Federal Register: Part II [50 CFR Part 648]

DEPARTMENT OF COMMERCE

CFR Citation: 50 CFR Part 648

Docket ID: [Docket No. 040112010-4010-01; I.D. 122203A]

RIN ID: RIN 0648-AN17

NOTICE: Part II

DOCUMENT ACTION: Proposed rule; request for comments.

SUBJECT CATEGORY: Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Amendment 13

DATES: Comments must be received by 5 p.m., February 27, 2004.

DOCUMENT SUMMARY: NMFS proposes regulations to implement measures in Amendment 13 to the NE Multispecies Fishery Management Plan (FMP). Amendment 13 was developed by the New England Fishery Management Council (Council) to end overfishing and rebuild NE multispecies (groundfish) stocks managed under the authority of the MagnusonStevens Fishery Conservation and Management Act (MagnusonStevens Act), and to make other changes in the management of the groundfish fishery. The proposed measures include: Changes in the daysatsea (DAS) baseline for determining historical participation in the groundfish fishery; DAS reductions from the baseline; creation of new categories of DAS and criteria for their allocation and use in the fishery; changes in minimum fish size and possession limits for recreationally caught fish; a new limited access permit category for Handgear vessels; elimination of the northern shrimp fishery exemption line; access to groundfish closed areas for tuna purse seiners; an exemption program for southern New England (SNE) scallop dredge vessels; modifications to Vessel Monitoring System (VMS) requirements; changes to procedures for exempted fisheries; changes to the process for making periodic adjustments to management measures in the groundfish fishery; revisions to trip limits for cod and yellowtail flounder; changes in gear restrictions, including minimum mesh sizes and gillnet limits; a DAS Transfer Program; a DAS Leasing Program; implementing measures for the U.S./Canada Resource Sharing Understanding for cod, haddock, and yellowtail flounder on Georges Bank (GB); Special Access Programs (SAPs) to allow targeted harvest of healthy stocks of groundfish; revisions to overfishing definitions and control rules; measures to protect Essential Fish Habitat (EFH); new reporting requirements; sector allocation procedures; and a GB Cod Hook Gear Sector Allocation. The effortreduction measures in Amendment 13 are intended to end overfishing on all stocks and constitute rebuilding programs for those groundfish stocks that require rebuilding. Other measures are intended to provide flexibility and business options for permit holders.

SUMMARY: Commerce Department, National Oceanic and Atmospheric Administration,

SUPPLEMENTAL INFORMATION

Background

The Council has been developing Amendment 13 since 1999, in order to bring the FMP into conformance with all MagnusonStevens Act requirements, including ending overfishing and rebuilding all overfished groundfish stocks. Significant events in the history of that development are described below.

On December 28, 2001, a decision was rendered by the U.S. District Court for the District of Columbia (Court) on a lawsuit brought by the Conservation Law Foundation, Center for Marine Conservation, National Audubon Society and Natural Resources Defense Council against NMFS (Conservation Law Foundation, et al., v. Evans, et al., Case No. 00CVO1134, (D.D.C., December 28, 2001)). The lawsuit alleged that Framework Adjustment 33 to the FMP violated the overfishing, rebuilding and bycatch provisions of the MagnusonStevens Act (16 U.S.C. 1801 et seq.), as amended by the Sustainable Fisheries Act (SFA), and the Court granted plaintiffs' Motion for Summary Judgment on all counts. The Court did not impose a remedy, but instead asked the parties to the lawsuit to propose remedies consistent with the Court's findings. The Court specifically found that Framework 33 failed to meet the FMP's Amendment 9 and SFA overfishing and rebuilding targets. Amendment 9 established overfishing and rebuilding objectives intended to meet SFA requirements, but did not implement or analyze any specific measures necessary to meet the new overfishing and rebuilding objectives. Framework 33, which was developed after Amendment 9, was an annual adjustment required by Amendment 7 to meet Amendment 7 targets.

From April 59, 2002, plaintiffs, defendants and intervenors engaged in Courtassisted mediation to try to agree upon mutually acceptable shortterm and longterm solutions to present to the Court as a possible settlement. Although these discussions ended with no settlement, several of the parties continued mediation and filed with the Court a Settlement Agreement Among Certain Parties (Settlement Agreement) on April 16, 2002. The Settlement Agreement called for shortterm measures to reduce overfishing while the Council completed its development of Amendment 13.

On April 29, 2002, NMFS published an interim final rule (67 FR 21139) under the authority of section 304(e), consistent with section 305(c), of the MagnusonStevens Act, which allows for interim measures to reduce overfishing until an amendment to stop overfishing and rebuild fish stocks is implemented, to implement the shortterm measures called for by the Settlement Agreement. On May 6, 2002 (67 FR 30331), NMFS corrected the April 29, 2002, interim final rule to bring it into full compliance with the
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Order. NMFS further amended the April 29, 2002, interim final rule on June 5, 2002 (67 FR 38608) to bring the regulations into conformance with a May 23, 2002, Order issued by the Court in response to a motion for reconsideration. NMFS proposed additional, more restrictive interim measures on July 1, 2002 (67 FR 44139), and implemented those measures on August 1, 2002 (67 FR 50292), also as required by the terms of the Settlement Agreement. A final rule implementing a regulatory amendment to correct minor oversights in the August 1, 2002, interim final rule, was published on January 28, 2003 (68 FR 4113), and another minor correction to the August 1, 2002, interim final rule was published March 25, 2003 (68 FR 14347). Descriptions of the measures implemented through the interim rules can be found in the preamble to those rules and are not repeated here.

The Order specified that management measures implemented by the August 1, 2002, interim final rule remain in effect until the completion of Amendment 13, which was initially scheduled to be in effect no later than August 22, 2003. However, due to the need for additional time to address concerns related to NMFS's Northeast Fisheries Science Center's (NEFSC) trawl survey and new biological reference points developed for the NE multispecies stocks, NMFS and two of the plaintiffs filed a motion with the Court requesting an extension of the August 22, 2003, implementation schedule until May 1, 2004. On December 4, 2002, the Court granted an extension of the Courtordered timeline for Amendment 13 implementation until May 1, 2004.

