Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery, Framework Adjustment 42; Monkfish Fishery, Framework Adjustment 3, 62156-62196 [06-8811]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 204 (Monday, October 23, 2006)]
[Rules and Regulations]
[Pages 62156-62196]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8811]



[[Page 62155]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) Provisions; Fisheries of the Northeastern United States; 
Northeast Multispecies Fishery, Framework Adjustment 42; Monkfish 
Fishery, Framework Adjustment 3; Final Rule

Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 / 
Rules and Regulations

[[Page 62156]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060606150-6240-02; I.D. 053106A]
RIN 0648-AT24


Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) Provisions; Fisheries of the Northeastern United 
States; Northeast Multispecies Fishery, Framework Adjustment 42; 
Monkfish Fishery, Framework Adjustment 3

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

ACTION: Final rule.

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SUMMARY: This final rule implements Framework Adjustment (FW) 42 to the 
Northeast (NE) Multispecies Fishery Management Plan (FMP) and FW 3 to 
the Monkfish FMP (Joint Framework). FW 42, developed by the New England 
Fishery Management Council (Council), is a biennial adjustment to the 
NE Multispecies FMP that sets forth a rebuilding program for Georges 
Bank (GB) yellowtail flounder and modifies NE multispecies fishery 
management measures to reduce fishing mortality rates (F) on six other 
groundfish stocks in order to maintain compliance with the rebuilding 
programs of the FMP. FW 42 also modifies and continues specific 
measures to mitigate the economic and social impacts of Amendment 13 to 
the FMP and to allow harvest levels to approach optimum yield (OY).

DATES: The emergency rule published on April 13, 2006 (71 FR 19348), 
that was extended by a temporary rule published on October 6, 2006 (71 
FR 59020), which is scheduled to expire on April 4, 2007, is instead 
superseded by this final rule and expires at 12:01 a.m. on November 22, 
2006. The amendments in this final rule become effective at 12:02 a.m. 
on November 22, 2006.

ADDRESSES: Copies of FW 42 and FW 3, the Regulatory Impact Review 
(RIR), the Final Regulatory Flexibility Analysis (FRFA), and the 
Environmental Assessment (EA) are available from Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, The Tannery, B-Mill 2, Newburyport, MA 01950.
    The FRFA consists of the Initial Regulatory Flexibility Analysis 
(IRFA), public comments and responses, and the summary of impacts and 
alternatives contained in the Classification section of the preamble of 
this final rule. Copies of the small entity compliance guide are 
available from Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930-
2298. A copy of the EA/RIR/FRFA is accessible via the Internet at 
https://www.nero.noaa.gov/nero/regs/com.html.
    Comments regarding the burden-hour estimates or other aspects of 
the collection of information requirements contained in this final rule 
may be submitted in writing to NMFS (see ADDRESSES), or to David 
Rostker, OMB, by e-mail at David--Rostker@omb.eop.gov, or by fax at 
(202) 395-7285.

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

SUPPLEMENTARY INFORMATION: 

Background

    Amendment 13, implemented on April 27, 2004 (69 FR 22906), brought 
the FMP into conformance with Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) requirements, including measures 
to end overfishing and rebuild all overfished groundfish stocks. In 
addition, Amendment 13 established a biennial FMP adjustment process 
that requires the Council to review the fishery periodically using the 
most current scientific information available, recommend target total 
allowable catches (Target TACs), and recommend to the Regional 
Administrator any changes to management measures necessary to achieve 
the goals and objectives of the FMP.
    A proposed rule was published on July 26, 2006 (71 FR 42522), that 
included a detailed description of the biennial adjustment process, the 
August 2005 regional peer-review of stock assessment updates (GARM II; 
Northeast Fisheries Science Center Reference Document 05-13) completed 
for the 19 stocks managed under the FMP, proposed management measures, 
and timing issues related to the Joint Frameworks. Below is a brief 
summary of information published in the proposed rule.
    The Council's Plan Development Team (PDT) performed an evaluation 
of the fishery based upon the results of GARM II and other available 
information. The primary goal of the PDT review was to determine the 
stocks for which an adjustment in management measures is required in 
order to ensure that the current F levels are consistent with the F's 
required under the rebuilding plans for overfished stocks managed under 
the FMP. Based on the information from GARM II and catch data, the PDT 
estimated F's for those stocks in need of reductions for calendar year 
(CY) 2005 (F2005), a time period during which the fishery 
operated under only one suite of regulations (Amendment 13). 
Specifically, the PDT utilized available information for a portion of 
CY 2005, projected landings for the remainder of the year (based on 
current and historic information), and then estimated the F for the 
entire CY (F2005).
    To determine which of the 19 groundfish stocks were being fished at 
F's that were not in compliance with the Amendment 13 rebuilding target 
F's, the PDT compared the required F for 2006 to estimated 
F2005 for each stock. The PDT determined that, with one 
exception (GB yellowtail flounder), if F2005 exceeded the 
Amendment 13 target F for 2006, adjustment of management measures was 
necessary. These comparisons indicated that F2005 for some 
groundfish stocks was less than that estimated for 2004 
(F2004), but still higher than the 2006 target F 
(F2006) specified in the rebuilding program established 
under Amendment 13. The groundfish stocks in need of additional F 
reductions to achieve the Amendment 13 F targets for fishing year (FY) 
2006 are: 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; and white hake 
(see Table 1 below).

                   Table 1.--F Reductions Necessary to Achieve FY 2006 Amendment 13 F Targets
----------------------------------------------------------------------------------------------------------------
                                                                   Estimated     Amendment 13      F reduction
                         Stock                            F2004      F2005           F2006        necessary (%)
----------------------------------------------------------------------------------------------------------------
GOM Cod................................................     0.58         0.37              0.23               32

[[Page 62157]]

 
CC/GOM Yellowtail Flounder.............................     0.75         0.48              0.26               46
SNE/MA Yellowtail Flounder.............................     0.99         0.58              0.26               55
SNE/MA Winter Flounder.................................     0.38         0.35              0.32                9
GB Winter Flounder.....................................     1.86           NA              1.0*               46
White Hake.............................................     1.18           NA              1.03               13
----------------------------------------------------------------------------------------------------------------
*Amendment 13 did not establish a 2006 F target for GB winter flounder. Rather, Amendment 13 established the
  value of Fmsy as 0.32. However, because model estimates of relative F rate are more precise than estimates of
  actual F rates, GARM II presented the estimate of F rate for 2004 in relative terms. The threshold value for
  the relative F rate (F2004/Fmsy) for GB winter flounder is 1.0.
NA: An estimate of F2005 for the stocks of GB winter flounder and white hake could not be developed because the
  assessments are index based. The necessary F reductions are based upon F2004.

