56446 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

Authority: 5 U.S.C. 301; 16 U.S.C. 718j; 31 

U.S.C. 9701. 

2. Revise § 91.12 to read as follows: 

§ 91.12 Contest eligibility. 

(a) U.S. citizens, nationals, or resident 

aliens are eligible to participate in the 

contest. 

(b) Any person who has won the 

contest during the preceding 3 years 

will be ineligible to submit an entry in 

the current year’s contest. For the 75th 

contest (2007) only, any artist, even 

those who won the 2005 and 2006 

contests, may enter. However, 2005 and 

2006 winners must still fulfill their 3- 

year ineligibility terms after the 2007 

contest. The 2007 contest will not be 

counted toward fulfilling ineligibility 

terms of 2005 or 2006 winners. 

(c) All entrants must be at least 18 

years of age by the contest opening date 

(see § 91.11) to participate in the 

contest. 

(d) Contest judges and their relatives 

are ineligible to submit an entry. (e) All entrants must submit a 

nonrefundable fee of $125.00 by 

cashier’s check, certified check, or 

money order made payable to U.S. Fish 

and Wildlife Service. Personal checks 

will not be accepted. (f) All entrants must submit a signed 

Reproduction Rights Agreement and a 

signed Display and Participation 

Agreement. 3. Add a new paragraph (d) to § 91.21 

to read as follows: 

§ 91.21 Selection and qualification of 

contest judges. 

* * * * * 

(d) Term: Judges serve for the period 

of one contest only. No former judge 

will be eligible to serve in any 

successive contests. 

4. Revise § 91.24 paragraph (g) and 

paragraph (h) to read as follows: 

§ 91.24 Contest procedures. 

* * * * * 

(g) In the second round of judging, 

each entry selected in the first round, 

plus the additional entries selected by 

judges per paragraph (d) of this section, 

will be shown one at a time to the 

judges by the Contest Coordinator or by 

a contest staff member. Each judge will 

vote by indicating a numerical score of 

one (1), two (2), three (3), four (4), or 

five (5) for each entry. The scores will 

be totaled to provide each entry’s score. 

The five entries receiving the five 

highest scores will be advanced to the 

third round of judging. (h) In the third round of judging, the 

judges will vote on the remaining 

entries using the same method as in 

round two, except that they will 

indicate a numerical score of three (3), 

four (4), or five (5) for each entry. The 

Contest Coordinator will tabulate the 

final votes and present them to the 

Director, U.S. Fish and Wildlife Service, 

who will announce the winning entry as 

well as the entries that placed second 

and third. 

* * * * * 

5. Revise § 91.31 to read as follows: 

§ 91.31 Return of entries after contest. 

(a) All entries will be returned by 

certified mail to the participating artists 

within 120 days after the contest, unless 

the artwork is selected to appear at one 

or more wildlife art expositions. If 

artwork is returned to the Service 

because it is undelivered or unclaimed 

(this may happen if an artist changes 

address), the Service will not be 

obligated to trace the location of the 

artist to return the artwork. Any artist 

who changes his or her address is 

responsible for notifying the Service of 

the change. All unclaimed entries will 

be destroyed 1 year after the date of the 

contest. 

(b) Artists in the third round of 

judging will be chosen to appear in a 

national art tour that will last 1 year. 

The artwork will be returned to the 

artists after that period in accordance 

with the signed participation agreement. 

(c) An artist may choose to remove his 

or her artwork from the tour, but will 

forfeit contest eligibility for three (3) 

successive contests. 

Dated: September 19, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E6–15839 Filed 9–26–06; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No.060901235–6235–01; I.D. 

082406C] 

RIN 0648–AQ87 

Fisheries of the Northeastern United 

States; Amendment 1 to the Atlantic 

Herring Fishery Management Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule, request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement measures in Amendment 1 

to the Atlantic Herring Fishery 

Management Plan (FMP). Amendment 1 

was developed by the New England 

Fishery Management Council (Council) 

to establish a limited access program, 

and to make other changes in the 

management of the Atlantic herring 

fishery. The Amendment 1 measures 

being proposed include: A limited 

access program; an open access 

incidental catch permit; a change in the 

management area boundaries; 

establishment of a purse seine/fixed 

gear-only area; establishment of a 

maximum sustainable yield (MSY) 

proxy; an approach to determining the 

distribution of area-specific Total 

Allowable Catches (TACs); a multi-year 

specifications process; a research quota 

set-aside for herring-related research; a 

set-aside for fixed gear fisheries; a 

change in the midwater trawl gear 

definition; and additional measures that 

could be implemented through the 

framework adjustment process. The 

intent of this action is to provide 

efficient management of the Atlantic 

herring fishery and to meet conservation 

objectives. 

DATES: Public comments must be 

received (see ADDRESSES) no later than 

5 p.m. eastern daylight time on 

November 13, 2006. 

ADDRESSES: Copies of supporting 

documents used by the Council, 

including the Final Supplemental 

Environmental Impact Statement 

(FSEIS) and Regulatory Impact Review 

(RIR)/Initial Regulatory Flexibility 

Analysis (IRFA), are available from Paul 

J. Howard, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Mill 2, Newburyport, 

MA 01950. The FSEIS/RIR/IRFA is 

accessible via the Internet at http:/ 

www.nero.nmfs.gov. 

Written comments on the proposed 

rule may be sent by any of the following 

methods: 

• Mail to Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, One Blackburn Drive, 

Gloucester, MA 01930. Mark the outside 

of the envelope ‘‘Comments Herring 

Amendment 1’’

• Fax to Patricia A. Kurkul (978) 281–

9135; 

• E-mail to the following address: 

HerrAmend1@noaa.gov. Include in the 

subject line of the e-mail comment the 

following document identifier: 

‘‘Comments HerrPropRuleAmend1.’’

• Electronically through the Federal 

e-Rulemaking portal: http:// 

www.regulations.gov. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56447 

requirements contained in this proposed 

rule should be submitted to the Regional 

Administrator at the address above and 

by e-mail to 

DavidlRotsker@omb.eop.gov, or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: Eric 

Jay Dolin, Fishery Policy Analyst, (978) 

281–9259, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: The 

primary purpose of Amendment 1 is to 

modify the management program for the 

Atlantic herring fishery by 

implementing a limited access program 

to better match the capacity of the fleet 

to the resource. The amendment also 

would modify other management 

measures so that the Atlantic herring 

resource is managed more efficiently 

and sustainably. 

In July 1999, the Council voted to 

develop a limited or controlled access 

program for the herring fishery, and 

NMFS, at the request of the Council, 

established September 16, 1999 (64 FR 

50266), as a control date for the Atlantic 

herring fishery in Federal waters. 

Scoping meetings for an amendment to 

FMP were conducted in February 2000, 

shortly after completion of the FMP, 

with public hearings taking place that 

month in Maine, Massachusetts, Rhode 

Island, and New Jersey. In April 2003, 

the Council re-initiated scoping, holding 

public hearings in April and May of that 

year in Maine, Massachusetts, and New 

Jersey. 

During both rounds of scoping, 

comments were sought on limited/ 

controlled access in the herring fishery, 

particularly in Area 1A, the inshore Gulf 

of Maine (GOM), because at that time 

the concern about excess capacity in the 

fishery was focused on Area 1A. The 

TAC in this area has represented at least 

60 percent of the total landings of this 

fishery since the FMP was 

implemented, and the area has been 

closed to directed fishing because the 

TACs for that area was caught every 

year. As a result, the Council concluded 

that the capacity in this area should be 

restricted to avoid problems that result 

from excess fishing capacity, such as a 

race to fish as increasing numbers of 

vessels try to catch herring before the 

TAC is attained and the directed fishery 

is closed. 

Although TACs in Areas 1B, 2, and 3 

(southern New England, the MidAtlantic, and Georges Bank (GB), have 

not been fully harvested since the 

implementation of the FMP (with the 

exception of Area 1B during the 2001 

and 2004 fishing years), the Council 

concluded that sufficient capacity 

currently exists for the fleet to harvest 

the TACs in those areas, and this 

amendment proposes a limited access 

program for these areas as well. By 

taking such action now, the Council 

hopes to avoid future problems with 

excess capacity in these areas. 

During the development of 

Amendment 1, both as a result of issues 

raised by the Council and by the public 

during scoping, a variety of elements 

were added to Amendment 1, all of 

which are intended to improve the 

management of the fishery and 

contribute to the sustainability of the 

stock. These include an open access 

incidental catch permit; a change in the 

management area boundaries; 

establishment of a purse seine/fixed 

gear-only area (PS/FG); establishment of 

an MSY proxy; an approach to 

determining the distribution of areaspecific TACs; a multi-year 

specifications process; a research quota 

set aside for herring-related research; a 

set-aside for fixed gear fisheries; the 

inclusion of the Maine fixed gear fishery 

catch in New Brunswick weir fishery 

catch; measures to address bycatch of 

multispecies in the herring fishery; a 

change in the midwater trawl gear 

definition; and additional measures that 

can be implemented through the 

framework adjustment process. 

Relation to Existing Herring 

Regulations 

In Amendment 1, the Council noted 

that it intended to maintain existing 

herring management measures in effect 

unless they were explicitly revised in 

Amendment 1. However, NMFS is 

proposing to revise existing provisions 

in § 648.13 related to the transfer of fish 

at sea in order to enforce the possession 

restrictions proposed in Amendment 1. 

These revisions do not make any 

substantive change to the regulations, 

nor do they apply any requirements 

beyond those proposed by the Council. 

They simply make it clear that the 

possession limits proposed in 

Amendment 1 apply whether the 

permitted herring vessel is landing on 

shore or transferring at sea. /NMFS 

invites public comment on these 

revisions in order to ensure that they are 

consistent with the Council’s intent in 

creating the varying possession 

restrictions. 

Amendment 1 would establish four 

classes of vessel permits with associated 

possession limits: (1) The limited access 

permit for all areas would authorize a 

vessel to harvest herring from any 

herring management area without 

possession restrictions until 95 percent 

of the management area TAC is attained; 

(2) the limited access permit for Areas 

2 and 3 would authorize a vessel to 

harvest herring from those management 

areas without possession restrictions 

until 95 percent of the management area 

TAC is attained; (3) the limited access 

incidental catch permit would authorize 

a vessel to harvest up to 55,000 lb (25 

mt) of herring per trip (with one landing 

allowed per calendar day) from any 

herring management area until 95 

percent of the management area TAC is 

attained; and (4) the open access 

incidental catch permit would authorize 

a vessel to harvest up to 6,600 lb (3 mt) 

of herring per trip (with one landing 

allowed per calendar day) from any area 

until 95 percent of the management area 

TAC is attained. Upon attainment of 95 

percent of any management area TAC, 

the directed fishery would be closed 

and all herring vessels would be limited 

to 2,000 lb (907.2 kg) of herring per trip 

harvested from that area (with only one 

landing allowed per calendar day). 

To assure that vessels harvest herring 

only as authorized by the conditions of 

their vessel permit, NMFS proposes to 

specify that the transfer of fish at sea 

can occur only if the vessel transferring 

the herring complies with the 

possession limit restrictions outlined 

above. This is intended to assure that 

the provision maintains the integrity of 

the possession limits. 

In addition, NMFS notes that some of 

the restrictions currently specified in 

Letters of Authorization (LOAs) for 

transferring herring at sea and serving as 

a carrier for herring were not reflected 

in the regulations. To rectify this 

inconsistency, NMFS has added text to 

the regulations to reflect all of the 

requirements of the LOAs. 

Finally, NMFS has revised the 

permitting requirements for at-sea 

processing vessels. The existing herring 

regulations require such vessels to be 

issued a vessel permit for at-sea 

processing. In addition, such vessels are 

subject to dealer reporting requirements 

in § 648.7(a). This proposed rule would 

require at-sea processing vessels to 

obtain dealer permits rather than vessel 

permits. This would be consistent with 

the reporting requirement, and with the 

at-sea processor requirement of the 

Atlantic mackerel fishery. 

Particular Issues of Concern 

NMFS requests particular scrutiny of 

the regulations at § 648.200(b)(3) 

concerning the specification of TAC 

reserves in the specifications-setting 

process. As currently written, the 

regulations allow the Council to set 

aside a reserve of herring from any of 

the management areas, to be allocated at 

the discretion of the Regional 

Administrator based on the progress of 

the fishery toward the utilization of the 

area TACs. Because the reserve has 


rwilkins on PROD1PC63 with PROPOSAL
56448 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

never been tapped, and in recent years 

the Council has not elected to set a 

reserve, NMFS requests the Council and 

the public to consider the need to 

maintain the reserve option as part of 

the specifications process. 

Background 

At its final meeting for Amendment 1, 

the Council separated the measures to 

address bycatch in the herring fishery 

from Amendment 1 to the FMP, and 

agreed to submit these measures 

separately as Framework 43 to the 

Northeast Multispecies FMP 

(Framework 43). The measures 

contained in Framework 43 were 

included in the Draft Supplemental 

Environmental Impact Statement 

(DSEIS) and public hearing document 

for Amendment 1 to the Atlantic 

Herring FMP. The Council voted on 

February 2, 2006, to adopt the measures 

in Amendment 1 and Framework 43, 

but to submit Framework 43 in advance 

of Amendment 1 in order to establish 

measures for the fishery as soon as 

possible during the 2006 summer 

season. The proposed rule for 

Framework 43 was published in the 

Federal Register on June 21, 2006 (71 

FR 35600), with public comment 

through July 6, 2006. The final rule was 

published on August 15, 2006 (71 FR 

46871), and was effective upon 

publication. The Council intended that 

all of the provisions in Framework 43, 

which applied to Category 1 vessels, 

would apply to limited access herring 

vessels if and when Amendment 1 was 

implemented. The background section 

for the final rule to Framework 43 

included the following text, explaining 

this transition. ‘‘the public should be 

aware that the Council is proposing to 

revise the Atlantic herring vessel permit 

requirements in Amendment 1. 

Amendment, which has been submitted 

to NMFS for review, would revise the 

vessel permitting requirements for the 

herring fishery by establishing limited 

access permits for vessels that fish for 

large amounts of herring, and maintain 

an open access permit for vessels that 

catch herring incidentally. If the limited 

access permit measures proposed in 

Amendment 1 are approved and 

implemented by NMFS, the measures 

proposed in this rule would, in the 

future, be applicable to all vessels 

issued limited access permits.’’ As a 

result, NMFS proposes to revise the 

Framework 43 regulations to clarify that 

the bycatch provisions, which under 

Framework 43 apply to Category 1 

herring vessels, would apply to vessels 

permitted under the new limited access 

program established under Amendment 

1. 

The notice of availability for the 

DSEIS, which analyzed the impacts of 

all of the measures under consideration 

in Amendment 1 and Framework 43, 

was published in the Federal Register 

on September 9, 2005 (70 FR 53657), 

with public comment accepted through 

October 24, 2005. Public hearings were 

held in October, in six locations from 

Maine to New Jersey. At its January 31–

February 2, 2006, meeting, the Council 

voted to adopt Amendment 1 for 

submission to NMFS, and it submitted 

the document and associated analyses 

on May 3, 2006. 

A Notice of Availability (NOA) for 

Amendment 1, as submitted by the 

Council for review by the Secretary of 

Commerce, was published in the 

Federal Register on September 6, 2006 

(71 FR 52521). The comment period on 

Amendment 1 ends on November 6, 

2006. In addition to the implementing 

measures proposed in this rule, 

Amendment 1 contains changes to the 

herring overfishing definition that are 

not reflected in the regulations. 

Proposed Measures 

NMFS is publishing the Council’s 

proposed regulations for the measures 

in Amendment 1, with one exception. 

Amendment 1 included a measure that 

would have allowed the harvest of 

herring by fixed gear fishermen in 

Downeast Maine (East of Cutler, Mainethe Downeast Maine Fixed Gear 

Fishery) to be exempt from the TACs 

that govern the fishery. Catch from the 

Downeast Maine fixed gear fishery 

(weirs and stop seines East of Cutler) 

would be included as part of the 

assumed catch from the New Brunswick 

(NB) weir fishery when determining 

area-specific TACs and herring fishery 

specifications (currently 44 million lb 

(20,000 mt)). During the fishing season, 

catch from the Downeast Maine Fixed 

Gear Fishery would not be counted 

against the TAC for Area 1A, and the 

fixed gear fishery would be allowed to 

continue to operate once the Area 1A 

TAC has been reached. This measure 

would apply to fixed gear (stop seine 

and weir) catches in waters north of a 

line drawn from Spruce Point (44° 36.2′ 

N. lat and 67° 16.8′ W.long), Cross 

Island, Cutler, Maine, due east magnetic 

to the international boundary with 

Canada. The Council recognized that 

fixed gear fishing occurs primarily in 

inshore waters, but extending the 

exemption line throughout the 

Exclusive Economic Zone (EEZ) was 

proposed to simplify the administration 

and enforcement of this measure. 

NMFS is not publishing proposed 

regulations to implement these 

measures because they have been 

determined, prima facie, to be 

inconsistent with National Standard 1 of 

the Magnuson-Stevens Act. The 

measures would essentially allow a 

portion of the fishery to remain 

completely unregulated without 

corresponding conservation benefits. 

Even though the Council has pointed 

out that recent catches from the fixed 

gear fishery east of Cutler are virtually 

non-existent, that does not mean that 

would remain the case. If the fixed-gear 

landings from this area were to increase 

dramatically, NMFS would have no 

means of regulating that catch to ensure 

the integrity of the TACs established for 

the fishery. This measure also has been 

determined to be inconsistent with 

National Standard 3, the requirement to 

manage an individual stock unit 

throughout its range. 

