 30; and 5,000 lb 
(2,268 kg) of haddock per DAS and 50,000 lb (22,680 kg) per trip from 
October 1 through April 30. To prevent the underharvest of the haddock 
TACs, the regulations at Sec.  648.86(a)(1)(iii)(B) specify that, if 
the Regional Administrator projects that less than 75 percent of the 
haddock target TAC will be harvested in the fishing year, the trip 
limit may be adjusted or eliminated through publication of a notice in 
the Federal Register.
    For FY 2006, the proposed U.S. portion of the target TAC for 
haddock (GB and GOM combined) is 36,588 metric tons (mt) (March 13, 
2006; 71 FR 12665). Based on recent historical fishing practices and 
preliminary landings data, it is projected that less than 75 percent of 
the haddock target TAC for FY 2006 (27,441 mt) will be harvested by 
April 30, 2007, under the restrictive daily possession and trip limits. 
Furthermore, this projection indicates that eliminating the daily and 
maximum trip limits for haddock would not likely precipitate haddock 
landings reaching the U.S. portion of the Eastern U.S./Canada Area 
haddock TAC of 7,480 mt. Therefore, the Regional Administrator has 
determined that eliminating the 3,000-lb (1,360.8-kg) and 5,000-lb 
(2,268-kg) daily haddock possession limits, as well as the maximum trip 
limits of 30,000-lb (13,608-kg) and 50,000-lb (22,680-kg) for May 1 
through September 30, 2005, and October 1, 2005, through April 30, 
2006, respectively, will increase the likelihood that at least 75 
percent of the target TAC will be harvested for FY 2006. The removal of 
the daily and maximum trip limits for haddock for FY 2006 through this 
emergency interim rule would provide additional sources of fishing 
revenue and regulatory relief to help mitigate some of the adverse 
economic impacts of continued effort reductions necessary in this 
emergency action. In order to prevent the TAC from being exceeded, the 
Regional Administrator will continue to monitor haddock landings and 
adjust the trip limit through publication of a notification in the 
Federal Register, pursuant to Sec.  648.86(a)(1)(iii), if necessary.

[[Page 19354]]

Comments and Responses

    Forty-five comments were received during the comment period for the 
proposed rule for this action, including three from groups representing 
the fishing industry, two from groups representing conservation 
interests, five from elected officials, and one from the State of Maine 
Division of Marine Fisheries (State of Maine). Three comments were 
received after the comment period had closed (i.e., after March 3, 
2006) and were not considered. In addition, several commenters 
expressed concerns that were not relevant to the proposed action. Since 
these concerns were not directed at the proposed measures or other 
aspects of this emergency action, NMFS is not responding to these 
particular concerns in this preamble.