On January 22, 2003, NMFS published a Notice of Continuation of Regulations in the Federal Register to inform the public that NMFS was continuing the interim regulations for a second 180day period, ending July 27, 2003. Under section 305(c)(3)(B) of the MagnusonStevens Act, interim regulations implemented under section 305(c) are limited to two consecutive 180day periods. Because the Order required that the interim management measures remain in effect until Amendment 13 is implemented, and because the Court granted an extension of the original schedule for implementation of Amendment 13 to May 1, 2004, in response to unanticipated events, NMFS proposed, on April 24, 2003 (68 FR 20096), an emergency action under authority of section 305(c) of the MagnusonStevens Act. In addition to continuing the August 1, 2002, measures specified in the Settlement Agreement and Order, the April 24, 2003, emergency rule proposed a pilot program to allow limited access NE multispecies vessels to lease their NE multispecies DAS. The proposed emergency rule was corrected on May 9, 2003 (68 FR 24914), and notification of changes to that rule was published June 20, 2003 (68 FR 36970). Due to the newness and potential controversiality of the DAS Leasing Program, NMFS extended the comment period through June 10, 2003, on the DAS leasing aspect of the proposed emergency rule only (68 FR 28188; May 23, 2003). On June 27, 2003 (68 FR 38234), NMFS published a final emergency rule that implemented many of the same measures implemented through the August 1, 2002, interim final rule, with some modifications in response to public comment, but did not implement the DAS Leasing Program. Because of the public comments received and the controversial aspects of the DAS Leasing Program, NMFS concluded that it would be better to develop such a program through the Council process than through emergency rulemaking; thus, NMFS withdrew the proposed DAS Leasing Program (68 FR 41549, July 14, 2003). The measures implemented through the June 27, 2003, emergency rule remain in effect at this time. The emergency measures were continued in effect through publication of a notice of continuation in the Federal Register on December 22, 2003 (68 FR 71032), pursuant to section 305(c) of the MagnusonStevens Act.

Amendment 13 was developed by the Council to end overfishing of all groundfish stocks and to rebuild all groundfish stocks that are overfished, and includes measures to minimize bycatch, to implement improved reporting and recordkeeping requirements, and to address other conservation and management issues. Amendment 13 also contains measures to minimize the adverse effects of fishing on EFH, in accordance with the Settlement Agreement resulting from the legal challenge American Oceans Campaign, et al. v. Daley, et al. (Civil Case Number 99982 (GK)). In accordance with the EFH Settlement Agreement, Amendment 13 evaluates the impacts of fishing on EFH through analysis in the FSEIS and includes management measures designed to minimize the adverse effects of fishing on EFH to the extent practicable.

A notice of availability of a Draft Environmental Impact Statement for the EFH components of Amendment 13 was published on April 4, 2003 (68 FR 16511), with public comment accepted through July 2, 2003. A notice of availability of the Draft Supplemental Environmental Impact Statement (DSEIS), which analyzed the impacts of all of the measures under consideration in Amendment 13, was published on August 29, 2003 (68 FR 52018), with public comments accepted through October 15, 2003. A correction to the DSEIS was published on September 19, 2002 (68 FR 54900).

A notice of availability for Amendment 13, as submitted by the Council for review by the Secretary of Commerce, was published in the Federal Register on December 29, 2003 (68 FR 74939). The comment period on Amendment 13 ends on February 27, 2004. In addition to the implementing measures proposed in this rule, Amendment 13 contains changes to overfishing definitions and other aspects of the management program that are not reflected in regulations.

Proposed Measures

Amendment 13 proposes a large number of changes to the management regime for the NE groundfish fishery. In order to provide the public with the clearest information possible on how the groundfish regulations would appear if Amendment 13 is approved and implemented, NMFS is publishing in this proposed rule the entirety of 50 CFR part 648, subpart F, that pertain to the groundfish fishery as they would appear if this proposed rule is adopted as final. The proposed regulations also reflect revisions to the existing text in subpart F that are not a result of Amendment 13; these revisions would remove obsolete language and improve organization and clarity of the regulations, but they are not substantive changes. A description of the proposed management measures follows.

1. Recreational Measures

The bag limit (possession limit) for cod aboard a private recreational vessel (i.e., not a charter/party vessel) fishing while in the Exclusive Economic Zone (EEZ), or caught in the EEZ, would be changed to 10 cod per person per day, with no possession limit for haddock, yearround. The current possession limit is 10 cod and/or haddock, combined, per person per trip, from April 1 through November 30; and 10 cod and/or haddock, combined, per person per trip, no more than 5 of which may be cod, when fishing in the Gulf of Maine (GOM) from December 1 through March 31. The current seasonal bag limit restrictions for private recreational fishing vessels would be eliminated.

The possession limit for cod aboard a charter/party vessel fishing in the GOM would be changed to 10 cod per person
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per day, yearround. The current possession limit when fishing in the GOM is 10 cod per person per trip, from April 1 through November 30; and 5 cod per person per trip, from December 1 through March 31. As with private recreational vessels, the current seasonal bag limit restrictions for charter/party vessels would be eliminated.

For charter/party vessels issued a Federal multispecies permit, and for private recreational vessels, any trip in excess of 15 hours and covering 2 calendar days would be considered a 2day trip for purposes of calculating allowable bag limits. Allowable bag limits for recreational vessels conducting trips longer than 2 consecutive calendar days would be determined by adding 24 hours for each additional day to the 15hour minimum, 2day trip requirement. For example, to possess 3days equivalent of the bag limit, a recreational vessel would have to fish at least 39 hours (15 plus 24) over a 3 consecutiveday period.

The minimum size for cod allowed to be possessed by persons fishing aboard private recreational and charter/party vessels subject to these regulations would be reduced from the current 23 inches (58.4 cm) total length (TL) to 22 inches (55.9 cm) TL. The minimum size for haddock would be reduced from 22 inches (55.9 cm) to 19 inches (48.2 cm) TL. 2. Handgear Permit

A new limited access permit category, called Handgear A, would be created for qualified vessels fishing with handgear (rod and reel, handline, or tubtrawl gear). To qualify for a Handgear A permit, a vessel must have been previously issued a NE multispecies open access Handgear permit, and must have landed at least a total of 500 lb (227 kg) of cod, haddock, or pollock, when fishing under the open access Handgear permit category, in at least one of the fishing years from 1997 through 2002 (fishing years are May 1 through April 30). Landings would need to be documented through dealer reports submitted to NMFS or other NMFSapproved entity, prior to January 29, 2004. A process would be established to allow vessel owners to appeal denials of Handgear A permits, if they believe the denials were based on incorrect information.

Vessels fishing under the limited access Handgear A permit would be allowed to land up to 300 lb (136 kg) of cod, one Atlantic halibut, and the daily possession limit restrictions allowed for the remaining regulated groundfish species. Handgear A permits would be transferrable between vessels, with the transfers not subject to vessel size and horsepower upgrade restrictions. In addition to handline and rodand reel gear, open access Handgear and limited access Handgear A permit holders would be allowed to fish handhauled tubtrawl gear, with a maximum of 250 hooks. Definitions of ``handgear'' and ``tubtrawl'' would be added to Sec. 648.2.

