Fishery conservation and management: Northeastern United States fisheries— Northeast multispecies,

[Federal Register: March 3, 2006 (Volume 71, Number 42)]

[Proposed Rules]

[Page 11059-11087]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr03mr06-23]

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Part III

Department of Commerce

National Oceanic and Atmospheric Administration

50 CFR Part 648

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060209031-6031-01; 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: Proposed rule; emergency action; request for comment.

SUMMARY: NMFS proposes a temporary emergency rule under the Magnuson- Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to implement measures intended to immediately reduce the fishing mortality rate (F) on specific groundfish species to prevent overfishing and maintain the rebuilding program of the Northeast (NE) Multispecies Fishery Management Plan (FMP). This emergency action includes differential days-at-sea (DAS) counting, reduced trip limits for specific species, and recreational possession restrictions, among other provisions. In addition, this action would continue two programs that would otherwise expire by the end of the 2005 fishing year on April 30, 2006: The DAS Leasing Program and a modified Regular B DAS Program on Georges Bank (GB). Due to the impact of these proposed measures on the monkfish fishery, this temporary emergency action would also limit participation of monkfish Category C, D, or F permits in the proposed Regular B DAS Program and revise the method of calculating available monkfish-only DAS for Category C, D, F, G, or H monkfish vessels. 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: Comments must be received on or before March 6, 2006.

ADDRESSES: You may submit comments by any of the following methods: line the following: ``Comments on the Proposed Rule for Groundfish Emergency Action.''

Federal e-Rulemaking Portal: http://www.regulations.gov.

Mail: Paper, disk, or CD-ROM comments should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, 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 the Regional Administrator at the above address. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.nmfs.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to the Regional Administrator at the address above and to David Rostker, Office of Management and Budget (OMB), by e-mail at David_Rotsker@omb.eop.gov, or fax to (202) 395-7285.

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

SUPPLEMENTARY INFORMATION:

Background

The New England Fishery Management Council (Council) developed Amendment 13 in order to bring the FMP into conformance with all Magnuson-Stevens Act requirements, including ending overfishing and rebuilding all overfished groundfish stocks. Amendment 13 was partially approved by the Secretary of Commerce on March 18, 2004. A final rule implementing the approved measures in the amendment was published on April 27, 2004 (69 FR 22906) and became effective May 1, 2004.

Amendment 13 established or clarified rebuilding programs for each stock managed under the FMP. Amendment 13 also established a biennial adjustment process to review the fishery and implement any changes necessary to ensure that the fishery continues to meet the rebuilding objectives, including meeting the F targets for each year of the rebuilding program. As part of the biennial adjustment process, the latest stock assessment, the Groundfish Assessment Review Meeting (GARM II), took place from August 15-19, 2005. This assessment provided updated information to evaluate the performance of the fishery in relation to the rebuilding program established by Amendment 13.

The Council's Groundfish Plan Development Team (PDT) utilized the results of GARM II to calculate estimates of the 2005 calendar year F (F2005) for all groundfish stocks. These estimates indicate that F2005for particular groundfish stocks, (i.e., 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 rebuilding program established under Amendment 13. The PDT concluded that, with the exception of GB yellowtail flounder, management measures should be developed to further reduce F on these species for fishing year 2006 in order to maintain progress toward the FMP rebuilding objectives, as illustrated in Table 1:

Table 1.--Mortality Reduction Necessary To Achieve Fishing Year 2006 Amendment 13 F Targets *

Mortality Estimated Amendment 13 reduction Stock

F2004

F2005 fishing year necessary 2006 target F (percent)

GOM Cod.............................................. 0.58

0.37

0.23

32 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

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White Hake........................................... 1.18

NA

1.03

13

* F on GB yellowtail flounder also needs to be reduced, but new management measures do not need to be developed. See additional explanation in the paragraph below. ** 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.

No new management measures are necessary to reduce F on GB yellowtail flounder, since a hard TAC (i.e., fishing on the stock is prohibited when such a TAC is reached) is being proposed for this stock that will reduce F to the appropriate level. The Transboundary Management Guidance Committee (TMGC) concluded that the most appropriate combined U.S./Canada total allowable catch (TAC) for the 2006 fishing year is 3,000 mt (2,070 mt U.S.; 930 mt Canada), which corresponds to an F of 0.25 (Fmsy). On September 15, 2005, the Council accepted the recommendations of the TMGC for the 2006 GB yellowtail flounder TAC. The proposed hard TAC of 2,070 mt represents a 51-percent reduction from the 2005 TAC, and would constrain fishing effort to the appropriate level to achieve the required F reduction. The 2006 GB yellowtail flounder hard TAC is being proposed through a separate management action currently under development by NMFS.

The rebuilding strategy implemented by Amendment 13 established two so-called default measures that would automatically reduce F on all groundfish species, particularly for American plaice and SNE/MA yellowtail flounder beginning in fishing year 2006. These default measures include a revision of the DAS allocation ratio of Category A:B DAS from 60:40 to 55:45, and differential DAS counting in the SNE/MA Regulated Mesh Area (RMA) at a rate of 1.5:1. Under the final rule implementing Amendment 13, these measures are scheduled to go into effect for the start of the 2006 fishing year on May 1, 2006, unless stocks meet or exceed specific criteria described at 50 CFR 648.82(d)(4) and NMFS implements measures to supercede the default measures. In addition to these criteria, all groundfish stocks must meet the target F rates specified for 2006 for these default measures to be deferred.

Data from GARM II indicate that none of these criteria have been met for SNE/MA yellowtail flounder and that American plaice is still overfished. Given this, as well as the fact that other groundfish stocks are not meeting the target F rates for 2006 (see Table 1), the Amendment 13 default measures will automatically go into place on May 1, 2006, unless superseded by another action. Although these default measures would likely have positive impacts on all groundfish species (including a reduction in F), these measures are not likely to sufficiently reduce F for particular groundfish stocks to meet the 2006 fishing year F targets established by Amendment 13. Therefore, to ensure that the rebuilding program established under Amendment 13 remains on track to rebuild overfished groundfish stocks within the required time period, additional management measures are needed to reduce F on several groundfish stocks.

Framework Adjustment (FW) 42 to the FMP is currently being developed by the Council and is intended to serve as the first biennial adjustment process adopted under Amendment 13. FW 42 proposes management measures designed to achieve the necessary mortality reductions for all groundfish stocks requiring F reductions for the 2006 fishing year, as required by Sec. 648.90(a)(2). 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 the beginning of the fishing year on May 1, 2006. Although at its January 31-February 2, 2006, meeting the Council voted to adopt a suit of management measures under FW 42, it would not be possible to implement these measures by May 1, 2006.

Section 305(c) of the Magnuson-Stevens Act states that, if the Secretary of Commerce (Secretary) finds that an emergency or overfishing exists, or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency measures to address overfishing and address other management concerns while the Council prepares proposed regulations to stop overfishing and rebuild fish stocks on a more permanent basis. Such measures do not, by themselves, have to stop overfishing, but may be used to contribute to efforts to stop overfishing until the Council, after considering public input, can complete an appropriate framework adjustment or amendment to the FMP.

