[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Rules and Regulations]
[Pages 11252-11281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4163]



[[Page 11251]]

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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 902

50 CFR Part 648



Fisheries of the Northeastern United States; Atlantic Herring Fishery; 
Amendment 1; Final Rule

Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 060901235-7027-02; I.D. 082406C]
RIN 0648-AQ87


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Amendment 1

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

ACTION: Final rule.

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SUMMARY: NMFS is implementing approved measures contained in Amendment 
1 to the Atlantic Herring Fishery Management Plan (FMP), developed by 
the New England Fishery Management Council (Council). Amendment 1 
establishes a limited access program. Amendment 1 also includes the 
following measures: 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. Also, NMFS informs thepublic of the approval by the 
Office of Management and Budget (OMB) of the collection-of-information 
requirements contained in this final rule and publishes the OMB control 
numbers for these collections.

DATES: Effective June 1, 2007, except for Sec. Sec.  648.200-648.203, 
and Sec. Sec.  648.206-648.207, which are effective April 11, 2007.

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. These documents are also available online at 
http://www.nefmc.org. NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA), which is contained in the Classification section of 
the preamble of this final rule. Copies of the FRFA, Record of Decision 
(ROD), and the Small Entity Compliance Guide are available from the 
Regional Administrator, Northeast Regional Office, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298, and are also available via the 
internet at http://www.nero.nmfs.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to David Rostker at OMB by e-mail to <a href="/cdn-cgi/l/email-protection#e8ac899e818cb7ba879b9c838d9aa887858ac68d8798c68f879e"><span class="__cf_email__" data-cfemail="f0b491869994afa29f83849b9582b09f9d92de959f80de979f86">[email protected]</span></a>, or fax to (202) 395-7285, or to the Federal e-
rulemaking portal http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, (978) 281-9259, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements the approved measures of Amendment 1, 
which was partially approved by NMFS on behalf of the Secretary of 
Commerce (Secretary) on December 6, 2006. A proposed rule for Amendment 
1 was published in the Federal Register on September 27, 2006 (71 FR 
56446), with comments accepted through November 13, 2006. The details 
of the development of Amendment 1 were contained in the preamble of the 
proposed rule and are not repeated here. In the proposed rule, NMFS 
requested comment on all proposed measures, but specifically 
highlighted three issues about which it had concern. The three 
highlighted issues were: (1) the proposed revision of existing 
provisions in Sec.  648.13 relating to the transfer of fish at sea in 
order to enforce the possession restrictions proposed in Amendment 1; 
(2) whether it was necessary to maintain the reserve option as part of 
the specification process; and (3) whether a vessel that sank, was 
destroyed, or was sold, and then replaced, should be able to meet the 
permit requirement for a limited access incidental catch permit if it 
had been issued a Federal permit to fish for Loligo or Illex squid, 
mackerel, butterfish, and/or whiting (a limited access Northeast 
multispecies permit also serves as a whiting permit), during the 2005 
fishing year as of November 10, 2005, and had landed at least 33,000 lb 
(15 mt) of herring in any calendar year between January 1, 1988, and 
December 31, 2003. A discussion of these issues, including NMFS 
consideration of public comments on the issues, follows:

1. Possession Limits for Transfers at Sea

    NMFS did not receive any comments on this issue and, since it 
simply clarifies the applicability of the possession limits for 
permitted herring vessels, regardless of the disposition of the catch, 
this final rule includes regulatory language to ensure that such 
possession limits are maintained and enforced. NMFS did receive comment 
on other aspects of the proposed regulations governing transfer of fish 
at sea, and has made revisions to this final rule as a result. These 
revisions are discussed under changes from the proposed rule and in the 
response to comment 25 in this preamble.

2. Maintenance of the Reserve

    NMFS recieved seven comments on this issue, including one from the 
Council, all in support of maintaining the reserve provision to ensure 
that the Council and NMFS have maximum flexibility to respond to 
changing circumstances in the fishery that arise during the course of 
the fishing year. In deference to these arguments, and, in particular, 
to the Council's wishes, this final rule maintains the reserve option 
as part of the specification process.

3. Vessels that Sank, were Destroyed, or Sold

    The Council submitted a comment in support of the provision that 
would clarify that vessels that sank, were destroyed, or were sold, and 
then replaced, would be subject to the same permit history criteria as 
vessels that apply directly for a limited access incidental catch 
permit. Therefore, to meet the permit history criteria for a limited 
access incidental catch permit, a vessel that is replacing a vessel 
that sank, was destroyed, or sold, must have been issued a Federal 
permit to fish for Atlantic herring, Loligo or Illex squid, mackerel, 
butterfish, and/or whiting (a limited access Northeast multispecies 
permit also serves as a whiting permit), between November 10, 2003, and 
November 9, 2005.
    For purposes of TAC monitoring, Amendment 1's revision to the 
management area boundaries required NMFS to consider how to attribute 
landings to the appropriate herring management area. This final rule 
changes the management boundaries for three of the areas (1B, 2, and 
3), with portions of Area 1B and Area 2 redesignated into Area 3. The 
reporting requirements for herring vessels require vessel owners/
operators to report their

[[Page 11253]]

landings via interactive voice reporting (IVR) and vessel trip reports 
(VTR) based on the area boundaries in effect at the time of their 
fishing trip. Therefore, the catch reports for some fishing trips 
conducted prior to April 11, 2007 would be attributed to Areas 1B or 2 
when they should be attributed to Area 3. The Council did not consider 
this possibility in Amendment 1, but NMFS has determined that it will 
use the data available from the fishery (Vessel Monitoring System 
(VMS), IVR, and VTR) to reallocate, to the extent possible, the area-
specific landings that took place prior to the implementation of 
Amendment 1 to the areas as implemented by this final rule.

Disapproved Measures

    After reviewing Amendment 1, its supporting analyses, and public 
comments received on the amendment, NMFS, on behalf of the Secretary, 
disapproved one measure in Amendment 1, based on NMFS's determination 
that the measure was inconsistent with two of the National Standards of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The disapproved measure concerned the harvest of herring 
by fixed gear fishermen in Downeast Maine (east of Cutler-the Downeast 
Maine Fixed Gear Fishery). Amendment 1 proposed to allow the harvest of 
herring by fixed gear fishermen in Downeast Maine to be exempt from the 
TACs that govern the fishery. The specifications process would have 
presumed that catch from this Downeast fishery and the New Brunswick 
weir fishery would not exceed 20,000 mt. During the fishing season, 
catch from the Downeast Maine fixed gear fishery would not have been 
counted against the TAC for Area 1A, and the fixed gear fishery would 
have been allowed to continue to operate after the Area 1A TAC was 
reached.
    NMFS disapproved this measure because it was, prima facie, 
inconsistent with National Standard 1 of the Magnuson-Stevens Act. The 
measure would essentially allow a portion of the fishery to remain 
completely unregulated, without corresponding conservation benefits. If 
herring landings from the fixed-gear fishery in 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. 
NMFS also found that the measure was inconsistent with National 
Standard 3, as it would fail to manage the stock throughout its range.

Approved Measures

    NMFS approved the remainder of the measures in Amendment 1, 
although not all approved measures require regulatory text in this 
final rule. A summary of the approved measures follows. This final rule 
also includes some non-substantive revisions to the existing text of 
the herring regulations that were included in the proposed rule but 
that were not part of Amendment 1; these revisions remove obsolete 
language, clarify the intent of the Council, and generally improve the 
organization and clarity of the regulations. NMFS has made several 
additional changes to clarify the administrative requirements 
associated with the Amendment 1 measures. These are described under 
Changes from the Proposed Rule in this preamble.

1. Exemption from Vessel Permit Requirements

    The following vessels may 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; 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 on which herring is fished 
for, possessed, or landed, and does not transfer, sell, trade, or 
barter such herring.

2. Limited Access Vessel Permits

    This final rule implements two new categories of limited access 
permits that authorize vessels to fish for herring without being 
limited by a possession limit: (1) An All Areas Limited Access Herring 
Permit, which authorizes vessels to fish in all herring management 
areas; and (2) an Areas 2 and 3 Limited Access Herring Permit, which 
authorizes vessels to fish only in herring management areas 2 and 3. A 
vessel is eligible for either an All Areas Limited Access Herring 
Permit or an Areas 2 and 3 Limited Access Herring Permit if it meets 
both the permit history criteria and the landings requirements 
specified in this final rule. Vessels that qualify for such permits are 
not restricted by a possession or trip limit for herring, though they 
are subject to the other regulations established through this final 
rule. If 95 percent of an area TAC is reached in a management area, the 
directed fishery for herring will be closed, and All Areas Limited 
Access Herring permit holders and Areas 2 and 3 Limited Access Herring 
permit holders will be limited to 2,000 lb (907.2 kg) of herring per 
trip, with a limit of one landing per calendar day when fishing in the 
area.
    A vessel is eligible for either an All Areas Limited Access Herring 
Permit or an Areas 2 and 3 Limited Access Herring Permit it if meets 
the requisite history and landings criteria. First, the vessel must 
meet 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 
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 history and all herring 
landings history. This written agreement must be consistent with the 
permit splitting provisions outlined in Section 4 of this preamble.
    The vessel must also meet certain landings requirements, depending 
on the type of permit beings sought. The landings requirements to 
qualify for the All Areas Limited Access Herring Permit require the 
vessel and/or any vessel it replaced to have landed at least 500 mt of 
herring in any one calendar year between January 1, 1993, and December 
31, 2003, as verified by dealer reports submitted to NMFS or documented 
through valid dealer receipts, if dealer reports were not required by 
NMFS (dealers of Atlantic herring were required to obtain a dealer 
permit and to comply with reporting requirements as of January 10, 
2001). The landings requirements to qualify for an Areas 2 and 3 
Limited Access Herring Permit require the vessel and/or any vessel it 
replaced to have landed at least 250 mt of herring in any one calendar 
year between January 1, 1993, and December 31, 2003, as verified by 
dealer reports submitted to NMFS or documented through valid dealer 
receipts, if dealer reports were not required by NMFS (dealers of 
Atlantic herring were required to obtain a dealer permit and to comply 
with reporting

[[Page 11254]]

requirements as of January 10, 2001). In those cases where a vessel has 
sold herring but there are no required dealer receipts, e.g., transfers 
of bait at sea and border transfers (BT), a vessel owner can submit 
other documentation that verifies such transactions and proves that the 
herring thus transferred should be added to the vessel's landings 
history.
    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has not been replaced, must see Section 
4 of this preamble for information about the requirement to obtain a 
confirmation of permit history (CPH).

3. Limited Access Incidental Catch Herring Permit

    This final rule implements a Limited Access Incidental Catch 
Herring Permit to accommodate vessels that have an incidental catch of 
herring while fishing in other small-mesh, high-volume fisheries for 
species including Atlantic mackerel, Loligo squid, and whiting. A 
vessel must meet both the permit history criteria and the eligibility 
requirements specified in this rule.
    A vessel is eligible for and may be issued a limited access 
Incidental Catch Herring Permit if it meets the requisite permit 
history and landings requirements. First, the vessel must must have 
been issued a Federal permit to fish for Atlantic herring, Loligo or 
Illex squid, mackerel, butterfish, and/or whiting (a limited access 
Northeast multispecies permit also serves as a whiting permit), during 
the 2005 fishing year as of November 10, 2005; or the vessel is 
replacing a vessel that was issued a Federal permit to fish for 
Atlantic herring,Loligo or Illex squid, mackerel, butterfish, and/or 
whiting (a limited access Northeast multispecies permit also serves as 
a whiting permit) 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 history and all herring landings history. This written agreement 
must be consistent with the permit splitting provisions outlined in 
Section 4 of this preamble.
    To qualify for a limited access incidental catch herring permit, 
the vessel and/or any vessel it replaced must also document that it 
landed at least 33,000 lb (15 mt) of herring in any calendar year 
between January 1, 1988, and December 31, 2003, as verified by dealer 
reports submitted to or documented through valid dealer receipts, if 
dealer reports were not required by NMFS (dealers of Atlantic herring 
were required to obtain a dealer permit and to comply with reporting 
requirements as of January 10, 2001). In those cases where a vessel has 
sold herring but there are no dealer receipts, e.g., transfers of bait 
at sea and BT, a vessel owner can submit other documentation that 
captures such transactions and proves that the herring thus transferred 
should be added to the vessel's landings history. A person who does not 
currently own a fishing vessel, but who has owned a qualifying vessel 
that has not been replaced, must see Section 4 of this preamble for 
information about the requirement to obtain a CPH.
    Vessels with limited access incidental catch permits are 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 will 
be closed, and limited access incidental catch permit holders will be 
limited to 2,000 lb (907.2 kg) of herring per trip, with a limit of one 
landing per calendar day, when fishing in the area.
    A vessel may be issued multiple herring permits. For instance, a 
vessel could 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

    This final rule establishes measures to govern future transactions 
related to limited access vessels, such as purchases, sales, or 
reconstruction. These measures apply to all limited access vessels.

Initial Eligibility

    Initial eligibility for a herring limited access permit must be 
established during the first year after the permit is required. A 
vessel owner is required to submit an application for a herring limited 
access permit or CPH by May 31, 2008.

CPH

    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has sunk, been destroyed, or transferred 
to another person, can apply for and receive a CPH if the herring 
fishing and permit history of such vessel has been retained lawfully by 
the applicant. To be eligible to obtain a CPH, the applicant has 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 preserves the eligibility of the applicant to apply for a 
limited access permit for a replacement vessel based on the qualifying 
vessel's fishing and permit history at a subsequent time. A CPH has to 
be applied for by the due date in order for the applicant to preserve 
the limited access eligibility of the qualifying vessel. Vessel owners 
who are issued a CPH can obtain a vessel permit for a replacement 
vessel based upon the previous vessel's history utilizing 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, must submit an application for a CPH by 
May 31, 2008.

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 must submit valid dealer receipts that verify 
landings. 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 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 their landings. In those 
cases where a vessel has sold herring but there are no required dealer 
receipts, e.g., transfers of bait at sea and BTs, a vessel owner can 
submit other documentation that captures such transactions and proves 
that the herring

[[Page 11255]]

thus transferred should be added to the vessel's landings history.

Extension of Qualification Period

    A vessel owner who can 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, can apply for and 
obtain a limited access permit as long as the vessel meets the permit 
eligibility criteria. This measure provides such vessel owners 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 is 
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

    Limited access herring permits are governed by 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. As 
specified in Amendment 1, the permit-splitting provision applies to the 
transfer/sale of herring fishing history prior to the implementation of 
this final rule. 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 
are not eligible for a limited access permit, 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 may 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 claims eligibility for a limited access permit or 
CPH, based on one vessel's fishing and permit history, the 
Administrator, Northeast Region, NMFS (Regional Administrator) will 
determine who is entitled to qualify for the permit or CPH.