1. Exemption From Vessel Permit 

Requirements 

This action would continue to allow 

the following vessels to fish for, catch, 

possess, transport, or land Atlantic 

herring in or from the Exclusive 

Economic Zone without a Federal 

permit: A skiff or other similar craft 

used exclusively to deploy the net in a 

purse seine operation conducted by a 

vessel that is permitted to fish for 

Atlantic herring under the proposed 

program; and a vessel that possesses 

herring solely for its own use as bait, 

providing the vessel does not use or 

have on board purse seine, midwater 

trawl, pelagic gillnet, sink gillnet, or 

bottom trawl gear on any trip in which 

herring is fished for, possessed, or 

landed, and does not transfer, sell, 

trade, or barter such herring. NMFS has 

clarified the existing provision for this 

exemption to indicate that such vessels 

cannot transfer, sell, trade, or barter 

such herring. 

2. Limited Access Vesssel Permits 

Amendment 1 would implement two 

categories of limited access permits that 

would authorize vessels to fish for 

herring without being limited by a 

possession limit: (1) an All Areas 

Limited Access Herring Permit, which 

would authorize vessels to fish in all 

management areas; and (2) an Areas 2 

and 3 Limited Access Herring Permit, 

which would authorize vessels to fish 

only in management areas 2 and 3. The 

limited access directed fishery 

eligibility criteria are intended to 

qualify vessels with significant fishing 

history and participation in the herring 

fishery. Most of these vessels are 

currently issued a Category 1 herring 

permit that is required of vessels that 

land, or intend to land, > 1.1 million lb 

(500 mt) of herring annually. These 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56449 

vessels land the vast majority of Atlantic 

herring during each fishing year. While 

vessels that qualify for the limited 

access directed fishery permits would 

not be restricted by a possession or trip 

limit for herring, they would be subject 

to the other regulations established 

through the Atlantic Herring FMP. If 95 

percent of an area TAC is reached in a 

management area, the directed fishery 

for herring would be closed, and limited 

access directed fishery permit holders 

would be limited to 2,000 lb (907.2 kg) 

of herring per trip in that management 

area. 

A vessel would be eligible for either 

an All Areas Limited Access Herring 

Permit or an Areas 2 and 3 Limited 

Access Herring Permit if it meets one of 

the two following permit history 

criteria: The vessel must have been 

issued a Federal herring permit 

(Category 1 or 2) that was valid as of 

November 10, 2005; or the vessel is 

replacing a vessel that was issued a 

Federal herring permit (Category 1 or 2) 

between November 10, 2003, and 

November 9, 2005. To qualify as a 

replacement vessel, the replacement 

vessel and the vessel being replaced 

must both be owned by the same vessel 

owner; or, if the vessel being replaced 

was sunk or destroyed, the vessel owner 

must have owned the vessel at the time 

it sand or was destroyed; or, if the vessel 

being replaced was sold to another 

person, the vessel owner must provide 

a copy of a written agreement between 

the buyer and the owner/seller 

documenting that the vessel owner/ 

seller retained the herring permit and all 

herring fishing and landings history. 

This written agreement must be 

consistent with the permit splitting 

provisions outlined in Section 4. 

To qualify for the All Areas Limited 

Access Herring Permit, the vessel and/ 

or any vessel it replaced must have 

landed and sold at least 500 mt of 

herring in any one calendar year 

between January 1, 1993, and December 

31, 2003, as verified by NMFS records 

or documented through dealer receipts. 

To qualify for an Areas 2 and 3 Limited 

Access Herring Permit, the vessel and/ 

or any vessel it replaced must have 

landed at least 250 mt of herring in any 

one calendar year between January 1, 

1993 and December 31, 2003, as verified 

by NMFS records or documented 

through dealer receipts. 

For vessels that meet the limited 

access permit eligibility requirements, 

but have not been replaced, see section 

4, and the information about 

confirmation of permit history (CPH). 

3. Limited Access Incidental Catch 

Herring Permit 

The Council determined that there are 

a number of vessels that are not heavily 

dependent on herring in terms of a 

percentage of their total catch, but rely 

on herring as part of an overall harvest 

strategy, and proposes to establish a 

Limited Access Incidental Catch Herring 

Permit to accommodate such vessels. 

Many of these vessels have an 

incidental catch of herring while fishing 

in other small-mesh, high-volume 

fisheries for species including Atlantic 

mackerel, Loligo squid, and whiting 

(silver hake). This measure is intended 

to provide such vessels with an 

opportunity to land relatively small 

amounts of herring rather than increase 

the potential for regulatory discarding of 

herring in such fisheries. 

A vessel is eligible for and may be 

issued either a limited access Incidental 

Catch Herring Permit if it meets one of 

the two following permit history 

criteria: The vessel must have been 

issued a Federal permit to fish for 

Atlantic herring, Loligo or Illex squid, 

mackerel, butterfish, and/or whiting (NE 

multispecies), during the 2005 fishing 

year as of November 10, 2005; or the 

vessel is replacing a vessel that was 

issued a Federal herring permit 

(Category 1 or 2) between November 10, 

2003, and November 9, 2005. To qualify 

as a replacement vessel, the replacement 

vessel and the vessel being replaced 

must both be owned by the same vessel 

owner; or, if the vessel being replaced 

was sunk or destroyed, the vessel owner 

must have owned the vessel at the time 

it sank or was destroyed; or, if the vessel 

being replaced was sold to another 

person, the vessel owner must provide 

a copy of a written agreement between 

the buyer and the owner/seller 

documenting that the vessel owner/ 

seller retained the herring permit and all 

herring fishing and landings history. 

This written agreement must be 

consistent with the permit splitting 

provisions outlined in Section 4. 

To qualify for a limited access 

incidental catch herring permit, the 

vessel and/or any vessel it replaced 

must have landed and sold at least 

33,000 lb (15 mt) of herring in any 

calendar year between January 1, 1988, 

and December 31, 2003, as verified by 

NMFS records or documented through 

dealer receipts. For vessels that meet the 

limited access permit eligibility 

requirements, but have not been 

replaced, see section 4, and the 

information about CPH. 

NMFS requests comments on whether 

vessels that sank, were destroyed or sold 

in the manner described in the previous 

paragraph, should be required to have 

been issued a Federal herring permit 

(Category 1 or 2) any time between 

November 10, 2003, and November 9, 

2005. Specifically, NMFS would like to 

know if the Council intended that such 

a vessel should not be allowed to meet 

the permit requirement if it had been 

issued a Federal permit to fish for Loligo 

or Illex squid, mackerel, butterfish, and/ 

or whiting (NE multispecies), during the 

2005 fishing year as of November 10, 

2005, and have landed at least 33,000 lb 

(15 mt) of herring in any calendar year 

between January 1, 1988, and December 

31, 2003. If a vessel could qualify for a 

limited access incidental catch permit 

with a Loligo or Illex squid, mackerel, 

butterfish, and/or whiting (NE 

multispecies) permit, there appears no 

reason that the requirments should 

necessarily differ for vessels that sank, 

were destroyed, or were sold. 

Vessels with limited access incidental 

catch permits would be restricted by a 

possession limit of 55,000 lb (25 mt) of 

herring and limited to one landing of 

herring per calendar day. If 95 percent 

of an area TAC is reached in a 

management area, the directed fishery 

for herring would be closed, and limited 

access incidental catch permit holders 

would be limited to 2,000 lb (907.2 kg) 

of herring per trip. 

Amendment 1 would allow a vessel to 

be issued multiple herring permits. For 

instance, a vessel could have landings 

history sufficient to qualify for the Areas 

2 and 3 Limited Access Herring Permit, 

but not the All Areas Limited Access 

Herring Permit. Such a vessel could also 

qualify for a Limited Access Incidental 

Catch Permit. In this case, the vessel 

could not possess herring in excess of 

the Limited Access Incidental Catch 

Herring Permit possession limit of 

55,000 lb (25 mt) if it fishes any part of 

a trip in Area 1, regardless of whether 

it catches herring from Areas 2 or 3. 

However, the vessel could catch and 

land herring in excess of 55,000 lb (25 

mt) in or from areas 2 and 3, provided 

it stowed its gear while transiting Area 

1. 

4. Limited Access Vessel Permit 

Provisions 

Amendment 1 would establish 

measures to govern future transactions 

related to limited access vessels, such as 

purchases, sales, or reconstruction. 

These measures would apply to all 

limited access vessels. The provisions 

proposed in this amendment are 

consistent with those that govern most 

of the other Northeast region limited 

access fisheries, e.g., there are some 

differences in the limited access 

program for American lobster. 


rwilkins on PROD1PC63 with PROPOSAL
56450 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

Initial Eligibility 

Initial eligibility for a herring limited 

access permit would have to be 

established during the first year after the 

implementation of Amendment 1. A 

vessel owner would be required to 

submit an application for a herring 

limited access permit or CPH within 12 

months of the effective date of the final 

regulations. 

CPH 

A person who does not currently own 

a fishing vessel, but who has owned a 

qualifying vessel that has sunk, or been 

destroyed, or transferred to another 

person, would be required to 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 would have to show that the 

qualifying vessel meets the eligibility 

requirements for the limited access 

herring permit in question, and that all 

other permit restrictions are satisfied 

(e.g., permit splitting). Issuance of a 

valid CPH would preserve 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. 

A CPH would have to be applied for in 

order for the applicant to preserve the 

limited access eligibility of the 

qualifying vessel. Vessel owners who 

were issued a CPH could obtain a vessel 

permit for a replacement vessel based 

upon the previous vessel′s history that 

would utilize the CPH consistent with 

the vessel size upgrade restrictions. 

The owner of a qualifying vessel that 

has sunk, been destroyed, or been 

transferred to another person without 

the Atlantic herring fishing history, but 

not yet replaced, would be required to 

apply for a CPH within the first year 

after the implementation of Amendment 

1. 

Landings History 

Unless NMFS data already 

demonstrate that a vessel made landings 

of herring that satisfy the eligibility 

criteria for a limited access permit, 

applicants would have to submit dealer 

receipts that verify landings. 

Amendment 1 specifies that the owners 

of pair trawl vessels may divide the 

catch history between the two vessels in 

the pair through third party verification 

and supplemental information, such as 

vessel trip reports (VTR) or dealer 

reporting. The two owners must apply 

for a limited access permit jointly and 

must submit proof that they have agreed 

to the division of landings. 

Extension of Qualification Period 

A vessel owner who could prove that 

a vessel was under construction, 

reconstruction, or was under written 

contract for purchase as of December 31, 

2003, and landed the amount of fish 

required by the limited access program 

as of December 31, 2004, would be able 

to apply for and obtain a limited access 

permit as long as it meets the permit 

eligibility criteria. This measure would 

provide such vessels with a 1–year 

extension of the qualification period for 

the landings portion of the eligibility 

criteria. 

Permit Transfers 

An Atlantic herring limited access 

permit and fishery history would be 

presumed to transfer with a vessel at the 

time it is bought, sold, or otherwise 

transferred from one owner to another, 

unless it is retained through a written 

agreement signed by both parties in the 

vessel sale or transfer. 

Permit Splitting 

Amendment 1 adopts the permit 

splitting provision currently in effect for 

other limited access fisheries in the 

region. Therefore, a limited access 

permit may not be issued to a vessel if 

the vessel′s permit or fishing history has 

been used to qualify another vessel for 

a limited access permit. This means all 

limited access permits, including 

herring limited access permits, must be 

transferred as a package when a vessel 

is replaced or sold. Amendment 1 

explicitly states that the permit-splitting 

provision is intended to apply to the 

transfer/sale of herring fishing history 

prior to the implementation of 

Amendment 1, if any limited access 

permits were issued to the subject 

vessel. Thus vessel owners who sold 

vessels with limited access permits and 

retained the herring history with the 

intention of qualifying a different vessel 

for the herring limited access program 

would not be allowed to do so under 

Amendment 1, unless the limited access 

permits on the sold vessel are 

permanently relinquished by the owner. 

Qualification Restriction 

Consistent with previous limited 

access programs, no more than one 

vessel would be able to qualify, at any 

one time, for a limited access permit or 

CPH based on that or another vessel′s 

fishing and permit history. If more than 

one vessel owner claimed eligibility for 

a limited access permit or CPH, based 

on one vessel′s fishing and permit 

history, the Regional Administrator 

would determine who is entitled to 

qualify for the permit or CPH. 

Appeal of Permit Denial 

Amendment 1 specifies an appeals 

process for applicants who have been 

denied a limited access Atlantic herring 

permit. Such applicants would be able 

to appeal in writing to the Regional 

Administrator within 30 days of the 

denial, and any such appeal would have 

to be based on the grounds that the 

information used by the Regional 

Administrator was incorrect. 

The appeals process would allow an 

opportunity for a hearing before a 

hearing officer designated by the 

Regional Administrator. The owner of a 

vessel denied a limited access herring 

permit could fish for herring, provided 

that the denial had been appealed, the 

appeal was pending, and the vessel had 

on board a letter from the Regional 

Administrator authorizing the vessel to 

fish under the limited access category. 

The Regional Administrator would issue 

such a letter for the pendency of any 

appeal. If the appeal was ultimately 

denied, the Regional Administrator 

would send a notice of final denial to 

the vessel owner; and the authorizing 

letter would become invalid 5 days after 

receipt of the notice of denial. 

Vessel Upgrades 

A vessel could be upgraded in size, 

whether through refitting or 

replacement, and be eligible to retain or 

renew a limited access permit, only if 

the upgrade complies with limitations 

in Amendment 1. The vessel’s 

horsepower (HP) could be increased 

only once, whether through refitting or 

replacement. Such an increase could not 

exceed 20 percent of the HP of the 

vessel’s baseline specifications, as 

applicable. The vessel’s length, gross 

registered tonnage (GRT), and net 

tonnage (NT) could be increased only 

once, whether through refitting or 

replacement. Any increase in any of 

these three specifications of vessel size 

could not exceed 10 percent of the 

vessel’s baseline specifications, as 

applicable. If any of these three 

specifications is increased, any increase 

in the other two must be performed at 

the same time. This type of upgrade 

could be done separately from an engine 

HP upgrade. 

Amendment 1 maintains the existing 

Herring FMP specification of maximum 

length, size, and HP for vessels engaged 

in the Atlantic herring fishery (165 ft 

(50.2 meters), 750 GRT (680.3 mt), and 

3,000 HP). In addition, existing 

regulations that exempt USAP vessels 

from these size limits would be 

maintained. 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56451 

Establishing Vessel Baselines 

A vessel’s baseline refers to those 

specifications (length overall, GRT, NT, 

and HP) from which any future vessel 

size change is measured. The vessel 

baseline specifications for Atlantic 

herring vessels issued limited access 

permits would be the specifications of 

the vessel that was initially issued a 

limited access permit as of the date that 

the initial vessel applied for such a 

permit. If a vessel owner is initially 

issued a CPH instead of a permit, the 

vessel that provided the CPH eligibility 

would establish the size baseline against 

which future vessel size limitations 

would be evaluated. 

Vessel Replacements 

The term vessel replacement (vessel 

replacement), in general, refers to 

replacing an existing limited access 

vessel with another vessel. In addition 

to addressing increases in vessel size 

and HP, Amendment 1 would establish 

a restriction that requires that the same 

entity must own both the limited access 

vessel (or fishing history) that is being 

replaced, and the replacement vessel. 

Voluntary Relinquishment of Eligibility 

Amendment 1 includes a provision to 

allow a vessel owner to voluntarily exit 

a limited access fishery. Such 

relinquishment would be permanent. In 

some circumstances, it could allow 

vessel owners to choose between 

different permits with different 

restrictions without being bound by the 

more restrictive requirement (e.g., 

lobster permit holders may choose to 

relinquish their other Northeast Region 

limited access permits to avoid being 

subject to the reporting requirements 

associated with those other permits). If 

a vessel′s limited access permit history 

for the herring fishery is voluntarily 

relinquished to the Regional 

Administrator, no limited access permit 

for that fishery could ever be reissued or 

renewed based on that vessel’s history. 

Permit Renewals and CPH 

Amendment 1 specifies that a vessel 

owner must maintain the limited access 

permit status for an eligible vessel by 

renewing the permits on an annual basis 

or applying for issuance of a CPH. A 

CPH is issued to a person who does not 

currently own a particular fishing 

vessel, but who has legally retained the 

fishing and permit history of the vessel 

for the purpose of transferring it to a 

replacement vessel at a future date. The 

CPH provides a benefit to a vessel 

owner by securing limited access 

eligibility through a registration system 

when the individual does not currently 

own a vessel. 

A vessel′s limited access permit 

history would be cancelled due to the 

failure to renew, in which case, no 

limited access permit could ever be 

reissued or renewed based on that 

vessel′s history or to any other vessel 

relying on that vessel′s history. 

All limited access permits must be 

issued on an annual basis by the last 

day of the fishing year for which the 

permit is required, unless a CPH has 

been issued. A complete application for 

such permits must be received no later 

than 30 days before the last day of the 

fishing year. 

5. Open Access Vessel Permit and 

Possession Limit 

Any vessel could be issued an open 

access incidental catch permit that 

would authorize the possession and 

landing of up to 6,600 lb (3 mt) of 

herring per trip, with a limit of one 

landing per calendar day. When the 

TAC in a management area is projected 

to be reached and the limited access 

fishery closes, the possession limit for 

these vessels would be reduced to 2,000 

lb (907.2 kg) per trip, with a limit of one 

landing per calendar day, when fishing 

in the area. Open access vessels that 

land more than 2,000 lb (907.2 kg) of 

herring in any week would be required 

to report their catches on a weekly basis 

through the Interactive Voice Recording 

(IVR) reporting program described in 

section 6. 