    In addition to responding to the most recent information regarding 
F, the proposed measures were intended to continue and modify the 
management regime implemented by Amendment 13 and subsequent framework 
adjustments (FW 40-A, FW 40-B, and FW 41), and to replace measures 
implemented under Secretarial emergency authority at the beginning of 
FY 2006 (May 1, 2006, through April 30, 2007). The Council originally 
developed FW 42 with the intention of implementing the management 
measures on May 1, 2006 (the start of FY 2006), as specified by 
Amendment 13, and as required by the regulations. However, due to a 
delay in completion of FW 42 and the need to reduce F on specific 
groundfish stocks by the start of FY 2006, NMFS implemented emergency 
management measures (71 FR 19348; April 13, 2006) that went into effect 
on May 1, 2006, until such time that approved FW 42 measures could be 
implemented. This rule supercedes the emergency rule, and the 
regulatory text in this final rule is written to amend the regulations 
in 50 CFR part 648 as they appeared prior to implementation of the 
emergency rule.

Disapproved FW 42 Measure

    FW 42 proposed that the Regional Administrator be given authority 
to adjust trip limits upward to facilitate harvest of the Target TACs, 
if it were projected that less than 90 percent of the Target TAC would 
be caught during the FY. Trip limit changes would have been allowed at 
any time during the FY, or before the start of the FY, if information 
was sufficient to make the necessary projections. This measure was 
disapproved, as explained below, because it is inconsistent with 
National Standard 2 and section 303(a)(8) of the Magnuson-Stevens Act.
    This proposed measure would have expanded the Regional 
Administrator's authority to increase trip limits for six stocks (the 
regulations already provide authority for the Regional Administrator to 
modify the haddock trip limit): GOM cod, GB cod, white hake, GB winter 
flounder, CC/GOM yellowtail flounder, and SNE/MA yellowtail flounder. 
Administratively, this measure is problematic in that data on the catch 
amount and location of affected stocks are not available on a real-time 
basis and, depending upon the size of the TAC and the rate of harvest, 
there would likely not be enough information to make an accurate 
projection. To monitor these stocks, NMFS would need to rely on Vessel 
Trip Report (VTR) data and dealer landings data to make projections 
and, although such data provide some useful information, sufficient 
information on both catch amount and catch location would not be 
available on a real-time basis. Furthermore, the composition of Target 
TACs for three of the affected stocks (GOM cod, CC/GOM yellowtail 
flounder, and SNE/MA yellowtail flounder) also include discard data 
and/or recreational data, which also would not be available on a real-
time basis. Because of the lack of sufficient real-time data for a 
number of stocks to accurately monitor catch of particular species 
within the fishery, the data available to implement this measure would 
not constitute the best available scientific information, as required 
by National Standard 2. In addition, section 303(a)(8) of the Magnuson-
Stevens Act requires that an FMP specify the nature and extent of 
scientific data needed for the effective implementation of the FMP. 
Because of the limitations of existing data sources, without additional 
real-time reporting requirements to provide reliable and timely catch 
and discard data from both the commercial and recreational sectors, 
NMFS does not have sufficient real-time data to implement this 
provision. Therefore, this measure is not consistent with National 
Standard 2 or the required provisions of the Magnuson-Stevens Act and 
NMFS has disapproved it.

Approved Joint Framework Measures

    NMFS has approved the remainder of the measures proposed in the 
Joint Frameworks. A description of these approved measures follows.

1. Recreational Restrictions

    Under this final rule, private recreational vessels and vessels 
fishing under the charter/party regulations of the NE Multispecies FMP 
are prohibited from possessing or retaining any cod from the GOM 
Regulated Mesh Area (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). Private recreational and charter/party vessels may 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. These measures are designed to achieve a reduction in F for GOM 
cod caught by the recreational sector that is similar to the F 
reduction required of the commercial sector. The gear and cod stowage 
requirements are necessary to enforce these measures.

2. GB Yellowtail Flounder Rebuilding Plan

    This final rule approves the FW 42 rebuilding plan for GB 
yellowtail flounder, whereby GB yellowtail flounder will be rebuilt 
from its current stock size to the biomass that can produce maximum 
sustainable yield (MSY) (Bmsy) using an adaptive strategy 
that rebuilds the stock by 2014 with approximately a 75-percent 
probability of success. Under the adaptive strategy, the maximum F on 
the stock through 2008 will be set at Fmsy (0.25), and 
subsequent changes to F required to complete rebuilding by 2014 
(Frebuild) will be developed in the 2009 biennial adjustment 
required by the FMP. This rebuilding strategy and 2014 timeline was 
selected by the Council to be

[[Page 62158]]

consistent with the rebuilding timelines for most of the stocks in the 
FMP, and to take into account uncertainty regarding the assessment of 
the stock. This rebuilding strategy is consistent with the management 
strategy agreed to under the U.S. cooperative management agreement with 
Canada.

3. Target TACs

    Target TACs are approved through this rule pursuant to Sec.  
648.90(a)(2), which requires the Council to develop new Target TACs, 
based upon the most recent scientific information, as part of the 
biennial adjustment process. Thus, this final rule approves the Target 
TACs for all groundfish stocks for FY 2006, 2007, and 2008. The 
following Target TACs in Table 2 were developed by the Council's PDT 
and were calculated from projections of future catches, using recent 
assessment data and the Amendment 13 target F's. It is important to 
note that during the public comment period for this action, it was 
determined that an incorrect F rate was used in the calculation of 
Target TACs for American plaice for FY 2006-2008. This error resulted 
in over-estimating the Target TAC that would achieve the rebuilding F 
targets for these years, but does not require a change in management 
measures needed to achieve the rebuilding objectives of this action. 
The Target TACs for American plaice in Table 2 reflect the corrected 
Target TACs.