Emergency management actions authorized by section 305(c) of the Magnuson-Stevens Act may only be prepared under special circumstances. In accordance with NMFS policy guidelines for the use of emergency rules (62 FR 44421, August 21, 1997), emergency actions may be implemented to resolve ``unforeseen events or recently discovered circumstances'' that present ``serious conservation or management problems'' that ``can be addressed through emergency regulations for which the immediate benefits outweigh the value of advanced notice.'' These guidelines indicate that an emergency action might be justified based on one or more of the following reasons: Ecological (i.e., to prevent overfishing as defined in an FMP, or prevent other serious damage to the fishery resource or habitat), economic (i.e., to prevent significant direct economic loss or to preserve a significant economic opportunity that otherwise might be forgone), or social reasons (i.e., to prevent significant community impacts or conflict between user groups).

Applying the above criteria, NMFS has determined that the recent and unforeseen announcement by the Council that the implementation of FW 42 will be delayed beyond May 1, 2006, and the need to reduce F on specific groundfish stocks by the start of the 2006 fishing year, constitutes an emergency, as unforeseen events could cause serious conservation and management problems unless addressed

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through immediate regulatory action. Although notice and comment rulemaking is being undertaken for this action, there is insufficient time to implement the proposed measures under the normal FMP amendment or framework process, leaving the sec. 305(c) emergency action process as the only means to implement such measures.

This emergency action is justified for ecological, economic, and social reasons. Despite the restrictive management measures currently in place for all sectors of the fishery, F for several groundfish stocks remains above the Amendment 13 target F levels for 2006. As a result, it is necessary to reduce F by constraining fishing effort by all sectors and in all areas managed by the FMP as quickly as possible. Failure to reduce or prevent overfishing by May 1, 2006, while the Council completes FW 42 would likely allow continued overfishing of several groundfish stocks, resulting in slower rebuilding, which would require even more stringent future management measures, resulting in additional economic and social consequences. In addition, the 2003 year class of GOM and GB cod must be carefully managed, particularly for the months when fishing effort and catch is typically high (i.e., May through July). Therefore, in order to come into full compliance with the requirements of the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act, this emergency action is necessary until a more comprehensive management action can be completed by the Council and implemented by NMFS (i.e., FW 42).

Two programs approved in Amendment 13 and FW 40A were intended to help mitigate the economic and social impacts of the effort reductions of the FMP (the DAS Leasing Program and the Regular B DAS Pilot Program). The DAS Leasing Program, approved in Amendment 13, expires on April 30, 2006, while the Regular B DAS Pilot Program, approved in FW 40A, expired on October 31, 2005. Continuation of these programs, in part or in whole, would help mitigate the potential economic and social impacts of Amendment 13 effort reductions as well as further effort reductions and other measures proposed in this action. Thus, this emergency action proposes maintaining the DAS Leasing Program, as well as a modified version of the Regular B DAS Program.

Although the management measures proposed under this emergency action do not, by themselves, achieve the necessary Amendment 13 F reductions for all stocks (i.e., GB winter flounder, CC/GOM yellowtail flounder, and SNE/MA yellowtail flounder), it is anticipated that this action, in combination with measures proposed under FW 42, would achieve this objective, provided measures adopted under FW 42 are implemented as soon as possible. To ensure that the groundfish fishery meets the Amendment 13 rebuilding objectives, additional management measures through Secretarial action may be necessary during fishing year 2006.

Proposed Management Measures

All measures in effect prior to May 1, 2006, and not amended by this proposed emergency rule, would remain in effect after May 1, 2006. The current management measures include an Amendment 13 2006 fishing year default measure for the revision of the allocation ratio of Category A:B DAS from 60:40 to 55:45. This measure, therefore, is not discussed specifically in the description of the proposed measures that follows.

The following measures are proposed to be implemented on May 1, 2006, to reduce overfishing on particular groundfish stocks in need of F reductions. 1. Differential DAS Counting

Under this proposed 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, would be charged at a rate of 1.4:1, regardless of area fished. Day gillnet vessels would 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 between 3 and 11 hours duration, vessels would be charged a full 15 hours. For example, a trawl vessel fishing in the GOM for 5 hours would be charged for 7 hours (5 hours x 1.4) of DAS use. A Day gillnet vessel fishing in the GOM for 5 hours would be charged for 15 hours of DAS use; a Day gillnet vessel fishing in the GOM for 12 hours would be charged for 16.8 hours of DAS use (12 hours x 1.4).

A vessel issued a limited access monkfish Category C, D, F, G, or H permit fishing under a monkfish DAS would have its NE multispecies DAS charged at a rate of 1.4:1, but its monkfish DAS would continue to be charged at a rate of 1:1. Because differential DAS counting could result in a net allocation of NE multispecies Category A DAS that is less than the number of monkfish DAS allocated, some Category C, D, F, G, or H monkfish vessels would not have sufficient groundfish DAS to ensure that they could fish their full allocation of monkfish DAS. To accommodate this, a Category C, D, F, G, or H monkfish vessel could 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. Such vessels would be limited to monkfish-only DAS equal to their net monkfish DAS allocations (including carry-over DAS) minus their net NE multispecies Category A DAS allocation (including carry-over DAS), divided by 1.4. For example, if a Category C monkfish vessel allocated 40 monkfish DAS has a net NE multispecies DAS allocation of 20 DAS, the maximum number of monkfish- only DAS that the vessel would be able to fish would be 25.7 DAS (40 monkfish DAS--14.3 NE multispecies DAS (20 NE multispecies DAS divided by 1.4)).

The proposed differential DAS counting under this emergency action would expand the Amendment 13 default measure (limited to the SNE/MA RMA only) throughout all RMAs managed by the FMP. In conjunction with the Amendment 13 fishing year 2006 default measure that changes the Category A:B DAS ratio from 60:40 to 55:45, differential DAS, as proposed in this action, would help achieve the necessary F reduction for GOM cod and white hake, as well as provide some measure of F reduction for the other stocks in need of further protection. Further, expanding differential DAS counting to include the GOM and GB RMAs would help prevent a redirection of effort into these areas, and would facilitate adaptation to measures being proposed by the Council for implementation in FW 42.

The proposed measure would charge Category A DAS at a rate of 1.4:1, but would not change the way Category B DAS are charged. Category A DAS represent relatively unregulated effort that could be directed anywhere within the NE Region. However, the use of Category B DAS in either approved SAPs or the Regular B DAS Program is highly regulated, with specific provisions (area restrictions, gear requirements, trip limits, etc.) to ensure that such effort does not jeopardize rebuilding programs for specific stocks. Fishing mortality attributed to Category B DAS is strictly controlled and limited by hard incidental catch TACs for stocks of concern that result in area/program closures, once reached. In addition, Category B (Regular) DAS used in the Regular B DAS Program proposed under this action would be charged at a higher rate (24 hours for any calendar day or

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part of a calendar day fished) than Category A DAS, further limiting the impact of these DAS. As a result, there is little need to change the manner in which Category B DAS are charged, as F from these DAS is already highly restricted.

The application of differential DAS counting to Day gillnet trips proposed by this action was developed to ensure that the application of this measure would be consistent with the current system of counting DAS between Day gillnet vessels and vessels using other gear types. 2. GOM Cod Trip Limit

For vessels operating under a NE multispecies DAS, the possession limit of GOM cod would be reduced from 800 lb (363 kg) per DAS, up to 4,000 lb (1,814 kg) trip; 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 would be reduced from 300 lb (136 kg) per trip to 250 lb (113 kg) per trip. The GOM cod trip limit for vessels operating under the open access Handgear B provisions would be maintained at 75 lb (34 kg) per trip.