The trip limits under the current open access Handgear permit category would be modified to allow vessels to possess up to 75 lb (34.0 kg) of cod and one Atlantic halibut, and the daily possession limit restrictions allowed for the remaining regulated groundfish species. Open access Handgear permitted vessels are currently subject to possession limits of 300 lb (136 kg) of cod, haddock, and yellowtail flounder, combined; one Atlantic halibut; and the daily possession limits allowed for the remaining regulated groundfish species. The cod trip limit for both the limited access Handgear A permit and the open access Handgear permit would be adjusted proportional to changes in the GOM cod trip limits for groundfish DAS vessels in the future, as necessary.

The creation of a limited access Handgear A permit would provide historical participants in this specialized component of the groundfish fishery with higher cod trip limits than they currently have, and provide holders of the Handgear A permits the flexibility to transfer or upgrade their vessels with little or no increase in fishing mortality to groundfish stocks, because of the specialized nature of the gear they fish.

3. Northern Shrimp Exempted Fishery

Amendment 13 proposes to remove the restriction that the northern shrimp fishery be conducted shoreward of the smallmesh fishery exemption line (Sec. 648.80(a)(5)). All other restrictions for participation in the northern shrimp fishery would remain in effect. This measure would provide greater flexibility to the northern shrimp fishery, by enabling the fishery to pursue shrimp over a larger area than is currently allowed, without jeopardizing conservation measures for groundfish stocks.

4. Tuna Purse Seine Access to Groundfish Closed Areas

Tuna purse seine gear is currently defined as exempted gear in the FMP. Under Amendment 13, tuna purse seine vessels would be allowed to fish in all groundfish closed areas, including Closed Area (CA) I, CA II, and Nantucket Lightship Closed Area (NLCA), subject to existing restrictions for using exempted gear in those areas. Fishing for, landing, or possessing any groundfish by vessels using purse seine gear would be prohibited, and vessels fishing under this exemption could not have on board gear capable of catching groundfish. Fishing under this exemption would not be allowed in the CA II Habitat Area of Particular Concern (HAPC). If the Administrator, Northeast Region, NMFS (Regional Administrator) determines that tuna purse seine vessels are adversely affecting habitat or groundfish stocks, individual vessels, or all vessels, could be prohibited from one or more of the groundfish closed areas.

Tuna purse seine gear is currently allowed in the groundfish seasonal closure areas and in the GOM yearround closure areas. The intent of this measure is to provide flexibility to purse seine vessels to pursue tuna, using exempted gear, throughout the groundfish management area, with the exception of the CA II HAPC. Because of the type of gear used in this fishery, and based on several years of experimental fishing, impacts on groundfish are expected to be minimal. 5. SNE Scallop Dredge Exemption Program

Unless otherwise prohibited in Sec. 648.81, or unless prohibited under the scallop regulations, vessels with a limited access scallop permit that have declared out of the scallop DAS program as specified in Sec. 648.10, or that have used up their scallop DAS allocations, unless otherwise restricted, and vessels issued a General Category scallop permit, would be allowed to fish in statistical areas 537, 538, 539, and 613, defined as the SNE Scallop Dredge Exemption Area, when not fishing under a groundfish DAS, with certain restrictions. A vessel meeting the above requirements and fishing in the SNE Scallop Dredge Exemption Area could not fish for, possess on board, or land any species of fish (as defined in the MagnusonStevens Act) other than Atlantic sea scallops. The combined dredge width used by such vessels could not exceed 10.5 ft (3.2 m), measured at the widest point in the bail of the dredge. Dredges would be required to have at least an 8 inch (20.3cm) twine top, to minimize bycatch of groundfish. The exemption would not provide access to the NLCA, unless specifically authorized through the groundfish FMP.

This measure would provide flexibility for vessels to fish for sea scallops in this area, as authorized under the Atlantic Sea Scallop Fishery Management Plan (Sec. 648.52(a)) in an
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area of SNE where such fishing is not currently allowed. The use of scallop dredges, with the restrictions that would be required under this proposed measure, is not expected to result in significant catches of groundfish.

6. Modified VMS Operational Requirements

Under Amendment 13, a vessel using a VMS could opt out of the VMS program for a minimum period of 1 calendar month by notifying the Regional Administrator. Such notification would be required to include the date the vessel would resume transmitting VMS reports. After receiving confirmation from the Regional Administrator, the vessel operator could stop sending VMS reports to NMFS, but could not engage in any fishery until the VMS is turned back on. This would enable vessel owners to turn off power to the VMS unit and to save on the costs of VMS polling during periods when their vessel is under repair or, for some other reason, is not engaged in fishing.

7. Standards for Certification of Exempted Fisheries

Vessels are currently prohibited from fishing in the GOM, GB, and SNE exemption areas unless fishing: (1) Under a groundfish or scallop DAS; (2) with exempted gear; (3) under the smallvessel exemption; (4) under the scallop statewaters exemption; or (5) in an exempted fishery. Under current regulations (Sec. 648.80(a)(8) and (b)(4)), an exempted fishery may be added in an existing fishery for which there is sufficient information to determine the amount of regulated groundfish species bycatch if the Regional Administrator, after consultation with the Council, determines that the percentage of regulated species caught as bycatch is, or can be reduced to, less than 5 percent, by weight, of total catch, and that such exemption will not jeopardize the fishing mortality objectives.

Under Amendment 13, the standards for certification of exempted fisheries that were implemented through Amendment 7 to the FMP would continue to be used, but with the following changes:

The incidental catch standard (5 percent of the total catch, by weight) could be modified by the Council or Regional Administrator, for those groundfish stocks that are not in an overfished condition, or if overfishing is not occurring. In order for the Council or Regional Administrator to modify the exemption standard, it must be demonstrated that the modification would not cause a delay in a rebuilding program, would not result in overfishing of a stock, and would not result in a stock becoming overfished. Other factors would also be considered in the certification of an exempted fishery, such as the impact of the fishery on juvenile fish, sacrifices in yield that would result from increases in fishing mortality, the ratio of target species to regulated species, the status of stock rebuilding, recent recruitment of groundfish species, etc. Under the proposed procedures, the incidental catch standard could be modified either through a Council action (framework adjustment) that would change the standard for all exempted fisheries, or on a casebycase basis for specific exempted fisheries.