                              Table 2.--Approved Target TACs for 2006 through 2008
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
              Species                       Stock             2006       2007       2008         Composition
----------------------------------------------------------------------------------------------------------------
Cod...............................  GB...................      7,458      9,822     11,855  E*
                                    GOM..................      5,146     10,020     10,491  C*
Haddock...........................  GB...................     49,829    103,329    121,681  E
                                    GOM..................      1,279      1,254      1,229  A
Yellowtail flounder...............  GB...................      2,070      see footnote      D*
                                    SNE/MA...............        146        213        312  B*
                                    CC/GOM...............        650      1,078      1,406  B*
American plaice...................  .....................      2,781      3,243      4,135  B*
Witch flounder....................  .....................      5,511      5,075      4,331  A*
Winter flounder...................  GB...................      1,424      1,604      1,782  A*
                                    GOM..................  .........       see footnote     C
                                    SNE/MA...............      2,481      3,016      3,577  C*
Redfish...........................  .....................      1,946      2,075      2,167  A
White hake........................  .....................      2,056      1,676      1,367  E*
Pollock...........................  .....................     12,005     12,005     12,005  E
Windowpane flounder...............  North................        389        389        389  A
                                    South................        173        166        159  A
Ocean pout........................  .....................         38         38         38  A
Atlantic halibut..................  .....................         NA         NA         NA  NA
----------------------------------------------------------------------------------------------------------------
A = Commercial Landings.
B = Commercial Landings and Discards.
C = Commercial Landings, Discards, and Recreational Harvest.
D = Commercial Landings and Discards (U.S. portion of U.S./Canada TAC).
E = Commercial Landings (U.S. and Canada).
*For Stocks of Concern: Incidental TAC is a subset of Target TAC.
GARM II did not develop a TAC for GOM winter flounder because of uncertainties in the assessment.
Note, proposed TACs for GB cod and GB haddock include Canadian landings.
GB yellowtail flounder TACs are hard TACs, which are determined annually and cannot be specified in advance.
2006 GB yellowtail flounder TAC was implemented on April 28, 2006 (71 FR 25095).

4. Incidental Catch TACs

    The values of Incidental Catch TACs for FY 2006 through 2008 are 
implemented through this final rule pursuant to the regulations at 
Sec.  648.85(b)(5), which require the Council to develop new Incidental 
Catch TACs based upon the most recent scientific information, as part 
of the biennial FMP adjustment process. Although Incidental Catch TACs 
for 2006 were specified in FW 41, this action modifies definitions of 
the Incidental Catch TACs with respect to the Target TACs, modifies the 
allocation of Incidental Catch TACs among Special Management Programs, 
and specifies values of all Incidental Catch TACs, based upon the most 
recent scientific information (GARM II). As noted above, an error was 
discovered in the calculation of Target TACs for American plaice that 
resulted in over-estimating the Target TACs, and, therefore, the 
Incidental Catch TACs for this species. The corrected Incidental Catch 
TACs for American plaice are listed in Table 3 below.
    In addition to the actions described above that relate to the 
Incidental Catch TACs for the eight stocks of concern noted above, this 
final rule defines GB yellowtail flounder and GB winter flounder as 
additional stocks of concern, defines the size of the Incidental Catch 
TACs (with respect to the Target TACs) that are likely to be caught in 
the Special Management Programs, specifies Incidental Catch TAC values 
for FYs 2006 through 2008, and allocates the Incidental Catch TACs 
among Special Management Programs.
    This final rule clarifies the relationship between Target TACs and 
Incidental Catch TACs; that is, Incidental Catch TACs are considered as 
a subset of the pertinent Target TACs (rather than as amounts in excess 
of the Target TACs). This clarification is intended to increase the 
utility of Target TACs as a tool used to evaluate the effectiveness of 
the management measure.

[[Page 62159]]



  Table 3.--Definition of Incidental Catch TACs (Percent) and Specification of Target TACs for FY 2006 Through
                                                    2008 (mt)
----------------------------------------------------------------------------------------------------------------
              Stock of concern                   Percentage of total target TAC       2006      2007      2008
----------------------------------------------------------------------------------------------------------------
GB cod......................................  Two.................................     122.6     (\*\)     (\*\)
GOM cod.....................................  One.................................      49.9      99.0     103.9
GB yellowtail flounder......................  Two.................................      41.4     (\*\)     (\*\)
CC/GOM yellowtail flounder..................  One.................................       6.5      10.8      14.1
SNE/MA yellowtail flounder..................  One.................................       1.5       2.1       3.1
American plaice.............................  Five................................       139     162.1     206.7
Witch flounder..............................  Five................................     275.6     253.8     216.6
SNE/MA winter flounder......................  One.................................      24.8      30.2      35.6
GB winter flounder..........................  Two.................................      28.5      32.1      35.6
White hake..................................  Two.................................      41.1      33.5     27.3
----------------------------------------------------------------------------------------------------------------
*Note: GB cod and GB yellowtail flounder TACs are determined annually and cannot be estimated in advance.


            Table 4.--Allocation of Incidental Catch TACs Among Category B Days-at-Sea (DAS) Programs
                               [Shown as a percentage of the Incidental Catch TAC]
----------------------------------------------------------------------------------------------------------------
                                                                                Closed area I     Eastern U.S./
                     Stock of concern                         Regular B DAS       hook gear      Canada haddock
                                                                 program         haddock SAP           SAP
----------------------------------------------------------------------------------------------------------------
GOM cod...................................................               100                NA                NA
GB cod....................................................                50                16                34
CC/GOM yellowtail flounder................................               100                NA                NA
American plaice...........................................               100                NA                NA
White hake................................................               100                NA                NA
SNE/MA yellowtail flounder................................               100                NA                NA
SNE/MA winter flounder....................................               100                NA                NA
Witch flounder............................................               100                NA                NA
GB yellowtail flounder....................................                50                NA                50
GB winter flounder........................................                50                NA                50
----------------------------------------------------------------------------------------------------------------

5. Default DAS Allocations

    Amendment 13 established two ``default'' measures that would 
automatically reduce F on multiple groundfish species, for American 
plaice and SNE/MA yellowtail flounder, beginning in FY 2006, unless 
certain criteria are met. Because these criteria have not been met, the 
Amendment 13 default DAS measure (a change in the Category A and B DAS 
ratio from 60:40 to 55:45) for FY 2006-2008 remains unchanged. This 
default measure represents an 8.3-percent reduction in the number of 
allocated Category A DAS. This final rule also modifies the default 
differential DAS counting measure in the SNE RMA, as described in 
Section 8 of this preamble.