Appeal of Permit Denial

    There is an appeals process for applicants who are initially denied 
a limited access Atlantic herring permit. Such applicants can appeal in 
writing to the Regional Administrator within 30 days of the denial. Any 
such appeal may only be based on the grounds that the information used 
by the Regional Administrator to evaluate the application was 
incorrect.
    The appeals process provides 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 may fish for herring, 
pending the outcome of an appeal, provided that the denial has been 
appealed, the appeal is 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 will issue such 
a letter for the pendency of any appeal. If the appeal is ultimately 
denied, the Regional Administrator will send a notice of final denial 
to the vessel owner, and the authorizing letter becomes invalid 5 days 
after receipt of the notice of denial, but no later than 10 days from 
the date of the letter of denial.

Vessel Upgrades

    A vessel can be upgraded in size, whether through refitting or 
replacement, and be eligible to retain or renew a limited access 
herring permit, only if the upgrade complies with the following 
limitations. The vessel's horsepower (HP) can be increased only once, 
whether through refitting or replacement. Such an increase cannot 
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) can be increased only once, whether through refitting 
or replacement. Any increase in any of these three specifications of 
vessel size cannot 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 can be done separately from an engine HP 
upgrade.
    This final rule makes no changes to the existing specification of 
maximum length, size, and HP for vessels engaged in the Atlantic 
herring fishery (165 ft (50.2 m), 750 GRT (680.3 mt), and 3,000 HP), or 
existing regulations that exempt U.S. at-sea processing (USAP) vessels 
from these size limits.

Establishing Vessel Baselines

    A limited access 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 an Atlantic 
herring vessel issued a limited access permit are the specifications of 
the vessel that is initially issued a limited access permit, as of the 
date that the vessel owner initially applied for such a permit for that 
vessel. If a vessel owner is initially issued a CPH instead of a 
permit, the vessel that provided the CPH eligibility establishes the 
size baseline against which future vessel size limitations will be 
evaluated.

Vessel Replacements

    The term vessel replacement refers to replacing an existing limited 
access vessel with another vessel. In addition to addressing increases 
in vessel size and HP, this final rule 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

    A vessel owner may voluntarily exit a limited access fishery by 
permanently relinquishing a vessel's limited access fishing 
eligibility. In some circumstances, this may 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 NE 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 can ever be 
reissued or renewed based on that vessel's history.

Permit Renewals and CPH

    Once a vessel has qualified for and been issued a limited access 
herring permit, a vessel owner must maintain the limited access permit 
status by renewing the permits on an annual basis or applying for 
issuance of a CPH. A CPH may be issued to a person who does not 
currently own a particular fishing vessel, but who has legally retained 
the fishing and limited access 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

[[Page 11256]]

when the individual does not currently own a vessel.
    A vessel's limited access permit history will be cancelled due to 
the failure to renew, in which case no limited access permit can 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 permit year for which the permit is required, unless a 
CPH has been issued. Atlantic herring permits are issued annually for 
the period May 1-April 30; this is referred to as the permit year. A 
complete application for a limited access herring permit must be 
received no later than 30 days before the last day of each permit year: 
that is, no later than March 31.

5. Open Access Vessel Permit and Possession Limit

    Any vessel is eligible to be issued an open access incidental catch 
permit authorizing 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 will 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 are required 
to report their catches on a weekly basis through the IVR reporting 
program described in Section 6 of this preamble.
    To transport herring caught by another fishing vessel, an Atlantic 
herring carrier vessel must be issued an Atlantic herring permit, not 
have any gear on board capable of catching or processing herring, and 
have on board a letter of authorization (LOA) from the Regional 
Administrator. Carrier vessels are not required to qualify for a 
limited access permit to possess/transport herring, but must be issued 
either an open access or a limited access herring permit. While 
operating as a carrier vessel under an LOA, a carrier vessel is not 
limited by the possession limits associated with the herring permit 
issued to the vessel because the vessel is functioning solely as a 
carrier, with no gear on board capable of catching herring.

6. Reporting Requirements

    All limited access herring permit holders are required to report 
herring catches weekly through the IVR call-in system, and to file a 
negative report if there are no catches in a specific week. All open 
access herring vessels that land more than 2,000 lb (907.2 kg) of 
herring in any week must also report their landings through IVR. All 
vessels issued a limited access herring permit (with the exception of 
fixed gear (weirs and stop seines) fishermen) must also install and 
maintain operable VMS units, and 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. All VTR requirements for permitted 
herring vessels in the existing regulations remain in effect.

7. Adjustments to Management Area Boundaries

    Herring management measures, including TACs, are specified for four 
management areas (Areas 1A, 1B, 2, and 3). The area boundaries have 
been revised 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 is revised 
through this final rule to assure that fish caught in Franklin Swell 
are attributed to the Georges Bank (GB) spawning component of the 
stock. The Area 2 and 3 boundary is moved west from 69[deg]00' W. long. 
to 70[deg]00' W. long. through this final rule to better relate catch 
to the TRAC conclusion that there are two spawning components of the 
stock: The Gulf of Maine (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 more 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 can be completed that specifies an 
analytical MSY value. Based on input from the Council's Scientific and 
Statistical Committee (SSC), the proxy reference points specified in 
the overfishing definition for Atlantic herring were as follows: MSY = 
220,000 mt; B<INF>MSY</INF> (B<INF>Target</INF>) = 1,100,000 mt; and 
B<INF>threshold</INF> = 550,000 mt. The reference points in the FMP 
were: MSY = 317,000 mt; B<INF>MSY</INF> (B<INF>Target</INF>) = 
1,100,000 mt; and B<INF>threshold</INF> = 550,000 mt (the 
B<INF>threshold</INF> established in the FMP is \1/2\ B<INF>MSY</INF>). 
The Amendment 1 document explained that the proposed proxy reference 
points would be revised if a new, peer-reviewed stock assessment 
recommends different reference points. In May 2006, the TRAC reconvened 
and completed another herring assessment. The TRAC recommended the 
following reference points: MSY = 194,000 mt, and B<INF>msy</INF> = 
629,000 mt. Based on this and the FMP's guidance, B<INF>Target</INF> is 
629,000 mt, and B<INF>threshold</INF> is 314,500 mt (\1/2\ 
B<INF>MSY</INF>). These values are now the new reference points for the 
Atlantic herring fishery.

9. Specification of Management Measures Including TACs

    The Amendment 1 management program establishes a 3-year 
specification process. If the Council determines that the 
specifications should be adjusted during the 3-year time period, it may 
recommend an adjustment through the specification process for one or 
both of the interim years. No action is required by the Council to 
maintain the same specifications for all 3 fishing years.

10. TAC Set-Asides to Support Herring-Related Research

    Amendment 1 authorizes the Council, in consultation with the 
Atlantic States Marine Fisheries Commission (Commission), to recommend 
setting 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 
can be used to support herring-related research in any management 
area(s), consistent with the research priorities identified by the 
Council. Projects funded under an RSA allocation have to enhance 
understanding of the fishery resource and/or contribute to the body of 
information upon which management decisions are made.
    The Council recommends the specific percentages for the RSA and the 
management area(s) to which it is applied during the fishery 
specification process. If there is no RSA allocated, the directed 
herring fishery will close in each management area when it is projected 
that 95 percent of the area TAC would be caught. The remaining 5 
percent of the TAC will be set aside for catch under a 2,000-lb (907.2-
kg) trip limit. If the RSA is specified for a management area, it comes 
out of the allocation for the directed fishery. For example, if there 
is a 3 percent set-aside of the Area 1A TAC to support research,

[[Page 11257]]

then the Area 1A directed fishery would close when 92 percent of the 
overall Area TAC was projected to be reached.
    The RSA will 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 includes the following 
elements: Individual research projects may apply for the use of more 
than one herring RSA allocation; researchers may request to harvest the 
RSA separately from the research trip or as part of the research trip; 
and research compensation trips need not be conducted by the same 
vessel, but all trips must be conducted in the management area from 
which the RSA is allocated.
    Multi-year projects can be funded, since the RSA process is 
intended to be consistent with the 3-year specification process. The 
RSA must be utilized in the same fishing year in which it is allocated 
(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.
    Specification of RSA amounts (percentages) for the upcoming fishing 
years will 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 must publish a Request for Proposals (RFP) that specifies 
research priorities identified by the Council and application 
procedures for funding through the RSA. Since specifications will be 
set for 3 fishing years, the proposal cycle will 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, will be reviewed and 
approved prior to the publication of final 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, NMFS is authorized to release 
the unutilized portion of the RSA back to its respective management 
area(s) when the final specifications are published. If there is 
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 shall release the unutilized 
portion of the RSA 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 shall release 
the unutilized portion of the RSA back to its respective management 
area(s) for all 3 fishing years covered by the specifications.

11. Purse Seine/Fixed Gear Only Area

    This action prohibits the use of midwater trawling vessels from 
fishing for Atlantic herring in Area 1A from June 1 September 30 of 
each year. There are no restrictions on the use of midwater trawl gear 
in Area 1A from October 1 May 31.

12. Measures to Address Fixed Gear Fisheries

    One measure in the proposed rule would have 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. In its comments, the Council 
pointed out that it had not meant to establish this set aside at the 
500 mt level, but rather to allow the set aside to be set at any value 
up to 500 mt. As a result of this comment, NMFS has modified the final 
rule to clarify that this set aside is up to 500 mt, and not invariably 
500 mt. This set-aside is available for harvest using fixed gear west 
of Cutler in Area 1A until November 1 each year. If the set-aside is 
not utilized by the fixed gear fisheries west of Cutler in Area 1A by 
November 1, then it becomes 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 Area 1A is therefore closed), the 
reallocation of the set-aside would not result in re-opening the 
directed fishery, but would be available for landings under the 2,000-
lb (907.2-kg) possession limit.
    This measure requires weekly monitoring of fixed gear catches in 
Area 1A. To ensure that this set-aside is effectively monitored and 
enforced, fixed gear (weirs and stop seines) fishermen in Area 1A are 
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.

13. Measures to Address Bycatch

    Measures to address bycatch in the herring fishery were developed 
in conjunction with Amendment 1, but submitted separately as Framework 
43 to the NE Multispecies FMP. Framework 43 was approved and 
implemented through a final rule that was effective August 15, 2006 (71 
FR 46871). Framework 43's regulatory requirements apply to Category 1 
herring vessels. Amendment 1 establishes new vessel permit 
designations. The proposed rule for Amendment 1 stated that the 
regulatory requirements in Framework 43 would be applicable to all 
vessels issued limited access permits. The Council comment noted that 
NMFS should revise the final regulation because it was inconsistent 
with Amendment 1, which specifies that the measures established by 
Framework 43 will apply only to vessels issued an All Areas Limited 
Access Herring Permit or the Areas 2 and 3 Limited Access Herring 
Permit, not limited access incidental catch permits. NMFS reviewed 
Amendment 1 and Framework 43 and has revised this final rule 
accordingly, because it is explicit in the Amendment and the Framework 
that the measures should apply only to All Areas Limited Access Herring 
and the Areas 2 and 3 Limited Access fishing permits. This means 
vessels issued limited access incidental catch permits are prohibited 
from possessing any NE multispecies.

14. Regulatory Definition of Midwater Trawl Gear

    This action modifies 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 new definition better ensure that the gear 
cannot be fished on the ocean bottom.

15. Framework Measures

    This action expands the framework adjustment process in the FMP by 
adding 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; measures to address bycatch and bycatch 
monitoring; and TAC set-aside amounts, provisions, and adjustments.

Comments and Responses

General Comments on Amendment 1

    Comment 1: A total of 988 commenters expressed general support for 
Amendment 1. One commenter opposed the entire amendment.
    Response: NMFS has approved the Amendment, with the exception of 
the

[[Page 11258]]

measure concerning the harvest of herring by fixed gear fishermen in 
Downeast Maine (east of Cutler-the Downeast Maine Fixed Gear Fishery).

Comments on the PS/FG Only Area

    Comment 2: A total of 970 commenters supported the measure that 
would establish a seasonal (June-September) purse seine/fixed gear (PS/
FG) only area. These commenters included U.S. Congressman Tom Allen; 
Bumble Bee/Stinson Seafoods; the Coalition for the Atlantic Herring 
Fishery's Orderly, Informed, and Responsible Long-Term Development 
(CHOIR); Conservation Law Foundation (CLF); Environment Maine; the 
Lobster Conservancy; the Maine Department of Marine Resource (MEDMR); 
the National Coalition for Marine Conservation; the National 
Environmental Trust; the Northeast Hook Fisherman's Association; 
Oceana; the Ocean Conservancy; the Stellwagen Bank Charter Boat 
Association; and 957 individuals.
    These commenters provided the following reasons for supporting the 
measure: (1) Midwater trawlers have a negative impact on sustainability 
of the herring resource because they cause localized depletion of 
herring in the areas where they fish, while such localized depletion is 
not caused by other herring gears, such as purse seines and weirs; (2) 
herring are a keystone species in the GOM, and maintaining a healthy 
inshore herring stock is critically important to lobster fisherman who 
use herring for bait, and to a wide range of predators that rely on 
herring as forage, including groundfish, tuna, seabirds, striped bass, 
and whales; (3) the measure will minimize bycatch of marine mammals and 
groundfish, which are put at risk due to bycatch by midwater trawls; 
(4) the measure is an appropriate precautionary measure; and (5) the 
social and economic impacts of the PS/FG area are more than offset by 
the biological benefits that will accrue, and the trawlers that are 
kept out of this area will still have the option of redirecting their 
efforts to Areas 1B, 2, and 3, which would support one the FMP's goal 
of encouraging the development of the offshore herring fishery.
    Fifty-three commenters argued that the PS/FG only area should be 
disapproved, including the American Pelagic Association, the Associated 
Fisheries of Maine (AFM), Cape Seafoods, Inc.; Cold Spring Fish &Supply 
Company; Garden State Seafood Association (GSSA); Lunds Fisheries, 
Inc.; Norpel; and 46 individuals. The reasons cited by these commenters 
for their opposition are that the PS/FG only area violates several of 
the Magnuson-Stevens Act national standards and other legal 
requirements, including: (1) National Standard 2 and the Administrative 
Procedure Act (APA) because the rationale for the proposal does not 
have an adequate scientific basis; (2) National Standard 4 and the APA 
because it is an unfair and inequitable allocation of fishing 
privileges and the Amendment 1 analyses do not demonstrate a rational 
connection between that allocation and the actual furtherance of 
optimum yield (OY) or any legitimate goal of the FMP; (3) National 
Standard 4 because it discriminates between residents of different 
states; (4) National Standard 7 because the measure fails to, where 
practicable, minimize costs by imposing costs of a new gear amounting 
to several hundred thousands of dollars; (5) National Standard 8 and 
Magnuson-Stevens Act section 303(b)(6), because the Council has not 
adequately analyzed or given due weight to the present participation of 
midwater trawls in the fishery, the historical fishing practices and 
dependence on the fishery, the economics involved, and the impact upon 
fishing communities adversely affected by this discriminatory 
provision; and (6) National Standard 9, which requires that 
conservation and management measures shall, to the extent practicable, 
minimize bycatch and bycatch mortality. Commenters also claimed that, 
although Amendment 1 argues that the measure will prevent overfishing, 
it presents no reasoned argument for that conclusion. Excluding 
midwater trawlers, the commenters continue, will not reduce the number 
of herring caught; rather, it will simply mean purse seiners will catch 
more, and midwater trawlers less. Finally, some commenters claimed that 
although Amendment 1 argues that it will protect discrete spawning 
components, it presents no facts or logical connection to support this 
and, furthermore, it presents no evidence of localized depletion, a 
term that is not even defined.
    Response: The Magnuson-Stevens Act gives considerable latitude to 
the Councils to develop management measures if, in the judgment of the 
Council, they conserve and manage a fishery resource. While the 
comments in opposition to this measure note several legal and statutory 
requirements that the commenters believe would be violated by the 
proposed measure, NMFS does not agree with their assertions.
    NMFS determined that the measure does not violate National Standard 
2 or the APA. National Standard 2 does not limit the Council or NMFS to 
taking action only in those cases where scientific data support a 
measure, but rather requires the use of the best scientific information 
available concerning the issue under review. This action is justified 
under the APA because it is based on rational decision making and not 
arbitrary and capricious. With respect to the PS/FG, the Council did 
take into account the best available scientific information on 
localized depletion, and adequately weighed that information, along 
with other factors, in supporting this measure in the Amendment and its 
supporting analyses. NMFS agrees with the Council that, in the face of 
scientific uncertainty or in the absence of hard data, as is the case 
in this situation, the Council can choose to be precautionary and 
implement measures intended to address or avoid a resource problem. 
Given the importance of herring as a forage species and its role in the 
GOM ecosystem, NMFS concludes that it is appropriate to enact this 
measure now to maintain the health of this resource in the inshore 
area, as well as the resources that depend on herring as prey, and the 
businesses that are sustained by a healthy GOM ecosystem. Such weighing 
and balancing of factors clearly satisfies the APA's requirement that a 
federal action not be arbitrary and capricious.
    This measure does not violate National Standard 4. While National 
Standard 4 does not allow NMFS to approve measures that were 
specifically designed to discriminate between the residents of 
different states, it does not limit NMFS's ability to approve measures 
that have a different impact on fishermen from different states. The 
proposed PS/FG measure is not designed to differentiate between fishers 
based on their state of residence. The measure was designed to regulate 
the use of a specific gear type in herring Management Area 1A. The fact 
that vessels fishing from ports in states that are closer to Area 1A 
may be more impacted than vessels in states that are more distant is an 
unavoidable geographic fact, not discrimination. In addition, impacted 
fishers may continue to fish within the area during the PS/FG only 
season if they use a gear other than midwater trawl gear.
    Amendment 1 notes that the PS/FG only measure contributes, 
``directly and indirectly,'' to several FMP objectives, including 
Objective <greek-i>1 (prevent overfishing) and Objective <greek-i>5 
(full utilization of OY). A more specific linkage to these particular 
FMP objectives is not provided in the amendment. The measure 
contributes to