The 600-lb (272-kg) per DAS trip limit for GOM cod strikes a balance between minimizing incentives to target this species and concerns over excessive discards. Preliminary analysis of recent trips indicates that a such a trip limit would result in decreased F at only a slightly higher discard rate. Further, a majority of trips within the GOM caught less than 600 lb (272 kg) of GOM cod per DAS.

The current regulations state that the GOM cod trip limit for vessels issued a limited access NE multispecies Handgear A or an open access NE multispecies Handgear B permit will be adjusted proportionally to the GOM cod trip limit for NE multispecies vessels fishing under a DAS. The regulations at Sec. 648.82(b)(6) (suspended, with revised text at Sec. 648.82(u)(6) under this proposed action) state that the adjusted GOM cod trip limit for Handgear A vessels would be rounded up to the nearest 50 lb (22.7 kg), while the regulations at Sec. 648.88(a)(1) state that the adjusted GOM cod trip limit for Handgear B vessels would be rounded up to the nearest 25 lb (11.3 kg). Since this action proposes a 25-percent reduction in the GOM cod trip limit, a similar reduction, using the adjustment criteria specified in the regulations, results in the proposed trip limits for handgear vessels. 3. GB Yellowtail Flounder Trip Limit

Under this action, the GB yellowtail flounder trip limit would be reduced from an initial unlimited amount to 10,000 lb (4,536 kg) per trip. Based on the likelihood that the GB yellowtail flounder TACs will continue to remain relatively small over the next several years, there is an elevated risk that the small GB yellowtail flounder TAC for the U.S./Canada Management Area will be harvested before the end of the fishing year for the immediate future. This measure attempts to prolong the availability of the small 2006 GB yellowtail flounder TAC during the 2006 fishing year, minimizing the possibility that the TAC would be caught prior to the end of the 2006 fishing year, thereby increasing the chance of achieving optimum yield from the TACs of GB cod and GB haddock specified for the Eastern U.S./Canada Area. 4. CC/GOM and SNE/MA Yellowtail Flounder Trip Limit

The proposed emergency action would reduce the CC/GOM and SNE/MA yellowtail flounder trip limits 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.

The current trip limits for these two yellowtail flounder stocks are inconsistent with one another with respect to the time periods during which the 250-lb (113-kg) trip limit is in effect (currently April, May, Oct., Nov. for CC/GOM yellowtail flounder; and March, April, May, June for SNE/MA yellowtail flounder). The current trip limits for the other portion of the year is 750 lb (340 kg) per DAS, up to 3,000 lb (1,361 kg) per trip. The proposed reduction to 500 lb (227 kg) per DAS, up to 2,000 lb (907 kg) per trip for the duration of the emergency action would further reduce fishing mortality on these stocks and attempt to minimize regulatory discards, while simplifying industry understanding and enforcement of this trip limit. 5. Modified Regular B DAS Program

The Regular B DAS Pilot Program was originally implemented by FW 40A (69 FR 67780; November 19, 2004), and was intended to provide opportunities to use Regular B DAS outside of a SAP (and outside of closed areas) to target stocks that can withstand additional fishing effort. This program is regulated by a series of measures, including DAS limits, low trip limits, and incidental catch TACs for stocks of concern (i.e., groundfish stocks that cannot withstand additional fishing effort). Because of uncertainties in the operation of this program, it was implemented only for 1 year, and expired on October 31, 2005. This proposed emergency rule would ``reinstate'' a Regular B DAS Program with measures similar to those originally implemented by FW 40A, but would modify specific measures to achieve the objectives of this emergency action, as specified below. Due to the limited duration of this proposed Secretarial action, this program would no longer be called a ``pilot'' program.

The Regular B DAS Pilot Program originally implemented by FW 40A allowed vessels 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 vessels to use a NE Multispecies DAS every time a monkfish DAS is used. Recent information indicates that Category C and D monkfish vessels were able to successfully target monkfish under the Regular B DAS Pilot Program during fishing years 2004 and 2005, and will likely increase this effort, as additional restrictions on groundfish are implemented under FW 42. A recent assessment of the monkfish resource in 2005, based upon the results of Stock Assessment Workshop 40 and an evaluation of the past three years of fall trawl surveys, indicates that the pace of monkfish rebuilding has slowed. Therefore, to reduce mortality on monkfish resulting from the use of Regular B DAS, this emergency action would restrict Category C, D, or F monkfish vessels (i.e., those monkfish vessels permitted to fish in the U.S./Canada Management Area) to the monkfish incidental catch limits when fishing under the Regular B DAS Program proposed by this action. Further, 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 would still be able to participate in this program, but they would be required to fish under a NE multispecies DAS only and would be subject to the incidental catch limits for monkfish.

The proposed action would allow eligible vessels to fish under the Regular B DAS Program to target healthy groundfish stocks (primarily GB haddock, pollock, and redfish) within the U.S./Canada Management Area only. Vessels that have declared a Regular B DAS Program trip would not be allowed to fish on that trip in an approved SAP. In order to limit the potential biological

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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). These DAS would not be allocated to individual vessels, but would be used by vessels on a first-come, first-served basis. Regular B DAS would 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 would be required to be equipped with an approved Vessel Monitoring System (VMS). The vessel owner or operator would be required to notify the NMFS Observer Program at least 72 hours in advance of a trip in order to facilitate observer coverage. This notice would require reporting of 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 would be required to notify NMFS via VMS that the vessel intends to participate in the Regular B DAS Program. Vessels fishing in the Regular B DAS Program would be required to report their catches of groundfish stocks of concern 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 would not be subject to this reporting requirement.

Vessels fishing in this program would be prohibited from discarding legal-sized regulated groundfish, and would be limited to landing 100 lb (45.4 kg) of each groundfish species of concern per DAS, unless further restricted (see below). Further, vessels would be required to use a haddock separator trawl when participating in this program. Possession of flounders (all species, combined); monkfish (whole weight), unless otherwise specified below; and skates would be limited to 500 lb (227 kg) each, and possession of lobsters would be 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, and F monkfish vessels participating in this program would be restricted by the monkfish incidental catch limits. In the Northern Fishery Management Area, the limit is 400 lb (181 kg) tail weight per DAS, or 50 percent of the total weight of fish on board, whichever is less. In the Southern Fishery Management Area, the incidental catch limit is 50 lb (23 kg) tail weight per DAS. Discarding of legal-sized monkfish would be 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 would be required to retain the excess catch, and immediately notify NMFS via VMS in order to change its DAS category from a Regular B DAS to a Category A DAS (``DAS flip''). If a vessel flips from a Regular B DAS to a Category A DAS, it would be charged Category A DAS at a rate of 1.4:1, and would 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).

In order to ensure that a vessel would 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), the number of Regular B DAS that would be allowed to be used on a trip would be 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. Therefore if the vessel were fishing under a Regular B DAS for 3.6 days, but was required to flip, the balance of Category A DAS would be sufficient to account for the amount of time fished (3.6 days fished times 1.4 DAS = 5 Category A DAS). 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 the above example, if the vessel had a Category A DAS balance of 5, and fished 3.6 days of Regular B DAS prior to flipping, the amount of Category A DAS necessary to account for the time already fished would be available, but no additional Category DAS would be available for use between the time of flipping and the end of the trip. The proposed requirement would allow a vessel owner the potential to maximize the use of Regular B DAS.

NMFS would 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 would not serve to reserve a vessel's right to fish under a Regular B DAS. Once the maximum number of Regular B DAS were used in a quarter, the Regular B DAS Program would end for that quarter.