6. Vessel Monitoring System (VMS) Requirement

    All limited access NE multispecies DAS vessels using a groundfish 
DAS must be equipped with an approved VMS that meets the requirements 
of Sec.  648.9. As of the effective date of this rule, it is illegal 
for a limited access NE multispecies DAS vessel to begin a fishing trip 
under a groundfish DAS without an approved VMS. A vessel owner with a 
limited access NE multispecies DAS permit who does not intend to and 
does not fish any groundfish DAS during the FY is allowed to renew the 
vessel's limited access permit without having an approved VMS, but may 
not fish any of the vessel's groundfish DAS for that FY. A vessel owner 
that is not already equipped with an approved VMS must provide 
pertinent information (e.g., type of VMS unit, installation date, 
dealer, etc.) to NMFS prior to beginning a NE multispecies fishing trip 
after the effective date of this final rule. NMFS is sending letters to 
all limited access NE multispecies DAS permit holders in order to 
provide detailed information on the procedures pertaining to VMS 
purchase, installation, and use. If a vessel is subject to multiple, 
conflicting VMS regulations of different programs, the most restrictive 
requirement applies. For example, a vessel fishing in both the Eastern 
U.S./Canada Area and in one of the Differential DAS Areas (described in 
Sections 7 and 8 of this preamble) on the same trip is subject to the 
VMS restrictions that pertain to both programs (e.g., the requirement 
to declare into the Differential DAS Areas prior to leaving port or 
prior to leaving the Eastern U.S./Canada Area and the reporting 
requirements for the Eastern U.S./Canada Area specified at Sec.  
648.85(a)(3)(v)).
    Despite a mandatory VMS requirement, NE multispecies DAS vessels 
are still required to declare periods out of the fishery (spawning 
block out and Day Gillnet vessel blocks out) through the Interactive 
Voice Response (IVR) call-in system. The Regional Administrator may 
authorize limited access NE multispecies vessels to utilize the IVR 
system in lieu of the VMS system for the administration of DAS 
requirements should a vessel's VMS become inoperable. In addition, if a 
vessel's VMS is not operational, the Regional Administrator may require 
vessels to obtain a Letter of Authorization (LOA) as an alternate 
method of enforcing a possession limit.

7. Differential DAS Counting in GOM

    Under this final rule, all NE multispecies Category A DAS used by a 
vessel that has declared (through VMS, or other means approved by the 
Regional Administrator), prior to leaving the dock, that it will be 
fishing within the GOM Differential DAS Area during any portion of its 
trip, with the exception noted below for a Day gillnet vessel, will be 
charged at a rate of 2:1, regardless of area fished. The GOM

[[Page 62160]]

Differential DAS Area (defined at Sec.  648.82(e)(2)(i)(A) of the 
regulatory text portion of this document), includes most of the area 
west of 69[deg]30' W. long. and between 41[deg]30' and 43[deg]30' N. 
lat. (between approximately Monomoy Island, MA, and Portland, ME). Day 
gillnet vessels will be charged DAS at a rate of 2:1 for the actual 
hours used for any trip of less than 3 hr in duration, and for any trip 
of greater than 7.5 hr. For Day gillnet trips between 3 and 7.5 hr 
duration, vessels will be charged a full 15 hr. To illustrate how DAS 
are charged in the GOM Differential DAS Area for different categories 
of vessels, the following examples are provided. A trawl vessel that 
has declared into the GOM Differential DAS Area on a trip that lasts 10 
actual hr would be charged 20 hr (10 hr x 2) of DAS use, regardless of 
where the vessel fished. Conversely, a Day gillnet vessel that has 
declared into the GOM Differential DAS Area on a trip that lasts 5 
actual hr would be charged for 15 hr of DAS use regardless of where the 
vessel fished (between 3 and 7.5 hr = 15 hr); a Day gillnet vessel 
fishing in the GOM Differential DAS Area on a trip that lasts 8 actual 
hr would be charged for 16 hr of DAS use regardless of where the vessel 
fished (8 hr x 2). On any trip in which a vessel declares, prior to 
leaving the dock, that it will be fishing in the GOM Differential DAS 
Area under a Category A DAS, the vessel will be charged at the 
differential DAS rate for the entire fishing trip, even if only a 
portion of the trip is spent fishing in the GOM Differential DAS Area. 
A vessel may not fish under a Category A DAS in the GOM Differential 
DAS Area, unless it has declared into this area prior to the start of 
the trip, or unless exempted, as described below. A vessel that does 
not declare its intent to fish in the GOM Differential DAS Area may 
still transit or be in the area, provided its fishing gear is properly 
stowed according to the regulations and, if the vessel is in the area 
for reasons other than transiting (e.g., to evade bad weather), the 
vessel immediately notifies NMFS that it is within the GOM Differential 
DAS Area, but not fishing through its VMS. This provision has been 
modified from the proposed rule, which allowed non-fishing and non-
transiting vessels to be in the area ``due to bad weather, or other 
circumstances beyond its control,'' based on Council comment and to 
ensure effective enforcement of this provision.
    No changes to the Monkfish FMP regulations are implemented to 
accommodate the NE multispecies Differential DAS rules, but the 
following is an explanation of how the proposed groundfish regulations 
would work with the current Monkfish FMP regulations. A vessel issued a 
limited access monkfish Category C or D permit that has declared into 
the GOM Differential DAS Area under a monkfish DAS (thereby using both 
a monkfish and NE multispecies DAS) will have its NE multispecies DAS 
charged at a rate of 2:1, but its monkfish DAS will continue to be 
charged at a rate of 1:1. The regulations will continue to allow a 
monkfish Category C and D vessel to fish under a monkfish-only DAS, 
when groundfish DAS are no longer available, to ensure that it can fish 
its full allocation of monkfish DAS. Monkfish Category C and D vessels 
that accrued monkfish-only DAS under the recent emergency regulations 
as a result of the use of NE multispecies DAS at the differential rate 
of 1.4 to 1 will be able to continue to use such monkfish only DAS 
under this final rule, during the remainder of this FY. Under this 
final rule, vessels fishing under a monkfish-only DAS will continue to 
be required to fish under the provisions of the monkfish Category A or 
B permit. Such a vessel is limited to monkfish-only DAS equal to its 
net monkfish DAS allocations (including carry-over DAS) minus its net 
NE multispecies Category A DAS allocation (including carry-over DAS). A 
monkfish vessel will continue to be allocated ``monkfish only'' DAS 
based upon its current allocations of monkfish and NE multispecies DAS. 
This allocation is not expanded to account for the effects on monkfish 
DAS due to the differential DAS measures implemented by this final 
rule. For example, if a Category C monkfish vessel allocated 40 
monkfish DAS has a current NE multispecies DAS allocation of 15 DAS, 
the maximum number of monkfish-only DAS that the vessel would be able 
to fish would be 25 DAS (40 monkfish DAS - 15 NE multispecies DAS). 
However, for a vessel fishing under differential DAS, the overall 
amount of monkfish DAS that could be used is effectively reduced 
because the NE multispecies DAS are used at the differential rate. 
Using the example above, if the vessel fished all 15 NE multispecies 
DAS at the differential DAS rate, the vessel would use up its 
allocation of NE multispecies DAS after 7.5 days of actual time fished 
(7.5 days x 2.0 = 15 DAS). Therefore, even though the vessel only 
fished 7.5 actual NE multispecies DAS, it would be able to fish only up 
to 25 of its monkfish DAS as ``monkfish-only'' DAS.
    For a vessel that has declared into the GOM Differential DAS Area, 
trip limits apply based on the actual days spent fishing, and not on 
the basis of the differential DAS that were charged for the trip. The 
cod possession limit rule that requires vessels to ``run the clock'' to 
fully account for each daily limit of cod caught does not apply to 
trips charged at the differential DAS rate (for both GOM and GB cod). 
For example, if the trip of a vessel declared into the GOM Differential 
DAS Area lasts for 25 hr actual time, the vessel would be allowed to 
catch twice the daily limit of GOM cod (800 lb (362.9 kg) per DAS), and 
would be charged 50 hr of DAS. Because differential DAS apply only to 
Category A DAS, a vessel that begins and ends its trip in the GOM 
Differential DAS Area under the Regular B DAS Program is not subject to 
the differential DAS counting and is subject to the DAS counting rules 
of the Regular B DAS Program.
    A vessel that fishes inside and outside of the Eastern U.S./Canada 
Area on the same trip (as described in section 15 of this preamble) may 
also fish in the GOM Differential DAS Area on the same trip, provided 
the vessel declares its intent to fish in the GOM Differential DAS Area 
via VMS prior to leaving the Eastern U.S./Canada Area. A vessel that 
has declared into both the GOM Differential DAS Area and the Eastern 
U.S./Canada Area on the same trip will be subject to the most 
restrictive DAS counting, trip limits, and reporting requirements 
applicable to the two areas for the entire trip.
    The GOM Differential DAS restrictions are designed to reduce F on 
GOM/CC yellowtail flounder, GOM cod, and white hake.