Differential DAS Counting

    Comment 1: Twenty commenters indicated that the proposed action's 
broad approach to reducing F on all groundfish stocks through the use 
of differential DAS counting in all areas is inappropriate, especially 
considering that the catches of healthy stocks would also be reduced. 
These commenters stated that a targeted regional approach to reduce F 
would better address excessive F on some stocks without unnecessarily 
reducing F on healthy stocks.
    Response: NMFS agrees that differential DAS counting on GB may 
unnecessarily reduce the ability to achieve OY from healthy groundfish 
stocks on GB. After further consideration, NMFS concludes that a more 
targeted approach is likely to reduce F on specific GB stocks without 
reducing the catch of healthy groundfish stocks. As discussed in 
further detail in the response to Comment 7, NMFS has decided to 
implement the proposed FW 42 trip limits for GB winter flounder and 
white hake (i.e., 5,000 lb (2,268 kg) per trip and 1,000 lb (454 kg) 
per DAS, up to 10,000 lb (4,536 kg) per trip, respectively) and 
eliminate the differential DAS counting measure for vessels fishing 
under a NE multispecies DAS in the U.S./Canada Management Area under 
this emergency action. The management measures currently specified for 
the U.S./Canada Management Areas provide additional assurance that any 
potential redirected effort onto GB would not increase F on other 
overfished stocks such as GB cod and GB yellowtail flounder. 
Specifically, the current regulations require all vessels participating 
in the U.S./Canada Management Area to use VMS and submit daily catch 
reports for GB cod, GB haddock, and GB yellowtail flounder. These 
stocks are managed by hard TACs (i.e., the fishery is closed if the TAC 
is reached) on all or portions of these stocks within the U.S./Canada 
Management Area. Through VMS and daily catch reports, vessel activity 
and groundfish catch within the U.S./Canada Management Area can be 
effectively monitored. In addition, the U.S./Canada Management Area 
regulations provide the Regional Administrator with the authority to 
modify trip limits and access to the U.S./Canada Management Area to 
control effort in this area and to ensure that the TACs for cod, 
haddock, and yellowtail are not exceeded during the fishing year. Thus, 
this revision would allow vessels to achieve OY from healthy groundfish 
stocks from this area, while providing assurances that redirected 
effort onto GB would not result in excessive F for other groundfish 
stocks. In combination with the subsequent management measures proposed 
in FW 42, this emergency action will likely achieve all of the 
necessary F reductions for FY 2006, resulting in F rates that are 
consistent with the requirements of the Amendment 13 rebuilding 
schedule, without unnecessarily sacrificing yield from healthy 
groundfish stocks.
    However, differential DAS counting is appropriate in the GOM and 
SNE/MA RMAs. As specified above, results of the most recent biennial 
adjustment process indicated that F on two groundfish stocks in both 
the GOM (cod and yellowtail flounder) and SNE/MA (yellowtail flounder 
and winter flounder) RMAs exceed the 2006 F targets specified in 
Amendment 13 and require substantial F reductions. Because the 
groundfish fishery is characterized as a commingled fishery, with many 
species concentrated in mixed assemblages, it is difficult to target 
management measures that affect one stock without also affecting other 
stocks. Therefore, the proposed emergency measures were developed over 
a broad geographic scale in order to ensure that stocks that need F 
reduction are adequately protected. Although these stocks are found in 
higher concentrations in somewhat localized areas, due to concerns over 
bycatch and discards, it is important that management measures protect 
these stocks throughout their entire range. In addition, the stocks in 
the GOM and SNE/MA RMAs, particularly the yellowtail flounder stocks, 
are severely overfished and require the greatest F reductions to 
maintain consistency with the Amendment 13 rebuilding programs. 
Spawning stock biomass for both stocks continue to decline and F for 
SNE/MA yellowtail flounder continues to increase. Protecting these 
stocks throughout their entire range would be consistent with the 
National Standard 1 guidelines at Sec.  600.310(f)(5), and would 
decrease the likelihood that these stocks would meet the Amendment 13 F 
objectives. Therefore, differential DAS counting for vessels fishing 
outside of the U.S./Canada Management Area, including throughout the 
entire GOM and SNE/MA RMAs, is implemented by this emergency interim 
rule.
    Comment 2: Several commenters suggested that NMFS should implement 
management measures that specifically target those vessels that 
contributed the most to the high F's observed by the most recent stock 
assessment, and contend it would be unfair for all vessels, even those 
who did not target the overfished stocks, to bear the burden of 
additional restrictions. Ten commenters, including three industry 
groups and the State of Maine, asserted that the proposed differential 
DAS counting does not address the underlying problems causing the 
excessive F on some stocks, as an inshore fishery directing on GOM cod 
is maintained.
    Response: All vessels that caught groundfish species, particularly 
GOM cod or CC/GOM and SNE/MA yellowtail flounder, contributed to the 
excessive F's observed in the recent stock assessment. The measures 
implemented by this emergency action treat the fishery as a whole and 
apply the necessary effort reductions in a fair and equitable manner to 
all fishery participants, consistent with National Standard 4 
guidelines. This is consistent with the approach taken by NMFS in 
previous groundfish actions. The proposed measures are intended as a 
temporary stop-gap measure necessary only to immediately reduce F until 
long-term measures proposed in FW 42 can be implemented. During the 
development of FW 42, the Council considered several mechanisms to more 
specifically target the causes of excessive F in the groundfish 
fishery, including a 24-hour minimum DAS charge (Alternative 4) and an 
individual quota system (i.e., ``the industry proposal''). The Council 
ultimately chose not to pursue such targeted management strategies, 
electing to adopt a broader strategy through differential DAS counting 
instead. FW 42 relies upon a mandatory VMS requirement for all vessels 
fishing on a NE multispecies DAS and other measures to more directly 
address F on specific

[[Page 19355]]