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 would be set for groundfish stocks of concern for each program allowing the use of Category B DAS (Regular or Reserve). This action would add GB winter flounder and GB yellowtail flounder to the list of groundfish stocks of concern, based on the results of the GARM II, and allocate a portion of the incidental TAC to the Regular B DAS Program. The Regular B DAS Program quarterly incidental catch TACs would be divided to correspond to the allocation of Regular B DAS among quarters, such that the 1st quarter (May-July) would receive 13 percent of the incidental TACs, and the remaining quarters (August-October, November-January, and February-April) would each receive 29 percent of the incidental TACs.

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 Regular B DAS Program in the U.S./Canada Management Area would be 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 Administrator, Northeast Region, NMFS (Regional Administrator) would have 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.

The provisions included in this measure are necessary to prevent additional fishing effort under the Regular B DAS Program from increasing F for stocks that are in need of the greatest F reductions for the 2006 fishing year (i.e., GOM cod, CC/GOM yellowtail flounder, and SNE/MA yellowtail flounder). Restricting this program to the U.S./ Canada

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Management Area facilitates the monitoring and enforcement of provisions of the Regular B DAS Program, as proposed incidental catch TACs for stocks of concern in the GOM and SNE/MA RMAs may be too small to be monitored effectively. Further, the current regulations of the U.S./Canada Management Area provide sufficient authority to the Regional Administrator to monitor and control fishing activity under this program to ensure that incidental catch TACs are not exceeded during the 2006 fishing year. Moreover, restricting this program to the U.S./Canada Management Area would not affect the majority of vessels participating in this program, as previous fishing practices indicate that very few trips under this program were taken in the GOM or SNE/MA RMA. As a result, this measure provides some assurance that additional F under this program would be controlled and would not be redirected into the GOM or SNE/MA RMAs, but it would also provide economic and social benefits without altering vessel behavior to any great degree. 6. 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 would modify the number of incidental catch TACs, as well as the size and allocation of such incidental catch TACs. FW 42 proposes two new stocks of concern (GB yellowtail flounder and GB winter flounder are either overfished and/or overfishing is occurring) and the creation of incidental catch TACs for these two stocks in order to limit the impact of the use of Category B DAS on such stocks. Secondly, FW 42 proposes modification of the size of the incidental catch TACs with respect to the target TACs from which they are calculated (see Table 2).

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 are proposed in this action (Table 3). If the incidental TACs were not defined under this emergency, the use of Regular B DAS during the time this action is in place would undermine the achievement of the goals of the FMP (see discussion of Regular B Program in Section 4 of this preamble). If a change in the allocation of catch TACs among special programs were not proposed by this action, the special programs would be inconsistent with the intent of the Council. The programs that would be impacted by these proposed TACs are the Regular B DAS Pilot Program and potentially, the Eastern U.S./Canada Haddock SAP Program, if FW 42 implementation is delayed beyond August 1, 2006. Although this action would not impact many stocks of concern, in order to simplify the process of TAC specification for the 2006 fishing year, 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. Note that this action does not specify values for TACs for the 2006 fishing year. A separate action is being developed by NMFS that will specify all TACs for the FMP for the 2006 fishing year (Incidental Catch TACs, Target TACs, and U.S./Canada Management Area TACs for GB).

Table 2.--Definition of Incidental Catch TACs

Percentage Stock

of total

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 would 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 3:

Table 3.--Distribution of Incidental Catch TACs for Category B DAS Programs

Closed area I Regular B DAS hook gear Eastern U.S./ Stocks of concern

program haddock SAP Canada haddock (percent) (percent) SAP (percent)

GB cod..........................................................

50

16

34 GB yellowtail flounder..........................................

50

NA

50 GB winter flounder..............................................

50

NA

50 Witch flounder..................................................

100

NA

NA American plaice.................................................

100

NA

NA White hake......................................................

100

NA

NA

  1. DAS Leasing Program

    The DAS Leasing Program was originally implemented by Amendment 13 to help mitigate the economic and social impacts of effort reductions in the fishery. The DAS Leasing Program was implemented for a duration of 2 years, and will expire on April 30, 2006. This action proposes to continue the DAS Leasing Program, as originally implemented by Amendment 13. The following briefly summarizes the provisions that form the basis of the DAS Leasing Program. These provisions would be continued unchanged, as implemented by Amendment 13:

    All vessels issued a valid limited access groundfish DAS permit would be eligible to lease groundfish Category A DAS to or from another such vessel. DAS associated with a certification of permit history could not be leased. Vessels issued a Small Vessel or Handgear A permit, i.e., vessels that do not require the use of groundfish DAS, would not be allowed to lease DAS, and vessels participating in an approved sector under the proposed Sector Allocation Program would not be allowed to lease DAS to non-sector vessels during the fishing year in which the vessel is participating in the sector. An eligible vessel wanting to lease groundfish DAS would be required to submit a complete application to the Regional Administrator at least 45 days prior to the time that the vessel intends to fish the leased DAS. Upon approval of the application by NMFS, the lessor and lessee would be sent written confirmation of the approved

    [[Page 11066]]

    application. Leased DAS would be effective only during the fishing year for which they were leased. A vessel could lease to as many qualified vessels as desired, provided all DAS leasing requests are consistent with the restrictions and conditions of the DAS Leasing Program. No subleasing of groundfish DAS would be allowed (i.e., any leased DAS could not be leased a second time) and vessels would not be allowed to lease carry-over DAS. Only Category A DAS could be leased.

    The maximum number of DAS that could be leased by a lessee is the lessee's vessel's DAS allocation for the 2001 fishing year (excluding any carryover DAS). The lessee would be able to utilize that number of DAS as Category A DAS, in addition to the Category A DAS balance the vessel had prior to acquiring the leased DAS. For example, if a vessel owner wants to lease additional DAS for a limited access multispecies, and that vessel had 88 DAS allocated to it in fishing year 2001, the maximum DAS it could lease would be 88. All leased DAS must be used in accordance with the DAS accounting regulations (i.e., differential DAS counting) proposed by this action. A lessor (vessel leasing DAS to another vessel) may not lease DAS to any vessel with a main engine horsepower rating that is 20 percent more than that of the lessor vessel, and may not lease DAS to any vessel that is 10 percent more than that of the lessor vessel's length overall. The vessel specifications used for the DAS Leasing Program are based on the permit baseline as of January 29, 2004, the publication date of the Amendment 13 proposed rule (69 FR 4362).

    Because DAS use and landing history may be used to determine fishing rights in a future management action, the DAS Leasing Program includes a presumption for how such history would be accounted. For ease of administration, history of leased DAS use would be presumed to remain with the lessor vessel, and landings resulting from the use of the leased DAS would be presumed to be attributed to the lessee vessel (vessel receiving leased DAS). However, the history of used leased DAS would be presumed to remain with the lessor only if the lessee actually fished the leased DAS in accordance with the DAS notification program. For the purposes of DAS-use history, leased DAS would be considered to be the first DAS to be used, followed by the allocated DAS. Attributing landings history to the lessor would be inconsistent with the current vessel reporting system used for all other fisheries in the Northeast Region, and would be extremely difficult and costly for NMFS to implement. In the case of multiple lessors, the leased DAS actually used would be attributed to the lessors based on the order in which such leases were approved by NMFS.