[[Page 11259]]

the overall management program, however, thus NMFS concludes it is 
appropriate to characterize the measure as indirectly supporting the 
objectives of preventing overfishing and achieving OY. NMFS notes that 
the achievement of OY does not depend solely on the attainment of the 
TAC in Area 1A. In fact, in most years, the Area 1A TAC has been fully 
attained. Achieving OY would require that the TACs allocated to Area 2 
and Area 3 be attained, which is unrelated to the PS/FG only measure.
    Amendment 1 also notes that the PS/FG only measure contributes, 
``directly and indirectly,'' to FMP Objective <greek-i>2 (prevent 
overfishing of discrete spawning components), and that the measure is 
intended to prevent the inshore stock component from becoming depleted 
or overfished. NMFS agrees with the commenters who note that there is 
no formal definition of the term ``localized depletion.'' However, such 
a definition is not required in order for the Council to design a 
measure to conserve and manage the stock in Area 1A. The Council has 
now established a seasonal gear restriction in the area to address 
concerns about the impact of midwater trawling on schools of herring. 
This gear restriction is an expansion of the area management program 
that has been in effect for the fishery for a number of years.
    Some commenters similarly noted their view that the proposed 
provision would violate the Magnuson-Stevens Act provision at 303(b), 
which specifies conditions for the allocation of fishing privileges. 
However, this measure does not make an allocation of fishing 
privileges, because any fisher who is eligible for the required herring 
permit may fish under the specified gear restrictions.
    This measure does not violate National Standard 7. The key phrase 
in this standard is ``where practicable.'' This standard does not 
require that conservation and management measures minimize costs 
whenever costs are involved. The PS/FG measure is projected to entail 
costs to those vessel owners who can no longer fish in the area during 
the seasonal restriction and who choose to either re-rig so that they 
can fish in the PS/FG or fish in other areas. These costs were fully 
considered by the Council and balanced against the potential benefits 
of the PS/FG area, and in the Council's estimation, with which NMFS 
concurs, those costs are justified. Furthermore, to the extent that 
fishermen excluded from the PS/FG have the option to either fish in 
other areas or re-rig to become purse seiners, the economic impacts of 
the PS/FG can be partially ameliorated as compared to being completely 
banned seasonally from this area.
    National Standard 8 requires that fishing measures take into 
account a range of factors, including the importance of fishery 
resource to ensure the sustained participation of fishing communities 
and, to the extent practicable, minimize the economic impact on such 
communities. National Standard 8 does not dictate what measures shall 
be adopted once those factors are considered. Amendment 1 provides a 
huge amount of information on the potential impacts of the PS/FG on 
virtually every stakeholder, including the fishing communities that 
rely on herring. Those data were fully considered and evaluated by the 
Council in deciding to support this measure. Similar to the discussion 
of National Standard 7, above, one of the key phrases in Standard 8 is 
``to the extent practicable.'' While various fishing communities are 
projected to have costs to bear as a result of the implementation of 
PS/FG, those costs were balanced and minimized in development of the 
measure to the extent that fishermen excluded from the PS/FG have the 
options to either fish in other areas or re-rig to become purse 
seiners, thereby ameliorating the economic impacts of being completely 
banned seasonally from this area. As noted previously, the requirements 
at Section 303 (b) of the Magnuson-Stevens Act are specific to the 
allocation of fishing privileges, not the gear restriction established 
by the PS/FG measure. Any fisher who is eligible for the required 
herring permit may fish under the specified gear restrictions.
    This measure does not violate National Standard 9. While the 
Council notes in Amendment 1 that there may be some indirect benefits 
to recovering groundfish stocks in Area 1A based on data suggesting 
differences in bycatch rates, species composition of bycatch, and 
bycatch mortality between purse seines and midwater trawls, the measure 
is not specifically designed to address bycatch. The commenters did not 
explain why they believe that the indirect benefits cited would violate 
the requirement to address bycatch.
    Comment 3: One commenter urged NMFS to develop a formal definition 
of a purse seine vessel. The commenter expressed concern that some 
midwater trawl vessels that might re-rig to use purse seine gear have 
holds that are much larger than traditional purse seine vessels. The 
commenter expressed concern that larger vessels could fish too hard in 
Area 1A, and requested a definition that would ``limit the ultra-
efficiency'' of trawlers that re-rig.
    Response: The restriction on the use of midwater trawl gear is not 
based on vessel size or capacity; it is a gear restriction. The Council 
specifically notes its intention that midwater trawl owners have the 
option of re-rigging to use the preferred purse seine gear in Area 1A 
when midwater trawl gear is prohibited. NMFS has no authority to 
establish a definition that would substantially modify the Council's 
intent.

Comments on Limited Access Program

    Comment 4: Nine commenters, including CLF, the Ocean Conservancy 
and seven individuals, argued against approving the limited access 
program presented in Amendment 1 because it fails to address the issue 
of overcapacity. These commenters argued, among other things, that the 
Council should not have allowed vessels to qualify for limited access 
permits on the basis of landings made after the control date of 
September 16, 1999. They believe that the Council should reconsider the 
alternatives that relied on the 1999 control date, and are, therefore, 
presumably arguing for disapproval of the limited access program in 
Amendment 1. On the other hand, 22 commenters supported the limited 
access program for Area 1A in general, but did not support the 
eligibility criteria, arguing that they would significantly increase 
effort in this area. Bumble Bee/Stinson Seafoods commented in support 
of the implementation of the All Areas Limited Access Permit in 
Amendment 1. Six vessel owners commented in favor of the implementation 
of the limited access program for Areas 2 and 3.
    Response: Control dates are set to alert the fishing community to 
the possibility, not the certainty, that vessels that enter the fishery 
after that date might be treated differently than vessels that were in 
the fishery prior to that date, in the event that a limited access 
program is implemented. However, a Council is under no obligation to 
use the control date in establishing criteria for a limited access 
program. If a Council decides to develop a limited access program, the 
program must comply with the requirements of the Magnuson-Stevens Act 
outlined in section 303(b)(6). These requirements include the need to 
take into account the present and historical participation. With regard 
to herring, the Council was aware that new vessels had entered the 
herring fishery since the September 1999 control date and were fishing 
for herring in various management areas. One of the goals and 
objectives of

[[Page 11260]]

Amendment 1 is to, ``provide, to the extent practicable, controlled 
opportunities for fishermen and vessels in other Mid-Atlantic and New 
England fisheries.'' Due to the nature of this fishery and recent 
developments in shoreside processing, the Council determined that 
active participants up through 2003 with significant landings should be 
accommodated in at least some management areas. NMFS concludes that the 
Council selected eligibility criteria consistent with the requirements 
of the Magnuson-Stevens Act.
    In a similar vein, a Council is under no obligation to select the 
most restrictive eligibility criteria. The Council properly considered 
a range of factors in determining the eligibility criteria, and, in 
particular, the dates during which landings would be used to qualify 
for limited access permits, paying special attention to the need to 
balance historic and current participation. Although the Council could 
have chosen eligibility criteria that would have greatly reduced the 
number of qualifying vessels and hence the potential effort in Area 1A, 
the eligibility criteria that the Council chose are reasonable and 
defensible.
    Comment 5: Forty-six commenters, including AFM; APA; Cape Seafoods, 
Inc.; Cold Spring Fish & Supply Company; GSSA; Lunds Fisheries, Inc.; 
Montauk Inlet Seafood, Inc.; Norpel, and 38 individuals argued that 
NMFS should disapprove the establishment of the limited access program 
for Areas 2 and 3. The reasons cited for this position include the 
following: (1) The TACs allocated to these areas have never been fully 
utilized, and landings have actually decreased in recent years, 
therefore establishing limited access in these areas would violate 
National Standard 1, which requires measures to, ``prevent overfishing 
while achieving on a continuing basis, the optimum yield from each 
fishery;'' (2) limiting access to these areas now will impede the 
achievement of OY; (3) the capacity analysis in Amendment 1 is flawed 
because it did not analyze recent and anticipated future growth in 
capacity or fishing effort in Areas 2 and 3, it over-estimated 
harvesting capacity, and it does not take into account net capacity 
growth that may have taken place in the past few years; (4) the 
amendment simply assumes rather than proves that, absent the imposition 
of limited access, there would be significant growth in capacity in 
Areas 2 and 3; (5) it will unfairly eliminate a large percentage of the 
fleet from access to significant amounts of herring; and (6) the 
possibility of overcapitalization, in the absence of any serious threat 
of overfishing or other near-term conservation impact, is not a 
sufficient basis for the imposition of a limited access system, with 
all its attendant adverse effects upon competition and free market 
activity.
    Response: Many of the concerns noted by these commenters are the 
result of the fact that they inappropriately equate historic landings 
with fleet capacity. The fact that the open access herring fleet has 
not taken the TACs in Areas 2 and 3 is not a reflection of the capacity 
of the vessels. Indeed, during the Council debate about annual 
specifications, members of the herring industry strenuously argued that 
the existing fleet has the capacity to take the entire OY (including 
all the TACs for the various areas), thereby precluding any foreign 
fishing allocation. Many of the same industry members now argue that, 
because they have not in fact taken the TACs in Areas 2 and 3, those 
areas should remain open access in order to land OY. However, the 
capacity to take the TACs in Areas 2 and 3 already exists, as 
demonstrated in the capacity analysis for the No Action alternative. 
The reason that the fleet has not done so to date has more to do with 
the availability of fish and external market factors that it has to do 
with capacity. In Section 6.1 of Amendment 1, the Council adequately 
lays out its rationale for limited access and the Council notes that it 
seeks to avoid the problems experienced in other fisheries as a result 
of excess capacity. The Council also notes that it seeks to develop a 
limited access program to address the existing capacity problems in 
Area 1A and avoid such problems in other areas.
    The Magnuson-Stevens Act requires the Council to consider past and 
present participation when establishing a limited access program, and 
the Amendment 1 eligibility criteria are predicted to result in a fleet 
that has the capacity to harvest expected TACs. The analysis of 
potential harvesting capacity in this Council document is based on the 
best available information and provides some perspective on what the 
potential catch of the limited access fleet may be under the Amendment 
1 eligibility criteria. The range of potential catch under each of the 
limited access criteria provided in the analysis was not intended to be 
an absolute estimate or a direct measure of capacity, but rather a tool 
for the Council to use to evaluate the potential for the fleet to catch 
the total TAC for the fishery. It was used during the Council 
deliberations to compare the limited access alternatives under 
consideration. The range of potential catch estimates in the analysis 
represents a minimum estimate, as it only incorporates observed fishing 
effort for active vessels (2002-2004) that would qualify for a limited 
access directed fishery permit; qualifying vessels that did not 
participate in the herring fishery from 2002-2004, as well as limited 
access incidental catch permit holders and additional qualified vessels 
that may come forward during the review of Amendment 1 eligibility, are 
not included in the analysis, so the potential catch of the entire 
limited access fleet is expected to be higher than the range provided 
in this analysis. The capacity analysis for the proposed action 
concluded that the potential catch would range from 161,030 to 198,710 
mt, exceeding the 2006 total TAC for the fishery of 150,000 mt. Keeping 
in mind that this is likely an underestimate of the capacity that will 
actually result from the implementation of this action, it is clear 
that the fleet of vessels found eligible for permits under Amendment 1 
will have more than enough capacity to take the TAC, not only in Area 
1A, but also in Areas 1B, 2, and 3. As to the issue of whether there 
would be significant growth in capacity in Areas 2 and 3, absent the 
imposition of limited access, that is not relevant. As already stated 
above, the capacity already exists in the fleet to take all the TACs 
and to achieve OY.
    The limited access program contained in this action will not 
unfairly eliminate a large percentage of the fleet from access to 
significant amounts of herring. Although there is no doubt that certain 
herring boats will be limited in the amount of herring that they can 
catch or possibly excluded from the limited access fishery, the vast 
majority of the historically active and significant participants in the 
fishery should be able to qualify for one or more limited access 
permits, and continue to participate in the fishery. Indeed, the 
eligibility criteria chosen by the Council were specifically intended 
to enable a wide range of past and present participants in the fishery 
to qualify for one or more limited access permits. As the Amendment 
noted, the majority of vessels that are likely not to qualify under 
this action have not participated in the herring fishery in recent 
years, and in some cases, for many years. Some have switched to other 
fisheries like mackerel and squid. The limited access incidental catch 
permit will 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 and