Amendment 1 requires an Atlantic 

herring carrier vessel to have an Atlantic 

herring permit, not have any gear on 

board capable of catching or processing 

herring, and have on board a letter of 

authorization from the Regional 

Administrator to transport herring 

caught by another fishing vessel. 

Amendment 1 specified that carrier 

vessels would not be required to qualify 

for a limited access permit to possess/ 

transport herring. NMFS had drafted the 

regulations to specify that a carrier 

vessel must be issued either an open 

access or a limited access herring 

permit. 

6. Reporting Requirements 

All limited access directed and 

limited access incidental fishery permit 

holders would be required to report 

herring catches weekly through the IVR 

call-in system, and to file a negative 

report if there were no catches in a 

specific week. Amendment 1 would 

require all vessels issued a limited 

access directed fishery or limited access 

incidental catch permit (with the 

exception of fixed gear fishermen) to 

install and maintain operable Vessel 

Monitoring System (VMS) units, and to 

comply with all VMS notification and 

reporting requirements. Such vessels 

may power down the VMS unit when in 

port, but must re-power the VMS unit 

and enter an appropriate trip 

designation prior to leaving port. 

7. Adjustments to Management Area 

Boundaries 

Herring management measures, 

including TACs, are specified for four 

management areas (Areas 1A, 1B, 2, and 

3). Amendment 1 would revise the area 

boundaries consistent with 

recommendations from the 

Transboundary Resource Assessment 

Committee (TRAC), a group comprised 

of both U.S. and Canadian scientists. 

The boundary between Areas 1B and 3 

would be revised to assure that fish 

caught in Franklin Swell are attributed 

to the GB spawning component of the 

stock. The Area 2/3 boundary would be 

moved west from 69°00′ W. long. to 

70′00′ W. long. to better relate catch to 

the TRAC conclusion that there are two 

spawning components of the stock: The 

GOM and GB/Nantucket Shoals 

components. 

8. Maximum Sustainable Yield 

In February 2003, during the 

development of Amendment 1, the 

TRAC met to try to come to consensus 

regarding the status of the stock and the 

most appropriate values for biological 

reference points. The two herring 

assessments presented at the TRAC 

Meeting produced different results, and 

no overall consensus was reached 

regarding which assessment is most 

accurate. Consequently, no specific 

biological reference points were 

provided by the joint peer review group. 

In the face of this scientific uncertainty, 

the Council decided that it was 

appropriate to set a relatively 

conservative proxy for MSY in 

Amendment 1, until a stock assessment 

could be completed that specified an 

analytical MSY value. Based on input 

from the Council’s Scientific and 

Statistical Committee (SSC), the Council 

revised the reference points in the 

overfishing definition for Atlantic 

herring as follows: MSY = 220,000 mt; 

BMSY (BTarget) = 1,100,000 mt; and 

Bthreshold = 550,000 mt. The reference 

points in the Atlantic Herring FMP 

were: MSY = 317,000 mt; BMSY 

(BTarget) = 1,100,000 mt; and Bthreshold = 

550,000 mt (the Bthreshold established in 

the FMP is 1/2 BMSY). 

The Amendment 1 document explains 

that the proposed proxy reference points 

would be revised if a new, peerreviewed stock assessment recommends 

different reference points. In May 2006, 

the TRAC reconvened and completed 

another herring assessment. The TRAC 


rwilkins on PROD1PC63 with PROPOSAL
56452 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

recommended the following reference 

points: MSY = 194,000 mt, and Bmsy = 

629,000 mt. Based on this and the 

FMP’s guidance, BTarget would be 

629,000 mt, and Bthreshold would be 

314,500 mt (1/2 BMSY). If approved in 

Amendment 1, these values would 

become the new reference points for the 

Atlantic herring fishery. 

9. Specification of Management 

Measures Including TACs. 

The Amendment 1 management 

program includes the specification of 

management measures for 3–year 

periods. This measure would maintain 

flexibility for the Council to adjust the 

fishery specifications in the interim 

years. If the Council determines that the 

specifications should be adjusted during 

the 3–year time period, it could do so 

during one or both of the interim years. 

No action would be required by the 

Council to maintain the same 

specifications for all 3 fishing years; 

Council action would only be required 

if adjustments to the specifications 

during the interim years were to be 

made. 

Amendment 1 outlines the process for 

establishing the specifications. The 

Herring Plan Development Team (PDT), 

which advises the Council on technical 

matters pertaining to herring 

management, would meet with the 

Atlantic States Marine Fisheries 

Commissions’ (Commission’s) Technical 

Committee (TC) to review the status of 

the stock and the fishery and prepare a 

Stock Assessment and Fishery 

Evaluation (SAFE) report every 3 years. 

While a SAFE report would only be 

prepared every three years, the Herring 

PDT would meet at least once during 

interim years to review the status of the 

stock relative to the overfishing 

definition, if information is available to 

do so. When conducting a 3–year review 

and preparing a triennial SAFE Report, 

the PDT/TC would report to the 

Council/Commission and recommend 

any necessary adjustments to the 

specifications for the upcoming 3 years. 

Specifications and TACs would be 

conveyed to NMFS once approved by 

the Council and published for public 

comment. If determined to be consistent 

with the FMP, final specifications 

would be implemented. 

Amendment 1 would authorize the 

Herring PDT, in consultation with the 

Herring Committee, Advisory Panel, and 

other interested parties, to utilize the 

most appropriate analytical approach 

for determining the area-specific TACs 

during the fishery specification process, 

provided the PDT justifies its approach. 

The most appropriate analytical 

approach may be the current approach 

described in the FMP, the risk 

assessment approach, or another 

approach developed by the PDT based 

on the best available scientific 

information. This measure allows the 

Council to fully utilize the best 

scientific information and methodology 

available when specifications for the 

herring fishery are developed. 

Amendment 1 specifies that the 

seasonal allocation of the Area 1A TAC 

may be reviewed and revised, if 

necessary, through the specification 

process. The Area 1A TAC is currently 

allocated to two periods: January-May 

and June-December. Amendment 

1would authorize the Council to revise 

the seasonal allocation, as well as to 

specify the TAC allocation for each 

seasonal period. 

10. TAC Set-Asides to Support HerringRelated Research 

Amendment 1 would authorize the 

Council, in consultation with the 

Commission, to set aside 0–3 percent of 

the TAC from any management area(s) 

as a research set aside (RSA) to support 

herring-related research. The RSA 

would be used to support herringrelated research in any management 

area(s), consistent with the research 

priorities identified by the Council. 

Projects funded under an RSA 

allocation would have to enhance 

understanding of the fishery resource 

and/or contribute to the body of 

information upon which management 

decisions are made. 

The Council would determine the 

specific percentages for the RSA and the 

management area(s) to which it is 

applied during the fishery specification 

process. Amendment 1 specifies that the 

directed herring fishery would close in 

a particular management area when it 

was projected that 95 percent of the area 

TAC would be caught. The remaining 5 

percent of the TAC would be set aside 

for catch under a 2,000–lb (907.2 kg) 

trip limit. The RSA would come out of 

the allocation for the directed fishery. 

For example, if the Council set aside 3 

percent of the Area 1A TAC to support 

research, then the Area 1A directed 

fishery would close when 92 percent of 

the overall Area TAC was projected to 

be reached. 

The RSA would be administered 

through a process similar to that 

specified by the Mid-Atlantic Fishery 

Management Council in several of its 

fishery management plans. That 

mechanism would include the following 

elements: Individual research projects 

may apply for the use of more than one 

herring research set-aside allocation; 

researchers may request that the setaside be collected separately from the 

research trip or as part of the research 

trip; and research compensation trips 

would not all necessarily have to be 

conducted by the same vessel, but 

would have to be conducted in the 

management area from which the setaside was derived. 

Multi-year projects could be funded, 

since the RSA process is intended to be 

consistent with the Council’s proposed 

3–year specification process. The RSA 

would have to be utilized in the same 

fishing year in which it was allocated 

(i.e., RSA and compensation trips could 

not be rolled over into future years). 

However, the money generated from the 

RSA may be rolled over into, or used to 

fund research in future years, consistent 

with the multi-year proposal. 

Specification of RSA amounts 

(percentages) for the upcoming fishing 

years would be incorporated into the 

Council’s fishery specification package 

every 3 years, and submitted to NMFS 

with additional analysis required, as 

part of the specification package. For 

each proposal cycle, NMFS would 

publish a Request for Proposals (RFP) 

that specifies research priorities 

identified by the Council and 

application procedures for funding 

through the RSA. Since specifications 

would be set for three fishing years, the 

proposal cycle would also cover 3 

fishing years, unless the Council 

identifies new/different research 

priorities during the interim years and 

decides to publish a second RFP. 

Research proposals, whenever 

possible, would be reviewed and 

approved prior to the publication of 

final quota specifications for the 

upcoming fishing years. In the event 

that the approved proposals did not 

make use of any or all of the set-asides, 

NMFS would be authorized to release 

the unutilized portion of the RSA back 

to its respective management area(s) 

when the final specifications were 

published. If there were unutilized RSA 

available, NMFS, at the request of the 

Council, could publish another RFP for 

either the second or third years of the 

three-year specifications. In such case, 

NMFS would release the unutilized 

portion of the set-aside back to its 

respective management area(s) for the 

first year of the specifications and any 

other year that yields unutilized RSA 

after an additional RFP is published. 

The Council also may decide not to 

publish another RFP, in which case 

NMFS would be authorized to release 

the unutilized portion of the RSA back 

to its respective management area(s) for 

all 3 fishing years covered by the 

specifications. 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56453 

First Round Following Amendment 1 

(2007–2009 Fishery Specifications) 

Under the existing FMP, the Council 

must develop specifications for the 2007 

Atlantic herring fishery during the 

summer/fall 2006. In anticipation of 

Amendment 1 implementation, the 

specifications will also specify multiyear specifications for the 2007–2009 

fishing years. The timing of both the 

completion of this amendment and the 

fishery specification process precludes 

the Council from making a RSA 

available for the 2007 fishing year. 

However, the Council recommendations 

for 2007–2009 may include RSAs for the 

2008 and 2009 fishing years. If this is 

the case, the Council would identify 

research priorities, NMFS would 

publish the RFP, and proposals would 

be reviewed and approved during the 

2007 fishing year so that funds could be 

made available for projects at the start 

of the 2008 fishing year. 

11. Purse Seine/Fixed Gear Only Area 

Amendment 1 proposes to prohibit 

vessels using single or paired midwater 

trawls from fishing for Atlantic herring 

in Area 1A from June 1 September 30 

of each year. There would be no 

restrictions on the use of midwater trawl 

gear in Area 1A from October 1 May 31. 

Amendment 1 notes that the Council 

adopted this measure in response to 

significant and growing concern about 

the status of the inshore component of 

the herring resource, and the potential 

impacts of midwater trawl fishing effort, 

which can be highly concentrated at 

times, in the inshore GOM. These 

concerns relate primarily to the 

importance of herring as a forage species 

for other fish, marine mammals, and 

seabirds, and the impact that midwater 

trawl fishing effort may be having on 

localized schools of herring in nearshore 

areas. 

Amendment 1 concluded that data 

suggest that there may be differences in 

bycatch rates, the species composition 

of bycatch, and bycatch mortality 

between purse seine and midwater trawl 

gear. It noted that restricting midwater 

trawl gear in Area 1A during the 

summer months may reduce bycatch 

and indirectly benefit other recovering 

stocks in the inshore GOM (groundfish 

stocks, for example). In addition, the 

Council noted that some purse seiners 

suggest that midwater gear disperses 

herring schools, making it difficult to 

use purse seines. Fixed gear participants 

argue that midwater gear keeps herring 

schools from coming inshore, limiting 

fishing opportunities for this gear type. 

The amendment noted that gear conflict 

stemming from any localized impact or 

perceived impact of midwater trawling 

on herring also may be resolved by this 

measure. 

12. Measures to Address Fixed Gear 

Fisheries 

Amendment 1 would set aside 500 mt 

of the Area 1A TAC for the fixed gear 

fisheries in Area 1A (weirs and stop 

seines) that occur west of Cutler, Maine. 

This set-aside would be available for 

harvest using fixed gear west of Cutler 

in Area 1A until November 1 each year. 

If the set-aside were not utilized by the 

fixed gear fisheries west of Cutler in 

Area 1A by November 1, then it would 

become part of the overall allocation for 

Area 1A. If 95 percent of the Area 1A 

TAC has already been reached by 

November 1 (and the directed fishery in 

1A is therefore closed), the reallocation 

of the set-aside would not result in reopening the directed fishery, but would 

be available for landings under the 

2,000–lb (907.2–kg) possession limit. 

This measure would require real-time 

monitoring of fixed gear catches in Area 

1A. To ensure that this set-aside is 

effectively monitored and enforced, 

fixed gear fishermen in Area 1A would 

be required to report their herring 

catches through the IVR reporting 

system. Because fixed gear fishermen 

fish exclusively in state waters and are 

not required to obtain a Federal limited 

access permit, this IVR reporting 

requirement has been implemented in 

state waters by the Commission in 

Amendment 2 to the Interstate FMP for 

Atlantic Herring, and proposed 

regulations relating to this measure are 

not included in this proposed rule. 

13. Measures to Address Bycatch 

As noted above, measures to address 

bycatch in the herring fishery were 

developed in conjunction with 

Amendment 1, but submitted separately 

as Framework 43. Framework 43’s 

regulatory requirements apply to 

Category 1 herring vessels. These 

proposed regulations would eliminate 

the Category 1 vessel permit 

designation, and implement a limited 

access program. Therefore, this action 

proposes changes to the regulations that 

make it clear that the measures 

established in Framework 43 would 

apply to all limited access herring 

vessels. 

14. Regulatory Definition of Midwater 

Trawl Gear 

This action would modify the 

regulatory definition of midwater trawl 

gear to reflect the recommendations 

made by the Council’s Enforcement 

Committee to improve the enforceability 

of the definition and clarify the public’s 

understanding of how the gear should 

be fished. The restrictions included in 

the proposed definition would better 

ensure that the gear cannot be fished on 

the ocean bottom. This measure would 

improve enforcement because it would 

provide specific references that 

enforcement agents can use to ensure 

that the gear is being fished properly (as 

opposed to the current definition, which 

simply states that the gear is designed 

to fish for, is capable of fishing for, or 

is being used to fish for pelagic species, 

no portion of which is designed to be or 

is operated in contact with the bottom 

at any time). 

15. Framework Measures 

Amendment 1 would maintain the 

framework adjustment process in the 

FMP. This action would add the 

following measures to the list of 

measures that could be implemented 

through a framework adjustment to the 

FMP in the future. 

In-Season Adjustments to TACs: 

Amendment 1 would clarify that inseason adjustments to management area 

TACs could be enacted by the Council 

and NMFS through a framework 

adjustment. 

Measures to Address Bycatch and 

Bycatch Monitoring: Amendment 1 

proposes that any management 

measures to address bycatch and 

bycatch monitoring in the herring 

fishery could be implemented through a 

framework adjustment to the FMP, as 

well as through the herring fishery 

specification process. 

TAC Set-Aside Amounts, Provisions, 

Adjustments: The Council could adjust 

TAC set-asides established in 

Amendment 1 through a framework 

adjustment, including the amounts and 

provisions related to RSA and the 500–

mt set-aside for fixed gear fisheries 

occurring west of Cutler in Area 1A. 

Classification 

At this time, NMFS has not made a 

final determination that the FMP/ 

amendment that this proposed rule 

would implement is consistent with the 

national standards of the MagnusonStevens Act and other applicable laws. 

NMFS, in making that determination, 

will take into account the data, views, 

and comments received during the 

comment period. 

The Council prepared and NMFS has 

adopted a draft FSEIS for Amendment 1; 

a notice of availability was published on 

April 14, 2003 (68 FR 17903). The draft 

FSEIS describes the impacts of the 

proposed management program in 

detail. The overall conclusion is that the 

direct biological impacts of the 

management action on the Atlantic 


rwilkins on PROD1PC63 with PROPOSAL
56454 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

herring resource will be beneficial in the 

long term, but are not likely to be 

significant. The proposed measures 

would maintain the existing procedures 

for establishing the allowed level of 

annual removals from the resource, and 

the process would incorporate updated 

scientific information as it becomes 

available. 

Because herring is a primary prey 

species for seals, porpoises and some 

whales, protected species interactions 

with this fishery are likely. The 

proposed measures, however, include a 

limited access program that would 

control capitalization of the fleet, 

including growth of the midwater trawl 

sector, and a seasonal purse seine/fixed 

gear only area that should, at a 

minimum, not increase interactions 

with protected species beyond the status 

quo, and may have indirect positive 

benefits by imposing more controls on 

the fishery. 

The proposed management measures 

that would be most likely to directly 

impact fishery-related businesses and 

communities are the proposed limited 

access program and the PS/FG. Both of 

these measures may affect access to the 

herring fishery for some vessel owners, 

and could have some socioeconomic 

impacts. These impacts are further 

described below in the IRFA summary. 