On a casebycase basis, through approval by the Regional Administrator, with notification to the public through rulemaking consistent with the Administrative Procedure Act (APA), or through Council development of a framework action for NOAA Fisheries consideration, an exempted fishery in the GOM, GB, or SNE exemption areas, and a small mesh fishery in that portion of the MidAtlantic (MA) Regulated Mesh Area (RMA) outside of the SNE exemption area, could be authorized to possess and land certain regulated groundfish. In making that determination, the Council or Regional Administrator would consider the status of the stock or stocks caught in the exempted fishery; the risk that allowing possession of groundfish would result in increased landings of groundfish; the extent of the exempted fishery, in terms of both time and area; the possibility of expansion of the exempted fishery; whether the exempted fishery should be allowed to take place in a groundfish closed area; impacts of the exempted fishery on any groundfish stock that is overfished; and whether overfishing is already occurring on a stock that would be caught by the exempted fishery. Possession by an exempted fishery could be allowed for a groundfish stock under a rebuilding program, but only if it can be determined that the catch of that stock by the exempted fishery would not likely result in exceeding the rebuilding fishing mortality rate for that stock.

The intent of the proposed changes is to allow greater flexibility to the Council and NMFS to administer the exempted fishery program as groundfish stocks rebuild, while continuing to protect the groundfish stocks.

8. Flexible Area Action System (FAAS)

The FAAS management system, currently contained in Sec. 648.85, would be eliminated by Amendment 13. The FAAS system was developed by the Council to provide a mechanism to respond quickly to bycatch problems in the groundfish fishery. However, experience demonstrated that it was infeasible to use the system as originally intended, due to administrative constraints that prevented the rapid action that was initially anticipated.

9. Periodic Adjustments to the FMP

The current annual process to make adjustments to the FMP (Sec. 648.90) would be revised to be a biennial adjustment process. The Plan Development Team (PDT) would perform a review and submit management recommendations to the Council every 2 years, with a review of each of the regulated multispecies, Atlantic halibut, and ocean pout. The first review would be in 2005, to determine necessary changes for the 2006 fishing year. This review would be completed by the PDT, based on the most current and best scientific information available. The PDT would consider relevant data and information provided by the NEFSC, as well as by the states, the Atlantic States Marine Fisheries Commission, the U.S. Coast Guard (USCG), and other sources. Adjustments would continue to be implemented on May 1 of the relevant year (the beginning of the fishing year). The PDT would recommend, for the Council's
consideration, new measures, if necessary, to address current management needs in the FMP, within the scope of a framework adjustment. The PDT would review the most current data pertaining to landings, stock status, and fishing mortality rates; enforcement issues; DAS use; social and economic impacts; and any other relevant information. The Council would then hold at least two Council meetings and submit its recommendations to the Regional Administrator by December 1. The Regional Administrator would review the Council's recommendations, including the supporting analyses, and undertake rulemaking, consistent with the APA, to meet the May 1 implementation date. If the Council fails to submit measures by February 1, the Regional Administrator would be authorized to choose any PDT alternative not specifically rejected by the Council. For the 2005 review, an updated groundfish assessment, peer reviewed by independent scientists, would be conducted to facilitate the PDT review for the adjustment, if needed, for the 2006 fishing year. The PDT would also prepare an annual Stock Assessment and Fishery Evaluation (SAFE) Report, which would
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include the most recent biological and socioeconomic information.

In addition to the biennial review discussed above, the PDT would meet to conduct a review of the groundfish fishery by September 2008 to determine the need for a framework action for the 2009 fishing year. For the 2008 review, a benchmark assessment, peer reviewed by independent scientists, would be completed for each of the regulated multispecies stocks and for Atlantic halibut and ocean pout. The interim biomass targets specified in Amendment 13 would be examined during this benchmark assessment to evaluate the efficacy of the rebuilding program. Based on findings from the benchmark assessment, a determination would be made as to whether the Amendment 13 biomass targets are still considered valid, given the response of the stocks to the management measures in Amendment 13 that were expected to result in certain stock levels by 2008.

Under the proposed procedures, the existing Multispecies Monitoring Committee would be folded into the PDT, and would cease to exist as a separate committee. As a result, the PDT membership would be revised to include technical staff from the Council, the NMFS Northeast Regional Office, the NEFSC (biologists, social scientists, and economists), technical personnel from state management agencies or qualified researchers, a representative from the USCG, the Chair of the Groundfish Advisory Panel, and another interested parties designated by the Council Chair. The PDT would continue to provide technical support to the Groundfish Committee in the development of FMP amendments. In addition, it would monitor the FMP and develop options for framework adjustments through the new biennial adjustment process.

The proposed adjustment process is intended to provide greater stability to the management of the groundfish fishery by adjusting management measures less frequently. It is also intended to be more streamlined than the current process.

10. Rebuilding Program

The proposed rebuilding program for groundfish stocks is the heart of Amendment 13. The Council adopted Alternative 5 in the DSEIS, which was based on management measures developed by the Council and on an industry proposal put forward by the Northeast Seafood Coalition, as its proposed rebuilding program. The intent is to rebuild all overfished groundfish stocks primarily through effortreduction measures that are phased in over a period of several years. Because several stocks are currently not overfished, others are being overfished (i.e., the fishing mortality rates on these stocks are too high), and some are in need of rebuilding to the levels that can produce maximum sustainable yield (MSY) on a continuing basis, a mixture of management measures is proposed to achieve all of the objectives. Amendment 13 attempts to balance the need to end overfishing of some stocks as quickly as possible, with the need to consider the economic and social impacts of effort reduction measures on the participants in the fishery and on fishing communities. The proposed measures to accomplish this are summarized as follows: DAS Allocations

DAS, which form the effort currency in the groundfish fishery, would be reallocated, beginning in fishing year 2004. The allocation of DAS would be based on historic participation in the groundfish DAS fishery. The number of DAS that would be allocated to the fishery as a whole is based on the number that was determined to be appropriate and necessary to rebuild overfished stocks and end overfishing. The proposed DAS allocation is based on an expected DAS use rate, and takes into account additional DAS use that may result from implementation of a DAS Leasing Program, which is also proposed in Amendment 13. The DAS Leasing Program is described in more detail later in this preamble.

The allocation of a vessel's DAS would be calculated from that vessel's DAS baseline, defined as the maximum DAS used by that vessel in any single fishing year from qualifying fishing years 1996 through 2001 (May 1, 1996, through April 30, 2002). Qualifying years would be only those in which the vessel landed a total of 5,000 lb (2,268 kg) or more of regulated groundfish species. Landings would need to be documented through dealer reports submitted to NMFS or other NMFS approved entity, prior to April 30, 2003. For fishing years 2004 and 2005, 60 percent of a vessel's DAS baseline would be defined as its ``Category A'' DAS, and 40 percent of a vessel's DAS baseline would be defined as its ``Category B'' DAS. Category B DAS would be further categorized as ``regular B'' DAS and ``reserve B'' DAS, each representing 20 percent of the vessel's DAS baseline. The difference between a vessel's fishing year 2001 DAS allocation and its DAS baseline would be the vessel's ``Category C'' DAS. Upon implementation of Amendment 13, either regular or reserve B DAS could be used in any approved SAPs, but neither could be used outside of an approved SAP. The procedures and restrictions applying to the use of regular B DAS when fishing outside of a SAP have not been developed, and would need to be implemented through future Council action, such as a framework. Category C DAS would not be made available to fish at this time.