[[Page 11261]]

3. As stated above, by taking action now, and implementing limited 
access in Areas 2 and 3, the Council hopes to avoid the problem of 
overcapacity.
    NMFS believes that this limited access program complies with 
National Standards 1 and 4, as well as with the APA, because the 
decision to make Areas 2 and 3 limited access is clearly based on a 
reasoned evaluation of the data and the potential capacity of the 
fleet.
    Comment 6: Twenty-eight commenters, including AFM; American Pelagic 
Association; Bumble Bee/Stinson Seafoods; Cape Seafoods, Inc.; Cold 
Spring Fish & Supply Company; GSSA; MEDMR; Montauk Inlet Seafood, Inc.; 
Lunds Fisheries, Inc.; Norpel; and 18 individuals suggested that NMFS 
should modify the limited access program for Areas 2 and 3 if it does 
not disapprove it. All of them suggested a longer time period for 
determining limited access eligibility, with specific suggestions to 
extend the start of the qualification period back to 1988, and/or 
forward to 2005 or the date that limited access is implemented. MEDMR 
advocated for an eligibility criteria for Areas 2 and 3 that would 
qualify all current fishery participants for the permit, though it did 
not suggest how such participants would be defined. Twenty-one 
commenters proposed a phased in ``controlled access'' program.
    Response: The Magnuson-Stevens Act authorizes NMFS to approve or 
disapprove measures proposed by the Council in an FMP or an amendment; 
there is no authority to modify those measures in a substantive way 
after being submitted for approval. During the development of Amendment 
1, the Council evaluated numerous proposals for limited access 
eligibility criteria and ultimately adopted those approved in the 
amendment. Amendment 1's rationale for the limited access program for 
Areas 2 and 3 is sufficiently justified and NMFS finds no grounds for 
disapproving the provision, which it finds to be consistent with the 
Magnson-Stevens Act and other applicable laws.
    Comment 7: A number of commenters suggested modifications to the 
limited access incidental catch permit. These include 21 individuals 
who recommended a higher possession limit, and 17 who suggested that 
all vessels issued an Atlantic mackerel permit should be eligible for 
this herring permit. One commenter believes that the program violates 
National Standard 9 because it could require vessels targeting mackerel 
to discard herring if they catch more than the possession limit 
authorized under their herring permit.
    Response: As noted above, NMFS can only approve or disapprove 
measures in Amendment 1; it cannot modify those measures. In Amendment 
1, the Council sufficiently evaluated the likely levels of incidental 
herring catch in fisheries targeting other species. The possession 
limits specified in Amendment 1 are intended to provide reasonable 
levels of incidental catch without creating an incentive for targeting 
herring. Amendment 1 notes, in Section 5.2.2, that if there are future 
interactions, particularly in the squid-mackerel fisheries, the Council 
may take additional action to address those interactions. In light of 
the findings in Amendment 1 on this subject, NMFS finds no basis for 
disapproving the limited access incidental catch measures.
    Comment 8: Three individuals commented that NMFS should make it 
possible for fishermen to be able to sell and purchase herring permits 
without jeopardizing the fishermen's other limited access permits.
    Response: As noted previously, NMFS can only approve or disapprove 
measures in Amendment 1. It cannot modify those measures in a 
substantive way. NMFS notes, however, that it has never recognized the 
sale of open access or limited access permits. The regulations for 
limited access fisheries govern the transfer of limited access permits 
when a vessel is sold. Furthermore, the Council specifically addressed 
the issue of how the sale and retention of herring permits and 
histories would be handled under Amendment 1. See the response to 
Comment 9 for additional discussion of the provision governing such 
sales.
    Comment 9: Twenty-two commenters including American Pelagic 
Association; Cape Seafoods, Inc.; Cold Spring Fish & Supply Company; 
GSSA; Lunds Fisheries, Inc.; Norpel; and 16 individuals argued that the 
permit-splitting provision in Amendment 1 should be disapproved. They 
believe that the Amendment 1 regulations should allow a vessel owner 
who sold a vessel with limited access permits, but who retained the 
Atlantic herring fishing history, to use the retained history to 
qualify the onwer's vessel for a limited access herring permit. They 
argue that the measure in Amendment 1 would retroactively prohibit 
business transactions that were legitimate at the time they were 
conducted, and that it is not consistent with the consistency amendment 
that was implemented in 1999 to standardize the limited access programs 
for the region's fisheries. They also argue that the measure violates 
the requirement of the APA for reasoned and non-arbitrary 
decisionmaking because there is no analysis of the impacts of the 
measure in the Amendment, and that it would violate the National 
Standard 4 requirement for the allocation of fisheries privileges to be 
made in a fair and equitable manner.
    Several of the commenters who oppose the permit-splitting provision 
argue that it will increase, rather than decrease, the capacity of the 
herring fleet, and outline a specific scenario to support their view 
that the permit-splitting provision in Amendment 1 would create two 
herring limited access permits where there only should have been one. 
Six individuals supported the permit-splitting provision as proposed.
    Response: NMFS concludes that Amendment 1 adequately considered and 
justified this measure and NMFS, therefore, finds no reason to 
disapprove the provision. At the Atlantic Herring Advisory Panel 
meeting on October 19, 2005, a number of questions were asked about the 
manner in which the herring limited access permitting provisions would 
be implemented. NMFS staff provided information to the Council about 
the vessel eligibility determinations made in previous limited access 
programs, and specifically noted that NMFS had been getting inquiries 
from industry members about buying and selling herring ``landings 
histories.'' It was pointed out to the Council that previous programs 
had not recognized this type of activity. For the next several months, 
the Council discussed various limited access permit issues and adopted 
provisions that were consistent with previous limited access programs.
    Among the provisions adopted by the Council on May 3, 2006, was one 
referred to as the permit-splitting provision that specified that, ``no 
more than one vessel may qualify, at any one time, for a limited access 
permit based on that or another vessel's fishing and permit history.'' 
NMFS reviewed the language in response to inquiries from constituents, 
and asked the Council to clarify its intention concerning the measure. 
NMFS noted that, if implemented as written, vessel owners who had sold 
a vessel that had been issued one or more limited access permits, but 
retained only the herring fishing history, would not be able to use the 
herring history to qualify another vessel for a herring limited access 
permit. NMFS notified the owners of vessels issued herring permits that 
the discussion would take place the following week at the Council 
meeting on April 4, 2006. At that time, the Council clarified that it 
would maintain the measure as written.

[[Page 11262]]

    While this clarification to the implementation of Amendment 1 
happened in the final stages of the development process, it is not 
being applied retroactively to previously recognized actions. The 
actions the commenters took prior to the establishment of the herring 
limited access program were private transactions between individuals. 
The fact that regulations in effect at the time did not bar those 
transactions does not mean that the Council or NMFS recognized them as 
valid. The commenters' suggestion that the impacts of the measure on 
vessel owners could have been analyzed implies that they were recorded 
in a database that could be used in analysis. However, there is no way 
for the Council or NMFS to identify the existence of these private 
arrangements.
    It is unclear how the commenters conclude that this provision 
violates National Standard 4. Certainly some vessel owners will be 
impacted, while others will not, but that, in and of itself, is not the 
same as an inequitable assignment of fishing privileges. It appears 
that some vessel owners who took speculative actions in anticipation of 
limited access going into effect for the herring fishery will find that 
their strategies did not work, but that does not constitute a violation 
of National Standard 4.
    The commenters who have expressed concern that the permit-splitting 
provision could increase fleet capacity base their concern on a very 
specific set of circumstances. NMFS argues that there could be cases 
where two separate owners could qualify vessels for limited access 
permits based on fishing conducted using the same hull by each of the 
owners at different points in the eligibility periods. This would 
require the original owner to have retained the fishing history and any 
limited access permits, and to own a vessel that meets the permit 
requirement. This scenario would require the purchaser of the vessel to 
have independently accumulated sufficient herring landings to meet the 
eligibility criteria and to have been issued a herring permit at the 
required time. While this scenario could potentially occur, it is 
likely to be very limited in scope, and would not violate any 
requirement of the Magnuson-Stevens Act or other applicable laws.
    Comment 10: One commenter argued that the Amendment discriminates 
against historic participants in the Downeast Maine herring fishery. 
The commenter states that herring were not available to the fishermen 
in this area during the selected qualification years of 1988 and 2003, 
for the limited access incidental permit. Therefore, the fishermen of 
that area will only be able to qualify for open access permits. The 
commenter argues that Downeast fishermen who invested in herring after 
the control date of 1999 face large losses because they were not able 
to find herring within the time constraints required to qualify for 
limited access permits.
    Response: The Magnuson-Steven Act requires the Council to consider 
historic and recent participation in a fishery when it establishes a 
limited access program. The Council conferred some level of limited 
access eligibility on participants who made specified levels of 
landings over a 15-year period. By design, eligibility will not be 
conferred on vessels that made no herring landings. NMFS has approved 
the program because it complies with the Magnuson-Stevens Act and other 
applicable laws and has considered present and historic participation 
in the fishery.

Comments on Open Access Permit Program

    Comment 11: Nineteen commenters, including Cape Seafoods, Inc.; 
Cold Spring Fish & Supply Company; GSSA; Lunds Fisheries, Inc.; Norpel; 
and 14 individuals, argued that the herring possession allowance for 
vessels issued the open access incidental catch permit established by 
Amendment 1 should be increased from 3 mt to either 5 mt or 25 mt. Many 
commenters argued that the increase would provide consistency pursuant 
to National Standards 5, 6, and 9 by ensuring access to the mackerel 
resource while reducing the potential for regulatory discards.
    Response: NMFS can only approve or disapprove measures in Amendment 
1; it cannot modify those measures. The Council specifically analyzed 
in Amendment 1 the level of incidental herring caught by vessels that 
land Atlantic mackerel, and addressed the issue by establishing the 
open access and limited access incidental catch permits. The basis for 
the Council's specification of a 3 mt possession limit, therefore, is 
well-documented and reasonable, and there is nothing in the Council's 
specification of a 3-mt possession limit for vessels issued open access 
incidental catch permits that violates the national standards cited by 
the commenters. NMFS finds no basis for disapproving the measure.

Comments on Other Measures

    Comment 12: One commenter expressed concern that the suite of 
measures adopted in Amendment 1 represented a ``mix-and-match'' of the 
measures taken to public hearing by the Council. The commenter noted 
that the Draft Environmental Impact Statement (DEIS) stated that 
measures would not be mixed and matched, and that the Council violated 
this promise. The commenter claimed that the proposed action was not 
fully analyzed and the public did not have an opportunity to reflect on 
the impacts of that action.
    Response: While the DEIS did discuss analyzing the various 
alternatives as packages, the Council was under no legal obligation to 
strictly maintain the alternatives without any modification. In fact, 
to do so could have been inconsistent with the Council's consideration 
of the comments received during the public hearings. All of the 
elements in Amendment 1 fall within the range of packaged alternatives 
analyzed in the Amendment, and the final impacts were presented to the 
public for review and comment in the formal submission of Amendment 1. 
NMFS found that Amendment 1 complies with the requirements of the 
Magnuson-Stevens Act and other laws.
    Comment 13: Ten commenters, including CLF, Oceana, and eight 
individuals, opposed the 3-year specification setting process, arguing 
that only yearly specifications will allow the Council to effectively 
adjust to changing conditions in the fishery.
    Response: The intent of this measure is to streamline the 
regulatory process, reduce the amount of work and resources required to 
set specifications, and enhance stability in the regulation of the 
fishery. Extending the specification process from 1 to 3 years could 
give businesses a longer-term planning horizon and create a more stable 
environment for business planning. Concerns about the importance of 
reviewing this fishery on an annual basis are addressed in Amendment 1 
through the requirement for the Herring PDT to annually review the 
status of the stock relative to the overfishing definition and the 
provision that authorizes the Council to adjust the specifications 
during the interim years. Thus, the provision will permit the Council 
to adjust the specifications, if necessary, in response to changes in 
the condition of the stock or the fishery.
    Comment 14: Seventeen commenters including GSSA, AFM, and 15 
individuals, argued that the proposed definition of midwater trawl gear 
should be disapproved because it does not define the term ``chafing 
gear.'' They note that chafing gear is critical in order to haul gear 
up stern ramps without sustaining damage to the gear. These commenters 
recommended that the Council and NMFS convene a working

[[Page 11263]]