Amendment 1 concludes that 

additional measures to minimize, 

mitigate or avoid impacts on Essential 

Fish Habitat (EFH) were not necessary, 

warranted, or practicable as the result of 

the proposed action. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

This proposed rule contains new 

collection-of-information requirements 

subject to review and approval by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act (PRA). This requirement has been 

submitted to OMB for approval under 

OMB Control No. 0648–0202. Under the 

proposed limited access program, vessel 

owners would be required to submit to 

NMFS application materials to 

demonstrate their eligibility for a 

limited access permit. The proposed 

rule also modifies three existing 

reporting and recordkeeping reporting, 

recordkeeping, or other compliance 

requirements: (1) The VMS requirement 

for vessels fishing under limited access 

permits; (2) IVR reporting requirements 

for vessels fishing under the limited 

access permits; and (3) application 

materials for the RSA program. These 

requirements do not change the 

reporting burden for respondents, and 

simply modify existing collections 

approved by OMB under the Northeast 

Region Permit Family of Forms (OMB 

Control No. 0648–0202). 

The public reporting burden for the 

new requirements pertaining to the 

limited access program is estimated to 

average 0.75 hr per application, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection information. 

Public comment is sought regarding: 

Whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to the Regional 

Administrator (see ADDRESSES), and 

email to DavidlRostker@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. 

An IRFA was prepared, 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 at the 

beginning of this section in the 

preamble and in the SUMMARY section 

of the preamble and in Amendment 1. 

A copy of the IRFA can be obtained 

from the Council or NMFS (see 

ADDRESSES) or via the Internet at http:// 

www.nero.noaa.gov. A summary of the 

analysis follows: 

Description and Estimate of Number of 

Small Entities to Which the Rule Will 

Apply 

During the 2004 fishing year, 86 

vessels landed herring, 40 of which 

averaged more than 2,000 lb (907.2 kg) 

of herring per trip. There are no large 

entities, as defined in section 601 of the 

RFA, participating in this fishery. 

Therefore, there are no disproportionate 

economic impacts between large and 

small entities. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

Reporting Requirements 

It is estimated that there will be 200 

applicants for a limited access herring 

permit with an average processing time 

of 45 minutes per application for a total 

burden of 150 hours. Only 90 are 

expected to qualify and consequently 

renew their application each year. The 

renewal application is estimated to take 

30 minutes on average to process for a 

total burden of 45 hours. Up to 10 

applicants are expected to appeal the 

denial of their permit application. The 

appeals process is estimated to take 2 

hours to complete, on average, with a 

total burden of 20 hours. The 3 year 

average total public cost burden for 

permit applications, appeals and 

renewals, at an hourly rate of $15, is 

$1,200. 

New limited access herring vessels 

would be subject to the same 

replacement, upgrade, and permit 

history restrictions as other limited 

access vessels. Completion of a 

replacement or upgrade application 

requires an estimated 3 hours per 

response. It is estimated that no more 

than 20 of the 90 vessels possessing 

these limited access permits will request 

a vessel replacement or upgrade 

annually. This resultant burden would 

be up to 60 hours. Completion of a 

confirmation of permit history (CPH) 

application requires an estimated 30 

minutes per response. It is estimated 

that no more than 10 of the 90 vessels 

possessing a limited access permit will 

request a CPH annually. The resultant 

burden would be up to 5 hours. At an 

hourly rate of $15/hour, the total public 

cost burden for replacement/upgrade 

and CPH applications is $975. 

Other Compliance Requirements 

The proposed PS/FG area could 

impose compliance costs on the owners 

of vessels that currently use midwater 

trawl gear. Some vessel owners may 

decide that it is essential to their fishing 

operation to continue to operate within 

Area 1A during the June-September 

period, and in such cases these vessel 

owners would need to re-rig their 

vessels to use purse seine gear. The 

costs of re-rigging are estimated in 

Amendment 1 to range from $300,000 to 

$500,000, per vessel. 

Economic Impacts of the Proposed 

Action Compared to Significant Nonselected Alternatives 

The Proposed Action management 

measures that are most likely to directly 

impact fishery-related businesses and 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56455 

communities are the proposed limited 

access program, the PS/FG area, the 

open access incidental catch permit, 

and the vessel size upgrade restrictions. 

Limited Access Program 

The FSEIS estimates the numbers of 

vessels that would qualify for limited 

access permits under the different 

alternatives. There were six alternatives 

in addition to the proposed action and 

Alternative 1 (No Action). The 

alternatives distinguish between limited 

access directed fishery permits, that 

have no associated possession 

restrictions, and limited access 

incidental catch permits, that would 

have associated limits on the amount of 

herring that could be possessed. A 

combination of dealer and logbook data 

were used to estimate how many vessels 

would qualify under each of the 

proposed limited access alternatives. 

The FSEIS developed estimates for all 

the alternatives of the number of 

qualifying vessels, as well as the 

number of active vessels that would 

qualify. Active vessels were defined as 

those vessels that averaged more than 1 

mt of herring per trip from 2002–2004. 

The analysis of active qualifiers was 

conducted presuming that these vessels 

would be most likely to participate in 

the fishery after the establishment of a 

limited access program. The FSEIS 

noted that the estimates of qualifying 

vessels are minimum estimates, as 

vessel owners may produce additional 

records demonstrating eligibility during 

the application process. 

Under the Proposed Action, 31 

vessels (28 active) would qualify for 

limited access directed fishery permits 

to fish in all management areas, and 3 

additional vessels (1 active) would 

qualify for limited access directed 

fishery permits to fish in Areas 2/3 only, 

resulting in 34 vessels qualified for 

directed fishery permits. Another 56 

vessels would qualify for limited access 

incidental catch permits with a 25–mt 

possession limit, resulting in a total of 

90 vessels qualifying for various types of 

limited access permits. 

Under Alternative 2, 36 vessels (31 

active) would qualify for limited access 

directed fishery permits to fish in all 

management areas, and 10 additional 

vessels (4 active) would qualify for 

limited access directed fishery permits 

to fish in Areas 2/3 only, resulting in 46 

(35 active) vessels qualified for directed 

fishery permits. Another 37 vessels (1 

active) would qualify for limited access 

incidental catch permits. 

The eligibility criteria for the limited 

access directed fishery permit for all 

management areas in Alternative 2 

would have required a vessel to 

currently possess a herring permit and 

have landed at least 500 mt of herring 

in any one calendar year between 

January 1, 1993, and December 31, 2003. 

To qualify for a limited access directed 

fishery permit for Areas 2/3, a vessel 

would have been required to currently 

possess a herring permit and meet one 

of the following two criteria: (1) 

Landings of 100 mt of herring in any 

consecutive 12 months between 

September 16, 1993, and September 15, 

1999; or (2) landings of 250 mt of 

herring in any consecutive 12 months 

between September 16, 1999, and 

September 15, 2001. To qualify for a 

limited access incidental catch permit 

(possession limit of 55,000 lb or 25 mt), 

the vessel would have been required to 

currently possess a permit for squid, 

mackerel, butterfish, and/or whiting and 

have landed at least 55,000 lb (25 mt) 

of herring in any calendar year between 

January 1, 1988, and December 31, 2002. 

Under Alternative 3, 57 vessels (38 

active) would qualify for limited access 

directed fishery permits to fish in all 

management areas. There were no 

additional vessels that would qualify for 

the limited access directed fishery 

permit to fish in Areas 2/3 only. 

Another 3 vessels (none active) would 

qualify for the limited access incidental 

catch permit (possession limit of 55,000 

lb or 25 mt). 

The eligibility criteria for the limited 

access directed fishery permit for all 

management areas in Alternative 3 

would have required a vessel to 

currently possess a herring permit and 

have landed at least 100 mt of herring 

in any one calendar year between 

January 1, 1988, and December 31, 2003. 

For Areas 2/3, a moratorium on the 

issuance of vessel permits would have 

been established on the date 

Amendment 1 measures were 

implemented. Under the moratorium, a 

vessel would have been deemed eligible 

for a directed fishery permit for Area 2/ 

3 if it possessed a herring permit 

(Category 1 or 2) on or before September 

18, 2003, and had landed at least 1 

pound of fish in any New England or 

Mid-Atlantic fishery prior to September 

18, 2003. Alternative 3 would have 

established a controlled access program 

for Area 2/3 that would be implemented 

when landings reached 75 percent of the 

TAC specified for either of the 

management areas. Once that trigger 

was reached, a more restrictive limited 

access program would be implemented 

at the start of the next fishing year that 

would require a vessel to currently 

possess a herring permit and have 

landed at least 250 mt of herring in any 

one calendar year between January 1, 

1988, and December 31, 2003. To 

qualify for a limited access incidental 

catch permit (possession limit of 55,000 

lb or 25 mt), the vessel would have been 

required to currently possess a permit to 

fish for squid, mackerel, butterfish, and/ 

or whiting and have landed at least 100 

mt of herring between January 1, 1988, 

and December 31, 2002. 

Under Alternative 4, 38 vessels (31 

active) would qualify for limited access 

directed fishery permits to fish in all 

management areas, and 7 additional 

vessels (2 active) would qualify for 

limited access directed fishery permits 

to fish in Areas 2/3 only (after the 

trigger was reached). Another 14 vessels 

(4 active) would qualify for limited 

access incidental catch permits. 

The eligibility criteria for the limited 

access directed fishery permit for all 

areas in Alternative 4 would have 

required that a vessel to currently 

possess a herring permit and have 

landed at least 500 mt of herring in any 

one calendar year between January 1, 

1988, and December 31, 2003. Areas 2/ 

3 would be subject to the same 

moratorium on permits and subsequent 

controlled access program as outlined in 

Alternative 3. The incidental catch 

permit requirements and limits under 

this alternative are also identical to 

those under Alternative 3. 

Under Alternative 5, 29 vessels (25 

active) would qualify for limited access 

directed fishery permits to fish in all 

management areas, and 13 (6 active) 

additional vessels would qualify for 

limited access directed fishery permits 

to ish in Areas 2/3 only. Another 38 

vessels (11 active) would qualify for 

limited access incidental catch permits. 

The eligibility criteria for the limited 

access directed fishery permit for all 

management areas in Alternative 5 

would have required that a vessel must 

currently possess a herring permit and 

meet one of the following two criteria: 

(1) Demonstrated landings of 500 mt of 

herring in any consecutive 12 months 

between September 16, 1993, and 

September 15, 1999; or (2) demonstrated 

landings of 500 mt of herring in any 

consecutive 12 months between 

September 16, 1999, and September 15, 

2001. To qualify for a limited access 

directed fishery permit for Areas 2/3, a 

vessel would have been required to 

currently possess a herring permit and 

meet one of the following two criteria: 

(1) Demonstrated landings of 100 mt of 

herring in any consecutive 12 months 

between September 16, 1993, and 

September 15, 1999; or (2) demonstrated 

landings of 250 mt of herring in any 

consecutive 12 months between 

September 16, 1999, and September 15, 

2001. This alternative would establish 

an additional Area 1A Historic Inshore 


rwilkins on PROD1PC63 with PROPOSAL
56456 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

Priority Permit for vessels that met one 

of the following two criteria: (1) 

Possession of a limited access directed 

fishery permit, and demonstrated 

landings of at least 4,000 mt of herring 

from Area 1A in any consecutive 12 

months between September 16, 1993, 

and September 15, 1999; or (2) 

possession of a limited access directed 

fishery permit, and demonstrated 

landings of at least 2,000 mt of herring 

from Area 1A in any consecutive 12 

months between September 16, 1999, 

and December 31, 2001. When 50 

percent of the Area 1A TAC was 

projected to have been caught in any 

fishing year, access to Area 1A would 

have been limited to vessels that possess 

an Historic Inshore Priority Permit for 

the remainder of the fishing year (or 

until the remainder of the Area 1A TAC 

is caught). The incidental catch permit 

requirements and limits under this 

alternative are identical to those under 

Alternative 2. 

Under Alternative 6, 32 vessels (21 

active) would qualify for limited access 

directed fishery permits to fish in all 

management areas, and 13 additional 

vessels (12 active) would qualify for 

limited access directed fishery permits 

to fish in Areas 2/3 only. Another 39 

vessels (12 active) would qualify for 

limited access incidental catch permits 

(possession limit of 55,000 lb or 25 mt). 

The eligibility criteria for the limited 

access directed fishery permit for all 

management areas in Alternative 6 

would have required a vessel to 

currently possess a herring permit and 

have landed at least 250 mt of herring 

in any one calendar year between 

January 1, 1988, and September 16, 

1999. To qualify for a limited access 

directed fishery permit for Areas 2/3, a 

vessel would have been required to 

currently possess a herring permit and 

have landed at least 250 mt of herring 

in any one calendar year between 

January 1, 1988, and December 31, 2003. 

The incidental catch permit 

requirements are identical to those 

specified under Alternative 3. 

Under Alternative 7, 23 vessels (18 

active) would qualify for limited access 

directed fishery permits to fish in all 

management areas, and 22 additional 

vessels (15 active) would qualify for 

limited access directed fishery permits 

to fish in Areas 2/3 only. Another 37 

vessels (13 active) would qualify for 

limited access incidental catch permits 

(possession limit of 33,000 lb or 15 mt). 

The eligibility criteria for the limited 

access directed fishery permit for all 

management areas in Alternative 7 

would have required a vessel to 

currently possess a herring permit and 

have landed at least 500 mt of herring 

in any one calendar year between 

January 1, 1988, and September 16, 

1999. To qualify for a limited access 

directed fishery permit for Areas 2/3, a 

vessel would have been required to 

currently possess a herring permit and 

have landed at least 250 mt of herring 

in any one calendar year between 

January 1, 1988, and December 31, 2003. 

To qualify for a limited access 

incidental catch permit, the vessel 

would have been required to currently 

possess a permit to fish for squid, 

mackerel, butterfish, and/or whiting and 

have landed at least 15 mt (33,000 lb) of 

herring in any calendar year between 

January 1, 1993, and December 31, 2002. 

The FSEIS analyzed active qualifiers 

and used two measures to estimate how 

much herring those qualifiers might 

land in the future under the various 

management alternatives. The first 

measure multiplies a vessel’s highest 

number of days-at-sea per year observed 

from 2002 through 2004 by their average 

metric tons landed per day-at-sea over 

the same time period. The sum of the 

products are reported to provide a first 

level estimation of what the group of 

vessels that qualify under a given 

alternative are likely to land. The 

second measure is similar to the first 

except that days-at-sea are multiplied by 

the highest yearly average metric tons 

per day-at-sea observed over the 2002 to 

2004 time period. The sum of these 

vessel-level products represents a 

second-level estimation of potential 

catch by alternative. This second 

measure provides an estimate of 

potential landings under the assumption 

that vessels produce at their highest 

average catch rates and at their highest 

level of effort observed in recent years. 

These two potential catch measures are 

used to evaluate future profits under the 

various alternatives. 

One way to consider the economic 

impacts of the alternatives is to see how 

those alternatives might affect landings, 

because landings potentially relate to 

profits, depending on the the TACs that 

are established. For 28 active vessels 

that qualify for all areas under the 

proposed alternative, the potential catch 

of the limited access fleet ranges from 

161,030 to 198,710 mt. The additional 

active vessel that qualifies for Area 2/3 

increases the potential catch slightly, 

though the specific amount of the 

increase cannot be provided in the 

document due to data confidentiality 

restrictions. 

The Proposed Action ranks in the 

middle of the alternatives relative to the 

potential catch in Area 1A. Four 

alternatives (no action and Alternatives 

2, 3, and 4) would result in higher 

potential catch, and three alternatives 

(Alternatives 5, 6, and 7) would result 

in lower potential catch from the area. 

When the catch from all of the 

management areas is evaluated, there 

are six alternatives (no action, and 

Alternatives 2, 3, 4, 6, and 7) that result 

in potential catch higher than the 

Proposed Action. The highest potential 

catch is associated with the no-action 

alternative, at 170,087 to 209,368 mt. 

Alternative 5 has a lower potential catch 

than the Proposed Action. 

In terms of number of vessels, the 

Proposed Action qualifies the fewest 

vessels into the limited access directed 

fishery (34 vessels). This result differs 

for the two types of limited access 

directed fishery permits. Four 

alternatives would qualify more vessels 

than the Proposed Action to fish in any 

of the management areas, while two 

would qualify fewer vessels. The fact 

that the Proposed Action is the most 

restrictive in terms of the total number 

of vessels that qualify for the directed 

fishery is due to the nature of the Area 

2/3 qualification criteria. The Area 2/3 

criteria specified in the Proposed Action 

are the most restrictive of the 

alternatives considered due to the 

selection of 1993 as a start date for the 

qualification period (versus 1988). Only 

three additional vessels would qualify 

for limited access directed fishery 

permits in Areas 2/3. 

The majority of vessels that would not 

qualify for a limited access permit under 

the Proposed Action have not been 

active in the herring fishery in recent 

years, and in some cases, for many 

years. Some have switched to other 

fisheries, including those targeting 

Atlantic mackerel and squid. The 

limited access incidental catch permit 

would likely accommodate the catch of 

herring on these vessels and allow them 

to continue normal operations in other 

fisheries. This should help to mitigate 

the impacts of not qualifying for a 

directed fishery permit in Areas 2/3. 

The Proposed Alternative is the least 

restrictive alternative for the limited 

access incidental catch permit that was 

considered in this amendment. 

Purse Seine/Fixed Gear Only 

The impact of this measure was 

evaluated by considering how many of 

the vessels that would qualify for the 

limited access directed fishery permit to 

fish in all management areas utilize 

midwater trawl gear. The analysis 

showed that a total of 22 vessels used 

midwater trawl gear (6 used single 

trawls and 16 used pair trawls) and 

would be affected by the measure that 

would establish Area 1A from June 

through September as a PS/FG area. 