    Limited access NE multispecies vessels that are also issued a limited access monkfish Category C, D, F, G, or H permit would be required to fish their available monkfish DAS in conjunction with their groundfish DAS, including leased DAS. If a monkfish Category C, D, F, G, or H vessel leases groundfish Category A DAS to another vessel, the lessor vessel would be required to forfeit a monkfish DAS for each groundfish A DAS that the vessel leases, equal in number to the difference between the number of remaining groundfish A DAS and the number of unused monkfish DAS at the time of the lease. For example, if a lessor vessel that had 40 unused monkfish DAS and 47 allocated groundfish A DAS leased 10 of its groundfish A DAS, the lessor would forfeit the use of 3 of its monkfish DAS (40 monkfish DAS - 37 groundfish A DAS = 3 DAS) because it would have 3 fewer groundfish A DAS than monkfish DAS after the lease. The Monkfish FMP specifies that monkfish Category C, D, F, G, or H vessels must fish a groundfish A DAS concurrently with a monkfish DAS. Not deducting monkfish DAS in a situation where groundfish A DAS are leased (transferred) would allow monkfish and groundfish A DAS to be fished independently.

    Continuing the DAS Leasing Program in this emergency action would help mitigate the economic and social impacts resulting from the current FMP regulations that strictly limit fishing effort. The provisions detailed above for the DAS Leasing Program are proposed for implementation under this emergency action and are identical to those proposed for continuation under FW 42 in order to maintain consistency of the measures in this action with those adopted by the Council for implementation by FW 42 and to simplify the administration of this program. 8. Eastern U.S./Canada Haddock SAP

    This proposed emergency action would delay the opening of the Eastern U.S./Canada Haddock SAP from May 1 to August 1. This measure would also allocate a portion of the GB yellowtail flounder and GB winter flounder incidental catch TAC to the Eastern U.S./Canada Haddock SAP (see Table 3). As explained above, the value of these new incidental catch TACs are being specified through a concurrent agency action for implementation by May 1, 2006. An incidental catch TAC for GB cod for this SAP was previously allocated under FW 40A (November 19, 2004; 69 FR 67780). Once any of these incidental catch TACs are caught, the use of Category B (Regular or Reserve) DAS in this SAP would be prohibited. Finally, possession of flounders (all species, combined), monkfish (whole weight), and skates would be limited to 500 lb (227 kg) each, and possession of lobsters would be 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.

    This proposed measure would delay the opening of the SAP so that lower cod catch rates would allow more of the haddock TAC to be harvested while reducing the catch (and bycatch) of GB cod. This measure is based, in part, on recommendations of the Groundfish Advisory Panel and the Groundfish Committee. The Advisors suggested delaying the start date of this SAP to August 1, due to concerns over lower price for haddock, poor condition of the fish due to recent spawning, and to provide further protection for GB cod and GB yellowtail flounder by eliminating bycatch of these species under this SAP from May through July. The incidental catch TACs for GB yellowtail flounder and GB winter flounder would prevent this SAP from threatening mortality objectives for these stocks. 9. Eastern U.S./Canada Area Flexibility

    This emergency action proposes to allow 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 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 for the areas fished. A vessel electing to fish inside and outside of the Eastern U.S./Canada Area would be charged Category A DAS for the entire trip and the vessel would not receive any steaming time credit. In addition, all cod and haddock caught on the entire trip would be applied against the Eastern U.S./Canada Area TACs for these species, all yellowtail flounder would be applied to the overall U.S./Canada Management Area TAC for this species. 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

    [[Page 11067]]

    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.

    This measure addresses a potential safety concern which could arise out of the Amendment 13 restriction that vessels fishing in the Eastern U.S./Canada Area cannot fish in any other area. If worsening weather is forecast, a vessel captain fishing in the Eastern U.S./Canada Area currently has only two choices: End the trip early, or continue to fish in the Eastern U.S./Canada Area. The vessel operator cannot ``hedge his bets'' by choosing to fish closer to shore after leaving the Eastern U.S./Canada Area. The risk is that fishermen will keep fishing in the area until it is too late to evade a rapidly advancing storm. This measure would provide fishermen another option, which would reduce the chances of an economic loss for the trip, and therefore, reduce the economic incentive for a vessel operator to fish under unsafe weather conditions. In order to prevent misreporting of cod and haddock caught in the Eastern U.S./Canada Area, all cod, haddock, and yellowtail flounder caught on the trip would be applied to the species TACs for that area. This is a conservative approach that will help ensure the U.S./Canada Area TACs are not exceeded. Prohibiting a vessel from fishing outside of the Eastern U.S./Canada Area on the same trip if it has exceeded a possession limit for a specific stock is necessary to properly enforce the possession limit provisions of the FMP. These proposed measures are consistent with the measures adopted by the Council for implementation in FW 42. 10. Recreational Restrictions

    Under this proposed action, private recreational vessels and vessels fishing under the charter/party regulations of the FMP would be 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 would be increased from 22 inches (56 cm) to 24 inches (61 cm) for the duration of this emergency action. Private recreational and charter/ party vessels would be 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.

    These measures are intended to achieve a proportional share of the necessary F reductions for GOM cod from the recreational sector. These measures are designed to achieve the same reduction in F for GOM cod as that achieved by measures intended to reduce F for this species in the commercial fishery, as described above. The gear and cod stowage requirements are necessary to properly enforce these measures. These measures are consistent with the measures adopted by the Council for implementation in FW 42.

    Classification

    Because this action is a proposed rule, at this time, NMFS has not made a final determination that the emergency measures that this proposed rule would implement are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making the final determination, will take into account the data, views, and comments received during the comment period.

    This proposed rule has been determined to be significant for the purposes of Executive Order (E.O.) 12866.

    This proposed rule does not contain policies with Federalism or ``takings'' implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    NMFS prepared an IRFA as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule and in the Executive Summary and Sections 3.0 and 4.0 of the EA prepared for this action.

    As described above, the proposed action would implement measures to immediately reduce fishing mortality on particular groundfish stocks for the start of the 2006 fishing year on May 1, 2006. This action is necessary to maintain efforts to continue the rebuilding programs established under Amendment 13. The DAS Leasing Program and a modified Regular B DAS Program would be continued in this action to help offset some of the economic and social impacts of continued effort reductions in the groundfish fishery and to provide some means of regulating effort shifts caused by differential DAS counting proposed by this action.

    Because this action largely builds on and amends Amendment 13 and subsequent framework actions, measures for which numerous alternatives were considered, NMFS only fully considered two alternatives for analysis: The proposed emergency action and the No Action alternative. Two other alternatives (area closures and a hard TAC alternative) were considered, but were rejected because they did not meet the objectives of this action. The area closure alternative included closing portions of the GOM RMA and was rejected because these alternatives could have forced fishing effort to move into other RMAs, would have prohibited a majority of the fishing industry from operating in the GOM and could have caused unnecessary impacts on healthy groundfish stocks. The hard TAC alternative included hard TACs for species requiring F reductions for 2006, but were rejected because current data collection mechanisms do not allow for the complete, real-time catch monitoring that would be necessary for a hard-TAC alternative and that such an alternative would be inconsistent with measures adopted in FW 42. Analysis of this proposed emergency action examined the impacts on the fishing industry that would result from the continuation of the current management measures (i.e., the set of measures currently in place for the NE multispecies fishery through the October 14, 2005, implementation of measures contained in FW 41 (70 FR 54302; September 14, 2005)), along with the measures proposed by this emergency action and described in the SUMMARY. The No Action alternative is defined as the current management measures, including the two default measures implemented by Amendment 13 (a change in the ratio of Category A to Category B DAS from 60:40 to 55:45, and differential DAS counting at a rate of 1.5:1 in the SNE/MA RMA). The No Action alternative would retain the current trip limits for GOM cod and CC/GOM, GB, and SNE/MA yellowtail flounder. In addition, under the No Action alternative, the DAS Leasing Program and the Regular B DAS Pilot Program would expire prior to May 1, 2006, and the Eastern U.S./Canada Haddock SAP would expire on November 18, 2006.