Because groundfish DAS vessels would be allocated DAS based on their historical fishing records, the Fleet DAS permit category and the Large Mesh Fleet DAS permit category would be eliminated, since these categories represented a fleet average of DAS. Upon approval of Amendment 13, vessels currently fishing in the Fleet DAS and Large Mesh Fleet DAS permit categories would automatically be reissued permits in the Individual DAS and Large Mesh Individual DAS permit categories, respectively. Vessels affected by this change would have an opportunity to reapply for a different permit category.

DAS Use

Under Amendment 13, Category A DAS could be used to target any regulated groundfish stock. Beginning with the implementation of Amendment 13, any Category B DAS (i.e., regular or reserve B DAS) could be utilized to fish in approved SAPs, subject to the requirements of the SAPs. Amendment 13 would require that each vessel would be required to have at least 1 Category A DAS remaining for each regular B DAS it intends to fish.

A vessel would be required to declare its intent to use a Category B DAS at the start of a fishing trip, and would need to specify which type of (regular or reserve) B DAS would be used on that trip. Even though regular B DAS could initially be used only while fishing within a SAP, NMFS would need to track the usage of both types of B DAS by each vessel, starting with the implementation of Amendment 13. That would enable NMFS and the vessels to know how many of each type of B DAS each vessel has remaining for the fishing year, should the Council develop a program for use of regular B DAS during the fishing year.

Vessel owners should be aware that Amendment 13 provides that, should a program for use of regular B DAS outside of SAPs be developed by the Council and implemented in the middle of a fishing year, the vessel would need to have Category A DAS available in order to fish the regular B DAS outside of a SAP during the remainder of that fishing year.

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As groundfish stocks rebuild, there may be opportunities to increase the number of available Category A DAS. In that circumstance, Amendment 13 calls for all Category B DAS (regular and reserve) to be converted to Category A DAS before any Category C DAS would be converted to Category A DAS. If necessary to achieve rebuilding targets, Category A DAS could be changed to Category B DAS by the Council. Any DAS carried over from the 2003 fishing year into the 2004 fishing year would be classified as regular B DAS. For any DAS carried over from the 2004 fishing year into the 2005 fishing year, and for all subsequent fishing years, the carriedover DAS would be determined as follows: If a vessel has Category A DAS remaining, these would be carried over first; if the vessel has fewer than 10 A DAS remaining, then the vessel's regular B DAS would be carried over, up to a total of 10 DAS; if the vessel has fewer than 10 A DAS and regular B DAS, combined, remaining, then the vessel's reserve B DAS would be carried over, up to a total of 10 DAS, combined. For example, if a vessel ended a fishing year with 3 A DAS, 6 regular B DAS, and 10 reserve B DAS, that vessel's carryover DAS would be 10 DAS, comprised of the following: 3 A DAS, 6 regular B DAS, and 1 reserve B DAS. Category C DAS could not be carried over and could not be fished.

Default Measures

Amendment 13 would establish fishing mortality rate targets to end overfishing and rebuild all of the managed groundfish stocks. Some of the fishing mortality rates would be immediately reduced to a level that would end overfishing. For several other stocks, reductions in fishing mortality rates would be phased in, in order to mitigate impacts of the reductions. To ensure that the scheduled fishing mortality reductions under Amendment 13 are realized by fishing year 2006, specifically for American plaice and SNE/MA yellowtail flounder, which may require an additional reduction in the fishing mortality rate to completely end overfishing, the following default measures would automatically become effective on May 1, 2006: An additional 5percent reduction in DAS, which would allow a vessel to fish up to 55 percent of its DAS baseline allocation as A DAS, and 45 percent as B DAS; and differential DAS counting for vessels fishing in the SNE RMA, where DAS would be counted at a rate of 1.5 to 1. On May 1, 2009, there would be an additional DAS reduction of 10 percent, which would allow a vessel to fish up to 45 percent of its DAS baseline allocation as A DAS, and 55 percent as B DAS, to ensure rebuilding for GB cod, GOM cod, CC/GOM yellowtail flounder, SNE/MA yellowtail flounder, American plaice, white hake, and SNE/MA winter flounder. A stock assessment update is scheduled to occur in 2005, and a benchmark assessment would be conducted in 2008 to determine whether the default measures are necessary, or whether existing measures have proven sufficient to achieve the necessary reductions in fishing mortality. The default measures would not occur if the Regional Administrator determines that the Amendment 13 projected target biomass levels for relevant stocks under Amendment 13, based on the 2005 and 2008 stock assessments, have been or are projected to be attained with at least a 50percent probability in the 2006 and 2009 fishing years, and overfishing is not occurring on those stocks. If these criteria are met, the Regional Administrator would publish that determination in the Federal Register, consistent with the requirements of the APA.

Trip Limits

The following modifications to the cod and yellowtail flounder trip limits are proposed, in order to meet Amendment 13 objectives:

GOM cod: The possession limit would be increased to 800 lb (363 kg)/DAS, with a limit of 4,000 lb (1,814 kg)/trip.

GB cod: The possession limit would be reduced to 1,000 lb (454 kg)/ DAS, with a limit of 10,000 lb (4,536 kg)/trip, unless the vessel elects to fish, through an annual declaration, exclusively with hook gear under the GB Cod Hook Gear Trip Limit Exemption Program. Similar to the Day or Trip Gillnet Category designation, a vessel would need to declare into the GB Cod Hook Gear Trip Limit Exemption Program when applying for its limited access groundfish permit.

The GB cod trip limit for hook vessels would be as follows:

January 1 through March 31: 2,000 lb (907 kg)/DAS;

April 1 through June 30: No hook gear (jig or demersal longline) fishing allowed on GB;

July 1 through September 15 (directed cod season for hook vessels): 2,000 lb (907 kg)/DAS; during this period, vessels could not land groundfish on Fridays or Saturdays; and September 16 through December 31 (restricted cod season): 600 lb (272 kg)/DAS.

Cape Cod (CC)/GOM yellowtail flounder, when fishing in the SNE/MA stock areas:

April 1 through May 31, and October 1 through November 30: 250 lb (113 kg)/trip; and

June 1 through September 30, and December 1March 31: 750 lb (340 kg)/DAS, with a 3,000lb (1,361kg)/trip possession limit.

SNE/MA yellowtail flounder, when fishing in the SNE/MA yellowtail flounder area (the SNE/MA stock area):

March 1 through June 30: 250 lb (113 kg)/trip; and

July 1 through February 28 (or 29): 750 lb (340 kg)/DAS, with a 3,000lb (1,361kg)/trip possession limit.