Amendment 1 noted that landings data 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56457 

show that 4 of the midwater trawl 

vessels and 13 of the pair trawl vessels 

actively fished in Area 1A during the 

June through September period. To 

compensate for potential losses from not 

being able to fish in the PS/FG area, the 

excluded vessels could fish in other 

management areas or be re-rigged to 

utilize purse seine gear in Area 1A 

during the time of the restriction. 

Four of the alternatives, in addition to 

the proposed action, included a measure 

to establish a PS/FG area. Under 

alternatives 3, 4, and 6, vessels using 

single and paired midwater trawls 

would have been prohibited from 

fishing for Atlantic herring in Area 1A 

east of 69° W. long. from June 1 - 

September 30 of each fishing year. 

Under the Proposed Action and 

Alternative 7, the purse seine/fixed gear 

only area would be for all of Area 1A, 

from June 1 - September 30 of each 

fishing year. 

In terms of numbers of vessels, 

Alternative 3 would result in the 

greatest number of vessels excluded 

from the respective gear restricted area. 

However, while the Proposed Action 

and Alternative 7 impact fewer vessels, 

the impacts of the PS/FG measure are 

the highest in these alternatives because 

the gear restricted area is much larger 

for these alternatives (all of Area 1A 

versus 1A east of 69° W. long). This 

means that a greater share of the 

midwater trawl vessels’ landings from 

Area 1A could be lost. This impact is 

especially important during the summer 

months, when demand for herring to be 

used as lobster bait is at its peak. 

Of all the alternatives, the gear 

restriction in the Proposed Action 

would likely result in the greatest 

economic loss when the impacts of this 

measure is considered independent of 

the other measures and other 

alternatives in the document. This is the 

case even though Alternative 7 includes 

the identical management measure. The 

reason for this is that more midwater 

trawl vessels qualify for limited access 

directed fishery permits in Area 1 under 

the Proposed Action than under 

Alternative 7, and consequently, more 

vessels may incur losses due to the gear 

restricted area. However, when 

compared to Alternative 7 and 

considered in the context of the limited 

access program, the overall impacts of 

this measure are mitigated to some 

extent. There are midwater trawl vessels 

that qualify for limited access under the 

Proposed Action that would be 

negatively impacted by the gear 

restriction. However, under Alternative 

7 they would be restricted entirely from 

Area 1A because they would not qualify 

under the limited access program, 

resulting in a comparatively greater 

negative impact. These vessels are less 

impacted by the Proposed Action even 

though it appears that the impacts from 

the gear restricted area are greater. This 

is because they can fish in Area 1 from 

October to May under the Proposed 

Action when they would not have 

qualified at all for the directed fishery 

in Area 1 under other alternatives 

(Alternative 7, for example). 

During 2002 through 2004, the 

affected midwater trawl vessels landed 

an average of 12 million lb of herring 

(5,472 mt, worth about $892,000), and 

the pair trawl vessels landed 47 million 

lb of herring (21,298 mt, worth about 

$3,472,000) per season (June through 

September) from Area 1A. These 

landings represent 68 percent and 60 

percent of the total Area 1A landings by 

these single and paired midwater trawl 

vessels, respectively. The midwater 

trawl vessel landings ranged from 

586,429 lb to 7.4 million lb (266 to 3,372 

mt), and the pair trawl vessel landings 

ranged from 190,416 lb to 7.2 million lb 

(90 to 3,263 mt). To compensate for 

potential losses, midwater trawl vessels 

would have the choice to either seek 

alternative fishing grounds or fisheries 

and/or to re-rig to purse seine in Area 

1A during the time of the restriction. All 

of the above choices have financial 

costs. 

Open Access Incidental Catch Permit 

In addition to the Proposed Action, 

Amendment 1 considered another 

alternative for the open access 

incidental catch permit that would have 

allowed vessels that did not qualify for 

a limited access permit to obtain an 

open access incidental catch permit, 

which would restrict the vessel to a 

possession limit of 11,000 lb (5 mt) of 

herring per trip. This alternative would 

have provided a small added economic 

benefit to those vessels that received 

such a permit. 

Vesssel Upgrade Restrictions 

With respect to vessel upgrade 

restrictions, Amendment 1 included two 

alternatives to the Proposed Action. 

One, no action, would have allowed 

herring vessels to increase in size up to 

165 ft (50.3 m) in length overall, 750 

GRT (680.4 mt), and 3,000 horsepower. 

Alternative 3 would have allowed a 

vessel to increase its HP only once, 

whether through refitting or 

replacement. Such an increase could not 

have exceeded 50 percent of the HP of 

the vessel’s baseline specifications, as 

applicable. The vessel’s length, GRT, 

and NT could have been increased only 

once, whether through refitting or 

replacement. Any increase in any of 

these three specifications of vessel size 

could not exceed 25 percent of the 

vessel’s baseline specifications, as 

applicable. 

For some fishery participants 

(particularly those if any with 

immediate plans to upgrade vessels), the 

proposed vessel upgrade restrictions 

may constrain future business 

opportunities. However, the restrictions 

included in this measure will reduce the 

likelihood of further capitalization of 

the industry. Introducing this measure 

is also likely to help sustain the viability 

of a diverse fleet. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: September 18, 2006. 

Samuel D. Rauch, III 

Deputy Assistant Admisitrator for Regulatory 

Programs, National Marine Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 648 is proposed to be 

amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.2, the definition of 

‘‘Category 1 herring vessel’’ is removed, 

the definitions of ‘‘Atlantic herring 

carrier’’ and ‘‘Midwater trawl’’ are 

revised, and the definition of ‘‘Limited 

access herring vessel’’ is added to read 

as follows: 

§ 648.2 Definitions. 

* * * * * 

Atlantic herring carrier means a 

fishing vessel that is issued a herring 

permit, and that does not have any gear 

on board capable of catching or 

processing herring, and that has on 

board a letter of authorization from the 

Regional Administrator to transport 

herring caught by another fishing vessel. 

* * * * * 

Limited access herring vessel means a 

vessel that has been issued a valid 

permit for any type of limited access 

herring vessel permit described in 

§ 648.4. 

* * * * * 

Midwater trawl gear means trawl gear 

that is designed to fish for, is capable of 

fishing for, or is being used to fish for 

pelagic species, no portion of which is 

designed to be or is operated in contact 

with the bottom at any time. The gear 

may not include discs, bobbins, or 

rollers on its footrope, or chafing gear as 

part of the net. 

* * * * * 


rwilkins on PROD1PC63 with PROPOSAL
56458 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

3. In § 648.4, paragraphs (a)(10) and 

(c)(2)(vi) are revised to read as follows: 

§ 648.4 Vessel permits. 

(a) * * * 

(10) Atlantic herring vessels—(i) 

Except as provided herein, any vessel of 

the United States must have been issued 

and have on board a valid Atlantic 

herring permit to fish for, possess or 

land Atlantic herring in or from the 

EEZ. This requirement does not apply to 

the following: 

(A) A vessel that possesses herring 

solely for its use as bait, providing the 

vessel does not use or have on board 

purse seine, mid-water trawl, pelagic 

gillnet, sink gillnet, or bottom trawl gear 

on any trip in which herring is fished 

for, possessed, or landed, and does not 

transfer, sell, trade, or barter such 

herring; 

(B) A skiff or other similar craft used 

exclusively to deploy the net in a purse 

seine operation during a fishing trip of 

a vessel that is duly permitted under 

this part; or 

(C) At-sea processors that do not 

harvest fish, provided that at-sea 

processor vessels are issued the at-sea 

processor permit specified under § 648.6 

(a)(2). 

(ii) Atlantic herring carrier vessels. An 

Atlantic herring carrier vessel must have 

been issued and have on board a herring 

permit and a letter of authorization to 

transport Atlantic herring caught by 

another permitted fishing vessel. The 

letter of authorization exempts such a 

vessel from the VMS and IVR vessel 

reporting requirements as specified in 

subpart K of this part, except as 

otherwise required by this part. An 

Atlantic herring carrier vessel must 

request and obtain a letter of 

authorization from the Regional 

Administrator, and must report all 

herring carried from each vessel on a 

given trip in its Fishing Vessel Trip 

Report. The Fishing Vessel Trip Report 

must include the vessel name. Carrier 

vessels under a letter of authorization 

may not possess, transfer, or land any 

species except for Atlantic herring; may 

not conduct fishing activities or possess 

any fishing gear on board the vessel; 

must be used exclusively as an Atlantic 

herring carrier vessel; and must carry 

observers if required by NMFS. There is 

a minimum enrollment period of 7 

calendar days. 

(iii) Vessel size limitation. A vessel of 

the United States is eligible for and may 

be issued an Atlantic herring permit to 

fish for, possess, or land Atlantic 

herring in or from the EEZ, except for 

any vessel that is ≥ 165 ft (50.3 m) in 

length overall (LOA), or > 750 GRT 

(680.4 mt), or the vessel′s total main 

propulsion machinery is > 3,000 

horsepower. Vessels that exceed the size 

or horsepower restrictions are eligible to 

be issued an at-sea processing permit 

specified under § 648.6 (a)(2). 

(iv) Limited access herring permits. 

(A) A vessel of the United States that 

fishes for, possesses, or lands more than 

6,600 lb ( 3 mt) of herring, except 

vessels that fish exclusively in state 

waters for herring, must have been 

issued and carry on board one of the 

limited access herring permits described 

in paragraphs (a)(10)(iv)(A)(1) – (3) of 

this section, including both vessels 

engaged in pair trawl operations. 

(1) All Areas Limited Access Herring 

Permit. A vessel may fish for, possess, 

and land unlimited amounts of herring 

from all herring areas, provided the 

vessel qualifies for and has been issued 

this permit, subject to all other 

regulations of this part. 

(2) Areas 2 and 3 Limited Access 

Herring Permit. A vessel may fish for, 

possess, and land unlimited amounts of 

herring from herring Areas 2 and 3, 

provided the vessel qualifies for and has 

been issued this permit, subject to all 

other regulations of this part. 

(3) Limited Access Incidental Catch 

Herring Permit. (i) A vessel that does not 

qualify for either of the permits 

specified in paragraphs (a)(10)(iv)(A)(1) 

and (2) of this section may fish for, 

possess, and land up to 55,000 lb (25 

mt) of herring from any herring area, 

provided the vessel qualifies for and has 

been issued this permit, subject to all 

other regulations of this part. 

(ii) A vessel that does not qualify for 

an All Areas Limited Access Herring 

Permit specified in paragraphs 

(a)(10)(iv)(A)(1) of this section, but 

qualifies for the Areas 2 and 3 Limited 

Access Herring Permit specified in 

paragraph (a)(10)(iv)(A)(2) of this 

section, may fish for, possess, and land 

up to 55,000 lb (25 mt) of herring from 

Area 1, provided the vessel qualifies for 

and has been issued this permit, subject 

to all other regulations of this part. 

(B) Eligibility for All Areas and Areas 

2 and 3 Limited Access Herring Permits, 

and Confirmation of Permit History 

(CPH). A vessel is eligible for and may 

be issued either an All Areas or Areas 

2 and 3 Limited Access Herring Permit 

if it meets the permit history criteria in 

paragraph (a)(10)(iv)(B)(1) of this section 

and the relevant landing requirements 

in paragraphs (a)(10)(iv)(B)(2) and (3) of 

this section. 

(1) Permit history criteria for All 

Areas and Areas 2 and 3 Permits. (i) The 

vessel must have been issued a Federal 

herring permit (Category 1 or 2) that was 

valid as of November 10, 2005; or 

(ii) The vessel is replacing a vessel 

that was issued a Federal herring permit 

(Category 1 or 2) between November 10, 

2003, and November 9, 2005. To qualify 

as a replacement vessel, the replacement 

vessel and the vessel being replaced 

must both be owned by the same vessel 

owner; or, if the vessel being replaced 

was sunk or destroyed, the vessel owner 

must have owned the vessel being 

replaced at the time it sunk or was 

destroyed; or, if the vessel being 

replaced was sold to another person, the 

vessel owner must provide a copy of a 

written agreement between the buyer of 

the vessel being replaced and the 

owner/seller of the vessel, documenting 

that the vessel owner/seller retained the 

herring permit and all herring fishing 

and landings history. 

(2) Landings criteria for the All Areas 

Limited Access Herring Permit. (i) The 

vessel must have landed and sold at 

least 500 mt of herring in any one 

calendar year between January 1, 1993, 

and December 31, 2003, as verified by 

NMFS records or documented through 

dealer receipts. The owners of vessels 

that fished in pair trawl operations may 

provide landings information as 

specified in paragraph 

(a)(10)(iv)(B)(2)(iii) of this section. 

Landings made by a vessel that is being 

replaced may be used to qualify a 

replacement vessel consistent with the 

requirements specified in paragraph 

(a)(10)(iv)(B)(1)(ii) of this section and 

the permit splitting prohibitions in 

paragraph (a)(10)(iv)(N) of this section. 

(ii) Extension of eligibility period for 

landings criteria for vessels under 

construction, reconstruction, or 

purchase contract. An applicant who 

submits written evidence that a vessel 

was under construction, reconstruction, 

or was under written contract for 

purchase as of December 31, 2003, may 

extend the period for determining 

landings specified in paragraph 

(a)(10)(iv)(B)(2)(i) of this section until 

December 31, 2004. 

(iii) Landings criteria for vessels using 

landings from pair trawl operations. To 

qualify for a limited access permit using 

landings from pair trawl operations, the 

owners of the vessels engaged in that 

operation must agree on how to divide 

such landings between the two vessels 

and apply for the permit jointly, as 

supported by the required NMFS dealer 

reports or signed dealer receipts. 

(3) Landings criteria for the Areas 2 

and 3 Limited Access Herring Permit. (i) 

The vessel must have landed and sold 

at least 250 mt of herring in any one 

calendar year between January 1, 1993, 

and December 31, 2003, as verified by 

NMFS records or documented through 

dealer receipts. The owners of vessels 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56459 

that fished in pair trawl operations may 

provide landings information as 

specified in paragraph 

(a)(10)(iv)(B)(2)(iii) of this section. 

Landings made by a vessel that is being 

replaced may be used to qualify a 

replacement vessel consistent with the 

requirements specified in paragraph 

(a)(10)(iv)(B)(1)(ii) of this section and 

the permit splitting prohibitions in 

paragraph (a)(10)(iv)(N) of this section. 

(ii) Extension of eligibility period for 

landings criteria for vessels under 

construction, reconstruction or purchase 

contract. An applicant who submits 

written evidence that a vessel was under 

construction, reconstruction, or was 

under written contract for purchase as 

of December 31, 2003, may extend the 

period for determining landings 

specified in paragraph (a)(10)(iv)(B)(3)(i) 

of this section until December 31, 2004. 

(iii) Landings criteria for vessels using 

landings from pair trawl operations. See 

paragraph (a)(10)(iv)(B)(2)(iii) of this 

section. 

(4) CPH. A person who does not 

currently own a fishing vessel, but 

owned a vessel that satisfies the permit 

eligibility requirements in paragraph 

(a)(10)(iv)(B) that has sunk, been 

destroyed, or transferred to another 

person, but that has not been replaced, 

may apply for and receive a CPH that 

allows for a replacement vessel to obtain 

the relevant limited access herring 

permit if the fishing and permit history 

of such vessel has been retained 

lawfully by the applicant as specified in 

paragraph (a)(10)(iv)(B)(1)(ii) of this 

section and consistent with 

(a)(10)(iv)(N) of this section. 

(C) Eligibility for Incidental Catch 

Limited Access Herring Permit, and 

CPH. A vessel is eligible for and may be 

issued an Incidental Limited Access 

Herring Permit if it meets the permit 

history criteria specified in paragraph 

(a)(10)(iv)(C)(1) of this section and the 

landings criteria in paragraph 

(a)(10)(iv)(C)(2) of this section. 

(1) Permit history criteria. (i) The 

vessel must have been issued a Federal 

permit for Northeast multispecies, 

Atlantic mackerel, Atlantic herring, 

Loligo or Illex squid, or butterfish that 

was valid as of November 10, 2005; or 

(ii) The vessel meets the vessel 

replacement requirements criteria 

specified in paragraph 

(a)(10)(iv)(B)(1)(ii) of this section. 

(2) Landings criteria for Incidental 

Catch Limited Access Herring Permit. (i) 

The vessel must have landed and sold 

at least 15 mt of herring in any calendar 

year between January 1, 1988, and 

December 31, 2003, as verified by NMFS 

records or documented through dealer 

receipts. The owners of vessels that 

fished in pair trawl operations may 

provide landings information as 

specified in paragraph 

(a)(10)(iv)(B)(2)(iii) of this section. 

Landings made by a vessel that is being 

replaced may be used to qualify a 

replacement vessel consistent with the 

requirements specified in paragraph 

(a)(10)(iv)(B)(1)(ii) of this section and 

the permit splitting prohibitions in 

paragraph (a)(10)(iv)(N) of this section. 

(ii) Extension of eligibility period for 

landings criteria for vessels under 

construction, reconstruction or purchase 

contract. An applicant who submits 

written evidence that a vessel was under 

construction, reconstruction, or was 

under written contract for purchase as 

of December 31, 2003, may extend the 

period for determining landings 

specified in paragraph (a)(10)(iv)(C)(2)(i) 

of this section until December 31, 2004. 

(3) CPH. An person who does not 

currently own a fishing vessel, but 

owned a vessel that satisfies the permit 

eligibility requirements in paragraph 

(a)(10)(iv)(C) that has sunk, been 

destroyed, or transferred to another 

person, but that has not been replaced, 

may apply for and receive a CPH that 

allows for a replacement vessel to obtain 

the relevant limited access herring 

permit if the fishing and permit history 

of such vessel has been retained 

lawfully by the applicant as specified in 

paragraph (a)(10)(iv)(B)(1)(ii) of this 

section and consistent with 

(a)(10)(iv)(N) of this section. 