    [[Page 11068]]

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

    Any vessel that possesses a NE multispecies permit would be required to comply with the proposed regulatory action. However, for the purposes of determination of impact, only vessels that actually participated in an activity during fishing year 2004 that would be affected by the proposed action were considered for analysis. During fishing year 2004, 1,002 permit holders had an allocation of Category A DAS. Limited access permit holders may participate in both commercial and party/charter activity without having a party/charter permit. In fishing year 2004, 705 entities participated in the commercial groundfish fishery and 6 participated in the party/charter fishery for GOM cod. Four of these entities participated in both commercial and party/charter activities, leaving a total of 707 unique vessels with an allocation of Category A DAS that may be affected by the proposed action. Based on fishing year 2004 data, the proposed action would have a potential impact on a total of 3,216 limited or open access groundfish permit holders, of which less than one-third (976) actually participated in either a commercial or party/charter activity that would be affected by the proposed action. Of these, 858 commercial fishing vessels would be affected by this proposed action, including 132 limited access monkfish Category C or D vessels that fished in the Regular B DAS Pilot Program during fishing year 2004-2005.

    The SBA size standard for small commercial fishing entities is $4 million in gross sales, and the size standard for small party/charter operators is $6.5 million. Available data for fishing year 2004 gross sales show that the maximum gross for any single commercial fishing vessel was $1.8 million, and the maximum gross sales for any affected party/charter vessel was $1.0 million. While an entity may own multiple vessels, available data make it difficult to determine which vessels may be controlled by a single entity. For this reason, each vessel is treated as a single entity for purposes of size determination and impact assessment. This means that all commercial and party/charter fishing entities would fall under the SBA size standard for small entities and, therefore, there is no differential impact between large and small entities.

    Economic Impacts of the Proposed Action

    The proposed action would continue the Amendment 13 default measure that would reduce the number of available Category A DAS. In addition, the proposed action would implement differential DAS counting for all Category A DAS used in all RMAs at a rate of 1.4:1, reduce trip limits for several species, continue the DAS Leasing Program and a modified Regular B DAS Program restricted to the U.S./Canada Management Area, delay the start date of the Eastern U.S./Canada Area Haddock SAP, allow vessels to fish inside and outside of the Eastern U.S./Canada Area on the same trip, and impose recreational fishing measures designed to reduce fishing mortality on GOM cod. The economic impacts of the proposed differential DAS counting and trip limits were able to be assessed using the Closed Area Model (CAM). Separate analyses were conducted for the impacts of the continuation of the DAS Leasing Program and a modified Regular B DAS Program, the delayed start date for the Eastern U.S./Canada Haddock SAP, and the recreational measures.

    The results of the CAM indicate that the proposed action would have the greatest impact on vessels from Maine, New Hampshire, and Massachusetts. The proposed action would have a disproportionate impact on groundfish vessels in excess of 70 ft (21.3 m) length overall and would affect trawl vessels more than gillnet or hook gear vessels. Vessels with the highest yearly gross sales (i.e., more than $320,000) would be more affected than vessels with lower yearly gross sales. Of the 858 participating commercial fishing vessels, more than 80 percent may be expected to incur at least some reduction in net return in fishing year 2006 compared to fishing year 2004-05 levels. One-half of all participating vessels would be expected to have net returns reduced by at least 12 percent from their 2004 net returns, and 25 percent (215) of all participating vessels may incur losses in net returns that exceed 22 percent. Overall, the proposed action is expected to result in a 28-percent reduction in fishing revenue, for an aggregate impact of $30.5 million in gross sales. This loss represents less than 4 percent of total region-wide fishing revenues from all species. Total groundfish revenue is expected to be reduced by 32 percent, resulting in an estimate of $53 million in the landed value of groundfish for fishing year 2006.

    Because the proposed action would affect vessels that may participate in the Eastern U.S./Canada Haddock SAP and/or the Regular B DAS Program, and participation in these programs is voluntary, it is difficult to estimate the impact on any given small entity participating in these programs. During fishing year 2004, catch rates of cod in the Eastern U.S./Canada Area Haddock SAP during May and June were sufficient to close the SAP well before the allowable TAC for haddock could be harvested. Delaying the start date for the Eastern U.S./Canada Area Haddock SAP is expected to reduce the amount of cod taken in the SAP, and would allow for more trips to be taken to the SAP, resulting in an increase in the amount of harvested haddock. Therefore, this measure would likely provide greater economic opportunity to small commercial fishing entities than if the regulation were left unchanged.

    The proposed action would continue a modified Regular B DAS Program. This program differs from that originally implemented by FW 40A in that the proposed program would restrict this program to the U.S./Canada Management Area, reduce the number of available Regular B DAS in this program between May and July to 500, require participating vessels to use a haddock separator trawl, and implement incidental catch TACs and restrictive possession limits for GB winter flounder and GB yellowtail flounder. Analysis of the impacts of the modified Regular B DAS Program in the U.S./Canada Management Area suggests that the proposed action changes may diminish the extent to which the program will improve economic opportunities for commercial fishing vessels compared to the Regular B DAS Pilot Program implemented under FW 40A. Restricting the program to the U.S./Canada Management Area under this proposed action may put smaller vessels (in terms of physical size) at a disadvantage relative to larger vessels, due to the distance from shore that vessels would have to traverse to access the area. The requirement to use the separator trawl or gear that meets specified standards means that, in order to participate, vessels would be required to bear the added cost of acquiring new gear, or incurring the expense of modifying existing gear. Vessels operating at the brink of break-even may not be able to afford this added expense. However, the implementation of incidental catch TACs for GB winter flounder and GB yellowtail flounder is expected to have the greatest economic impact to participating vessels. First, revenue

    [[Page 11069]]

    from the sale of these two species will be dramatically reduced, as the incidental TAC would be set at levels that would be nearly 10 times lower than observed landings during fishing year 2004. Second, available data indicate that catch rates of GB winter flounder may be sufficient to result in closure of the area to Regular B DAS well before the quarterly allocation of Regular B DAS has been used. Unless the separator trawl also reduces catches of winter and yellowtail flounders in addition to cod, the estimated revenues from the Regular B DAS Program in fishing year 2006 (about $3 million) may be as much as two-thirds less than what was observed under the Regular B DAS Pilot Program during fishing years 2004 and 2005.

    The continuation of the DAS Leasing Program through this proposed action would continue to offer economic benefits that help offset the impacts of the effort reductions of Amendment 13 and those proposed by this action. The DAS Leasing Program provided regulatory relief that allowed lessee vessels, on average, to fish enough DAS to cover their overhead and crew expenses. Assuming that the DAS Leasing Program would operate in a similar manner as previous years, the benefits of this program would likely accrue primarily to lessee vessels in Maine and Massachusetts.

    This emergency action would delay the start date of the Eastern U.S./Canada Haddock SAP to August 1, 2006. Based on catch rates observed between May through July 2005, this delay could result in the loss of $1.25 million based on revenue generated from the sale of landed catch during this period. However, this loss is expected to be offset by the potential for this delayed start date to prolong availability of the GB cod and GB yellowtail flounder TACs specified for the Eastern U.S./Canada Area and this program. In doing so, vessels may obtain higher prices for these species throughout the year than they would if they were allowed to land larger amounts early in the fishing year, creating a glut in the market.