Modifications to Gear Restrictions

Gear restrictions would be modified as follows, in order to meet Amendment 13 objectives:

For Day gillnet vessels fishing in the GOM RMA: The minimum mesh size for flatfish nets would be reduced from 7inch (17.8cm) mesh to 6.5inch (16.5cm) mesh.

For Trip gillnet vessels fishing in the GB RMA: The number of gillnets that could be used would be increased from 50 to 150.

For Day gillnet vessels fishing in the MA RMA: The number of roundfish gillnets that could be used would be reduced from 80 to 75, and the minimum mesh size would be increased from 5.5inch (14.0cm) diamond or 6.0inch (15.2cm) square to 6.5inch mesh (16.5cm) (square or diamond); and

The number of flatfish gillnets that could be used would be reduced from 160 to 75, and the minimum mesh size would be increased from 5.5 inch (14.0cm) diamond or 6.0inch (15.2cm) square to 6.5inch (16.5 cm) mesh (square or diamond).

A summary of the proposed gear requirements appears in Table 1. [[Page 4368]]
Table 1.Gear Restrictions by Regulated Mesh Areas Gulf of Maine Georges bank SNE MidAtlantic MINIMUM MESH SIZE RESTRICTIONS FOR GILLNET GEAR NE Multispecies Day Gillnet Roundfish nets All nets All nets Roundfish nets Category *. 6.5'' (16.5 cm) 6.5'' (16.5 cm) 6.5'' (16.5 cm) 6.5'' (16.5 cm) mesh; 50net mesh; 50net mesh; 75net mesh; 75net allowance; 2 tags/ allowance; 2 tags/ allowance; 2 tags/ allowance; 2 tags/ net. net. net. net. Flatfish nets Flatfish nets 6.5'' (16.5 cm) 6.5'' (16.5 cm) mesh; 100net mesh; 75net allowance; 1 tag/ allowance; 2 tags/ net. net. NE Multispecies Trip Gillnet All nets All nets All nets All gillnet gear Category *. 6.5'' (16.5 cm) 6.5'' (16.5 cm) 6.5'' (16.5 cm) 6.5'' (16.5 cm) mesh; 150net mesh; 150net mesh; 75net mesh; 75net allowance; 1 tag/ allowance; 2 tags/ allowance; 2 tags/ allowance 2 tags/ net. net. net. net. Monkfish Vessels **............. 10'' (25.4 cm) mesh/150net allowance
1 tag/net MINIMUM MESH SIZE RESTRICTIONS FOR TRAWL GEAR Codend only mesh size *......... 6.5'' (16.5 cm) diamond or square 7.0'' (17.8 cm) 6.5'' (16.5 cm) diamond or 6.5'' diamond or (16.5 cm) square. square. Large Mesh Categoryentire net. 8.5'' (21.59 cm) diamond or square 7.5'' (19.0 cm) diamond or 8.0'' (20.3 cm) square. MAXIMUM NUMBER OF HOOKS AND SIZE RESTRICTIONS FOR HOOK GEAR * * * Limited access multi species 2,000 hooks....... 3,600 hooks....... 2,000 hooks....... 4,500 hooks (Hook vessels. gear vessels only).
No less than 6'' (15.2 cm) spacing allowed between the fairlead rollers
12/0 circle hooks required for longline gear N/A. * When fishing under a NE multispecies DAS.
** Monkfish Category C and D vessels, when fishing under a monkfish DAS. *** When fishing under a NE multispecies DAS or when fishing under the Small Vessel permit. 11. DAS Transfer Program

Limited access NE multispecies permit holders would be allowed to transfer DAS permanently to other limited access permit holders, subject to the following restrictions and conditions:

The length overall (LOA) baseline or gross registered tonnage baseline of the buyer/transferee vessel could not be more than 10 percent greater, and its horsepower could not be more than 20 percent greater than the baseline of the seller/transferor vessel. The seller/ transferor vessel would also be required to retire from all state and Federal commercial fisheries and to relinquish permanently all Federal and state fishing permits. Category A and B DAS that are transferred would be reduced by 40 percent; Category C DAS that are transferred would be reduced by 90 percent. Vessel permits under Confirmation of Permit History (CPH) could be transferred, but vessels fishing under a sector allocation would be prohibited from transferring DAS during the fishing year in which the vessel is participating in the sector.

The intent of the permit transfer measures is to allow vessel owners the flexibility to retire from the fishery, while reducing the overall DAS in the fishery. The requirement that all other permits be relinquished is intended to prevent vessels from transferring their groundfish permits and continuing to fish, potentially increasing effort in other fisheries that may already be fully or overcapitalized. 12. DAS Leasing Program

Amendment 13 proposes a program to allow limited access NE multispecies permit holders to lease groundfish DAS to one another in fishing years 2004 and 2005, under the conditions and restrictions described below. For purposes of this program, the term ``lease'' refers to the transfer of the use of DAS from one limited access groundfish vessel to another, for no more than 1 fishing year. Implementation of the proposed program would provide the industry an opportunity to mitigate economic impacts of the effort reduction measures proposed in Amendment 13.

Eligibility

All vessels with a valid limited access groundfish DAS permit would be eligible to lease groundfish Category A DAS to or from another such vessel, subject to certain restrictions. Eligible vessels acquiring DAS through leasing would be termed lessees; eligible vessels leasingout DAS would be termed lessors. DAS associated with a CPH 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 in Amendment 13 would not be allowed to lease DAS to nonsector vessels during the fishing year in which the vessel is participating in the sector.
[[Page 4369]]

Application Procedures

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. Vessels with a VMS would likely be able to receive notification of an approved lease agreement sooner than 45 days. Upon approval of the application by NMFS, the lessor and lessee would be sent written confirmation of the approved 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 that all of the restrictions and conditions are complied with.

An application to lease DAS could be submitted at any time throughout the fishing year, up until March 1. A complete application would consist of the following: Lessor's owner name, vessel name, permit number and official number or state registration number; lessee's owner name, vessel name, permit number and official number or state registration number; the number of groundfish DAS to be leased; total price paid for the leased DAS; signatures of lessor and lessee; and the date the form was completed. Information obtained from the application would be held confidential in accordance with the requirements of the MagnusonStevens Act and applicable regulations.

The Regional Administrator could reject an application for any of the following reasons, including, but not limited to: The application is incomplete or submitted past the March 1 deadline; the lessor or lessee has not been issued a valid limited access groundfish permit, or is otherwise not eligible; the lessor's or lessee's DAS are under sanction pursuant to an enforcement proceeding; the lessor's or lessee's vessel is determined not in compliance with the conditions and restrictions of 50 CFR part 648; or the lessor has an insufficient number of allocated or unused groundfish DAS available to lease. Upon denial of an application, the Regional Administrator would send a letter to the applicant describing the reason(s) for the application's rejection. The decision by the Regional Administrator would be the final agency decision. There would be no appeal process.