groundfish stocks by implementing area-specific differential DAS 
counting measures. Given the limited time available to develop, review, 
and implement the management measures under this emergency action, it 
was not possible to implement area-specific differential DAS counting 
measures identical to those in FW 42 in time for the required May 1, 
2006, implementation date. The FW 42 measures were not adopted by the 
Council until after the analysis for this emergency action was 
completed and because other regulatory requirements necessary to 
implement the area-specific measures in FW 42 would delay 
implementation of this action beyond May 1, 2006. Both the differential 
DAS counting strategies in this emergency action and those adopted by 
the Council in FW 42 maintain an inshore fishery for GOM cod to some 
degree. However, both actions attempt to minimize incentives to 
specifically target GOM cod. This emergency action utilizes 
differential DAS counting at a rate of 1.4:1 in the GOM, in combination 
with low trip limits for GOM cod, to minimize incentives to target GOM 
cod, while FW 42 relies upon a higher trip limit and differential DAS 
counting rate of 2:1 in a more confined area of the GOM. This emergency 
action takes the same basic approach toward achieving the necessary F 
reductions as FW 42, but applies the measures in a slightly different 
manner throughout the entire range of the GOM and SNE/MA groundfish 
stocks. Differential DAS counting for all Category A DAS used outside 
of the U.S./Canada Management Area, along with the trip limits 
implemented by this action, are designed to achieve the necessary F 
reductions for GOM cod, GB winter flounder, SNE/MA winter flounder, 
SNE/MA yellowtail flounder, and white hake, and will substantially 
reduce F on CC/GOM yellowtail flounder in FY 2006. This action, as 
implemented through this emergency interim rule, more closely resembles 
measures adopted under FW 42 than did the proposed measures, in that 
differential DAS counting will not apply to any Category A DAS used in 
the U.S./Canada Management Area on GB. This will provide the fishery 
more opportunity to achieve OY from healthy groundfish stocks while 
providing assurances that any redirected effort onto GB will not 
jeopardize the rebuilding of overfished stocks such as GB cod and GB 
yellowtail flounder, consistent with the requirements of National 
Standard 1.
    Comment 3: One industry group suggested that the differential DAS 
counting measure, as proposed (i.e., differential DAS counting in all 
areas) would encourage effort to shift to other areas. One 
environmental group disagreed, stating that the proposed management 
measures would prevent the redirection of effort.
    Response: NMFS asserts that the management measures contained in 
the proposed rule for this action (i.e., differential DAS counting in 
all areas) would have prevented the redirection of effort into other 
areas. While the measures originally proposed would have prevented 
overfishing and eliminated incentives to redirect effort into other 
areas, based on more recent analyses, NMFS has concluded that those 
measures would have unnecessarily reduced the catch of healthy 
groundfish stocks which may have hampered achieving OY from the 
fishery. Consistent with National Standard 1, NMFS has revised the 
proposed differential DAS counting measures to more effectively prevent 
overfishing and achieve OY in the fishery, while limiting the impacts 
of potential redirected effort. As described in further detail in the 
response to Comment 7, NMFS has eliminated differential DAS counting 
for vessels fishing in the U.S./Canada Management Areas on GB. Analysis 
of the impacts of this revision indicate that this action would achieve 
the necessary F reductions for several groundfish stocks. While more GB 
cod would be caught under this interim action than under the original 
proposed measures, F on GB cod is still reduced. GB cod mortality is 
consistent with the Amendment 13 F targets for FY 2006; thus, the 
Amendment 13 rebuilding trajectory is maintained. In addition, the 
potential of redirected effort onto GB due to this revision of the 
proposed action is mitigated by the current management restrictions of 
the U.S./Canada Management Area. These restrictions facilitate the 
effective monitoring of any additional effort by requiring vessels to 
use a VMS and submit daily catch reports. In addition, the Regional 
Administrator is authorized to modify trip limits and access to the 
U.S./Canada Management Area in order to ensure that the U.S./Canada 
Management Area TACs for GB cod, GB haddock, and GB yellowtail flounder 
are not exceeded during the fishing year. These provisions help ensure 
that the impacts of any redirected effort onto GB are accounted for and 
are limited. Any impacts resulting from the redirection of effort into 
other programs such as the approved SAPs or the Regular B DAS Program 
is also limited by the regulations governing those individual programs 
and does not compromise the rebuilding objectives of this action or the 
fishery.
    Comment 4: Nineteen commenters were concerned that counting DAS 
used at a rate of 1.4:1 in the entire GOM rather than for just a 
portion of the GOM will increase incentives to fish inshore on GOM cod, 
suggesting that the proposed action increases F on GOM cod, rather than 
reducing it. These commenters assert that vessels will fish closer to 
shore because of the high DAS cost to fish offshore. Further, they 
contend that vessels will take advantage of the reduced differential 
DAS counting rate in the inshore GOM during the emergency action, 
compared to the higher rate proposed under FW 42 (i.e., 2:1), to 
maximize earnings during the summer months when fish are available and 
prices are high. Finally, one commenter claimed that the proposed 
differential DAS counting throughout the GOM violates National Standard 
1 of the Magnuson-Stevens Act.
    Response: The proposed differential DAS counting measure, in 
conjunction with the reduced trip limit for GOM cod (i.e., 600 lb (272 
kg) per DAS, up to 4,000 lb (1,814 kg) per trip), is intended to 
minimize incentives to target GOM cod without subsequently increasing 
discards or discard F. As explained further in Comment 16 below, some 
commenters, including the State of Maine, supported reducing the GOM 
cod trip limit to 400 lb/DAS if it would further reduce incentives to 
target GOM cod. While NMFS agrees that a reduced trip limit, in 
conjunction with differential DAS counting, will reduce incentives to 
target GOM cod, a lower trip limit than that proposed would likely 
result in excessive discards and discard F. As described in the 
Amendment 13 discussion of bycatch (Section 5.2.8 of the Amendment 13 
Environmental Impact Statement), it is projected that fishermen with 
limited DAS available to fish, whether from reductions in allocations 
or differential DAS counting, would attempt to maximize their return on 
every trip and would attempt to convert any discards into landings. 
Effort reductions such as differential DAS counting proposed in this 
emergency action, in conjunction with the proposed trip limits, should 
decrease incentives to target GOM cod, as decreasing the available 
Category A DAS and reducing the GOM cod trip limit under this action 
will make trips less profitable and will decrease incentives for 
targeting cod.