group to more fully develop the definition, and especially define 
chafing gear. The Council also submitted a comment requesting that NMFS 
clarify the definition in the final rule, but made no suggestion for 
clarification. CLF supported the proposed midwater trawl definition, 
but urged NMFS to strengthen this provision in the future to ensure 
that midwater trawl gear is not fished on the bottom.
    Response: The Council's definition of midwater trawl gear says in 
part, that ``the gear may not include discs, bobbins or roller on its 
footrope or chafing gear as part of the net.'' Industry members raised 
the gear damage concern to the Council during the development of 
Amendment 1 but the Council ultimately adopted the definition. NMFS 
notes that restrictions on the use of chafing gear appear in the 
regulations for many fisheries in the NE region, including squid, 
mackerel, butterfish, NE multispecies, summer flounder, black sea bass, 
and scup, without further definition. NMFS is unaware of any resultant 
problem with respect to industry compliance or enforcement. NMFS has 
approved the definition, but notes that the commenters may wish to 
bring up the issue with the Council, and to offer further refinement of 
the definition in a future regulatory action.
    Comment 15: MDEMR and two individuals opposed the disapproval of 
the Downeast Maine (east of Cutler-the Downeast Maine Fixed Gear 
Fishery) exemption from the TACs that govern the fishery. MEDMR 
disagreed with NMFS's assertion, as stated in the proposed rule for 
Amendment 1, that this measure would violate National Standard 1, and 
that NMFS would have no means of regulating the catch to ensure the 
integrity of the TAC. MEDMR pointed out that its regulations require 
all herring landings to be reported, and therefore believed the fishery 
would be regulated. MEDMR also disagreed with NMFS's determination, 
also stated in the proposed rule for Amendment 1, that this provision 
would be inconsistent with National Standard 3, the requirement to 
manage an individual stock unit throughout its range. MEDMR stated that 
there is increasing evidence that the fish in the area belong to the NW 
Nova Scotian stock and consequently the requirement to manage an 
individual stock unit throughout its range may not be applicable. Two 
herring fishermen commented that disapproving this provision was not 
fair to those fishermen who operate in the Downeast Maine Fixed Gear 
Fishery, and would have a dramatic and negative impact on them.
    Response: Although MEDMR can monitor the landings of the Downeast 
Maine Fixed Gear Fishery, NMFS would not have the legal authority to 
regulate that catch. The provision, as written, means that the Downeast 
Maine Fixed Gear Fishery would be exempt from the TAC controls; 
therefore, NMFS would have no authority to close down that fishery and 
maintain the integrity of the TAC. The measure would essentially allow 
a portion of the fishery to remain completely unregulated by Federal 
authority without corresponding conservation benefits. In addition, 
while in the future the definition of the Atlantic herring stock may 
change, the best available science specifies that herring is a unit 
stock. As stated in the proposed rule for Amendment 1, NMFS found the 
measure to be inconsistent with National Standards 1 and 3 of the 
Magnuson-Stevens Act, and it was disapproved on December 6, 2006.
    Comment 16: CLF and the Ocean Conservancy argued that caution 
should be used in applying the existing methodology to establishing 
MSY, because the methodology used in the TRAC process might prove risky 
in light of the retrospective pattern of the assessment and new and 
emerging information on ecological relationships, which might alter the 
way in which various factors are taken into account.
    Response: The establishment of MSY is based on the best available 
science. The TRAC process is continually working to improve the methods 
it uses to estimate MSY, and will continue to take into account 
emerging information about the fishery and its interrelations within 
the ecosystem. Indeed, the most recent TRAC, which was completed after 
Amendment 1 was finalized, revised MSY downwards. Instead of the proxy 
value of 220,000 mt, the MSY for the herring stock is now 194,000 mt. 
NMFS notes that the retrospective pattern in the assessment can be 
taken into account when recommending Atlantic herring specifications.
    Comment 17: Six individuals opposed the establishment of an RSA, 
arguing that the herring industry has provided financial and in-kind 
support for such research without the administrative burden and 
associated cost. Twenty-one commenters support the RSA to support 
herring research.
    Response: NMFS acknowledges the industry's voluntary efforts to 
participate in and contribute to scientific research and hopes that 
these efforts continue in the future. There is no basis suggested for 
disapproving the measure that establishes the RSA. NMFS notes that, 
each time the Council recommends fishery specifications, it has the 
option of setting the RSA at zero. None of the TAC would necessarily be 
set-aside if there is concern about utilization of the resource in a 
particular area. Moreover, any portion of the RSA that is not allocated 
for research will be reallocated to the fishery at the beginning of the 
fishing year.
    Comment 18: Six individuals opposed the 500-mt set aside for fixed 
gear fisherman in Area 1A, because there are no management measures in 
Federal or state FMPs that preclude this sector from full participation 
in the fishery, and because of the administrative burdens that such a 
provision would impose.
    Response: The Council developed this measure to ensure access to 
the herring resource for the fixed gear fishery in Area 1A. Herring is 
only available to fixed gear fishermen using weirs and stop seines in 
the inshore GOM if the fish move inshore. Some fixed gear fishermen 
requested a specific allocation, arguing that the fishery in Area 1A 
would otherwise harvest the TAC before fish can reach the inshore 
areas. While there may be other factors related to the decline of the 
fixed gear fisheries, it is within the authority of the Council to make 
such an allocation. NMFS notes that its administrative burden will be 
relatively small. If the set-aside is not utilized by November 1, it 
would become part of the overall Area 1A allocation. Monitoring 
measures established through the Commission's Amendment 2 to the 
Interstate Fishery Management Plan (ISFMP) for Atlantic herring will 
require the State of Maine to provide the data necessary to monitor the 
fishery. There may be administrative burden associated with the State 
program, but that is outside of NMFS's authority.
    Comment 19: The Council requested that NMFS clarify that the 
language regarding the 500-mt set aside should authorize ``up to 500 
mt'' to be set aside, as opposed to requiring that 500 mt be set aside. 
The Council noted that the exclusion of the words ``up to'' in 
Amendment 1 was an oversight resulting in a very stringent management 
measure that provides no flexibility to the Council.
    Response: NMFS has clarified the regulations, consistent with the 
Council's intent.
    Comment 20: Bumble Bee/Stinson Seafoods supported the revision of 
the permitting requirements that would require at-sea processing 
vessels to obtain dealer permits rather than vessel permits.

[[Page 11264]]

    Response: NMFS is implementing the provision through this final 
rule.
    Comment 21: The Council and six individuals supported the retention 
of the TAC reserve option in the specifications.
    Response: NMFS has left the option for the specifications to 
include TAC reserves.
    Comment 22: The Council urged NMFS to revise the final regulations 
to clarify thatthe measures specified in Framework 43 regarding the 
retention of haddock and other regulated species will apply only to 
vessels issued limited access directed fishing permits, not limited 
access incidental catch permits.
    Response: NMFS reviewed Amendment 1 and Framework 43, and has 
revised the final rule as requested by the Council because it is 
explicit in the Amendment and the Framework that the measures should 
apply only to limited access directed fishing permits the All Areas 
Limited Access Herring Permit, and the Areas 2 and 3 Limited Access 
Herring Permit. NMFS notes that this means vessels issued limited 
access incidental catch permits are prohibited from possessing any NE 
multispecies.
    Comment 23: The Council argued that it did not intend for carrier 
vessels to be required to possess either a limited access or an open 
access herring permit. The Council supports the requirement for carrier 
vessels to obtain a letter of authorization and suggested that a 
separate permit be issued for carrier vessels, similar to the permit 
that authorizes carriers to receive up to the BT specification.
    Response: The Council specified in Amendment 1 that the herring 
management measures existing prior to Amendment 1 would remain in 
effect unless specifically revised in Amendment 1. The provision that 
requires a carrier vessel to have a herring permit has been in effect 
since 2000. While Amendment 1 specified that carrier vessels would not 
be required to be issued a limited access permit, the Amendment did not 
contemplate the removal of the permit requirement entirely. Therefore, 
NMFS is maintaining the requirement for U.S. carrier vessels to be 
issued either an open-access or a limited access herring permit as a 
required aspect of program administration and as an enforcement tool. 
The permit is needed to identify the vessel owner, should there be any 
violation of regulatory requirements, and withholding a permit is one 
of the most effective enforcement tools. As mentioned in the preamble 
to this rule, even though carrier vessels will be required to have 
either an open access or a limited access permit, they will not be 
required to abide by the possession limits associated with those 
permits while operating as a carrier vessel. The Magnuson-Stevens Act, 
as amended by Public Law104-297 sec. 105(e), provides specific 
authority for NMFS to issue permits to up to 14 Canadian vessels to 
transport U.S.-caught herring to Canada solely for sardine processing. 
The amount that can be transferred is specified in the annual 
specifications as BT. However, the provision is unrelated to the 
authorization of U.S. carrier vessels.
    Comment 24: One commenter suggested that herring carrier vessels 
should not be prohibited from possessing species other than Atlantic 
herring. The commenter noted that Framework 43 authorized herring 
vessels to possess NE multispecies up to specified limits. The 
commenter suggested that, because carriers receive herring pumped 
directly onboard from fishing vessels, carrier vessels must be 
authorized to possess NE multispecies up to the same specified limits.
    Response: While this comment would more appropriately have been 
raised during the public comment period for Framework 43, NMFS 
recognizes that the Council developed Amendment 1 and Framework 43 
jointly, so the issues are directly related in the mind of the public. 
NMFS finds that the commenter has raised a valid point about an 
inconsistency in the regulations that would present the industry with a 
compliance problem and NMFS with an enforcement problem. Thus, NMFS has 
clarified that the possession allowances applicable to herring fishing 
vessels are also applicable to herring carrier vessels that receive 
herring from these vessels.
    Comment 25: One commenter requested modifications to the proposed 
regulations governing the transfer of fish at sea. The commenter 
suggested that several of the restrictions should be modified because 
they are inconsistent with fishery operations, particularly in the 
purse seine fishery. The commenter explained that purse seine 
operations may catch more herring than estimated when they encircle the 
fish they are targeting. The amount of herring captured may be more 
than either the vessel's market demands, or more than the vessel has 
the capacity to carry. As a result, to alleviate waste and discarding, 
it has been industry practice for purse seine vessels to share their 
catch with other fishing vessels, as well as carrier vessels. The 
proposed rule would restrict this activity in two ways. First, it would 
prohibit transfers of herring at sea unless the transfer is made to a 
vessel for personal use as bait, to an at-sea processing vessel, or to 
a vessel operating exclusively as a carrier vessel under a LOA. Second, 
the proposed regulations would prohibit a vessel with fishing gear on 
board from operating as a carrier vessel.
    The commenter requests that NMFS revise the final rule to allow the 
transfer of fish among fishing vessels, provided each vessel involved 
in such a transfer has been issued a limited access herring permit. 
Vessels would be required to comply with the herring possession limits 
associated with their vessel permit. In addition, the commenter stated 
that NMFS should revise the final rule so that the vessel receiving 
such a transfer could utilize the fish in any manner, not just for 
personal use as bait. The commenter noted that the Council intended to 
limit transfers for bait use only when herring is transferred to a 
vessel that is not issued a herring permit. The commenter argued that 
it is illogical to limit the transfer of fish to U.S.-permitted vessels 
to bait use only, and notes that carrier vessels, in particular, 
deliver fish that is used for commercial purposes other than bait. The 
commenter noted that reporting requirements would apply to all such 
herring, so that the landings would be counted toward the area TACs.
    In addition, the commenter requests that NMFS revise the final rule 
to allow any vessel issued a limited access herring permit to operate 
as a herring carrier vessel, without being subject to the LOA 
requirements. The commenter argues that NMFS proposed new measures that 
would restrict carrier vessels. The commenter believes that industry 
practice requires limited access vessels to be able to receive 
transfers at sea without the limitations specified by the LOA, 
particularly the requirement that the vessel operate exclusively as a 
herring carrier vessel while issued the LOA, and the requirement for 
the LOA to be issued for a minimum period of 7 days. The commenter 
thinks the LOA should be required only for vessels that are not issued 
a limited access herring permit since, in the commenter's view, the 
objective is to identify vessels allowed to possess herring and insure 
that all catch is reported.
    Response: In the preamble to the proposed rule, NMFS specifically 
requested comments on the proposed regulations governing the transfer 
of fish at sea. NMFS noted that it was proposing a revision of the 
existing regulatory text because Amendment 1 was establishing several 
types of vessel permits, each of which authorized the possession of 
different amounts of herring. The revision was intended to maintain the 
integrity of the herring possession limits, and required a vessel

[[Page 11265]]

transferring herring to comply with the possession restrictions 
associated with its permit type. The commenter agrees with this aspect 
of the NMFS revision.
    However, the other issues raised by the commenter resulted in a 
review of the proposed revision that revealed that NMFS omitted from 
the proposed rule a provision of the existing regulations that should 
have been maintained. The Council specified in Amendment 1 that the 
herring management measures existing prior to Amendment 1 would remain 
in effect unless specifically revised in Amendment 1. Because the 
transfer at sea provisions were not revised by the Council in Amendment 
1, the proposed rule for the transfer of fish at sea should have 
maintained regulatory text that authorized vessels to transfer fish at 
sea without restriction on its future use, provided each vessel was 
issued a valid Atlantic herring permit. Restoring this improperly 
deleted text will authorize the type of activity identified by the 
commenter, in which several vessels take on board herring caught in a 
purse seine deployed by another vessel. It will also authorize the 
transfer to carrier vessels and U.S. at-sea processing vessels without 
restriction on the future use of the herring. As noted by the 
commenter, consistent with the establishment of the limited access 
program, the final rule specifies that no vessel may possess on board 
more herring at any time than authorized by the vessel permit it is 
issued. As noted by the commenter, it is critical that all herring 
landings be properly reported, so NMFS has also clarified that each 
vessel must report the herring it lands through the IVR and VTR.
    As noted above, unless herring management measures were 
specifically revised by Amendment 1, the Council specified that 
existing provisions would be maintained. The existing regulations 
clearly define herring carrier vessels as vessels issued herring 
permits, that are prohibited from having gear on board capable of 
catching herring, and that are issued a LOA. The LOA has a minimum 
enrollment and specific vessel reporting instructions that are 
important for NMFS data collection. Therefore, NMFS believes that 
making any revision to this regulations governing herring carrier 
vessels would be inconsistent with Amendment 1. NMFS notes that the 
restoration of the improperly deleted text in the proposed rule may 
eliminate the need for such a revision. In fact, the carrier vessel LOA 
would provide an additional opportunity for a vessel issued a limited 
access herring permit that limits its possession of herring to work 
with a purse seine vessel for a period of time solely as a carrier 
vessel. Because such a vessel would have no gear on board, there would 
be no need to limit the amount of herring it could carry, because it 
could not have caught the herring.
    Comment 26: One commenter requested a revision to the definition of 
``processing,'' with respect to the Atlantic herring fishery. The 
existing definition includes the term ``salting'' as a method of 
herring processing. However, the commenter believes this would limit 
the ability of vessels without refrigerated seawater holds to operate 
as herring carriers, and suggests a revision to allow such vessels to 
use salt. The commenter notes that there is no ice available to vessels 
east of Portland, ME, so salt is the best option for such vessels.
    Response: NMFS notes that this definition was established in the 
original FMP, and was not revised in Amendment 1. Therefore, it would 
not be appropriate to make this modification in this final rule. The 
commenter may raise the issue to the Council for possible future 
action.
    Comment 27: The Council requested that NMFS clarify the 
inconsistencies between State and Federal regulations pertaining to the 
Downeast Maine Fixed Gear Fishery for herring, given that the 
Commission has already implemented this measure, while NMFS has 
disapproved it. The Council asked how NMFS will address the 
inconsistency and how fixed gear catches will be treated with respect 
to monitoring the Area 1A TAC.
    Response: NMFS will rely on data provided by the states, as 
required by Amendment 2 to the ISFMP for Atlantic Herring, to monitor 
the landings of the fixed gear sector. These landings will be counted 
toward the Area 1A TAC.
    Comment 28: The Council agrees with the suggestion, made by NMFS in 
the proposed rule, that vessels that sank, were destroyed, or sold, and 
then replaced, should be treated the same as vessels that apply 
directly for a limited access incidental catch permit when it comes to 
meeting the current permit requirement. Therefore, to meet the current 
permit requirement for a limited access incidental catch permit, a 
vessel that is replacing a vessel that sank, was destroyed, or sold 
must have been issued a Federal permit to fish for Atlantic herring, 
Loligo or Illex squid, mackerel, butterfish, and/or whiting (a limited 
access Northeast multispecies permit also serves as a whiting permit), 
between November 10, 2003, and November 9, 2005.
    Response: This final rule includes this provision.