Conditions and Restrictions

No subleasing of groundfish DAS would be allowed. This means that, once a lease application is approved by NMFS, the leased DAS could not be leased a second time, even if the lessee was prevented from fishing the leased DAS due to circumstances beyond his/her control (e.g., a vessel sinking). This restriction is necessary to ensure NMFS' ability to administer and account for all leased DAS in an efficient manner. Vessels would not be allowed to lease carryover DAS. Only Category A DAS could be leased, and all leased DAS would be Category A DAS.

Vessels would be allowed to lease as few as 1 DAS to any one vessel. 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 fish 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 person wants to lease DAS for a vessel with a limited access groundfish permit, and that vessel had 88 DAS allocated to it in fishing year 2001, the maximum DAS it could lease would be 88. If the same vessel has 53 Category A DAS allocated to it in fishing year 2004, that vessel could hold and fish up to 141 Category A DAS for 2004 (the 53 A DAS allocated for fishing year 2004 plus the 88 DAS allocated to that vessel in fishing year 2001).

A lessor could not lease DAS to any vessel with a baseline horsepower rating that is 20 percent or more greater than that of the horsepower baseline of the lessee vessel. A lessor also could not lease DAS to any vessel with a baseline LOA that is 10 percent or more greater than that of the baseline of the lessee vessel's LOA. This is intended to constrain effort by ensuring that leased DAS would be fished by vessels of similar fishing power.

History of DAS Use and Landings

Because, in the future, DAS use and landing history may be used to determine fishing rights, the proposed program includes a presumption for how such history would be accounted for. 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. 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 purposes of DASuse history, leased DAS would be considered to be the first DAS to be used, followed by the allocated DAS. For example, if a vessel had an allocation of 50 DAS, leased an additional 20 DAS, and actually fished a total of 60 DAS during the fishing year, the lessor of the 20 DAS would be attributed with 20 DAS, for purposes of its DASuse history, because the lessee vessel would be presumed to have used its 20 leased DAS first. This same vessel would be presumed to have only fished 40 of its 50 allocated DAS for the purposes of its DASuse history. History of fish landings would be presumed to be attributed to the vessel that actually landed the fish (lessee). 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. For example, if lessee Vessel A has 50 allocated DAS, leases 30 DAS from lessor Vessel B on August 1, and leases another 10 DAS from lessor Vessel C on August 5, then the first 30 DAS used by lessee Vessel A during that fishing year would be attributed to lessor Vessel B, the next 20 DAS would be attributed to lessor Vessel C, and the next 50 DAS would be attributed to lessee Vessel A, for purposes of DASuse history.

Monkfish Category C and D vessels

It is possible that a vessel with both a limited access groundfish permit and a limited access monkfish permit (monkfish Category C or D vessels), because of the groundfish DAS reductions proposed under Amendment 13, could have more allocated monkfish DAS than groundfish A DAS. Such vessel would be allowed to fish under a monkfishonly DAS when groundfish DAS are no longer available, provided the vessel fishes under the provisions of the monkfish Category A or B permit, or unless otherwise noted below. Under this proposed rule, monkfish Category C and D vessels that have remaining monkfishonly DAS at the time of implementation of Amendment 13, and that have submitted a groundfish DAS Leasing Application that has been approved by NMFS, would be required to fish their available ``monkfishonly'' DAS in conjunction with their leased groundfish A DAS, to the extent that the vessel has groundfish A DAS available. This is consistent with the original intent of the Monkfish Fishery Management Plan (Monkfish FMP).

If a monkfish Category C or D vessel leases groundfish A DAS to another vessel, the vessel would be required to forfeit a monkfish DAS for each
[[Page 4370]]
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 and D 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. This could create a significant effort increase in the monkfish fishery. 13. U.S./Canada Resource Sharing Understanding

Amendment 13 would adopt and implement the U.S./Canada Resource Sharing Understanding (Understanding). Under the Understanding, management of GB cod, GB haddock, and GB yellowtail flounder would be subject to the terms of the Understanding within two specified areas on GB referred to as the U.S./Canada Management Areas (composed of the Western U.S./Canada Area and the Eastern U.S./Canada Area). The Eastern U.S./Canada Area is composed of statistical areas 561 and 562, and is the U.S./Canada management area for GB cod and GB haddock (cod/haddock management area). The Eastern U.S./Canada Area has been modified slightly to encompass all of CA II for the purpose of better administration of the Understanding. The Western U.S./Canada Area is composed of statistical areas 522 and 525. The U.S./Canada management area for GB yellowtail flounder is composed of both the Eastern and Western U.S./Canada Areas.

Measures to implement the Understanding proposed in Amendment 13 are intended to allow the U.S. groundfish fishery to harvest, but not exceed, the U.S. allocation of these three shared stocks. The Understanding specifies an allocation of TAC for these three stocks for each country, based on a formula that considers historical catch percentages and current resource distribution. Annual harvest levels and recommended management measures for the U.S./Canada Management Areas would be determined through a process involving the Council, the Transboundary Management Guidance Committee, and the U.S./Canada Steering Committee. Based on information available at this time, the U.S. TACs in fishing year 2004 are expected to be as follows: 300 mt (metric tons) for GB cod; 5,100 mt for GB haddock; and 6,000 mt for GB yellowtail flounder. The Council will consider these recommendations at its January 2004 Council meeting; any different recommendation would be implemented through proposed and final rulemaking. Once any one of these TACs is reached, the Eastern U.S./Canada Area would be closed to all fishing by gear capable of catching groundfish, with the exception of an approved SAP, provided that TAC for the target species is still available. The Western U.S./Canada Area would not be closed, but would have other restrictions imposed, such as trip limits, as necessary, as the GB yellowtail flounder TAC is approached.

Amendment 13 is intended to constrain catches of the three shared stocks by U.S. vessels to ensure that they will not exceed the U.S. allocations. The proposed management measures to implement the understanding are as follows: All NE multispecies DAS vessels fishing on a groundfish DAS in the U.S./Canada Management Areas would be required to utilize a fully functional VMS for the remainder of the fishing year. Vessels would be required to declare, through their VMS, prior to departure on a trip, the portion of the U.S./Canada Management Area they intend to fish in. For the purposes of selecting vessels for observer deployment, a vessel fishing in the U.S./Canada Area must provide notice to NMFS at least 5 working days prior to the beginning of any trip which it declares into the U.S./Canada Area. This notification would ensure that the desired level of observer coverage may be achieved in the U.S./Canada Area. Once declared into a specific area, a vessel could not fish outside of that area for the remainder of that fishing trip. Vessels making a trip in these areas would be required to report their GB cod, GB haddock and GB yellowtail flounder catches (including discards) through their VMS on a daily basis. Because these are ``hard'' TACs, and any overages in a given year would be paid back in a lower TAC for that stock in the next fishing year, it is essential that catches be reported in a timely manner. Groundfish vessels not under DAS would not be subject to the VMS requirement. To ensure enforceability of the Understanding, all groundfish vessels fishing with a VMS would be polled at least twice per hour, regardless of whether the vessel is fishing in one of the U.S./Canada Management Areas.