[[Page 19356]]

    NMFS acknowledges that the reduced differential DAS counting rate 
applied throughout the entire GOM as proposed may seem to provide 
incentives for offshore vessels to target inshore GOM cod. However, for 
the reasons stated above, NMFS contends that such incentives are 
minimized due to the reduced GOM cod trip limit. In addition, over the 
past 5 years, prices for cod in Boston during the months this action is 
likely to be in effect (i.e., May through July) are the lowest of the 
year. Further, it is likely that inshore vessels will fish more of 
their allocated DAS under this emergency action due to the reduced 
differential DAS counting rate. In doing so, prices for GOM cod could 
possibly decrease further during the summer months than previously 
observed, further decreasing the profitability of targeting inshore GOM 
cod. Also, fishing a majority of allocated DAS at the beginning of the 
fishing year would minimize the potential to earn a steady income from 
groundfish throughout the year, as a vessel would have fewer DAS to 
fish for the remainder of the year. This would also limit a vessel's 
ability to capitalize on the historically higher prices offered for cod 
during the late fall through early spring months. As a result, there 
are fewer incentives for vessels to fish inshore on GOM cod under this 
emergency action. Furthermore, based on historical fishing practices, 
few trips were taken in the offshore GOM between May and July. During 
FY 2005, trips taken outside of the inshore GOM area proposed in FW 42 
between May and July accounted for less than 5 percent of the trips 
taken in the GOM during FY 2005 to date. Because vessels that 
historically fish in the offshore portion of the GOM do not take many 
trips in this area between May and July, and because they would be 
charged DAS at a higher rate during this time, there are few incentives 
to increase fishing trips in the GOM during these months. Waiting to 
fish under the measures proposed in FW 42 (i.e., no differential DAS 
counting in the offshore portion of the GOM) would allow these vessels 
to maximize the value of their DAS allocation. Finally, because this 
emergency action charges vessels participating in the U.S./Canada 
Management Area at a rate of 1:1 instead of the differential DAS 
counting rate of 1.4:1, there are actually incentives to fish outside 
of the GOM and within the U.S./Canada Management Area. Therefore, based 
on past fishing practices, historical market conditions, 1:1 DAS 
counting within the U.S./Canada Management Area, and the potential 
incentives to wait until FW 42 is implemented, it is unlikely that 
offshore vessels would have sufficient incentive to change their 
previous fishing behavior to target inshore GOM cod under this 
emergency action.
    Some commenters have suggested that vessels will wait to fish under 
the proposed FW 42 measures, while others contend that vessels will 
increase effort under the proposed emergency action. Because incentives 
to fish on GOM cod during this emergency action will vary among 
individual fishermen based on their DAS allocations, previous fishing 
practices, gear fished, target species, and market conditions, it is 
difficult to predict the behavior of individual fishermen operating 
under these emergency measures.
    The Closed Area Model (CAM) attempts to incorporate profit 
maximization behavior into its assessment of F impacts of proposed 
measures. This model assumes that every vessel will attempt to fish in 
a manner that maximizes the profit of fishing operations, thereby 
modeling potential changes in fishing behavior to adapt to changing 
regulations. In doing so, the CAM attempts to estimate F effects base 
on anticipated behavior in response to the proposed measures. Although 
competing incentives may exist under this emergency action, the results 
of the CAM analysis indicate that the emergency measures are successful 
at achieving the necessary F reductions for GOM cod. Because the CAM 
already incorporated profit maximization behavior, the results of the 
CAM indicate that, should offshore effort shift to targeting inshore 
GOM cod under this emergency action in order to maximize returns from 
allocated DAS, the emergency measures would likely still be able to 
achieve the F reductions necessary to maintain the Amendment 13 
rebuilding programs. Combined with the measures proposed in FW 42, this 
eme