8. Differential DAS Counting in SNE

    All NE multispecies Category A DAS used by a vessel that has 
declared (through VMS, or other means approved by the Regional 
Administrator), prior to leaving the dock, that it will be fishing 
within the SNE Differential DAS Area during any portion of its trip, 
with the exception noted below, will be charged at a rate of 2:1 when 
fishing in a specific portion of the SNE RMA. A vessel may not fish, 
except as noted below, under a Category A DAS in the SNE Differential 
DAS Area, unless it has declared into the area prior to the start of 
the trip. The SNE Differential DAS Area (defined at Sec.  
648.82(e)(2)(i)(B) in the regulatory text portion of this document) is 
an irregular-shaped offshore area extending from 73[deg]40' W. long., 
east to 69[deg]30' W. long. (from south of western Long Island to north 
of the Nantucket Lightship Closed Area). On

[[Page 62161]]

any trip in which a vessel declares, prior to leaving the dock, via its 
VMS unit, that it will be harvesting fish in the SNE Differential DAS 
Area under a Category A DAS, the vessel will be charged at the 
differential DAS rate for that portion of the trip spent in the SNE 
Differential Area (as determined from VMS positional data). The time 
spent outside this area will be charged at the rate of 1:1. For 
example, if a trawl vessel declares into the SNE Differential DAS Area 
through its VMS unit on a trip that lasts 12 actual hr with only 4 hr 
actually spent in the SNE Differential DAS Area, the total DAS deducted 
for that trip would equal 16 hr (8 hr of actual time outside the SNE 
Differential DAS Area plus 8 hr (4 hr x 2) of differential DAS time). A 
Day gillnet vessel that declares into the SNE Differential DAS Area 
through VMS will be charged according to the following formula for the 
actual time spent in the SNE Differential DAS Area: For hours accrued 
in the area less than 3 hr or greater than 7.5 hr, vessels will be 
charged at a rate of 2:1; for hours accrued in the area between 3 and 
7.5 hr, vessels will be charged a full 15 hr. The DAS accrued outside 
of the SNE Differential DAS Area will accrue on a 1:1 basis. For 
example, if a Day gillnet vessel declared into the SNE Differential DAS 
Area on a trip that lasts 12 actual hours with only 5 hr actually spent 
in the SNE Differential DAS Area, the total DAS deducted for that trip 
would be 22 hr (7 hr of actual time outside of the SNE Differential DAS 
Area, plus 15 hr according to the above formula). For trips where a Day 
gillnet vessel declares into the SNE Differential DAS Area, the 
application of the DAS accrual formula described above does not 
supersede the DAS accrual formula that applies to all NE multispecies 
Day gillnet vessels. In other words, the net DAS charge for a Day 
gillnet vessel for a trip declared into the SNE Differential DAS Area 
may not be less than the DAS that would accrue on the same length trip 
by a Day gillnet vessel not declared into the SNE Differential DAS 
Area.
    If the Regional Administrator requires the use of the IVR or other 
non-VMS reporting system, a vessel fishing for any portion of its trip 
in the SNE Differential DAS Area will be charged at the rate of 2:1 for 
the entire trip, in a manner similar to that described for differential 
DAS counting in the GOM Differential DAS Area (see section 7 of this 
preamble). Because it is not possible to determine the amount of time a 
vessel fishes inside the SNE Differential DAS Area using IVR or IVR 
technology, the vessel must be charged at the differential rate for the 
entire trip. Further, if a vessel fishes in both the GOM and SNE 
Differential DAS Area on the same trip, the vessel will be charged at 
the rate of 2:1 for the entire trip.
    Similar to fishing in the GOM Differential DAS Area, a vessel 
issued a limited access monkfish Category C or D permit that has 
declared into the SNE Differential DAS Area under a monkfish DAS (and 
therefore is accruing both monkfish and NE multispecies DAS) will have 
its NE multispecies DAS charged at a rate of 2:1, as described above, 
and its monkfish DAS charged at a rate of 1:1.
    A vessel that does not declare its intent to fish in the SNE 
Differential DAS Area under a Category A DAS, may still transit or be 
in the area, provided its fishing gear is properly stowed, according to 
the applicable regulations, and if the vessel is not in the area for 
transiting purposes, it immediately notifies NMFS through its VMS that 
it is in the SNE Differential DAS Area, but not fishing. This provision 
has been modified from the proposed rule, which allowed non-fishing and 
non-transiting vessels to be in the area ``due to bad weather, or other 
circumstances beyond its control,'' based on Council comment and to 
ensure effective enforcement of this measure.
    Similar to how trip limits are counted when fishing in the GOM 
Differential DAS Area, for trips declared into the SNE Differential DAS 
Area, all trip limits apply based on the actual days spent fishing, and 
not on the basis of the number of DAS charged. A vessel that begins and 
ends a fishing trip under the Regular B DAS Program is not be subject 
to differential DAS counting, regardless of where it fishes.
    A vessel that fishes inside and outside of the U.S./Canada 
Management Area on the same trip (as described in section 15 of this 
preamble) may also fish in the SNE Differential DAS Area on the same 
trip, provided the vessel declares its intent to fish in the SNE 
Differential DAS Area via VMS prior to leaving the Eastern U.S./Canada 
Area. A vessel that has declared into both the SNE Differential DAS 
Area and the Eastern U.S./Canada Area on the same trip will be subject 
to the more restrictive DAS counting, trip limits, and reporting 
requirements applicable to the two areas for the entire trip.
    The SNE Differential DAS restrictions are designed to reduce F on 
SNE/MA yellowtail flounder, SNE winter flounder, and white hake.