(D) Application/renewal restrictions. 

(1) No one may apply for an initial 

limited access Atlantic herring permit or 

a CPH under paragraph (a)(10)(iv)(L) of 

this section, more than 12 months after 

the effective date of the final regulations 

establishing these permits, or after the 

abandonment or voluntary 

relinquishment of permit history as 

specified in paragraph (a)(10)(iv)(M) of 

this section. 

(2) An applicant who submits written 

proof that an eligible vessel was sold, 

with the seller retaining the herring 

history through a written agreement 

signed by both parties to the sale or 

transfer, may not utilize such history if 

the vessel′s history was used to qualify 

another vessel for another limited access 

permit. 

(3) Application/renewal restrictions. 

See paragraph (a)(1)(i)(B) of this section. 

(E) Qualification restriction. See 

paragraph (a)(1)(i)(C) of this section. 

(F) Change in ownership. See 

paragraph (a)(1)(i)(D) of this section. 

(G) Replacement vessels. See 

paragraph (a)(1)(i)(E) of this section. 

(H) Upgraded vessel. See paragraph 

(a)(1)(i)(F) of this section. 

(I) Consolidation restriction. See 

paragraph (a)(1)(i)(G) of this section. 

(J) Vessel baseline specifications. See 

paragraph (a)(1)(i)(H) of this section. If 

a herring CPH is initially issued, the 

vessel that provided the CPH eligibility 

would establish the size baseline against 

which future vessel size limitations 

would be evaluated. 

(K) Limited access permit restrictions. 

[Reserved]. 

(L) Confirmation of Permit History. 

See paragraph (a)(1)(i)(J) of this section. 

(M) Abandonment or voluntary 

relinquishment of permits. See 

paragraph (a)(1)(i)(K) of this section. 

(N) Restriction on permit splitting. See 

paragraph (a)(1)(i)(L) of this section. 

Furthermore, vessel owners who sold 

vessels with limited access permits and 

retained the herring history before 

applying for the initial limited access 

herring permit may not use the herring 

history to qualify a vessel for the initial 

limited access herring permit, if the 

issuance of such permit would violate 

the restrictions on permit splitting . 

(O) Appeal of denial of permit.—(1) 

Eligibility. Any applicant eligible to 

apply for a limited access herring permit 

who is denied such permit may appeal 

the denial to the Regional Administrator 

within 30 days of the notice of denial. 

Any such appeal must be based on the 

grounds that the information used by 

the Regional Administrator was based 

on incorrect data, must be in writing, 

and must state the grounds for the 

appeal. 

(2) Appeal review. The Regional 

Administrator shall appoint a designee 

who shall make the initial decision on 

the appeal. The appellant may request a 

review of the initial decision by the 

Regional Administrator by so requesting 

in writing within 30 days of the notice 

of the initial decision. If the appellant 

does not request a review of the initial 

decision within 30 days, the initial 

decision is the final administrative 

action of the Department of Commerce. 

Such review will be conducted by a 

hearing officer appointed by the 

Regional Administrator. The hearing 

officer shall make findings and a 

recommendation to the Regional 

Administrator, which shall be advisory 

only. Upon receiving the findings and 

the recommendation, the Regional 

Administrator shall issue a final 

decision on the appeal. The Regional 

Administrator’s decision is the final 

administrative action of the Department 

of Commerce. 

(3) Status of vessels pending appeal. 

A vessel denied a limited access herring 

permit may fish under the limited 

access herring permit, provided that the 

denial has been appealed, the appeal is 


rwilkins on PROD1PC63 with PROPOSAL
56460 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

pending, and the vessel has on board a 

letter from the Regional Administrator 

authorizing the vessel to fish under the 

limited access category. The Regional 

Administrator shall issue such a letter 

for the pendency of any appeal. Any 

such decision is the final administrative 

action of the Department of Commerce 

on allowable fishing activity, pending a 

final decision on the appeal. The letter 

of authorization must be carried on 

board the vessel. If the appeal is finally 

denied, the Regional Administrator 

shall send a notice of final denial to the 

vessel owner; the authorizing letter 

becomes invalid 5 days after receipt of 

the notice of denial. 

(v) Open access herring permit. A 

vessel that has not been issued a limited 

access Atlantic herring permit may 

obtain an open access incidental 

Atlantic herring permit to possess up to 

6,600 lb (3 mt) of herring per trip, and 

is limited to one landing per calendar 

day. 

* * * * * 

(c) * * * 

(2) * * * 

(vi) Prior to issuance of a limited 

access Atlantic herring permit, a VMS 

unit provided by a NMFS-approved 

vendor must be installed and NMFS 

must receive a notice from the vendor 

that the VMS is activated. 

* * * * * 

4. In § 648.6, paragraph (a)(2) is 

revised to read as follows: 

§ 648.6 Dealer/processor permits. 

(a) * * * 

(2) (i) At-sea mackerel processors. 

Notwithstanding the provisions of 

§ 648.4(a)(5), any vessel of the United 

States must have been issued and carry 

on board a valid at-sea processor permit 

issued under this section to receive over 

the side, possess, and process Atlantic 

mackerel harvested in or from the EEZ 

by a lawfully permitted vessel of the 

United States. 

(ii) Atlantic herring processing permit. 

A vessel of the United States, including 

a vessel that is > 165 ft (50.3 m) LOA, 

or > 750 GRT (680.4 mt), is eligible to 

obtain an Atlantic herring processing 

permit to receive and process Atlantic 

herring subject to the U.S. at-sea 

processing (USAP) allocation published 

by the Regional Administrator pursuant 

to § 648.200. Such a vessel may not 

receive or process Atlantic herring 

caught in or from the EEZ unless the 

vessel has been issued and has on board 

an Atlantic herring processing permit. 

* * * * * 

5. In § 648.7, paragraph (b)(2)(i) is 

revised to read as follows: 

§ 648.7 Recordkeeping and reporting 

requirements. 

* * * * * 

(b) * * * 

(2) IVR system reports—(i) Atlantic 

herring owners or operators. The owner 

or operator of a vessel issued a permit 

to fish for Atlantic herring must report 

catches (retained and discarded) of 

herring each week to an IVR system, as 

specified in paragraphs (A) and (B) of 

this paragraph. The report shall include 

at least the following information, and 

any other information required by the 

Regional Administrator: Vessel 

identification, week in which species 

are caught, pounds retained, pounds 

discarded, management area fished, and 

pounds of herring caught in each 

management area for the week. The IVR 

reporting week begins on Sunday at 

0001 hrs (12:01 AM) local time and ends 

Saturday at 2400 hrs (12:00 midnight). 

Weekly Atlantic herring catch reports 

must be submitted via the IVR system 

by midnight, Eastern Time, each 

Tuesday for the previous week. Reports 

are required even if herring caught 

during the week has not yet been 

landed. This report does not exempt the 

owner or operator from other applicable 

reporting requirements of § 648.7. 

(A) The owner or operator of any 

vessel issued a limited access herring 

permit must submit an Atlantic herring 

catch report via the IVR system each 

week, regardless of how much herring is 

caught (including weeks when no 

herring is caught), unless exempted 

from this requirement by the Regional 

Administrator. 

(B) An owner or operator of any vessel 

issued an open access permit for 

Atlantic herring that catches ≥ 2,000 lb 

(907.2 kg) of Atlantic herring on any trip 

in a week must submit an Atlantic 

herring catch report via the IVR system 

for that week as required by the 

Regional Administrator. 

(C) Atlantic herring IVR reports are 

not required from Atlantic herring 

carrier vessels. 

* * * * * 

6. In § 648.9, paragraph (c)(2)(i)(C) is 

revised to read as follows: 

§ 648.9 VMS requirements. 

(c) * * * 

(2) * * * 

(i) * * * 

(C) The vessel has been issued a 

limited access herring permit, and is in 

port, unless required by other permit 

requirements for other fisheries to 

transmit the vessel′s location at all 

times. Such vessels must activate the 

VMS unit and enter the appropriate 

activity code prior to leaving port. 

* * * * * 

7. In § 648.13, paragraph (f) is revised 

to read as follows: 

§ 648.13 Transfers at sea. 

* * * * * 

(f) Atlantic herring. With the 

exception of transfers made to an at-sea 

processing vessel issued the required 

permit under § 648.6(a)(2), any person 

or vessel, including any vessel issued an 

Atlantic herring permit, is prohibited 

from transferring, receiving, or 

attempting to transfer or receive any 

Atlantic herring taken from the EEZ, 

except as authorized below: 

(1) Personal use as bait. (i) The 

operator of a vessel that is not issued an 

Atlantic herring permit may purchase 

and/or receive Atlantic herring at sea for 

personal use as bait, provided the vessel 

receiving the transfer does not have 

purse seine, midwater trawl, pelagic 

gillnet, sink gillnet, or bottom trawl gear 

on board; 

(ii) A vessel issued an Atlantic herring 

permit may transfer herring at sea to 

another vessel for personal use as bait: 

(A) Provided the transferring vessel is 

issued a letter of authorization to 

transfer fish, and reports all transfers on 

the Fishing Vessel Trip Report. The 

operator of the transferring vessel must 

show the letter of authorization to a 

representative of the vessel receiving 

fish or any authorized officer upon 

request; and 

(B) Provided that the transfer of 

herring at sea to another vessel for 

personal use as bait does not exceed the 

possession limit specified for the 

transferring vessel in § 648.204, except 

that no more than 2,000 lb (907.2 kg) of 

herring may be caught or transferred per 

trip and/or per calendar day if the vessel 

is in, or the fish were harvested from, a 

management area closed to fishing as 

specified in § 648.201. 

(2) Atlantic herring carrier vessels. (i) 

A vessel issued an Atlantic herring 

permit may operate as a herring carrier 

vessel and receive herring provided it is 

issued a carrier vessel letter of 

authorization and complies with the 

terms of that authorization, as specified 

in § 648.4(a)(10)(ii). 

(ii) A vessel issued an Atlantic herring 

permit may transfer herring at sea to an 

authorized herring carrier vessel up to 

the possession limit specified in 

§ 648.204, except no more than 2,000 lb 

(907.2 kg) of herring may be caught or 

transferred per trip and/or per calendar 

day if the vessel is in, or the fish were 

harvested from, an area closed to 

directed fishing as specified in 

§ 648.201. 

(3) If a herring management area has 

been closed to fishing as specified in 

§ 648.201, a vessel may not transfer 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56461 

Atlantic herring harvested from or in the 

area to an IWP or Joint Venture vessel. 

(4) If the amount of herring 

transshipped equals the amount of the 

BT specified pursuant to § 648.200, a 

vessel may not transfer Atlantic herring 

to a Canadian transshipment vessel 

permitted in accordance with Public 

Law 104–297. 

(5) Transfer to at-sea processors. A 

vessel issued an Atlantic herring permit 

may transfer herring to a vessel issued 

an at-sea processing permit specified in 

§ 648.6(a)(2), up to the possession limit 

specified in § 648.204, except that no 

more than 2,000 lb (907.2 kg) of herring 

may be caught or transferred per trip 

and/or per calendar day if the vessel is 

in, or the fish were harvested from, a 

management area closed to directed 

fishing as specified in § 648.201. 

* * * * * 

8. In § 648.14, paragraph (bb)(8) is 

removed and reserved; paragraphs 

(a)(166)-(169), (bb) (7), (bb)(10)–(12), 

(bb)(14)–(18), (bb)(20), and (bb)(24)–(26) 

are revised; and paragraphs (bb)(19), 

and (bb)(21)–(23) are added to read as 

follows: 

§ 648.14 Prohibitions. 

(a) * * * 

(166) Sell, purchase, receive, trade, 

barter, or transfer haddock or other 

regulated multispecies, or attempt to 

sell, purchase, receive, trade, barter, or 

transfer haddock or other regulated 

multispecies (cod, witch flounder, 

plaice, yellowtail flounder, pollock, 

winter flounder, windowpane flounder, 

redfish, and white hake) for, or intended 

for, human consumption landed by a 

limited access vessel as defined in 

§ 648.2. 

(167) Fail to comply with 

requirements for herring processors/ 

dealers that handle individual fish to 

separate out and retain all haddock 

offloaded from a limited access herring 

vessel, and to retain such catch for at 

least 12 hr, with the vessel that landed 

the haddock clearly identified by name. 

(168) Sell, purchase, receive, trade, 

barter, or transfer, or attempt to sell, 

purchase, receive, trade, barter, or 

transfer to another person any haddock 

or other regulated multispecies (cod, 

witch flounder, plaice, yellowtail 

flounder, pollock, winter flounder, 

windowpane flounder, redfish, and 

white hake) separated out from a herring 

catch offloaded from a limited access 

herring vessel as defined in § 648.2. 

(169) While operating an at-sea 

herring processor, fail to comply with 

requirements for herring processors/ 

dealers that handle individual fish to 

separate out and retain all haddock 

offloaded from a limited access herring 

vessel, and to retain such catch for at 

least 12 hr after landing, with the vessel 

that offloaded the haddock clearly 

identified by name. 

* * * * * 

(bb) * * * 

(7) Possess, transfer, receive, or sell, 

or attempt to transfer, receive, or sell ≤ 

2,000 lb (907.2 kg) of Atlantic herring 

per trip, or land, or attempt to land ≤ 

2,000 lb (907.2 kg) of Atlantic herring 

per day in or from a management area 

closed pursuant to § 648.201(a), if the 

vessel has been issued a valid Atlantic 

herring permit. 

(8) Reserved 

* * * * * 

(10) Transit an area of the EEZ that is 

subject to a closure or other restraints on 

fishing to fishing for Atlantic herring 

pursuant to § 648.201(a) with > 2,000 lb 

(907.2 kg) of herring on board, unless all 

fishing gear is stowed as specified by 

§ 648.23(b). 

(11) Catch, take, or harvest Atlantic 

herring in or from the EEZ with a U.S. 

vessel that exceeds the size limits 

specified in § 648.4(a)(10)(iii). 

(12) Process Atlantic herring caught in 

or from the EEZ in excess of the 

specification of USAP with a U.S. vessel 

that exceeds the size limits specified in 

§ 648.4(a)(10)(iii). 

* * * * * 

(14) Catch, take, or harvest Atlantic 

herring in or from the EEZ for roe in 

excess of any allowed limit that may be 

established pursuant to § 648.206(b)(24). 

(15) Catch, take, or harvest Atlantic 

herring in or from the EEZ, unless 

equipped with an operable VMS unit if 

the vessel is a limited access herring 

vessel as defined in § 648.2. 

(16) Receive Atlantic herring in or 

from the EEZ solely for transport, unless 

issued a letter of authorization from the 

Regional Administrator. 

(17) Fail to comply with any of the 

requirements of a letter of authorization 

from the Regional Administrator. 

(18) If the vessel is a limited access 

herring vessel and is fishing for herring, 

fail to notify the NMFS Office of Law 

Enforcement of the time and date of 

landing via VMS at least 6 hr prior to 

landing or crossing the VMS 

demarcation line on its return trip to 

port. 

(19) If the vessel is a limited access 

herring vessel and is fishing for herring 

in the GOM/GB Exemption Area 

specified in § 648.80(a)(17), fail to notify 

NMFS at least 72 hours prior to 

departing on a trip for the purposes of 

observer deployment. 

(20) Possess, land, transfer, receive, 

sell, purchase, trade, or barter, or 

attempt to transfer, receive, purchase, 

trade, or barter, or sell more than 2,000 

lb (907 kg) of Atlantic herring per trip 

taken from the GOM/GB Herring 

Exemption Area defined in 

§ 648.86(a)(3)(ii)(A)(1) following the 

effective date of the determination that 

the haddock cap has been reached 

pursuant to § 648.86(a)(3), unless all of 

the herring possessed or landed by a 

vessel was caught outside of that area. 

(21) If fishing with midwater trawl or 

a purse seine gear, fail to comply with 

the requirements of § 648.80(d) and (e). 

(22) If a limited access herring vessel, 

discard haddock at sea that has been 

brought on deck or pumped into the 

hold. 

(23) Transit the GOM/GB Herring 

Exemption Area when that area is 

limited to the 2,000–lb (907.2–kg) limit 

specified in § 648.86(a)(3)(ii)(A)(1) with 

more than 2,000 lb (907.2 kg) of herring, 

unless all the herring on board was 

caught outside of that area and all 

fishing gear is stowed and not available 

for immediate use as required by 

§ 648.23(b). 

(24) Fish for herring in Area 1A 

between June 1 and September 30 with 

any gear other than purse seines or fixed 

gear. 

(25) Transit Area 1A between June 1 

and September 30 with more than 2,000 

lb (907.2 kg) of herring on board with 

mid water trawl gear not properly 

stowed as per § 648.23(b). 

(26) Possess or land more herring than 

is allowed for by the vessel′s Atlantic 

herring permit. 

* * * * * 

9. In § 648.15, paragraphs (d)(1) and 

(e) are revised to read as follows: 

§ 648.15 Facilitation of enforcement. 

* * * * * 

(d) Retention of haddock by herring 

dealers and processors. (1) Federally 

permitted herring dealers and 

processors, including at-sea processors, 

that receive herring from limited access 

herring vessels, and that cull or separate 

out from the herring catch all fish other 

than herring in the course of normal 

operations, must separate out and retain 

all haddock offloaded from a Category 1 

herring vessel. Such haddock may not 

be sold, purchased, received, traded, 

bartered, or transferred, and must be 

retained, after they have been separated, 

for at least 12 hr for dealers and 

processors on land, and for 12 hr after 

landing by at-sea processors. The dealer 

or processor, including at-sea 

processors, must clearly indicate the 

vessel that landed the retained haddock 

or transferred the retained haddock to 

an at-sea processor. Law enforcement 


rwilkins on PROD1PC63 with PROPOSAL
56462 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

officials must be given access to inspect 

the haddock. 