    By allowing vessels to fish inside and outside of the Eastern U.S./ Canada Area on the same trip, the proposed action would allow fishermen more flexibility to adapt to weather conditions and to respond to potential economic advantages in cases where fishing may be poorer than anticipated. In these cases, vessel operators may find it to their advantage to leave the Eastern U.S./Canada Area and fish more profitably elsewhere. In doing so, vessels would be able to maximize the economic returns of trips into the Eastern U.S./Canada Area. However, it is impossible to predict the behavior of vessels electing to fish inside and outside of the Eastern U.S./Canada Area on the same trip. As a result, quantitative estimates of economic impact of this measure are not possible. It is expected that the economic impacts of this measure would be positive.

    This proposed action would implement a seasonal prohibition on retention of cod from November through March and would increase the minimum size from 22 to 24 inches (55.9 to 61 cm) for party/charter and private recreational vessels. A total of 143 different party/charter vessels took at least one trip in the GOM and landed cod. Small party/ charter fishing businesses would be affected by these changes through any potential reductions in passenger demand for recreational party/ charter fishing trips. The seasonal prohibition on possession of cod would likely affect passenger demand if cod is a preferred target species, even if fishing for alternative groundfish species (primarily haddock) would still be allowed. The economic impact of the seasonal prohibition would have no impact on most party/charter operators since only 25 of the 143 affected vessels actually took any trips during the proposed season. Of these 25 affected vessels, only 2 took passengers for hire exclusively during the duration of the proposed seasonal prohibition, and the reduction in passenger fees on the other 23 vessels was estimated to range from less than 1 percent to a high of 29 percent, with a median loss of 9 percent. However, the number of passengers carried by these vessels during the proposed seasonal prohibition represented only about 2 percent of the market for party/ charter passengers that landed cod in the GOM during fishing year 2004 and would have only a small impact on the competitive market for recreational fishing passengers. Since a much larger proportion of private boat trips take place during these months, the adverse impact would be more for private boat anglers as compared to party/charter anglers.

    Economic Impacts of Alternatives to the Proposed Action

    The other alternative to the proposed action that was analyzed was the No Action alternative. The No Action alternative includes the default Amendment 13 reduction in the number of available Category A DAS. However, the No Action alternative does not include the DAS Leasing Program or the Regular B DAS Pilot Program, as these programs have or would expire before the start of the 2006 fishing year on May 1, 2006. This alternative would also retain the current GOM cod trip limit of 800 lb (363 kg)/DAS, up to 4,000 lb (1,814 kg)/trip; no trip limit for GB yellowtail flounder; and a seasonal trip limit of 750 lb (340 kg)/DAS, up to 3,000 lb (1,361 kg)/trip and 250 lb (113 kg)/trip for CC/GOM and SNE/MA yellowtail flounder.

    The No Action alternative would result in an estimated reduction in total groundfish revenue of 6 percent, resulting in an estimated landed value of groundfish for fishing year 2006 of $73 million, while total revenue on trips where groundfish are landed would decrease by 7 percent. Compared to the landed value of all species landed in the NE region, the reduction in combined groundfish trip value represents about 0.7 percent of the total. The estimated reduction in groundfish trip revenue is highest in ports bordering the SNE/MA RMA, but the overall impact is expected to be greatest on ports in the GOM. Total net returns to the vessel owner and crew would decrease by an average of 3-4 percent. As with the proposed action, larger trawl vessels would be most affected by the No Action alternative, with the greatest impacts on those vessels with the greatest dependence on groundfish.

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

    This proposed rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) that has been previously approved by OMB under control numbers 0648-0202, 0648-0212, and 0648- 0475. Public reporting burden for these collections of information are estimated as follows:

  2. GB cod research set-aside TAC request, OMB 0648-0202 (30 min/response);

  3. VMS purchase and installation, OMB 0648-0202, (1 hr/ response);

  4. VMS proof of installation, OMB 0648-0202, (5 min/ response);

  5. Automated VMS polling of vessel position, OMB 0648- 0202, (5 sec/response);

  6. Declaration of intent to participate in the Regular B DAS Program or fish in the U.S./Canada Management Areas and associated SAPs and DAS to be used via VMS prior to each trip into the Regular B DAS Program or a particular SAP, OMB 0648-0202, (5 min/response);

  7. Notice requirements for observer deployment prior to every trip into the Regular B DAS Program or the U.S./Canada Management Areas and

    [[Page 11070]]

    associated SAPs, OMB 0648-0202, (2 min/response);

  8. Daily electronic reporting of kept and discarded catch of stocks of concern and GB cod, GB haddock, and GB yellowtail flounder while participating in the Regular B DAS Program or fishing in the U.S./ Canada Management Areas and associated SAPs, respectively, OMB 0648-0212, (15 min/response);

  9. Daily electronic catch and discard reports of GB yellowtail flounder when fishing on a combined trip into the Western U.S./Canada Area, OMB 0648-0212 (15 min/response);

  10. DAS ``flip'' notification via VMS for the Regular B DAS Program, OMB 0648-0202 (5 min/response);

  11. DAS Leasing Program application, OMB 0648-0475 (10 min/response); and

  12. Declaration of intent to fish inside and outside of the Eastern U.S./Canada Area on the same trip, OMB 0648-0202 (5 min/ response).

    These estimates include the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    The information collection for the declaration of the intent to fish inside and outside of the Eastern U.S./Canada Area is currently being interpreted as a modification of the DAS ``flip'' notification. When a vessel ``flips'' its DAS declaration from Category B DAS to Category A DAS, it is informing NMFS that it is changing the DAS being used for that trip. In a similar manner, a vessel would ``flip'' its area declaration from exclusively in the Eastern U.S./Canada Area to being able to fish inside and outside of the Eastern U.S./Canada Area on the same trip. Since the original information collection submission for the DAS flipping measure overestimated the number of DAS flips that would occur during a particular fishing year, this action proposes to reduce the burden associated with that measure and add a burden for the declaration of the intent to fish inside and outside of the Eastern U.S./Canada Area by the same amount. In this manner, the burdens of both information collections are appropriately accounted for and the information collection submissions would more accurately reflect vessel practices. To document this revision, the information collection previously approved by the OMB under OMB 0648-0202 is being revised by means of a worksheet, as authorized by consultation with the OMB. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to DavidRostker@omb.eop.gov, or fax to (202) 395-7285.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 24, 2006. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

    PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

  14. In Sec. 648.4, paragraphs (a)(1)(i)(A), (B), (E), (G), and (J); (a)(2)(i)(B), (E), (G), and (J); (a)(3)(i)(B), (E), (G), and (J); (a)(4)(i)(B), (E), (G), and (J); (a)(5)(i)(B), (E), (G), and (J); (a)(6)(i)(B), (E), (G), and (J); (a)(7)(i)(B), (E), (G), and (J); (a)(9)(i)(E), (G), and (J); (a)(12)(i)(B)(2), (E), (G), and (J); (a)(13)(i)(B) and (G); and (c)(2)(iii)(A) are suspended and paragraphs (a)(1)(i)(N) through (R); (a)(2)(i)(N), (P), and (Q); (a)(3)(i)(M) through (P); (a)(4)(i)(N) through (Q); (a)(5)(i)(M) through (P); (a)(6)(i)(M) through (P); (a)(7)(i)(M) through (P); (a)(9)(i)(O) through (Q); (a)(12)(i)(N) through (Q); (a)(13)(i)(O) and (P); and (c)(2)(iii)(C) are added to read as follows:

    Sec. 648.4 Vessel permits.