9. Commercial Trip Limits

    This final rule does not change the Amendment 13 GOM cod trip limit 
(800 lb (362.9 kg) per DAS, up to 4,000 lb (1,818.2 kg) per trip). This 
final rule implements new trip limits for white hake and GB winter 
flounder, modifies the existing trip limits for the three yellowtail 
flounder stocks (CC/GOM, GB, and SNE/MA), and modifies the haddock trip 
limit and the GOM cod trip limit exemption and cod overage regulations.
    A NE multispecies DAS vessel fishing under Category A DAS, or any 
other vessel subject to the NE multispecies possession and trip limit 
regulations, may land up 1,000 lb (453.6 kg) of white hake per DAS, or 
any part of a DAS, up to 10,000 lb (4,536.2 kg) per trip, unless 
otherwise restricted. A NE multispecies DAS vessel fishing under a 
Category A DAS that has declared into the U.S./Canada Management Area, 
or any other vessel subject to the NE multispecies possession and trip 
limit regulations, may land up to 5,000 lb (2,268.1 kg) of GB winter 
flounder and 10,000 lb (4,536.2 kg) of GB yellowtail flounder per trip, 
unless otherwise restricted. The U.S./Canada Management Area is defined 
as the same geographic area as the GB winter flounder and the GB 
yellowtail flounder stock areas.
    NE multispecies DAS vessels fishing under Category A DAS, or any 
other vessel subject to the NE multispecies possession and trip limit 
regulations, may land up to 250 lb (113.6 kg) per DAS, or any part of a 
DAS, up to 1,000 lb (453.6 kg) per trip of CC/GOM or SNE/MA yellowtail 
flounder for the entire FY. Because the trip limits for CC/GOM and SNE/
MA yellowtail flounder are the same, this final rule removes the 
requirement that vessels obtain and possess on board a yellowtail 
flounder LOA issued by the Regional Administrator in order to land 
yellowtail flounder from the CC/GOM or SNE/MA Yellowtail Flounder 
Areas.
    This final rule expands the Regional Administrator's authority to 
modify the GB yellowtail flounder trip limit, removes the requirement 
that NMFS impose a GB yellowtail flounder trip limit when 70 percent of 
the TAC is reached, and removes the threshold harvest levels of 30 
percent and 60 percent before other management measures can be 
adjusted. Instead, this final rule implements an initial GB yellowtail 
flounder trip limit of 10,000 lb (4,536.2 kg) per trip and allows the 
Regional Administrator to make adjustments to the GB yellowtail 
flounder trip limit at any time during the FY, and to eliminate or 
adjust the initial 10,000-lb (4,536.2-kg) trip limit before the start 
of the FY, in order to prevent exceeding or in order to facilitate 
harvesting the GB yellowtail flounder TAC, in a manner consistent

[[Page 62162]]

with the Administrative Procedure Act, as more fully described under 
Section 22 of this preamble. If no trip limit is specified for the 
beginning of a FY, the 10,000-lb (4,536.2-kg) yellowtail flounder trip 
limit will remain in effect. The Regional Administrator may specify a 
yellowtail flounder trip limit for all of the U.S./Canada Management 
Area or for either of its two sub-areas (i.e., the Western U.S./Canada 
Area or the Eastern U.S./Canada Area). This final rule also recognizes 
non-binding guidance developed by the Council to assist the Regional 
Administrator regarding potential in-season modifications to the GB 
yellowtail flounder trip limit. Table 5 contains catch thresholds and 
associated trip limits offered as non-binding Council guidance for 
consideration.

                         Table 5.--GB Yellowtail Flounder Trip Limit Adjustment Guidance
----------------------------------------------------------------------------------------------------------------
                                      If catch is projected to
                                        reach  30% of the TAC     If catch is projected to reach  60% of the TAC
             FY quarter                 during the  specified     during the  specified quarter, the  suggested
                                       quarter, the  suggested              trip limit is as  follows:
                                     trip limit is as  follows:
----------------------------------------------------------------------------------------------------------------
Quarter 1 (May-July)...............  7,500 lb (3,402.1 kg).....  3,000 lb (1,360.9 kg).
Quarter 2 (August-October).........  10,000 lb (4,536.2 kg)....  5,000 lb (2,268.1 kg).
Quarter 3 (November-January).......  25,000 lb (11,340.4 kg)...  10,000 lb (4,536.2 kg).
Quarter 4 (February-April).........  Remove trip limits........  25,000 lb (11,340.4 kg).
----------------------------------------------------------------------------------------------------------------

    This final rule eliminates the current initial haddock trip limit 
provision (May-Sept 3,000 lb (1,360.8 kg) per DAS up to 30,000 lb 
(13,608 kg) per trip; Oct-Apr 5,000 lb (2,268 kg) per DAS up to 50,000 
lb (22,680 kg) per trip) and as more fully described under Section 22 
of this preamble, the automatic trip limit reduction for Eastern GB 
haddock (1,500 lb (680.4 kg) per DAS or up to 15,000 lb (6,804.1 kg) 
per trip) when 70 percent of the TAC is projected by the Regional 
Administrator.
    The requirement for NE multispecies DAS vessels to obtain a GB Cod 
Trip Limit Exemption LOA from the Regional Administrator when fishing 
outside of the GOM RMA, if the vessel operator desires to be exempt 
from the more restrictive cod trip limit in the GOM, is eliminated 
because this law enforcement tool is no longer necessary. Instead, with 
the exception of vessels declared into the U.S./Canada Management Area, 
a NE multispecies DAS vessel fishing south of the GOM RMA must declare 
through the VMS, prior to leaving the dock in accordance with 
instructions to be provided by the Regional Administrator, its intent 
to fish south of the GOM RMA in order to be subject to the less 
restrictive GB cod trip limits. Such a vessel is exempt from the GOM 
cod landing limit, but may not fish in the GOM RMA for the duration of 
the trip. Such a vessel may transit the GOM RMA, provided that its gear 
is properly stowed while in the GOM RMA. A vessel that has not declared 
through VMS that it will be fishing south of the GOM RMA, is subject to 
the most restrictive applicable cod trip limit, regardless of area 
fished for the entire trip.
    The Regional Administrator retains the authority to require a 
vessel to obtain a GOM Cod Trip Limit Exemption LOA (as under pre-FW 42 
regulations), if NMFS's administration of the VMS program is not 
operational. If an LOA is required, such a vessel may not fish north of 
the exemption area for a minimum of 7 consecutive days (when fishing 
under the NE multispecies DAS program), and must carry the LOA on 
board.
    For a vessel that is not declared into and does not fish in either 
of the two differential DAS areas and that catches cod in excess of the 
GOM or GB cod trip limits (i.e., the vessel possesses up to 1 extra 
day's worth of cod in relation to the amount of DAS that have elapsed), 
the current requirement for vessels to ``run'' their clocks upon 
entering port (to account for the amount of cod on board) is replaced 
by a requirement to make a declaration via VMS prior to crossing the 
VMS demarcation line. For a vessel making this VMS declaration, NMFS 
will make the appropriate increase to the DAS accrued (up to 23 hours 
and 59 minutes) to round up the next 24-hr increment of DAS.