* * * * * 

(e) Retention of haddock by limited 

access herring vessels. All limited 

access herring vessels must retain all the 

haddock that they catch. 

10. In § 648.80, paragraphs 

(d)(4)through (6) and (e)(4) through (6) 

are revised to read as follows: 

§ 648.80 NE Multispecies regulated mesh 

areas and restrictions on gear and methods 

of fishing. 

* * * * * 

(d) * * * 

(4) The vessel does not fish for, 

possess or land NE multispecies, except 

that limited access herring vessels may 

possess and land haddock or other 

regulated species consistent with the 

incidental catch allowance and bycatch 

caps specified in § 648.86(a)(3). Such 

haddock or other regulated NE 

multispecies may not be sold, 

purchased, received, traded, bartered, or 

transferred, or attempted to be sold, 

purchased, received, traded, bartered, or 

transferred for, or intended for, human 

consumption. Haddock or other 

regulated NE multispecies that are 

separated out from the herring catch 

pursuant to § 648.15(d) may not be sold, 

purchased, received, traded, bartered, or 

transferred, or attempted to be sold, 

purchased, received, traded, bartered, or 

transferred for any purpose. Limited 

access herring vessels may not discard 

haddock that has been brought on the 

deck or pumped into the hold; 

(5) To fish for herring under this 

exemption, limited access herring 

vessels must provide notice to NMFS of 

the vessel name; contact name for 

coordination of observer deployment; 

telephone number for contact; and the 

date, time, and port of departure, at least 

72 hr prior to beginning any trip into 

these areas for the purposes of observer 

deployment; and 

(6) All limited access herring vessels 

on a declared herring trip must notify 

NMFS Office of Law Enforcement 

through VMS of the time and place of 

offloading at least 6 hr prior to crossing 

the VMS demarcation line on their 

return trip to port, or, for vessels that 

have not fished seaward of the VMS 

demarcation line, at least 6 hr prior to 

landing. The Regional Administrator 

may adjust the prior notification 

minimum time through publication of a 

notice in the Federal Register consistent 

with the Administrative Procedure Act. 

* * * * * 

(e) * * * 

(4) The vessel does not fish for, 

possess or land NE multispecies, except 

that limited access herring vessels, as 

defined in § 648.2, may possess and 

land haddock or other regulated species 

consistent with the incidental catch 

allowance and bycatch caps specified in 

§ 648.86(a)(3). Such haddock or other 

regulated multispecies may not be sold, 

purchased, received, traded, bartered, or 

transferred, or attempted to be sold, 

purchased, received, traded, bartered, or 

transferred for, or intended for, human 

consumption. Haddock or other 

regulated species that are separated out 

from the herring catch pursuant to 

§ 648.15(d) may not be sold, purchased, 

received, traded, bartered, or 

transferred, or attempted to be sold, 

purchased, received, traded, bartered, or 

transferred for any purpose. Limited 

access herring vessels may not discard 

haddock that has been brought on the 

deck or pumped into the hold; 

(5) To fish for herring under this 

exemption, limited access herring 

vessels must provide notice to NMFS of 

the vessel name; contact name for 

coordination of observer deployment; 

telephone number for contact; and the 

date, time, and port of departure, at least 

72 hr prior to beginning any trip into 

these areas for the purposes of observer 

deployment; and 

(6) All limited access herring vessels 

must notify NMFS Office of Law 

Enforcement through VMS of the time 

and place of offloading at least 6 hr 

prior to crossing the VMS demarcation 

line on their return trip to port, or, for 

vessels that have not fished seaward of 

the VMS demarcation line, at least 6 hr 

prior to landing. The Regional 

Administrator may adjust the prior 

notification minimum time through 

publication of a notice in the Federal 

Register consistent with the 

Administrative Procedure Act. 

* * * * * 

11. In § 648.83, paragraph (b)(4) is 

revised to read as follows: 

§ 648.83 Multispecies minimum fish sizes. 

* * * * * 

(b) * * * 

(4) Limited access herring vessels may 

possess and land haddock and other 

regulated species that are smaller than 

the minimum size specified under 

§ 648.83, consistent with the bycatch 

caps specified in §§ 648.86(a)(3) and 

648.86 (k). Such fish may not be sold for 

human consumption. 

* * * * * 

12. In § 648.85, paragraph (d) is 

revised to read as follows: 

§ 648.85 Special management programs. 

* * * * * 

(d) Incidental catch allowance for 

limited access herring vessels. The 

incidental catch allowance for limited 

access herring vessels is defined as 0.2 

percent of the combined target TAC for 

Gulf of Maine haddock and Georges 

Bank haddock (U.S. landings only) 

specified according to ′ 648.90(a) for a 

particular multispecies fishing year. 

13. In § 648.86, paragraphs (a)(3), and 

(k) are revised to read as follows: 

§ 648.86 Multispecies possession 

restrictions. 

* * * * * 

(a) * * * 

(3)(i) Incidental catch allowance for 

limited access herring vessels. Limited 

access herring vessels may possess and 

land haddock on all trips that do not use 

a NE multispecies DAS, subject to the 

requirements specified in § 648.80(d) 

and (e). 

(ii) Haddock Incidental Catch Cap. 

(A)(1) When the Regional Administrator 

has determined that the incidental catch 

allowance in § 648.85(d) has been 

caught, all vessels issued an Atlantic 

herring permit or fishing in the Federal 

portion of the GOM/GB Herring 

Exemption Area, defined below, are 

prohibited from fishing for, possessing, 

or landing herring in excess of 2,000 lb 

(907.2 kg) per trip in or from the GOM/ 

GB Herring Exemption Area, unless all 

herring possessed and landed by the 

vessel were caught outside the GOM/GB 

Herring Exemption Area and the vessel 

complies with the gear stowage 

provisions specified in § 648.23(b) while 

transiting the Exemption Area. Upon 

this determination, the haddock 

possession limit is reduced to 0 lb (0 kg) 

for all limited access herring vessels, 

regardless of where they were fishing. In 

making this determination, the Regional 

Administrator shall use haddock 

landings observed by NMFS-approved 

observers and law enforcement officials, 

and reports of haddock catch submitted 

by vessels and dealers pursuant to the 

reporting requirements of this part. The 

GOM/GB Herring Exemption Area is 

defined by the straight lines connecting 

the following points in the order stated 

(copies of a map depicting the area are 

available from the Regional 

Administrator upon request): 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56463 

GB/GOM HERRING EXEMPTION AREA

Point N. lat. W. long. 

1 41° 33.05′ 70° 00′ 

2 41° 20′ 70° 00′ 

3 41° 20′ 69° 50′ 

4 41° 10′ 69° 50′ 

5 41° 10′ 69° 30′ 

6 41° 00′ 69° 30′ 

7 41° 00′ 68° 50′ 

8 39° 50′ 68° 50′ 

9 39° 50′ 66 °40′ 

10 40 °30′ 66° 40′ 

11 40 °30′ 64 °44.34′ 

12 41 °50′ 66 °51.94′ 

13 41 °50′ 67 °40′ 

14 44 °00′ 67 °40′ 

15 44 °00′ 67 °50′ 

16 44 °10′ 67 °50′ 

17 44 °27′ 67 °59.18′ 

18 ME, NH, MA 

Coastlines 

19 41 °33.05′ 70° 00′ 

(2) The haddock incidental catch cap 

specified is for the NE multispecies 

fishing year (May 1 April 30), which 

differs from the herring fishing year 

(January 1 December 31). If the haddock 

catch cap is attained by the limited 

access herring fishery, the 2,000–lb 

(907.2–kg) limit on herring possession 

and landings in the GOM/GB Herring 

Exemption Area will be in effect until 

the end of the NE multispecies fishing 

year. For example, the 2006 haddock 

catch cap would be specified for the 

period May 1, 2006 April 30, 2007, and 

the 2007 haddock catch cap would be 

specified for the period May 1, 2007 

April 30, 2008. If the catch of haddock 

by limited access herring vessels 

reached the 2006 catch cap at any time 

prior to the end of the NE multispecies 

fishing year (April 30, 2007), the 2,000–

lb (907.2–kg) limit on possession or 

landing herring in the GOM/GB Herring 

Exemption Area would extend through 

April 30, 2007, at which time the 2007 

catch cap would go into effect. 

* * * * * 

(k) Other regulated NE multispecies 

possession restrictions for limited access 

herring vessels. Limited access herring 

vessels may possess and land up to 100 

lb (45 kg) of other regulated NE 

multispecies on all trips that do not use 

a multispecies DAS, subject to the 

requirements specified in § 648.80(d) 

and (e). Such fish may not be sold for 

human consumption. 

14. Subpart K is revised to read as 

follows: 

Subpart K—Management Measures for 

the Atlantic Herring Fishery 

Sec. 

648.200 Specifications. 

648.201 Closures and TAC controls. 

648.202 Season and area restrictions. 

648.203 Gear restrictions. 

648.204 Possession restrictions. 

648.205 VMS requirements. 

648.206 Framework provisions. 

648.207 Herring research quota (RQ). 

Subpart K—Management Measures for 

the Atlantic Herring Fishery 

§ 648.200 Specifications. 

(a) The Atlantic Herring Plan 

Development Team (PDT) shall meet at 

least every 3 years, but no later than July 

of the year before new specifications are 

implemented, with the Atlantic States 

Marine Fisheries Commission’s 

(Commission) Atlantic Herring Plan 

Review Team (PRT) to develop and 

recommend the following specifications 

for a period of 3 years for consideration 

by the New England Fishery 

Management Council’s Atlantic Herring 

Oversight Committee: Optimum yield 

(OY), domestic annual harvest (DAH), 

domestic annual processing (DAP), total 

foreign processing (JVPt), joint venture 

processing (JVP), internal waters 

processing (IWP), U.S. at-sea processing 

(USAP), border transfer (BT), total 

allowable level of foreign fishing 

(TALFF), reserve (if any), and the 

amount to be set aside for the research 

quota (RQ from 0 to 3 percent of the 

TAC from any management area). The 

PDT and PRT shall also recommend the 

total allowable catch (TAC) for each 

management area and sub-area, 

including seasonal quotas as specified at 

§ 648.201(f). Recommended 

specifications shall be presented to the 

New England Fishery Management 

Council (Council). 

(1) The PDT will meet with the 

Commission’s PRT to review the status 

of the stock and the fishery and prepare 

a Stock Assessment and Fishery 

Evaluation (SAFE) report every 3 years. 

The Herring PDT will meet at least once 

during interim years to review the status 

of the stock relative to the overfishing 

definition if information is available to 

do so. When conducting a 3–year review 

and preparing a SAFE Report, the PDT/ 

PRT will recommend to the Council/ 

Commission any necessary adjustments 

to the specifications for the upcoming 

three years. 

(2) If the Council determines, based 

on information provided by the PDT/ 

PRT or other stock-related information, 

that the specifications should be 

adjusted during the 3–year time period, 

it can do so through the same process 

outlined in this section during one or 

both of the interim years. 

(b) Guidelines. As the basis for its 

recommendations under paragraph (a) 

of this section, the PDT shall review 

available data pertaining to: Commercial 

and recreational catch data; current 

estimates of fishing mortality; stock 

status; recent estimates of recruitment; 

virtual population analysis results and 

other estimates of stock size; sea 

sampling and trawl survey data or, if sea 

sampling data are unavailable, length 

frequency information from trawl 

surveys; impact of other fisheries on 

herring mortality; and any other 

relevant information. The specifications 

recommended pursuant to paragraph (a) 

of this section must be consistent with 

the following: 

(1) OY must be equal to or less than 

the allowable biological catch (ABC), as 

adjusted by subtracting an estimate of 

the expected Canadian New Brunswick 

fixed gear and GB herring catch. 

(2) OY shall not exceed MSY, unless 

an OY that exceeds MSY in a specific 

year is consistent with a control rule 

that ensures the achievement of MSY 

and OY on a continuing basis. 

(3) Factors to be considered in 

assigning an amount, if any, to the 

reserve shall include: 

(i) Uncertainty and variability in the 

estimates of stock size and ABC; 

(ii) Uncertainty in the estimates of 

Canadian harvest from the coastal stock 

complex; 

(iii) The requirement to insure the 

availability of herring to provide 

controlled opportunities for vessels in 

other fisheries in the Mid-Atlantic and 

New England; 

(iv) Excess U.S. harvesting capacity 

available to enter the herring fishery; 

(v) Total world export potential by 

herring producer countries; 

(vi) Total world import demand by 

herring consuming countries; 

(vii) U.S. export potential based on 

expected U.S. harvests, expected U.S. 

consumption, relative prices, exchange 

rates, and foreign trade barriers; 

(viii) Increased/decreased revenues to 

U.S. harvesters (with/without joint 

ventures); 

(ix) Increased/decreased revenues to 

U.S. processors and exporters; and 

(x) Increased/decreased U.S. 

processing productivity. 

(4) Adjustments to TALFF, if any, will 

be made based on updated information 

relating to status of stocks, estimated 

and actual performance of domestic and 

foreign fleets, and other relevant factors. 

(c) The Atlantic Herring Oversight 

Committee shall review the 

recommendations of the PDT and shall 

consult with the Commission′s Herring 

Section. Based on these 

recommendations and any public 

comment received, the Herring 

Oversight Committee shall recommend 

to the Council appropriate 

specifications for a 3–year period. The 


rwilkins on PROD1PC63 with PROPOSAL
56464 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

Council shall review these 

recommendations and, after considering 

public comment, shall recommend 

appropriate 3–year specifications to 

NMFS. NMFS shall review the 

recommendations, consider any 

comments received from the 

Commission, and shall publish 

notification in the Federal Register 

proposing 3–year specifications. If the 

proposed specifications differ from 

those recommended by the Council, the 

reasons for any differences shall be 

clearly stated and the revised 

specifications must satisfy the criteria 

set forth in paragraph (b) of this section. 

(d) NMFS shall make a final 

determination concerning the 

specifications for Atlantic herring. 

Notification of the final specifications 

and responses to public comments shall 

be published in the Federal Register. If 

the final specification amounts differ 

from those recommended by the 

Council, the reason(s) for the 

difference(s) must be clearly stated and 

the revised specifications must be 

consistent with the criteria set forth in 

paragraph (b) of this section. The 

previous year’s specifications shall 

remain effective until they are revised 

through the specification process. 

(e) In-season adjustments. (1) The 

specifications and TACs established 

pursuant to this section may be adjusted 

by NMFS, after consulting with the 

Council, during the fishing year by 

publishing notification in the Federal 

Register stating the reasons for such 

action and providing an opportunity for 

prior public comment. Any adjustments 

must be consistent with the Atlantic 

Herring FMP objectives and other FMP 

provisions. 

(2) If a total allowable catch reserve 

(TAC reserve) is specified for an area, 

NMFS may make any or all of that TAC 

reserve available to fishers after 

consulting with the Council. NMFS 

shall propose any release of the TAC 

reserve in the Federal Register and 

provide an opportunity for public 

comment. After considering any 

comments received, any release of the 

TAC reserve shall be announced 

through notification in the Federal 

Register. 

(f) Management areas. The 

specifications process establishes TACs 

and other management measures for the 

three management areas, which may 

have different management measures. 

Management Area 1 is subdivided into 

inshore and offshore sub-areas. The 

management areas are defined as 

follows: 

(1) Management Area 1 (Gulf of 

Maine): All U.S. waters of the Gulf of 

Maine (GOM) north of a line extending 

from the eastern shore of Monomoy 

Island at 42°53′14’’ N. lat., 67° 44′35’’

W. long., thence northerly along the 

Hague Line to the U.S.-Canadian border, 

to include state and Federal waters 

adjacent to the States of Maine, New 

Hampshire, and Massachusetts. 

Management Area 1 is divided into Area 

1A (inshore) and Area 1B (offshore). The 

line dividing these areas is described by 

the following coordinates: 

Point N. lat. W. long. 

1 41°58′ 70°00′.

2 42°38′ 70°00′.

3 42°53′ 69°40′.

4 43°12′ 69°00′.

5 43°40′ 68°00′.

6 43°58′ 67°22′ (the U.S.- 

Canada Maritime 

Boundary).

(2) Management Area 2 (South 

Coastal Area): All waters west of 70° 00′ 

W . long., south of 41°39′ N. lat., to 

include state and Federal waters 

adjacent to the States of Massachusetts, 

Rhode Island, Connecticut, New York, 

New Jersey, Delaware, Maryland, 

Virginia, and North Carolina. 

(3) Management Area 3 (Georges 

Bank): All U.S. waters east of 70°00′ W. 

long. and southeast of the line that runs 

from a point at 70°00′ W. long. and 

41°39′ N. lat., northeasterly to the Hague 

Line at 42°53′14’’ N. lat., 67°44′35’’ W. 

long. 

§ 648.201 Closures and TAC controls. 