    (a) * * *

    (1) * * *

    (i) * * *

    (N) Eligibility. To be eligible to apply for a limited access NE multispecies permit, as specified in Sec. 648.82, a vessel must have been issued a limited access NE multispecies permit for the preceding year, be replacing a vessel that was issued a limited access NE multispecies permit for the preceding year, or be replacing a vessel that was issued a confirmation of permit history; unless otherwise specified in this paragraph (a)(1)(i)(N). For the fishing year beginning May 1, 2004, a vessel may apply for a limited access Handgear A permit described in Sec. 648.82(u)(6), if it meets the criteria described under paragraphs (a)(1)(i)(N)(1), (2), and (3) of this section.

    (1) The vessel must have been previously issued a valid NE multispecies open access Handgear permit during at least 1 fishing year during the fishing years 1997 through 2002; and

    (2) The vessel must have landed and reported to NMFS at least 500 lb (226.8 kg) of cod, haddock, or pollock, when fishing under the open access Handgear permit in at least 1 of the fishing years from 1997 through 2002, as indicated by NMFS dealer records (live weight), submitted to NMFS prior to January 29, 2004.

    (3) Application/renewal restrictions. The vessel owner must submit a complete application for an initial limited access handgear permit before May 1, 2005. For fishing years beyond the 2004 fishing year, the provisions of paragraph (a)(1)(i)(O) of this section apply.

    (O) Application/renewal restrictions. All limited access permits established under this section must be issued on an annual basis by the last day of the fishing year for which the permit is required, unless a Confirmation of Permit History (CPH) has been issued as specified in paragraph (a)(1)(i)(R) of this section. Application for such permits must be received no later than 30 days before the last day of the fishing year. Failure to renew a limited access permit in any fishing year bars the renewal of the permit in subsequent years.

    (P) Replacement vessels. With the exception of vessels that have obtained a limited access Handgear A permit described in Sec. 648.82(u)(6), to be eligible for a limited access permit under this section, the replacement vessel must meet the following criteria and any other applicable criteria under paragraph (a)(1)(i)(F) of this section:

    (1) The replacement vessel's horsepower may not exceed by more than 20 percent the horsepower of the vessel's baseline specifications, as applicable; and

    (2) The replacement vessel's length, GRT, and NT may not exceed by more than 10 percent the length, GRT, and NT of the vessel's baseline specifications, as applicable.

    (Q) Consolidation restriction. Except as provided for in the NE Multispecies DAS Leasing Program, as specified in Sec. 648.82(t), and the NE Multispecies DAS Transfer Program, as specified in Sec. 648.82(l), limited access permits and DAS allocations may not be combined or consolidated.

    (R) Confirmation of permit history. Notwithstanding any other provisions of

    [[Page 11071]]

    this part, a person who does not currently own a fishing vessel, but who has owned a qualifying vessel that has sunk, been destroyed, or transferred to another person, must apply for and receive a CPH if the fishing and permit history of such vessel has been retained lawfully by the applicant. To be eligible to obtain a CPH, the applicant must show that the qualifying vessel meets the eligibility requirements, as applicable, in this part. Issuance of a valid CPH preserves the eligibility of the applicant to apply for a limited access permit for a replacement vessel based on the qualifying vessel's fishing and permit history at a subsequent time, subject to the replacement provisions specified in this section. If fishing privileges have been assigned or allocated previously under this part, based on the qualifying vessel's fishing and permit history, the CPH also preserves such fishing privileges. A CPH must be applied for in order for the applicant to preserve the fishing rights and limited access eligibility of the qualifying vessel. An application for a CPH must be received by the Regional Administrator no later than 30 days prior to the end of the first full fishing year in which a vessel permit cannot be issued. Failure to do so is considered abandonment of the permit as described in paragraph (a)(1)(i)(K) of this section. A CPH issued under this part will remain valid until the fishing and permit history preserved by the CPH is used to qualify a replacement vessel for a limited access permit. Any decision regarding the issuance of a CPH for a qualifying vessel that has applied for or been issued previously a limited access permit is a final agency action subject to judicial review under 5 U.S.C. 704. Information requirements for the CPH application are the same as those for a limited access permit. Any request for information about the vessel on the CPH application form refers to the qualifying vessel that has been sunk, destroyed, or transferred. Vessel permit applicants who have been issued a CPH and who wish to obtain a vessel permit for a replacement vessel based upon the previous vessel history may do so pursuant to paragraph (a)(1)(i)(P) of this section. * * * * *

    (2) * * *

    (i) * * *

    (N) Application/renewal restrictions. See paragraph (a)(1)(i)(O) of this section.

    (O) Replacement vessels. See paragraph (a)(1)(i)(P) of this section.

    (P) Consolidation restriction. See paragraph (a)(1)(i)(Q) of this section.

    (Q) Confirmation of Permit History. See paragraph (a)(1)(i)(R) of this section. * * * * *

    (3) * * *

    (i) * * *

    (M) Application/renewal restrictions. See paragraph (a)(1)(i)(O) of this section.

    (N) Replacement vessels. See paragraph (a)(1)(i)(P) of this section.

    (O) Consolidation restriction. See paragraph (a)(1)(i)(Q) of this section.

    (P) Confirmation of Permit History. See paragraph (a)(1)(i)(R) of this section. * * * * *

    (4) * * *

    (i) * * *

    (N) Application/renewal restrictions. See paragraph (a)(1)(i)(O) of this section.

    (O) Replacement vessels. See paragraph (a)(1)(i)(P) of this section.

    (P) Consolidation restriction. See paragraph (a)(1)(i)(Q) of this section.

    (Q) Confirmation of Permit History. See paragraph (a)(1)(i)(R) of this section. * * * * *

    (5) * * *

    (i) * * *

    (M) Application/renewal restrictions. See paragraph (a)(1)(i)(O) of this section.

    (N) Replacement vessels. See paragraph (a)(1)(i)(P) of this section.

    (O) Consolidation restriction. See paragraph (a)(1)(i)(Q) of this section.

    (P) Confirmation of Permit History. See paragraph (a)(1)(i)(R) of this section. * * * * *

    (6) * * *

    (i) * * *

    (M) Application/renewal restrictions. See paragraph (a)(1)(i)(O) of this section.

    (N) Replacement vessels. See paragraph (a)(1)(i)(P) of this section.

    (O) Consolidation restriction. See paragraph (a)(1)(i)(Q) of this section.

    (P) Confirmation of Permit History. See paragraph (a)(1)(i)(R) of this section. * * * * *

    (7) * * *

    (i) * * *

    (M) Application/renewal restrictions. See paragraph (a)(1)(i)(O) of this section.

    (N) Replacement vessels. See paragraph (a)(1)(i)(P) of this section.

    (O) Consolidation restriction. See paragraph (a)(1)(i)(Q) of this section.

    (P) Confirmation of Permit History. See paragraph (a)(1)(i)(R) of this section. * * * * *

    (9) * * *

    (i) * * *

    (O) Replacement vessels. (1) See paragraph (a)(1)(i)(P) of this section.

    (2) A vessel >=51 GRT that lawfully replaced a vessel

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