10. Regular B DAS Program

    This final rule renews the Regular B DAS Program, but modifies 
certain aspects in order to further reduce the potential risks 
associated with the use of a Regular B DAS and to minimize impacts to 
the monkfish fishery. The program will no longer be characterized as a 
``Pilot,'' and will remain in effect indefinitely.
    The Regular B DAS Program allows limited access NE multispecies DAS 
vessels with an allocation of Regular B DAS to fish under a Regular B 
DAS in order to harvest relatively healthy groundfish stocks (GB 
haddock, pollock, redfish, GOM winter flounder, and GOM haddock). GB 
winter flounder and GB yellowtail flounder are now considered ``stocks 
of concern'' that require additional reductions in F. Vessels eligible 
to fish in the Regular B DAS Program may not fish in this program and 
in a Special Access Program (SAP) (e.g., the Eastern U.S./Canada 
Haddock SAP, Closed Area (CA) I Hook Gear Haddock SAP, or CA II 
yellowtail flounder SAP) on the same trip. 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 CY (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). DAS 
that are not used in one quarter will not be available for use in 
subsequent quarters. As implemented previously under FW 40-A, Regular B 
DAS will accrue at the rate of 1 DAS for each calendar day, or part of 
a calendar day, fished.
    A vessel participating in this program must be equipped with an 
approved VMS and must notify the NMFS Observer Program at least 72 hr 
in advance of a trip in order to facilitate observer coverage. This 
notification requires reporting of the following information: The 
general area or areas that will be fished (GOM, GB, or SNE), vessel 
name, contact name for coordination of observer deployment, telephone 
number of contact, date, time, and port of departure. Providing notice 
of the area that the vessel intends to fish does not restrict the 
vessel's activity to fish only in that area on that trip, but will be 
used to plan observer coverage. 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 must report their catches of certain 
groundfish stocks of concern (cod, yellowtail flounder, winter 
flounder, witch flounder,

[[Page 62163]]

American plaice, and white hake) and haddock daily through VMS, 
including the amount of fish kept and discarded. These reporting 
requirements are consistent with the standardized reporting 
requirements that, as implemented by this final rule, apply to all 
Special Management Programs of the FMP, as explained in section 17 of 
this preamble.
    In contrast to the Regular B DAS Pilot Program, in which a trawl 
vessel was not required to utilize any particular gear type, under this 
final rule, a trawl vessel must use an approved haddock separator trawl 
when participating in the Regular B DAS Program. Other trawl net 
configurations may be on board the vessel, provided they are properly 
stowed when the vessel is fishing under the Regular B DAS Program 
rules. The intent of this restriction is to further reduce the 
potential for vessels to catch stocks of concern, notably cod, 
yellowtail flounder, and winter flounder. Furthermore, for a trawl 
vessel fishing with the proposed haddock separator trawl, 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 help promote and 
ensure the proper utilization of the haddock separator trawl; a 
properly configured haddock separator trawl should not catch large 
quantities of these species.
    A vessel fishing under a Category B DAS while in this program is 
prohibited from discarding legal-sized regulated NE multispecies, 
Atlantic halibut, ocean pout, and monkfish, and is limited to landing 
100 lb (45.4 kg) per DAS, or any part of a DAS, of each of the 
following groundfish stocks: GOM cod, GB cod, GB yellowtail flounder, 
American plaice, witch flounder, white hake, SNE/MA winter flounder, GB 
winter flounder, southern windowpane flounder, and ocean pout, unless 
further restricted (see below). In addition, a vessel fishing in this 
program is limited to landing no more than one Atlantic halibut and 25 
lb (11.3 kg) per DAS, or any part of a DAS, up to a maximum of 250 lb 
(113 kg) per trip, of CC/GOM or SNE/MA yellowtail flounder. A limited 
access monkfish DAS vessel fishing with gear other than trawl gear that 
is participating in this program under a NE multispecies DAS is subject 
to the monkfish Incidental Catch limit applicable to the monkfish 
Incidental Catch permit (Category E) (i.e., 400 lb (181.4 kg) tail 
weight/DAS, or 50 percent of the total weight of fish on board, 
whichever is less, when fishing in the monkfish Northern Fishery 
Management Area (NFMA); and 50 lb (22.7 kg) tail weight/DAS when 
fishing in the monkfish Southern Fishery Management Area (SFMA)). A 
limited access monkfish DAS vessels fishing with trawl gear that is 
participating in this program under a NE multispecies DAS is subject to 
the monkfish Incidental Catch limit applicable to the monkfish 
Incidental Catch permit (Category E), as well as the monkfish 
restrictions associated with the required use of the haddock separator 
trawl (as described below). That is, vessels may not land more than 500 
lb (226.8 kg) whole weight of monkfish per trip when fishing in the 
monkfish NFMA; and 500 lb (226.8 kg) whole weight per trip or 50 lb 
(22.7 kg) tail weight per DAS, whichever is less, when fishing in the 
monkfish SFMA.
    If a vessel fishing under the Category B DAS Program harvests and 
brings on board a stock with an Incidental Catch TAC (cod, yellowtail, 
American plaice, witch flounder, white hake, SNE winter flounder, GB 
winter flounder), or southern windowpane flounder, ocean pout, Atlantic 
halibut, or monkfish, in excess of the landing limits, the vessel 
operator must retain on board the excess catch of these species, and 
immediately notify NMFS, via VMS, that it is changing its DAS category 
from a Regular B DAS to a Category A DAS (i.e., ``DAS flip''). If a 
vessel flips from a Regular B DAS to a Category A DAS, it will be 
charged Category A DAS, which will accrue to the nearest minute, for 
the entire trip (i.e., not to the nearest day). Once the vessel flips, 
it is subject to the Category A trip limit restrictions. A vessel 
fishing in the Category B DAS Program must abide by all the reporting 
requirements described above for the duration of the trip, even if the 
vessel ``flips'' to a Category A DAS.
    In order to ensure that a vessel will always have 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), with the exception of vessels fishing in one of the 
differential DAS areas (as explained below), 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. 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. If 
a vessel is fishing in either the GOM Differential DAS Area or the SNE 
Differential DAS 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 two. For example, if a vessel plans 
a trip under the Regular B DAS Program and has 10 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.
    This action provides the Regional Administrator authority to 
approve the use of additional gear specifically for this program, based 
on approved gear standards recommended by the Council. After 
consideration of the Groundfish Committee's recommendation on the 
standards that must be met by potential gears, the Council may 
determine what standards, if any, will be recommended to the Regional 
Administrator to facilitate the determination of whether a proposed 
gear type is acceptable based on whether the proposed gear has been 
demonstrated to reduce catch of groundfish stocks of concern. Upon 
receipt of the Council's recommendation on gear standards, NMFS may 
implement these standards in a manner consistent with the 
Administrative Procedure Act. If NMFS decides not to implement the 
Council's recommendation on gear standards, it must provide a written 
rationale to the Council regarding its decision not to do so.
    The Pilot Program implemented by FW 40-A allowed a vessel issued a 
limited access monkfish Category C or D permit to use a NE multispecies 
Regular B DAS to fulfill the requirements of the Monkfish FMP, which 
requires such a vessel to use a NE multispecies DAS every time a 
monkfish DAS is used. To reduce fishing mortality on monkfish resulting 
from the use of Regular B DAS, this final rule implements the Monkfish 
FW 3 provision prohibiting a limited access monkfish DAS vessel that 
also possesses a limited access NE multispecies DAS permit from using a 
monkfish DAS (in conjunction with a NE multispecies Regular B DAS) when 
participating in the Regular B DAS Program. This vessel may still 
participate in this program and use a NE multispecies Regular B DAS, 
but it must fish under a NE multispecies DAS only and is subject to the 
monkfish trip limits. Discarding of legal-sized monkfish is prohibited 
when fishing under this program.
    NMFS will administer the Regular B DAS Program quarterly DAS cap by 
monitoring the total number of Regular B DAS accrued on trips that 
begin and end under a Regular B DAS. Mere declaration of a Regular B 
DAS Program trip through VMS does not reserve a