Changes from the Proposed Rule

    NMFS has made several changes to the proposed rule as a result of 
public comment. Other changes are technical or administrative in nature 
and clarify or otherwise enhance the administration and/or enforcement 
of the fishery management program. These changes are listed below in 
the order that they appear in the classification section and the 
regulations.
    In the section on the collection-of-information requirements for 
the Paperwork Reduction Act (PRA), the numbers for those requirements 
have been clarified.
    In Sec.  648.2, the definition of Atlantic herring carrier has been 
clarified to indicate which vessels it applies to.
    In Sec.  648.2, the definition of Fixed gear has been added, and, 
for the purposes of the Atlantic herring fishery it means weirs or stop 
seines.
    In Sec.  648.4, paragraph (a)(10)(ii) is revised to indicate that, 
even though carrier vessels are required to have a herring permit, they 
are exempt from the possession limits associated with such permits when 
operating as a carrier vessel. The paragraph is also revised to clarify 
that the LOA exempts such a vessel from the VMS and IVR vessel 
reporting requirements as specified in Sec.  648.7, as well as subpart 
K. The paragraph is also revised to clarify that a carrier vessel may 
posses NE multispecies in catches transferred by vessels issued either 
an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 
Limited Access Herring Permit, consistent with the applicable 
possession limits for such vessels.
    In Sec.  648.4, paragraph (a)(10)(iii) is revised to clarify that 
vessels that exceed the size or HP restrictions are eligible to be 
issued an at-sea processing permit specified under Sec.  
648.6(a)(2)(ii) as opposed to Sec.  648.6(a)(2).
    In Sec.  648.4, paragraphs (a)(10)(iv)(B)(2)(i) and 
(a)(10)(iv)(B)(3)(i) are revised to clarify that the subject vessels 
must have landed, rather than landed and sold, the required amount of 
herring to qualify for either the All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit. These 
paragraphs are also revised to clarify that, in those cases where a 
vessel has sold herring but there are no required dealer receipts, 
e.g., transfers of bait at sea and BTs, the vessel owner can submit 
other documentation that captures such transactions and proves that the 
herring thus transferred should be added to their landings history.
    In Sec.  648.4, paragraph (a)(10)(iv)(C)(1)(ii) is revised to 
clarify

[[Page 11266]]

that a vessel can qualify for an Incidental Catch Limited Access 
Herring Permit, and CPH, if the vessel is replacing a vessel that was 
issued a Federal permit for NE multispecies, Atlantic mackerel, 
Atlantic herring, Loligo or Illex squid, or butterfish that was issued 
between November 10, 2003, and November 9, 2005, assuming the vessel 
meets all the other qualification criteria.
    In Sec.  648.4, paragraph (a)(10)(iv)(C)(2) is revised to clarify 
that the subject vessels must have landed, rather than landed and sold, 
the required amount of herring to qualify for the Incidental Catch 
Limited Access Herring Permit. This paragraph is also revised to 
clarify that, in those cases where a vessel has sold herring but there 
are no required dealer receipts, e.g., transfers of bait at sea and 
BTs, the vessel owner can submit other documentation that documents 
such transactions and proves that the herring thus transferred should 
be added to their landings history.
    In Sec.  648.4, paragraphs (a)(10)(iv)(B)(2) and (3), and in 
(a)(10)(iv)(C)(2) are revised to clarify that landings history must be 
verified by dealer reports submitted to NMFS or documented through 
valid dealer receipts, if dealer reports were not required by NMFS. In 
the proposed rule, the term records was used instead of reports, when 
reports is the appropriate term and the one that is used in existing 
recordkeeping and reporting regulations. The phrase, ``if dealer 
reports were not required by NMFS,'' was added to clarify what kinds of 
records are acceptable for verifying landings to qualify for limited 
access permits.
    In Sec.  648.4, paragraph (a)(10)(iv)(D) is revised to clarify that 
the initial application for all limited access permits established 
under Sec.  648.4(a)(10)(iv) must submitted by May 31, 2008. This 
paragraph is also revised to clarify that all limited access permits 
established under Sec.  648.4(a)(10)(iv) must be renewed on an annual 
basis, by April 30, the last day of the year for which the permit is 
issued, unless a CPH has been issued as specified in paragraph Sec.  
648.4(a)(10)(iv)(L). Application for such permits must be received no 
later than March 31, which is 30 days before the last day of the permit 
year. Failure to renew a limited access permit in any fishing year bars 
the renewal of the permit in subsequent years.
    In Sec.  648.4, paragraph (a)(10)(iv)(N) is amended to clarify what 
is meant by permit splitting. Specifically, permit-splitting means that 
the same fishing history cannot being used to qualify more than one 
vessel for a limited access permit, but a single hull can create more 
than one distinct fishing history, which could be used to qualify for a 
limited access permit.
    In Sec.  648.4, paragraph (a)(10)(iv)(O)(3) is amended to clarify 
that when the Regional Administrator sends a notice of final denial of 
a permit application to a vessel owner, the LOA becomes ``invalid 5 
days after receipt of the notice of denial, but no later than 10 days 
from the date of the letter of denial.''
    In Sec.  648.6, paragraph (a)(2) is revised to clarify that for 
transfers-at-sea of mackerel and herring, the at-sea processor 
receiving the mackerel or the herring is subject to the dealer 
reporting requirements at Sec.  648.7 (a).
    In Sec.  648.7, paragraph (b)(2)(i)(D) is revised to clarify the 
reporting requirements for vessels transferring herring at sea.
    In Sec.  648.13, paragraph (f) is revised to clarify that the 
cross-reference for the at-sea herring processing permit is Sec.  
648.6(a)(2)(ii) as opposed to Sec.  648.6(a)(2), and to clarify that 
all vessels transferring herring must be issued a LOA.
    In Sec.  648.13, language in paragraphs (f)(1)(ii)(B), (f)(2)(ii), 
and (f)(5) is revised to clarify that possession limits are specified 
for vessels during area closures as 2,000 lb (907.2 kg) of herring per 
trip or calendar day.
    In Sec.  648.13, language in paragraphs (f)(4) is revised to 
clarify under what conditions a vessel could no longer tranship herring 
to a Canadian transshipment vessel.
    In Sec.  648.13, paragraph (f)(6) is added to clarify that 
transfers of herring are allowed if both the transferring and receiving 
vessels have been issued valid Atlantic herring permits and/or other 
applicable authorization, such as a LOA from the Regional 
Administrator, to transfer or receive herring, and that the 
transferring vessels cannot transfer more herring and the receiving 
vessel cannot receive more herring than they are authorized to possess 
by virtue of their herring permit.
    In Sec.  648.14, paragraphs (a)(166)-(169) are revised to clarify 
that these prohibitions apply to vessels that have an All Areas Limited 
Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring 
Permit, not to all limited access vessels.
    In Sec.  648.15, paragraph (d)(1) is revised to clarify that 
federally permitted herring dealers and processors, including at-sea 
processors, 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 vessels that have an All 
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit. The proposed language had inadvertently retained 
the reference to Category 1 herring vessels. In the same section, 
paragraph (e) is revised to clarify that only vessels that have an All 
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit are required to retain haddock.
    In Sec.  648.15, paragraph (e) is revised to clarify that vessels 
that have an All Areas Limited Access Herring Permit and/or an Areas 2 
and 3 Limited Access Herring Permit may not discard any haddock that 
has been brought on the deck or pumped into the hold. This prohibition 
on discarding does not apply to limited access incidental catch 
vessels.
    In Sec.  648.80, paragraphs (d)(2)(ii), (d)(4)-(6), and (e)(3)-(6) 
are revised to clarify: (1) that vessels permitted to fish for herring 
can be issued LOAs for the midwater trawl exempted fishery and the 
purse seine exempted fishery at the same time; (2) that only vessels 
that have an All Areas Limited Access Herring Permit and/or an Areas 2 
and 3 Limited Access Herring Permit are required to notify the observer 
program 72 hr prior to taking a trip and 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; and (3) that only 
vessels that have an All Areas Limited Access Herring Permit and/or an 
Areas 2 and 3 Limited Access Herring Permit are required to retain 
haddock that has been brought on the deck or pumped into the hold.
    In Sec.  648.83, paragraph (b)(4); Sec.  648.85, paragraph (d); and 
Sec.  648.86, paragraphs (a)(3) and (k) are revised to clarify that the 
NE multispecies restrictions cited therein apply only to vessels that 
have an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 
Limited Access Herring Permit.
    In Sec.  648.86, paragraph (k) is revised to clarify that the 
possession and landing limit for other regulated NE multispecies is 100 
lb (45.3 kg) combined, and not for each species.
    In Sec.  648.200, paragraph (f)(1) is revised to specifically 
identify the coordinates of what was formerly referred to as ``the 
eastern shore of Monomoy island.''
    In Sec.  648.201, paragraph (g) is revised to clarify that the set-
aside can be set at any value up to 500 mt.

[[Page 11267]]

    Subpart K is revised to replace all references to ``research 
quota'' with the term ``research set-aside (RSA).''
    In Sec.  648.207, paragraphs (f) and (g) were switched and the 
reallocation process for RSAs was clarified.

Classification

    The Administrator, Northeast Region, NMFS, determined that the 
amendment implemented by this rule is necessary for the conservation 
and management of the Atlantic herring fishery and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    The Council prepared a FSEIS for this amendment. The FSEIS was 
filed with the Environmental Protection Agency on September 29, 2006 
(71 FR 57504). A notice of availability was published on September 6, 
2006 (71 FR 52521). In partially approving Amendment 1 on December 6, 
2006, NMFS issued a ROD identifying the selected alternative. A copy of 
the ROD is available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A FRFA was prepared. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, and NMFS responses to those comments, and a summary of the 
analyses completed to support the action. A copy of the analyses is 
available from NMFS (see ADDRESSES).
    A description of the reasons for this action, the objectives of 
this action, and the legal basis for the final rule is found in 
Amendment 1 and the preamble to the proposed rule and this final rules.

Statement of Need for this Action

    The purpose of this action is to improve the management of the 
Atlantic herring fishery by establishing limited access in the fishery; 
to implement management measures to address growing concerns about the 
localized depletion of the inshore GOM stock and the importance of 
herring as a forage species; and to incorporate new stock assessment 
information as appropriate.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS received 1,068 public comments on Amendment 1 and its proposed 
rule. None of the comments received were specific to the IRFA. However, 
several of the comments referred to the economic impacts on small 
entities (vessels) of the management measures presented in the proposed 
rule to implement Amendment 1. Those comments are noted below and can 
be read in the comments/response section of this preamble.
    Comment 2 notes concerns raised by the public concerning the PS/FG 
only area. Among them were concerns about the costs to vessels of 
several hundred thousands of dollars if vessels replace their existing 
midwater trawl gear with purse seine gear, and concern that Amendment 1 
did not sufficiently analyze the economics of the measure. The comment 
did not result in any changes to the proposed measure, for the reasons 
outlined in response to the comment.
    Comments 5, 6, 7, and 9 all expressed concern about the negative 
impacts of the limited access program on the owners of vessels that did 
not qualify for a limited access permit for various reasons. Several 
commentors focused on the impacts resulting from the establishment of 
limited access for vessels that fish in Areas 2 and 3 and argued that 
such a program is not needed for management because the annual TACs set 
for those areas have not been attained. These commenters argued that 
there is no need to negatively impact any vessel owners as a result. 
Several commenters expressed concern that some mackerel boats would not 
qualify for a limited access incidental catch permit, thereby limiting 
their opportunity to target mackerel and avoid discarding of herring. 
Several commenters expressed concern about the provision that prohibits 
permit splitting because of their concern it would have negative 
impacts on individuals who had purchased or sold herring fishing 
histories in the past. None of these comments resulted in any changes 
to the proposed measure, for reasons outlined in the responses to the 
comments.
    Comment 10 noted a concern expressed by an individual from Downeast 
Maine that the limited access eligibility criteria preclude fishermen 
from the area from qualifying for limited access because they have not 
caught herring in recent years. The commenter believes that they will 
face large financial losses as a result. The comment did not result in 
any changes to the proposed measure, for reasons outlined in the 
response to the comment.
    Comment 25 raised concerns about the language drafted by NMFS in 
the proposed rule to govern the transfer of fish at sea. The commenter 
explained that, as proposed, the language would prevent the herring 
industry from operating in the manner that had previously been 
authorized under the FMP. NMFS reviewed the commenter's concerns and 
revised this final rule to address most of the concerns noted. The 
revisions are explained in detail in the response to the comment.

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. The 
Small Business Administration's size standard for small commercial 
fishing entities is $4 million in gross sales. There are no large 
entities, as defined in section 601 of the Regulatory Flexibility Act 
(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

    This action implements some new reporting and recordkeeping 
requirements and revises some existing requirements. The limited access 
program will require vessel owners to submit limited access vessel 
permit application materials in order to determine whether or not their 
vessel is eligible for a limited access permit. The owner of a vessel 
that is initially denied a limited access permit may appeal that 
denial, and an appeal will have to be filed in writing. The existing 
VMS requirements for the herring fishery are revised to reflect the 
establishment of new vessel permit types. Similarly, the existing IVR 
catch reporting requirements are revised to reflect the establishment 
of new vessel permit types. Finally, individuals seeking to fund 
research with RSA will have to prepare and submit application 
materials. Additional information regarding the projected reporting or 
recordkeeping costs associated with this action was made available for 
review in NMFS's PRA submission to OMB on August 31, 2006, and is 
summarized in the discussion of the Small Entity Compliance Guide 
below.

Other Compliance Requirements

    There will be compliance costs associated with the PS/FG area for 
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

[[Page 11268]]

these vessels must be re-rigged 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.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

    The Amendment 1 measures that are most likely to directly impact 
fishery-related businesses and communities are the limited access 
program, the PS/FG area, the open access incidental catch permit, and 
the vessel size upgrade restrictions. In all of these instances, the 
measures adopted in this final rule minimize, to the extent possible, 
the economic impact on small entities, as compared to all the other, 
significant alternatives. However, in each case, there are non-selected 
alternatives that would have had lesser impacts than the adopted 
measures. The reasons that these alternatives were not substituted for 
this action by NMFS are discussed below.