As an incentive to fish on the shared stocks in the Eastern U.S./ Canada Area, DAS would not be counted until the vessel crosses the boundary line into that Area. To reduce bycatch of cod and other species, all groundfish trawl vessels fishing in either of the U.S./ Canada Management Areas would also be required to fish with, and have on board only, either a flatfish net or a haddock separator trawl, which are defined in this proposed rule. NMFS has worked with gear experts in the industry to develop the proposed gear definitions and requests specific comment from the public on those definitions.

A cod trip limit within the U.S./Canada Management Areas of 500 lb (227 kg)/DAS, not to exceed 5 percent of the total catch on board, would be implemented for all groundfish permitted vessels, unless further restricted, to create an incentive to avoid catching cod.

Amendment 13 provides that, when specified portions of the TACs have been harvested, reduced trip limits would be imposed for all groundfish permitted vessels to slow the harvest of any stock that is approaching its TAC. When 70 percent of a specified stock is projected to be caught, and catch rates indicate that the TAC for that stock will be caught by the end of the fishing year, the following trip limits would go into place: Haddock: 1,500 lb (680 kg/day), 15,000 lb (6,804 kg)/trip; yellowtail flounder: 1,500 lb (680 kg)/day, 15,000 lb (6,804 kg)/trip. When 100 percent of a shared stock TAC is projected to be caught, the Eastern U.S./Canada Area would be closed to all fishing that may take cod, haddock, or yellowtail flounder by vessels capable of catching groundfish, unless a SAP allows some fishing in the area on a specific stock. The Western U.S./Canada Area would not be closed, but would have other restrictions imposed, such as trip limits, as necessary, as the GB yellowtail flounder TAC is approached.

The U.S./Canada Management Area measures would remain in place until altered through one of two procedures. For periodic adjustments, the Regional Administrator, through rulemaking consistent with the APA, could adjust gear requirements, modify access to fishing within the U.S./Canada Management Areas, and/or adjust trip limits to attempt to achieve, but not exceed, the annual TACs. Inseason adjustments could be made at the points when 30 percent and 60 percent of the TACs for each of the relevant stocks are projected to have been harvested. In [[Page 4371]]
addition, the Regional Administrator, in consultation with the Council, could withdraw from provisions of the Understanding if the provisions are determined by the Regional Administrator to be inconsistent with the provisions of the MagnusonStevens Act or other applicable law, or with the goals and objectives of the FMP. If the Regional Administrator withdraws from the Understanding, all management measures in place at that time would remain in place until changed through appropriate procedures under the FMP or the MagnusonStevens Act.

Other existing fisheries prosecuted in the U.S./Canada Management Areas would be unaffected by the Understanding measures, except that landings of GB cod, GB haddock, and GB yellowtail flounder caught in the U.S./Canada Management Areas would be counted against the Understanding TACs, regardless of gear type used.

14. SAPs

Amendment 13 would implement a process to develop SAPs, which are intended to facilitate access in closed or highly restricted areas to groundfish stocks that can support an increase in fishing mortality, and management of, and access to, nongroundfish stocks. The premise for SAP development is that specific fisheries can be developed that would not undermine achievement of the goals of the FMP, because some groundfish stocks are in better condition than others. A SAP would allow fishing for either regulated groundfish or species in other fisheries, without compromising efforts to rebuild overfished stocks or end overfishing of regulated multispecies. A SAP would represent a narrowly defined fishery that would be prosecuted in such a way as to avoid or minimize impacts on groundfish stocks of concern, as well as minimize bycatch and impact on EFH.

SAP Program Procedures

The proposed SAP program would define minimum criteria that would be utilized in the future to develop and implement SAPs. The proposed program is comprised of two parts: One that would define a process and standards for SAPs for the groundfish fishery, and a second that would define a process and standards for SAPs for nongroundfish fisheries. Under both proposed processes, in order for a SAP to be established, there would need to be sufficient information available to demonstrate that the SAP would not adversely impact efforts to control fishing mortality on groundfish stocks of concern; would, to the extent practicable, minimize bycatch; and would minimize, to the extent practicable, adverse effects on EFH caused by fishing. If that information is not available, the first step in getting authorization of a SAP would be collection of information necessary to demonstrate the feasibility of the SAP through an experimental fishery. SAPs for Vessels Harvesting Groundfish

Amendment 13 proposed that implementation of SAPs for vessels harvesting groundfish could be through a framework adjustment or FMP amendment, using the proposed and final rulemaking procedures; or an expedited process in which the Council, or an industry participant or other member of the public could propose a SAP, which would then be reviewed and approved or disapproved by the Regional Administrator, in consultation with the Council, through publication in the Federal Register. This expedited approach is intended to allow more rapid implementation of a SAP than the framework action approach. In order to be approved under this process, the SAP must apply to a groundfish stock(s) for which the previous year's landings fell short of the TAC. The application must also demonstrate that the SAP will not catch more than the previous year's TAC shortfall, and that implementation of the SAP will not result in overfishing of any stock, or cause any stock to become overfished. This is intended to ensure that the biological impacts on the target stock fall within the range of the biological and economic impacts analyzed in Amendment 13. In order to demonstrate consistency with the goals of the FMP, the application would be required to specify the number of vessels that would participate in the SAP, and the estimated catch rates of the species to be harvested. The proposed SAP also could not modify any of the measures that minimize, to the extent practicable, the adverse impacts of fishing activity on EFH. This also is intended to ensure that any habitat impacts of the proposed SAP would fall within the range of the impacts analyzed in the FSEIS for Amendment 13. The proposed SAP, to be approved, could not increase fishing mortality on a groundfish stock of concern. This, too, is intended to ensure that the impacts of the SAP fall within the range of impacts analyzed in the FSEIS for Amendment 13. This could be accomplished in several ways: (1) By adoption of a limitation on catch of the stock of concern, for example t

FOR FURTHER INFORMATION CONTACT Thomas Warren, Fishery Policy Analyst, phone: 9782819347, fax: 9782819135; email: thomas.warren@noaa.gov.