(a) If NMFS determines that catch will 

reach 95 percent of the annual TAC 

allocated to a management area before 

the end of the fishing year, or 95 percent 

of the Area 1A TAC allocated to the first 

seasonal period as set forth in paragraph 

(f) of this section, NMFS shall prohibit 

a vessel, beginning the date the catch is 

projected to reach 95 percent of the 

TAC, from fishing for, possessing, 

catching, transferring, or landing >2,000 

lb (907.2 kg) of Atlantic herring per trip 

and/or >2,000 lb (907.2 kg) of Atlantic 

herring per day in such area pursuant to 

paragraph (e) of this section, except as 

provided in paragraphs (c) and (d) of 

this section. These limits shall be 

enforced based on a calendar day, 

without regard to the length of the trip. 

(b) The percent of the TAC that 

triggers imposition of the 2,000–lb 

(907.2–kg) limit specified in paragraph 

(a) of this section may be adjusted 

through the specification process 

described in § 648.200. Any lowering of 

the percent of the TAC that triggers the 

2,000–lb (907.2–kg) limit specified in 

paragraph (a) of this section must be 

accomplished through the framework 

adjustment or amendment processes. 

(c) A vessel may transit an area that 

is limited to the 2,000–lb (907.2–kg) 

limit specified in paragraph (a) of this 

section with ≤ 2,000 lb (907.2 kg) of 

herring on board, providing such 

herring were caught in an area or areas 

not subject to the 2,000–lb (907.2–kg) 

limit specified in paragraph (a) of this 

section, and that all fishing gear is 

stowed and not available for immediate 

use as required by § 648.23(b), and 

provided the vessel is issued a vessel 

permit appropriate to the amount of 

herring on board and the area where the 

herring was harvested. 

(d) A vessel may land in an area that 

is limited to the 2,000–lb (907.2–kg) 

limit specified in paragraph (a) of this 

section with > 2,000 lb (907.2 kg) of 

herring on board, providing such 

herring were caught in an area or areas 

not subject to the 2,000–lb (907.2–kg) 

limit specified in paragraph (a) of this 

section, and that all fishing gear is 

stowed and not available for immediate 

use as required by § 648.23(b), and 

provided the vessel is issued a vessel 

permit appropriate to the amount of 

herring on board and the area where the 

herring was harvested. 

(e) NMFS shall implement fishing 

restrictions as specified in paragraph (a) 

of this section by publication of a 

notification in the Federal Register, 

without further opportunity for public 

comment. 

(f) The TAC for Management Area 1A 

is divided into two seasonal periods. 

The first season extends from January 1 

through May 31, and the second season 

extends from June 1 through December 

31. Seasonal TACs for Area 1A, 

including the specification of the 

seasonal periods, shall be set through 

the annual specification process 

described in § 648.200. 

(g) 500 mt of the Area 1A TAC shall 

be allocated for the fixed gear fisheries 

in Area !A (weirs and stop seines) that 

occur west of 44° 36.2′ N. Lat. and 67° 

16.8′ W. Long (Cutler, Maine). This setaside shall be available for harvest by 

fixed gear within the specified area until 

November 1 of each fishing year. Any 

portion of this allocation that has not 

been utilized by November 1 shall be 

restored to the TAC allocation for Area 

1A. 

§ 648.202 Season and area restrictions. 

Purse Seine/Fixed Gear Only Area 

(PS/FG). Limited access herring vessels 

may not use, deploy, or fish with 

midwater trawl gear in Area 1A from 

June 1 September 30 of each fishing 

year. A limited access herring vessel 

with midwater trawl gear on board may 

transit Area 1A from June 1–September 

30, provided such midwter trawl gear is 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56465 

stowed pursuant to § 648.23(b). Vessels 

may use any authorized gear type to 

harvest herring in Area 1A from October 

1 May 31. 

§ 648.203 Gear restrictions. 

(a) Midwater trawl gear may only be 

used by a vessel issued a valid herring 

permit in the GOM/GB Exemption Area 

as defined in § 648.80(a)(17), and in the 

Nantucket Lightship Area as described 

in § 648.81(c)(1), provided it complies 

with the midwater trawl gear exemption 

requirements specified under the NE 

multispecies regulations at § 648.80(d), 

including issuance of a Letter of 

Authorization. 

(b) Purse seine gear may only be used 

by a vessel issued a valid herring permit 

in the GOM/GB Exemption Area as 

defined in § 648.80(a)(17), provided it 

complies with the purse seine 

exemption requirements specified under 

the NE multispecies requirements at 

§ 648.80(e), including issuance of a 

Letter of Authorization. 

§ 648.204 Possession restrictions. 

(a) A vessel must be issued a valid 

limited access herring permit to fish for, 

possess, or land more than 6,600 lb (3 

mt) of Atlantic herring from or in the 

EEZ from any herring management area, 

provided that the area has not been 

closed due to the attainment of 95 

percent of the TAC allocated to the area, 

as specified in § 648.201. 

(1) A vessel issued an All Areas 

Limited Access Herring Permit is 

authorized to fish for, possess, or land 

Atlantic herring with no possession 

restriction from any of the herring 

management areas defined in 

§ 648.200(f), provided that the area has 

not been closed due to the attainment of 

95 percent of the TAC allocated to the 

area, as specified in § 648.201. 

(2) A vessel issued only an Areas 2 

and 3 Limited Access Herring Permit is 

authorized to fish for, possess, or land 

Atlantic herring with no possession 

restriction only from Area 2 or Area 3 

as defined in § 648.200(f), provided that 

the area has not been closed due to the 

attainment of 95 percent of the TAC 

allocated to the area, as specified in 

§ 648.201. Such a vessel may fish in 

Area 1 only if issued an open access 

herring permit or a Limited Access 

Incidental Catch Herring Permit, and 

only as authorized by the respective 

permit. 

(3) A vessel issued a Limited Access 

Incidental Catch Herring Permit is 

authorized to fish for, possess, or land 

up to 55,000 lb (25 mt) of Atlantic 

herring in any calendar day, from any 

management area defined in 

§ 648.200(f), provided that the area has 

not been closed due to the attainment of 

95 percent of the TAC allocated to the 

area. 

(4) A vessel issued an open access 

herring permit may not fish for, possess, 

or land more than 6,600 lb (3 mt) of 

Atlantic herring from any herring 

management area per trip and/or per 

calendar day, provided that the area has 

not been closed due to the attainment of 

95 percent of the TAC allocated to the 

area, as specified in § 648.201. 

(5) Herring vessels may possess 

herring roe provided that the carcasses 

of the herring from which it came are 

not discarded at sea. 

(b) Both vessels involved in a pair 

trawl operation must be issued valid 

permits to fish for, possess or land 

Atlantic herring harvested from any 

management area. Both vessels must be 

issued the permit appropriate for the 

amount of herring jointly possessed by 

both of the vessels participating in the 

pair trawl operation. 

§ 648.205 VMS requirements. 

The owner or operator of any limited 

access herring vessel (with the 

exception of fixed gear fishermen), must 

install and operate a VMS unit 

consistent with the requirements of 

§ 648.9. The VMS unit must be installed 

on board, and must be operable before 

the vessel may begin fishing. Atlantic 

herring carrier vessels are not required 

to have VMS. At least 1 hour prior to 

leaving port, the owner or authorized 

representative of a herring vessel that is 

required to use VMS as specified in this 

section must notify the Regional 

Administrator by entering the 

appropriate VMS code that the vessel 

will be participating in the herring 

fishery. VMS codes and instructions are 

available from the Regional 

Administrator upon request. 

§ 648.206 Framework provisions. 

(a) Framework adjustment process. In 

response to the triennial review, or at 

any other time, the Council may initiate 

action to add or adjust management 

measures if it finds that action is 

necessary to meet or be consistent with 

the goals and objectives of the Atlantic 

Herring FMP, or to address gear 

conflicts as defined under § 600.10 of 

this chapter. 

(1) Adjustment process. After a 

management action has been initiated, 

the Council shall develop and analyze 

appropriate management measures over 

the span of at least two Council 

meetings. The Council may delegate 

authority to the Herring Oversight 

Committee to conduct an initial review 

of the options being considered. The 

Oversight Committee shall review the 

options and relevant information, 

consider public comment, and make a 

recommendation to the Council. 

(2) After the first framework meeting, 

the Council may refer the issue back to 

the Herring Oversight Committee for 

further consideration, make adjustments 

to the measures that were proposed, or 

approve of the measures and begin 

developing the necessary documents to 

support the framework adjustments. If 

the Council approves the proposed 

framework adjustments, the Council 

shall identify, at this meeting, a 

preferred alternative and/or identify the 

possible alternatives. 

(3) A framework document shall be 

prepared that discusses and shows the 

impacts of the alternatives. It shall be 

available to the public prior to the 

second or final framework meeting. 

(4) After developing management 

actions and receiving public testimony, 

the Council shall make a 

recommendation to NMFS. The 

Council’s recommendation must 

include supporting rationale and, if 

changes to the management measures 

are recommended, an analysis of 

impacts and a recommendation to 

NMFS on whether to issue the 

management measures as a final rule. If 

the Council recommends that the 

management measures should be issued 

as a final rule, the Council must 

consider at least the following factors 

and provide support and analysis for 

each factor considered: 

(i) Whether the availability of data on 

which the recommended management 

measures are based allows for adequate 

time to publish a proposed rule, and 

whether regulations have to be in place 

for an entire harvest/fishing season. 

(ii) Whether there has been adequate 

notice and opportunity for participation 

by the public and members of the 

affected industry in the development of 

the Council’s recommended 

management measures. 

(iii) Whether there is an immediate 

need to protect the resource or to 

impose management measures to 

resolve gear conflicts. 

(iv) Whether there will be a 

continuing evaluation of management 

measures adopted following their 

implementation as a final rule. 

(5) If the Council’s recommendation 

to NMFS includes adjustments or 

additions to management measures, 

after reviewing the Council’s 

recommendation and supporting 

information NMFS may: 

(i) Concur with the Council’s 

recommended management measures 

and determine that the recommended 

management measures should be 

published as a final rule in the Federal 


rwilkins on PROD1PC63 with PROPOSAL
56466 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 

Register based on the factors specified 

in paragraphs (c)(4)(i)-(iv) of this 

section. 

(ii) Concur with the Council’s 

recommendation and determine that the 

recommended management measures 

should be first published as a proposed 

rule in the Federal Register. After 

additional public comment, if NMFS 

concurs with the Council’s 

recommendation, the measures shall be 

issued as a final rule in the Federal 

Register. 

(iii) If NMFS does not concur, the 

Council shall be notified in writing of 

the reasons for the non-concurrence. 

(b) Possible framework adjustment 

measures. Measures that may be 

changed or implemented through 

framework action include: 

(1) Management area boundaries or 

additional management areas; 

(2) Size, timing, or location of new or 

existing spawning area closures; 

(3) Closed areas other than spawning 

closures; 

(4) Restrictions in the amount of 

fishing time; 

(5) A days-at-sea system; 

(6) Adjustments to specifications; 

(7) Adjustments to the Canadian catch 

deducted when determining 

specifications; 

(8) Distribution of the TAC; 

(9) Gear restrictions (such as mesh 

size, etc.) or requirements (such as 

bycatch-reduction devices, etc.); 

(10) Vessel size or horsepower 

restrictions; 

(11) Closed seasons; 

(12) Minimum fish size; 

(13) Trip limits; 

(14) Seasonal, area, or industry sector 

quotas; 

(15) Measures to describe and identify 

essential fish habitat (EFH), fishing gear 

management measures to protect EFH, 

and designation of habitat areas of 

particular concern within EFH; 

(16) Measures to facilitate 

aquaculture, such as minimum fish 

sizes, gear restrictions, minimum mesh 

sizes, possession limits, tagging 

requirements, monitoring requirements, 

reporting requirements, permit 

restrictions, area closures, establishment 

of special management areas or zones, 

and any other measures included in the 

FMP; 

(17) Changes to the overfishing 

definition; 

(18) Vessel monitoring system 

requirements; 

(19) Limits or restrictions on the 

harvest of herring for specific uses; 

(20) Quota monitoring tools, such as 

vessel, operator, or dealer reporting 

requirements; 

(21) Permit and vessel upgrading 

restrictions; 

(22) Implementation of measures to 

reduce gear conflicts, such as mandatory 

monitoring of a radio channel by fishing 

vessels, gear location reporting by fixed 

gear fishermen, mandatory plotting of 

gear by mobile fishermen, standards of 

operation when conflict occurs, fixed 

gear marking or setting practices; gear 

restrictions for certain areas, vessel 

monitoring systems, restrictions on the 

maximum number of fishing vessels, 

and special permitting conditions; 

(23) Limited entry or controlled 

access system; 

(24) Specification of the amount of 

herring to be used for roe 

(25) Any other measure currently 

included in the FMP;(26) Measures to 

address bycatch and bycatch 

monitoring; 

(27) Requirements for a herring 

processor survey; 

(28) TAC set-aside amounts, 

provisions, adjustments; and 

(29) In-season Adjustments to TACs. 

(c) Emergency action. Nothing in this 

section is meant to derogate from the 

authority of the Secretary to take 

emergency action under section 305(e) 

of the Magnuson-Stevens Act. 

§ 648.207 Herring research quota (RQ). 

(a) NMFS shall publish a Request for 

Proposals (RFP) in the Federal Register, 

consistent with procedures and 

requirements established by the NOAA 

Grants Office, to solicit proposals from 

industry for the upcoming 3 fishing 

years, based on research priorities 

identified by the Council. 

(b) Proposals submitted in response to 

the RFP must include the following 

information, as well as any other 

specific information required within the 

RFP: A project summary that includes 

the project goals and objectives; the 

relationship of the proposed research to 

herring research priorities and/or 

management needs; project design; 

participants other than the applicant, 

funding needs, breakdown of costs, and 

the vessel(s) for which authorization is 

requested to conduct research activities. 

(c) NMFS shall convene a review 

panel, including technical experts, to 

review proposals submitted in response 

to the RFP. Each panel member shall 

recommend which research proposals 

should be authorized to utilize research 

quota, based on the selection criteria 

described in the RFP. 

(d) The Northeast Fisheries Science 

Center Director (NEFSC Director) and 

the NOAA Grants Office shall consider 

each panel member’s recommendation, 

provide final approval of the projects 

and the Regional Administrator may, 

when appropriate, exempt selected 

vessel(s) from regulations specified in 

each of the respective FMPs through 

written notification to the project 

proponent. 

(e) The grant awards approved under 

the RFPs shall be for the upcoming 3 

fishing years, unless the Council 

identifies new/different research 

priorities during the interim years and 

decides to publish a second RFP. 

Proposals to fund research that would 

start prior to, or that would end after the 

fishing year, are not eligible for 

consideration. The RSA must be utilized 

in the same fishing year in which it was 

distributed (i.e., RSA and compensation 

trips cannot be rolled over into future 

years). However, the money generated 

from the RSA may be rolled over into, 

or used to fund research in future years, 

consistent with the multi-year proposal. 

(f) If a proposal is disapproved by the 

NEFSC Director or the NOAA Grants 

Office, or if the NEFSC Director 

determines that the allocated research 

quota cannot be utilized by a project, 

the Northeast Science and Research 

Director shall reallocate the unallocated 

or unused amount of research quota to 

the respective commercial and 

recreational fisheries by publication of a 

notice in the Federal Register in 

compliance with the Administrative 

Procedure Act, provided that the 

reallocation of the unallocated or 

unused amount of research quota is in 

accord with National Standard 1, and 

can be available for harvest before the 

end of the fishing year for which the 

research quota is specified. 

(g) Whenever possible, research 

proposals will be reviewed and 

approved prior to the publication of 

final quota specifications for the 

upcoming fishing years. In the event 

that the approved proposals do not 

make use of any or all of the set-asides, 

the unutilized portion of the set-aside 

would be released back to its respective 

management area(s) when the final 

specifications are published. If there is 

unutilized set-aside available, NMFS, at 

the request of the Council, could 

publish another RFP for either the 

second or third years of the 3–year 

specifications. In this case, NMFS 

would release the unutilized portion of 

the set-aside back to its respective 

management area(s) for the first year of 

the specifications and any other year 

that yields unutilized set-aside after an 

additional RFP is published. The 

Council also may decide not to publish 

another RFP, in which case NMFS 

would be authorized to release the 

unutilized portion of the set-aside back 

to its respective management area(s) for 

all 3 fishing years covered by the 

specifications. 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Proposed Rules 56467 

(h) Any quota reallocated under 

subparagraphs (f) and (g) of this section 

may not be used solely as compensation 

for research. 

(i) Individual research projects may 

apply for the use of more than one 

herring research set-aside allocation. 

Proposals may request that the set-aside 

be collected separately from the 

research trip or as part of the research 

trip. The research compensation trips do 

not necessarily have to be conducted by 

the same vessel but must be conducted 

in the management area from which the 

set-aside was derived. 

(j) No more than 50 percent of the 

allocated set-aside should be taken 

before the research begins. If a research 

project is terminated for any reason 

prior to completion, any funds collected 

from the catch sold to pay for research 

expenses must be refunded to U.S. 

Treasury. 

(k) NMFS shall provide authorization 

of the research activities to specific 

vessels by letter of acknowledgement, 

letter of authorization, or Exempted 

Fishing Permit issued by the Regional 

Administrator, which must be kept on 

board the vessel. 

(l) Upon completion of herring 

research projects approved under this 

part, researchers must provide the 

Council and NMFS with a report of 

research findings, which must include: 

A detailed description of methods of 

data collection and analysis; a 

discussion of results and any relevant 

conclusions presented in a format that 

is understandable to a non-technical 

audience; and a detailed final 

accounting of all funds used to conduct 

the herring research. 

[FR Doc. 06–8263 Filed 9–26–06; 8:45 am] 

BILLING CODE 3510–22–S 


rwilkins on PROD1PC63 with PROPOSAL