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, which have no associated possession restrictions, and 
limited access incidental catch permits, which 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 this action, 31 vessels (28 active) would qualify for limited 
access 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 and 3 only, resulting in 34 vessels 
qualified for directed fishery permits not subject to possession 
limits. 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 fishery permits to fish in all management areas, and 10 
additional vessels (4 active) would qualify for limited access fishery 
permits to fish in Areas 2 and 3 only, resulting in 46 (35 active) 
vessels qualified for fishery permits not subject to possession limits. 
Another 37 vessels (1 active) would qualify for limited access 
incidental catch permits.
    Under Alternative 3, 57 vessels (38 active) would qualify for 
limited access fishery permits to fish in all management areas. No 
additional vessels would qualify for the limited access directed 
fishery permit to fish in Areas 2 and 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).
    Under Alternative 4, 38 vessels (31 active) would qualify for 
limited access fishery permits to fish in all management areas, and 7 
additional vessels (2 active) would qualify for limited access fishery 
permits to fish in Areas 2 and 3 only (after the trigger was reached). 
Another 14 vessels (4 active) would qualify for limited access 
incidental catch permits.
    Under Alternative 5, 29 vessels (25 active) would qualify for 
limited access fishery permits to fish in all management areas, and 13 
(6 active) additional vessels would qualify for limited access directed 
fishery permits to fish in Areas 2 and 3 only. Another 38 vessels (11 
active) would qualify for limited access incidental catch permits.
    Under Alternative 6, 32 vessels (21 active) would qualify for 
limited access fishery permits to fish in all management areas, and 13 
additional vessels (12 active) would qualify for limited access fishery 
permits to fish in Areas 2 and 3 only. Another 39 vessels (12 active) 
would qualify for limited access incidental catch permits (possession 
limit of 55,000 lb or 25 mt).
    Under Alternative 7, 23 vessels (18 active) would qualify for 
limited access fishery permits to fish in all management areas, and 22 
additional vessels (15 active) would qualify for limited access fishery 
permits to fish in Areas 2 and 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 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 DAS per year observed from 2002 through 
2004 by their average metric tons landed per DAS over the same time 
period. The sum of the products is reported to provide a first level 
estimation of what the group of vessels that qualify under a given 
alternative is likely to land. The second measure is similar to the 
first except that DAS 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 compare the economic impacts of this action and the non-
selected alternatives is to see how all the alternatives might affect 
landings, because landings potentially relate to profits, depending on 
the TACs that are established. For 28 active vessels that qualify for 
all areas under this action, 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 and 3 increases the potential catch slightly, 
though the specific amount of the increase cannot be provided in this 
document due to data confidentiality restrictions.
    This 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 this action. The highest potential

[[Page 11269]]

catch is associated with the no-action alternative, at 170,087 to 
209,368 mt. Alternative 5 has a lower potential catch than the chosen 
alternative.
    Thus, based on this capacity analysis, there are six alternatives 
that would have likely minimized the economic impact on small entities, 
compared to this action, because they would have allowed for higher 
potential catches, and higher catches would result in higher revenues 
for the fishery as a whole. Although the action implemented by this 
rule will not minimize such economic impacts, it was selected because 
it was deemed to do the best job of meeting the goals of the FMP and 
pertinent legal requirements. This action strikes a balance between 
past and present participation in the fishery, and the need to limit 
capacity in the fishery. The analysis of the future herring landings 
under the various limited access alternatives was done to make relative 
comparisons, and omitted the constraint on landings that would be posed 
by future TAC controls. As noted in the preamble, Amendment 1 
establishes MSY at 194,000 mt so future landings could not exceed that 
level under any alternative selected.
    In terms of number of vessels, this action qualifies the fewest 
vessels into the limited access fishery (34 vessels). This result 
differs for the all areas limited access permit versus the areas 2 and 
3 limited access permit. Four alternatives would qualify more vessels 
than this action to fish in any of the management areas, while two 
would qualify fewer vessels. The fact that this action is the most 
restrictive in terms of the total number of vessels that qualify for 
these limited access fisheries is due to the nature of the Area 2 and 3 
qualification criteria. The Area 2 and 3 criteria 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 fishery permits in 
Areas 2 and 3.
    The majority of vessels that would not qualify for a limited access 
permit under this 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 is likely to 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 limited access fishery permit in Areas 2 and 3. 
This action is the least restrictive alternative for the limited access 
incidental catch permit that was considered in this amendment.
    While there were alternatives evaluated in Amendment 1 that would 
have qualified more vessels than this action, the Magnuson-Stevens Act 
provides the Council with the latitude to design a limited access 
program in a variety of ways, provided it complies with specific 
requirements outlined in the law. NMFS has no authority to modify a 
limited access program that is found to comply with these requirements, 
and NMFS has determined that the program in Amendment 1 complies with 
the requirements.

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 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 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. The costs of re-rigging are estimated in Amendment 1 to 
range from $300,000 to $500,000 per vessel.
    Four of the alternatives, in addition to this 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[deg]W. long. from June 1 - September 30 of each fishing year. Under 
this action and Alternative 7, the PS/FG 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 this 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[deg] 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 this action would 
likely result in the greatest economic loss when the impacts are 
considered independent of the other measures because more midwater 
trawl vessels qualify for limited access directed fishery permits in 
Area 1 under this action than under Alternative 7. 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 this action that would be negatively impacted by the gear 
restriction. However, under Alternative 7 they would have been 
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 this 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 
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 will 
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.
    Although, relative to the PS/FG only area, all of the other 
alternatives would have minimized impacts on small entities, this 
action is being implemented rather than disapproved because NMFS has 
found the measure to comply with the requirements of the

[[Page 11270]]

Magnuson-Stevens Act and other applicable laws.

Open Access Incidental Catch Permit

    Amendment 1 considered an alternative to the open access incidental 
catch permit that would have authorized such vessels to possess 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 by allowing a higher possession of herring than the 6,600 lb (3 
mt) established by this action. The measure being enacted was selected 
as the best way to minimize bycatch and provide limited opportunities 
for vessels targeting other species to land small amounts of herring, 
without providing an incentive for vessels to target herring.

Vessel Upgrade Restrictions

    This action restricts future size increases for limited access 
vessels. Such a vessel's HP can be increased only once, whether through 
refitting or replacement. This increase cannot exceed 20 percent of the 
HP of the vessel's baseline specifications, as applicable. The vessel's 
length, GRT, and NT can be increased only once, whether through 
refitting or replacement. Any increase in any of these three 
specifications of vessel size cannot exceed 10 percent of the vessel's 
baseline specifications, as applicable. These are the same limitations 
enacted previously for other limited access fisheries in the NE region. 
Amendment 1 included two alternatives to this action. The first, 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 HP. 
Alternative 3 would have allowed a vessel to increase its HP once, 
provided the increase would not have exceeded 50 percent of the HP of 
the vessel's baseline HP. Alternative 3 would also have allowed the 
vessel's length, GRT, and NT to have been increased once, provided none 
of the size attributes increased by more than 25 percent of the 
vessel's baseline specifications.
    The proposed upgrade restrictions are more restrictive concerning 
the size of future vessels than the two alternatives mentioned above. 
Because the restriction affects future action, it will not impact all 
vessel owners. Some vessel owners may be impacted, particularly those 
that had immediate plans to upgrade from their initial limited access 
vessel. However, the restrictions are intended to maintain the capacity 
of the limited access fleet near its initial level, while providing a 
reasonable opportunity to replace limited access vessels.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ''small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide was prepared. 
The guide will be sent to all holders of permits in the New England and 
Mid-Atlantic regions. In addition, copies of this final rule and guide 
(i.e., permit holder letter) are available from the Regional 
Administrator (see ADDRESSES).
    This final rule contains one new collection-of-information 
requirement and 5 modified collection-of-information requirements 
subject to the PRA, all of which have been approved by the Office of 
Management and Budget (OMB) under control numbers 0648-0202, 0348-0040, 
0348-0043, 0348-0044, 0348-0046. The one new collection-of-information 
requirement is incorporated into OMB <greek-i>0648-0202, while the 5 
modified collection-of-information requirements are included in OMB 
<greek-i>s 0648-0202, 0348-0040, 0348-0043, 0348-0044, 0348-0046.
    The public reporting burden for the collection-of-information 
requirements includes the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection-of-information requirements. 
Send comments regarding these burden estimates or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and by e-mail to <a href="/cdn-cgi/l/email-protection#286c495e414c777a475b5c434d5a6847454a064d4758064f475e"><span class="__cf_email__" data-cfemail="db9fbaadb2bf8489b4a8afb0bea99bb4b6b9f5beb4abf5bcb4ad">[email protected]</span></a>, or 
fax to (202) 395.7285.
    The new reporting requirements and the estimated time for a 
response are as follows:
    1. Time required of vessel owners to: (a) prepare application 
materials, 80 hr (0.58 hr per response)(three year average); (b) 
prepare CPH application materials, 5 hr (0.5 hr per response); (c) 
appeal permit denials, 20 hr (2.0 hrs per response); and (d) apply for 
vessel replacement/upgrade, 60 hr (3.0 hrs per response) (OMB 
<greek-i>0648-0202);
    2. VMS requirement for vessels fishing under limited access permits 
OMB <greek-i>0648-0202, 709 hr (6.50 hr reporting annually per 
respondent, installation having already occurred);
    3. IVR reporting requirements for weir fishermen west of Cutler, ME 
fishing under the limited access permits, OMB <greek-i>0648-0202, 8 hr 
(0.8 hr annually per respondent); and
    4. Application materials for the RSA program OMB <greek-i> 0348-
0040, 0348-0043, 0348-0044, and 0348-0046, 80 hr (4 hr per response).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects

15 CFR Part 902
    Reporting and recordkeeping requirements.
50 CFR Part 648
    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 1, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 15 CFR part 902, and 50 CFR 
part 648 are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

0
2. In Sec.  902.1, the table in paragraph (b) under 50 CFR is amended 
by adding in the left column under 50 CFR, in numerical order, an entry 
for Sec.  648.207, and in the right column, in corresponding position, 
the control numbers -0348-0043, 0348-0044, 0348-0040, and 0348-0046, to 
read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                   Current OMB control
   CFR part or section where the information       number (All numbers
       collection requirement is located            begin with 0648-)
------------------------------------------------------------------------
                                * * * * *
 
50 CFR

[[Page 11271]]

 
                                * * * * *
648.207                                          -0348-0043, 0348-0044,
                                                0348-0040, and 0348-0046
                                * * * * *
 
------------------------------------------------------------------------

50 CFR Chapter VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
3. The authority citation for part 648 continues to read as follows:

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

0
4. In Sec.  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 ``Fixed gear'' and ``Limited 
access herring vessel'' are added to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Atlantic herring carrier means a fishing vessel that may receive 
and transport herring caught by another fishing vessel, provided the 
vessel has been issued a herring permit, does not have any gear on 
board capable of catching or processing herring, and has on board a 
letter of authorization from the Regional Administrator to transport 
herring caught by another fishing vessel.
* * * * *
    Fixed gear, for the purposes of the Atlantic herring fishery, means 
weirs or stop seines.
* * * * *
    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 Sec.  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.
* * * * *

0
5. In Sec.  648.4, paragraphs (a)(10) and (c)(2)(vi) are revised to 
read as follows:


Sec.  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 Sec.  648.6(a)(2).
    (ii) Atlantic herring carrier. An Atlantic herring carrier must 
have been issued and have on board a herring permit and a letter of 
authorization to receive and 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 Sec.  648.7 and 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 conduct fishing activities except for purposes of 
transport 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. While operating under a valid LOA, such vessels are 
exempt from any herring possession limits associated with the herring 
vessel permit categories. Herring carrier vessels under an LOA may not 
possess, transfer, or land any species except for Atlantic herring, 
except that they may possess Northeast multispecies transferred by 
vessels issued either an All Areas Limited Access Herring Permit and/or 
an Areas 2 and 3 Limited Access Herring Permit, consistent with the 
applicable possession limits for such vessels.
    (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 [gteqt]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 Sec.  648.6(a)(2)(ii).
    (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 paragraph (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.

[[Page 11272]]

    (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 landings history.
    (2) Landings criteria for the All Areas Limited Access Herring 
Permit-(i) The vessel must have landed at least 500 mt of herring in 
any one calendar year between January 1, 1993, and December 31, 2003, 
as verified by dealer reports submitted to NMFS or documented through 
valid dealer receipts, if dealer reports were not required by NMFS. In 
those cases where a vessel has sold herring but there are no required 
dealer receipts, e.g., transfers of bait at sea and border transfers, 
the vessel owner can submit other documentation that documents such 
transactions and proves that the herring thus transferred should be 
added to their landings history. 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 
through 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 verified by dealer reports 
submitted to NMFS or valid dealer receipts, if dealer reports were not 
required by NMFS.
    (3) Landings criteria for the Areas 2 and 3 Limited Access Herring 
Permit. (i) The vessel 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 dealer reports submitted to NMFS or documented through 
valid dealer receipts, if dealer reports were not required by NMFS. In 
those cases where a vessel has sold herring but there are no required 
dealer receipts, e.g., transfers of bait at sea and border transfers, 
the vessel owner can submit other documentation that documents such 
transactions and proves that the herring thus transferred should be 
added to their landings history. 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)(3)(i) of this section 
through 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) of this section 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 is replacing a vessel that was issued a Federal 
permit for Northeast multispecies, Atlantic mackerel, Atlantic herring, 
Loligo or Illex squid, or butterfish that was issued 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 landings history.
    (2) Landings criteria for Incidental Catch Limited Access Herring 
Permit. (i) The vessel must have landed at least 15 mt of herring in 
any calendar year between January 1, 1988, and December 31, 2003, as 
verified by dealer reports submitted to NMFS or documented through 
valid dealer receipts, if dealer reports were not required by NMFS. In 
those cases where a vessel has sold herring but there are no required 
dealer receipts, e.g., transfers of bait at sea and border transfers, 
the vessel owner can submit other documentation that documents such 
transactions and proves that the herring thus transferred should be 
added to the vessel's landings history. 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

[[Page 11273]]

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 through 
December 31, 2004.
    (3) 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)(C) of this section 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 after May 31, 2008, 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) All limited access permits established under this section must 
be issued on an annual basis by April 30, the last day of the year for 
which the permit is issued, unless a CPH has been issued as specified 
in paragraph (a)(10)(iv)(L) of this section. Application for such 
permits must be received no later than March 31, which is 30 days 
before the last day of the permit year. Failure to renew a limited 
access permit in any fishing year bars the renewal of the permit in 
subsequent years.
    (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 establishes the size baseline against 
which future vessel size limitations shall 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. Notwithstanding paragraph (a)(1)(i)(L), vessel owners 
applying for a limited access herring permit 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. Furthermore, notwithstanding paragraph 
(a)(1)(i)(L), for the purposes of the Atlantic herring fishery, 
herrings landings history generated by separate owners of a single 
vessel at different times may be used the qualify more than one vessel, 
provided that each owner applying for a limited access permit, 
demonstrates that he/she created distinct fishing histories, and that 
such histories have been retained.
    (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 may only be based on 
the grounds that the information used by the Regional Administrator was 
based on incorrect data. The appeal must be in writing, and must state 
the specific 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 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. 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, but no later than 10 days from the date of the letter 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.
* * * * *

0
6. In Sec.  648.6, paragraph (a)(2) is revised to read as follows:


Sec.  648.6  Dealer/processor permits.