[[Page 62164]]

vessel's right to fish under this program, because the vessel must also 
cross the demarcation line to begin a trip in this program. Once the 
maximum number of Regular B DAS are projected to be used in a quarter, 
the Regional Administrator will end the Regular B DAS Program for that 
quarter. In order to limit the potential impact of the Regular B DAS 
Program on the fishing mortality of groundfish stocks of concern, a 
quarterly Incidental Catch TAC will be set for certain groundfish 
stocks of concern for this program. Based upon the definition of 
Incidental Catch TACs and the allocation of Incidental Catch TACs among 
Special Management Programs (Table 3 and 4, respectively), the proposed 
Incidental Catch TACs allocated to the Regular B DAS Program are 
calculated and divided into quarterly Incidental Catch TACs as shown in 
Table 6. The quarterly Incidental Catch TACs are divided among quarters 
in order to correspond to the allocation of DAS among quarters. The 1st 
quarter (May-July) will receive 13 percent of the Incidental Catch 
TACs, and the remaining quarters (August-October, November-January, and 
February-April) will each receive 29 percent of the Incidental Catch 
TACs.

                          Table 6.--Incidental Catch TACs for the Regular B DAS Program
                                                [mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                                       FY 2006               FY 2007               FY 2008
                                               -----------------------------------------------------------------
                                                  Qtr 1     Qtr 2-4     Qtr 1     Qtr 2-4     Qtr 1     Qtr 2-4
----------------------------------------------------------------------------------------------------------------
GB cod........................................        8.0       17.8                   See Note
GOM cod.......................................        6.5       14.5       12.9       28.7       13.5       30.1
GB yellowtail flounder........................        2.7        6.0                   See Note
SNE/MA yellowtail.............................        0.2        0.4        0.3        0.6        0.4        0.9
CC/GOM yellowtail.............................        0.8        1.9        1.4        3.1        1.8        4.1
American plaice...............................       18.1       40.3       21.1       47.0       26.9       60.0
Witch flounder................................       35.8       79.9       33.0       73.6       28.2       62.8
White hake....................................        5.3       11.9        4.4        9.7        3.6        7.9
SNE/MA winter flounder........................        3.2        7.2        3.9        8.7        4.7       10.4
GB winter flounder............................        1.9        4.1        2.1        4.6        2.2       5.2
----------------------------------------------------------------------------------------------------------------
Note: TACs for this stock depend on annual specification of TACs in the U.S./Canada Management Area. TACs are
  calculated using the definition of Incidental Catch TACs and the allocation of Incidental Catch TACs among
  Special Management Programs (Table 3 and 4, respectively), as well as the quarterly division of the TAC
  described above. Separate specification of these TACs is not necessary, because they are calculated based upon
  an explicit formula.

    With the exception of white hake, CC/GOM yellowtail flounder, and 
SNE/MA yellowtail flounder, if the Incidental Catch TAC for any one of 
these species is caught (landings plus discards) during a quarter, use 
of Regular B DAS in the pertinent stock area will be prohibited for the 
remainder of that quarter. Vessels can once again use Regular B DAS at 
the beginning of the subsequent quarter. When the white hake Incidental 
Catch TAC is caught, the possession of white hake when fishing under 
the Regular B DAS Program will be prohibited. For the CC/GOM and SNE/MA 
stocks of yellowtail flounder, when the respective Incidental Catch 
TACs are caught, only a portion of the stock area where the species is 
predominantly caught will be closed to Regular B DAS Program 
participants. Upon attainment of the CC/GOM yellowtail flounder 
incidental Catch TAC, the following 30-minute square blocks will close: 
Blocks 98, 114, 123, 124, 125, 132, and 133. Upon attainment of the 
SNE/MA yellowtail flounder Incidental Catch TAC, the following 30-
minute square blocks will close: Blocks 70 to 73, 82 to 88, 98, 99, and 
101 to 103.
    Under the Pilot Program, the Regional Administrator had the 
authority to prohibit the use of Regular B DAS for the duration of a 
quarter or FY, if it was 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. This final rule continues this 
authority, but provides additional reasons for terminating the program. 
Additional reasons for terminating the program include, but are not 
limited to, the following: Inability to restrict catches to the 
Incidental Catch TACs; evidence of excessive discarding; evidence of a 
significant difference in flipping rates between observed and 
unobserved trips; and insufficient observer coverage to adequately 
monitor the program, particularly if coverage declines below the 
Council's recommendation of 36 percent (the same level of observer 
coverage as occurred during the original Pilot Program).

11. Renewal of DAS Leasing Program

    This final rule 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.

12. Renewal and Modification of the Eastern U.S./Canada Haddock SA