    (a) * * *
    (2) At-sea processors-(i) At-sea mackerel processors. 
Notwithstanding the provisions of Sec.  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 at-sea processing permit. A vessel of the 
United States, including a vessel that is > 165 ft (50.3 m) length 
overall, or > 750 GRT (680.4 mt), is eligible to obtain an Atlantic 
herring at-sea processing permit to receive and process Atlantic 
herring subject to the U.S. at-sea processing

[[Page 11274]]

(USAP) allocation published by the Regional Administrator pursuant to 
Sec.  648.200. Such a vessel may not receive and process Atlantic 
herring caught in or from the EEZ unless the vessel has been issued and 
has on board an Atlantic herring at-sea processing permit.
    (iii) Reporting requirements. An at-sea processor receiving 
Atlantic mackerel or Atlantic herring is subject to dealer reporting 
requirements specified in Sec.  648.7(a).
* * * * *

0
7. In Sec.  648.7, paragraph (b)(2)(i) is revised to read as follows:


Sec.  648.7  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (2) * * *
    (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 (b)(2)(i)(A) and (B) of this section. 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 areas 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 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 this section.
    (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 [gteqt] 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.
    (D) Reporting requirements for vessels transferring herring at sea. 
A vessel that transfers herring at sea must comply with these 
requirements in addition to those specified at Sec.  648.13(f).
    (1) A vessel that transfers herring at sea to a vessel that 
receives it for personal use at bait must report all transfers on the 
Fishing Vessel Trip Report.
    (2) A vessel that transfers herring at sea to an authorized carrier 
vessel must report all transfers weekly via the IVR system and must 
report all transfers on the Fishing Vessel Trip Report. Each time the 
vessel offloads to the carrier vessel is defined as a trip for the 
purposes of reporting requirements and possession allowances.
    (3) A vessel that transfers herring at sea to an at-sea processor 
must report all transfers weekly via the IVR system and must report all 
transfers on the Fishing Vessel Trip Report. Each time the vessel 
offloads to the at-sea processing vessel is defined as a trip for the 
purposes of the reporting requirements and possession allowances. For 
each trip, the vessel must submit a Fishing Vessel Trip Report and the 
at-sea processing vessel must submit the detailed dealer report 
specified in paragraph (a)(1) of this section.
    (4) A transfer between two vessels issued valid Atlantic herring 
permits requires each vessel to submit a Fishing Vessel Trip Report, 
filled out as required by the LOA to transfer herring at sea, and a 
weekly IVR report for the amount of herring each vessel lands.
* * * * *

0
8. In Sec.  648.9, paragraph (c)(2)(i)(C) is revised to read as 
follows:


Sec.  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.
* * * * *

0
9. In Sec.  648.13, paragraph (f) is revised to read as follows:


Sec.  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 Sec.  
648.6(a)(2)(ii), 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 in this paragraph (f), and in compliance with 
reporting requirements at Sec.  648.7 (b)(2)(i)(D).
    (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. 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 Sec.  648.204, except that no more than 
2,000 lb (907.2 kg) of herring may be caught or transferred per trip or 
per calendar day if the vessel is in, or the fish were harvested from, 
a management area closed to fishing as specified in Sec.  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 Sec.  648.4(a)(10)(ii).
    (ii) A vessel issued an Atlantic herring permit may transfer 
herring at sea to an Atlantic herring carrier up to the applicable 
possession limits specified in Sec.  648.204, provided it is issued a 
letter of authorization for the transfer of herring and that no more 
than 2,000 lb (907.2 kg) of herring may be caught or transferred at sea 
per trip or per calendar day if the vessel is in, or the fish were 
harvested from, an area closed to directed fishing as specified in 
Sec.  648.201.
    (3) If a herring management area has been closed to fishing as 
specified in Sec.  648.201, a vessel may not transfer Atlantic herring 
harvested from or in the area to an IWP or Joint Venture vessel.
    (4) If the amount of herring transshipped to a Canadian 
transshipment vessel would cause the amount of the border transfer 
specified

[[Page 11275]]

pursuant to Sec.  648.200 to be exceeded, 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 Sec.  648.6(a)(2)(ii), up to the 
applicable possession limit specified in Sec.  648.204, except that no 
more than 2,000 lb (907.2 kg) of herring may be caught or transferred 
at sea per trip 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 Sec.  648.201.
    (6) Transfers between herring vessels. A vessel issued a valid 
Atlantic herring permit may transfer and receive herring at sea, 
provided such vessel has been issued a letter of authorization from the 
Regional Administrator to transfer or receive herring at sea. Such 
vessel may not transfer, receive, or possess at sea, or land per trip 
herring in excess of the applicable possession limits specified in 
Sec.  648.204, except that no more than 2,000 lb (907.2 kg) of herring 
may be caught, transferred, received, or possessed at sea, or landed 
per trip 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 Sec.  648.201.
* * * * *

0
10. In Sec.  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:


Sec.  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 vessel that has an All 
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit as defined in Sec.  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 vessel that has an All Areas Limited Access 
Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit 
limited access herring vessel, as defined in Sec.  648.2, 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 vessel that has an All Areas Limited 
Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring 
Permit as defined in Sec.  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 vessel 
that has an All Areas Limited Access Herring Permit and/or an Areas 2 
and 3 Limited Access Herring Permit, as defined in Sec.  648.2, 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 Sec.  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 
Sec.  648.201(a) with > 2,000 lb (907.2 kg) of herring on board, unless 
all fishing gear is stowed as specified by Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  
648.80(a)(17), fail to notify NMFS at least 72 hr 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 Sec.  
648.86(a)(3)(ii)(A)(1) following the effective date of the 
determination that the haddock cap has been reached pursuant to Sec.  
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 Sec.  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 Sec.  
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 Sec.  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 Sec.  648.23(b).
    (26) Possess or land more herring than is allowed for by the 
vessel's Atlantic herring permit.
* * * * *

[[Page 11276]]


0
11. In Sec.  648.15, paragraphs (d)(1) and (e) are revised to read as 
follows:


Sec.  648.15  Facilitation of enforcement.

* * * * *
    (d) * * *
    (1) Federally permitted herring dealers and processors, including 
at-sea processors, 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 vessels that have an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit. 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 officials must be given 
access to inspect the haddock.
* * * * *
    (e) Retention of haddock by limited access herring vessels. Vessels 
that have an All Areas Limited Access Herring Permit and/or an Areas 2 
and 3 Limited Access Herring Permit may not discard any haddock that 
has been brought on the deck or pumped into the hold.

0
12. In Sec.  648.80, paragraphs (d)(2)(ii), (d)(4)-(6) and (e)(3)-(6) 
are revised to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (2) * * *
    (ii) The vessel is issued a letter of authorization for a minimum 
of 7 days. The vessel can be issued LOAs for the midwater trawl 
exempted fishery and the purse seine exempted fishery at the same time.
* * * * *
    (4) The vessel does not fish for, possess or land NE multispecies, 
except that vessels that have an All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit may 
possess and land haddock or other regulated species consistent with the 
incidental catch allowance and bycatch caps specified in Sec.  
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 Sec.  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. Vessels 
that have an All Areas Limited Access Herring Permit and/or an Areas 2 
and 3 Limited Access Herring Permit may not discard haddock that has 
been brought on the deck or pumped into the hold;
    (5) To fish for herring under this exemption, vessels that have an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit 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 vessels that have an All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit, which are 
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) * * *
    (3) The vessel is issued a letter of authorization for a minimum of 
7 days, and cancels it only as instructed by the Regional 
Administrator. The vessel can be issued LOAs for the midwater trawl 
exempted fishery and the purse seine exempted fishery at the same time; 
and
    (4) The vessel does not fish for, possess, or land NE multispecies, 
except that vessels that have an All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit, as 
defined in Sec.  648.2, may possess and land haddock or other regulated 
species consistent with the incidental catch allowance and bycatch caps 
specified in Sec.  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 Sec.  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. 
Vessels that have an All Areas Limited Access Herring Permit and/or an 
Areas 2 and 3 Limited Access Herring Permit may not discard haddock 
that has been brought on the deck or pumped into the hold;
    (5) To fish for herring under this exemption, vessels that have an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit 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 vessels that have an All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit 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.
* * * * *

0
13. In Sec.  648.83, paragraph (b)(4) is revised to read as follows:


Sec.  648.83  Multispecies minimum fish sizes.

* * * * *
    (b) * * *
    (4) Vessels that have an All Areas Limited Access Herring Permit 
and/or an Areas 2 and 3 Limited Access Herring Permit may possess and 
land haddock and other regulated species that are smaller than the 
minimum size specified under Sec.  648.83, consistent with the bycatch 
caps specified in Sec. Sec.  648.86(a)(3) and 648.86(k). Such fish may 
not be sold for human consumption.
* * * * *

0
14. In Sec.  648.85, paragraph (d) is revised to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (d) Incidental catch allowance for some limited access herring 
vessels. The incidental catch allowance for vessels that have an All 
Areas Limited Access

[[Page 11277]]

Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit 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 Sec.  648.90(a) for a particular multispecies fishing 
year.

0
15. In Sec.  648.86, paragraphs (a)(3), and (k) are revised to read as 
follows:


Sec.  648.86  NE Multispecies possession restrictions.

* * * * *
    (a) * * *
    (3)(i) Incidental catch allowance for some limited access herring 
vessels. Vessels that have an All Areas Limited Access Herring Permit 
and/or an Areas 2 and 3 Limited Access Herring Permit may possess and 
land haddock on all trips that do not use a NE multispecies DAS, 
subject to the requirements specified in Sec.  648.80(d) and (e).
    (ii) Haddock incidental catch cap. (A)(1) When the Regional 
Administrator has determined that the incidental catch allowance in 
Sec.  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 in this paragraph (a)(3)(ii)(A)(1), 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 Sec.  648.23(b) while 
transiting the Exemption Area. Upon this determination, the haddock 
possession limit is reduced to 0 lb (0 kg) for all vessels that have an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit, 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):

                      GB/GOM Herring Exemption Area
------------------------------------------------------------------------
                     Point                        N. lat.      W. long.
------------------------------------------------------------------------
                  1                                41[deg]   70[deg] 00'
                                                    33.05'
                  2                             41[deg] 20'  70[deg] 00'
                  3                             41[deg] 20'  69[deg] 50'
                  4                             41[deg] 10'  69[deg] 50'
                  5                             41[deg] 10'  69[deg] 30'
                  6                             41[deg] 00'  69[deg] 30'
                  7                             41[deg] 00'  68[deg] 50'
                  8                             39[deg] 50'  68[deg] 50'
                  9                             39[deg] 50'  66 [deg]40'
                  10                            40 [deg]30'  66[deg] 40'
                  11                            40 [deg]30'          64
                                                             [deg]44.34'
                  12                            41 [deg]50'          66
                                                             [deg]51.94'
                  13                            41 [deg]50'  67 [deg]40'
                  14                            44 [deg]00'  67 [deg]40'
                  15                            44 [deg]00'  67 [deg]50'
                  16                            44 [deg]10'  67 [deg]50'
                  17                            44 [deg]27'          67
                                                             [deg]59.18'
                  18                            ME, NH, MA   ...........
                                                          Coastlines
                  19                                    41   70[deg] 00'
                                                [deg]33.05'
------------------------------------------------------------------------

    (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.
    (B) [Reserved]
* * * * *
    (k) Other regulated NE multispecies possession restrictions for 
limited access herring vessels. All vessels that have an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit may possess and land up to 100 lb (45 kg), combined, of 
other regulated NE multispecies on all trips that do not use a 
multispecies DAS, subject to the requirements specified in Sec.  
648.80(d) and (e). Such fish may not be sold for human consumption.

0
16. 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 Set-aside (RSA)

Subpart K-Management Measures for the Atlantic Herring Fishery


Sec.  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 RSA (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 Sec.  
648.201(f). Recommended specifications shall be presented to the New 
England Fishery Management Council (Council).
    (1) The PDT shall 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 at least 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 3 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

[[Page 11278]]

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 must 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, shall 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 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 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 a point at 70[deg]00' W. 
long. and 41[deg]39' N. to 42[deg]53'14'' N. lat., 67[deg] 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[deg]5        70[deg] 00'
                                                 8'
                  2                         42[deg]3        70[deg] 00'
                                                 8'
                  3                         42[deg]5        69[deg] 40'
                                                 3'
                  4                         43[deg]1        69[deg] 00'
                                                 2'
                  5                         43[deg]4        68[deg] 00'
                                                 0'
                  6                         43[deg]5    67[deg] 22'(the
                                                 8'               U.S.-Canada
                                                      Maritime Boundary)
------------------------------------------------------------------------

    (2) Management Area 2 (South Coastal Area): All waters west of 
70[deg] 00' W . long., south of 41[deg]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[deg]00' W. long. and southeast of the line that runs from a point at 
70[deg]00' W. long. and 41[deg]39' N. lat., northeasterly to the Hague 
Line at 42[deg]53'14'' N. lat., 67[deg]44'35'' W. long.


Sec.  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 vessels, 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

[[Page 11279]]

through the specification process described in Sec.  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, provided 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 Sec.  
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, provided 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 Sec.  
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 
Sec.  648.200.
    (g) Up to 500 mt of the Area 1A TAC shall be allocated for the 
fixed gear fisheries in Area 1A (weirs and stop seines) that occur west 
of 44[deg] 36.2 N. Lat. and 67[deg] 16.8 W. long (Cutler, Maine). This 
set-aside 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.


Sec.  648.202  Season and area restrictions.

    (a) Purse Seine/Fixed Gear Only Area. Vessels fishing for Atlantic 
herring 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 midwater trawl gear is stowed 
pursuant to Sec.  648.23(b). Vessels may use any authorized gear type 
to harvest herring in Area 1A from October 1 - May 31.
    (b) [Reserved]


Sec.  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 Sec.  
648.80(a)(17), and in the Nantucket Lightship Area as described in 
Sec.  648.81(c)(1), provided it complies with the midwater trawl gear 
exemption requirements specified under the NE multispecies regulations 
at Sec.  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 Sec.  
648.80(a)(17), provided it complies with the purse seine exemption 
requirements specified under the NE multispecies requirements at Sec.  
648.80(e), including issuance of a Letter of Authorization.


Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  648.201.
    (5) A vessel issued a herring permit 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 herring permits to fish for, possess, or land Atlantic herring 
harvested from any management area. Both vessels must be issued the 
herring permit appropriate for the amount of herring jointly possessed 
by both of the vessels participating in the pair trawl operation.


Sec.  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 Sec.  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 hr 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.


Sec.  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 Sec.  600.10 of this 
chapter.
    (1) Adjustment process. After a management action has been 
initiated,

[[Page 11280]]

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 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) In-season adjustments to TACs;
    (26) Measures to address bycatch and bycatch monitoring;
    (27) Requirements for a herring processor survey;
    (28) TAC set-aside amounts, provisions, adjustments; and
    (29) Any other measure currently included in the FMP.
    (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.


Sec.  648.207  Herring Research Set-Aside (RSA).

    (a) NMFS shall publish a Request for Proposals (RFP) in the Federal 
Register, consistent with procedures and requirements established by 
NMFS, 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 RSA,

[[Page 11281]]

based on the selection criteria described in the RFP.
    (d) NMFS 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) Whenever possible, research proposals shall 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 shall be reallocated 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 shall release the unutilized 
portion of the RSA 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 may 
release the unutilized portion of the set-aside back to its respective 
management area(s) for all 3 fishing years covered by the 
specifications.
    (g) If a proposal is approved, but a final award is not made by 
NMFS, or if NMFS determines that the allocated RSA cannot be utilized 
by a project, NMFS shall reallocate the unallocated or unused amount of 
the RSA to the respective TAC by publication of a notice in the Federal 
Register in compliance with the Administrative Procedure Act, provided 
that the RSA can be available for harvest before the end of the fishing 
year for which the RSA is specified.
    (h) Any RSA reallocated under paragraphs (f) and (g) of this 
section may not be used solely as compensation for research.
    (i) Researchers may apply for the use of more than one herring RAS 
allocation for individual research projects, and 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 may 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. E7-4163 Filed 3-9-07; 8:45 am]
BILLING CODE 3510-22-S


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