11252 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

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. 

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-ofinformation requirements contained in 

this final rule and publishes the OMB 

control numbers for these collections. 

DATES: Effective June 1, 2007, except for 

§§ 648.200–648.203, and §§ 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 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285, or to the Federal erulemaking 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 § 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 


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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 


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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 


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


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11256 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

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°00′ W. long. to 70°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; BMSY (BTarget) = 1,100,000 mt; and 

Bthreshold = 550,000 mt. The reference 

points in the FMP were: MSY = 317,000 

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

Bthreshold = 550,000 mt (the Bthreshold

established in the FMP is 1⁄2 BMSY). The 

Amendment 1 document explained that 

the proposed proxy reference points 

would be revised if a new, peerreviewed stock assessment recommends 

different reference points. In May 2006, 

the TRAC reconvened and completed 

another herring assessment. The TRAC 

recommended the following reference 

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

629,000 mt. Based on this and the 

FMP’s guidance, BTarget is 629,000 mt, 

and Bthreshold is 314,500 mt (1⁄2 BMSY). 

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 HerringRelated 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, 


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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: Inseason 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 


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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 (JuneSeptember) 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 MagnusonStevens 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 #1 (prevent 

overfishing) and Objective #5 (full 

utilization of OY). A more specific 

linkage to these particular FMP 

objectives is not provided in the 

amendment. The measure contributes to 


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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 #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 MagnusonStevens 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 ultraefficiency’’ 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 


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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 overestimated 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 


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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 MagnsonStevens 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 permitsplitting 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 permitsplitting 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. 


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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 MagnusonStevens 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 


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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. 


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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 


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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-ofinformation requirements for the 

Paperwork Reduction Act (PRA), the 

numbers for those requirements have 

been clarified. 

In § 648.2, the definition of Atlantic 

herring carrier has been clarified to 

indicate which vessels it applies to. 

In § 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 § 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 

§ 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 § 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 § 648.6(a)(2)(ii) 

as opposed to § 648.6(a)(2). 

In § 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 § 648.4, paragraph 

(a)(10)(iv)(C)(1)(ii) is revised to clarify 


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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 § 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 § 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 § 648.4, paragraph (a)(10)(iv)(D) is 

revised to clarify that the initial 

application for all limited access 

permits established under 

§ 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 

§ 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 

§ 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 § 648.4, paragraph (a)(10)(iv)(N) is 

amended to clarify what is meant by 

permit splitting. Specifically, permitsplitting 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 § 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 § 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 § 648.7 (a). 

In § 648.7, paragraph (b)(2)(i)(D) is 

revised to clarify the reporting 

requirements for vessels transferring 

herring at sea. 

In § 648.13, paragraph (f) is revised to 

clarify that the cross-reference for the atsea herring processing permit is 

§ 648.6(a)(2)(ii) as opposed to 

§ 648.6(a)(2), and to clarify that all 

vessels transferring herring must be 

issued a LOA. 

In § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 648.83, paragraph (b)(4); § 648.85, 

paragraph (d); and § 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 § 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 § 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 § 648.201, paragraph (g) is revised 

to clarify that the set-aside can be set at 

any value up to 500 mt. 


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Subpart K is revised to replace all 

references to ‘‘research quota’’ with the 

term ‘‘research set-aside (RSA).’’

In § 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 MagnusonStevens 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 JuneSeptember period, and in such cases 


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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 fisheryrelated 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 nonselected 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 


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


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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 MidAtlantic 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-ofinformation 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 #0648–0202, 

while the 5 modified collection-ofinformation requirements are included 

in OMB #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 

DavidlRostker@omb.eop.gov, 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 #0648–0202); 

2. VMS requirement for vessels 

fishing under limited access permits 

OMB #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 

#0648–0202, 8 hr (0.8 hr annually per 

respondent); and 

4. Application materials for the RSA 

program OMB # 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. 

■ 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. 

■ 2. In § 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 § 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: 

§ 902.1 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act. 

* * * * * 

(b) * * * 

CFR part or section where the information collection 

requirement is located 

Current OMB control 

number (All numbers 

begin with 0648–) 

*****

50 CFR 


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Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 11271 

CFR part or section where the information collection 

requirement is located 

Current OMB control 

number (All numbers 

begin with 0648–) 

*****

648.207 –0348–0043, 0348–

0044, 0348–0040, and 

0348–0046.

*****

50 CFR Chapter VI 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 3. The authority citation for part 648 

continues to read as follows: 

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

■ 4. In § 648.2, the definition of 

‘‘Category 1 herring vessel’’ is removed, 

the definitions of ‘‘Atlantic herring 

carrier’’ and ‘‘Midwater trawl’’ are 

revised, and the definition of ‘‘Fixed 

gear’’ and ‘‘Limited access herring 

vessel’’ are added to read as follows: 

§ 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 

§ 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. 

* * * * * 

■ 5. In § 648.4, paragraphs (a)(10) and 

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

§ 648.4 Vessel permits. 

(a) * * * 

(10) Atlantic herring vessels–(i) 

Except as provided herein, any vessel of 

the United States must have been issued 

and have on board a valid Atlantic 

herring permit to fish for, possess, or 

land Atlantic herring in or from the 

EEZ. This requirement does not apply to 

the following: (A) A vessel that possesses herring 

solely for its use as bait, providing the 

vessel does not use or have on board 

purse seine, mid-water trawl, pelagic 

gillnet, sink gillnet, or bottom trawl gear 

on any trip in which herring is fished 

for, possessed, or landed, and does not 

transfer, sell, trade, or barter such 

herring; (B) A skiff or other similar craft used 

exclusively to deploy the net in a purse 

seine operation during a fishing trip of 

a vessel that is duly permitted under 

this part; or (C) At-sea processors that do not 

harvest fish, provided that at-sea 

processor vessels are issued the at-sea 

processor permit specified under 

§ 648.6(a)(2). 

(ii) Atlantic herring carrier. 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 § 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 ≥165 ft (50.3 m) in 

length overall (LOA), or > 750 GRT 

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

propulsion machinery is > 3,000 

horsepower. Vessels that exceed the size 

or horsepower restrictions are eligible to 

be issued an at-sea processing permit 

specified under § 648.6(a)(2)(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. 


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11272 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

(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 


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

* * * * * 

■ 6. In § 648.6, paragraph (a)(2) is 

revised to read as follows: 

§ 648.6 Dealer/processor permits. 

(a) * * * 

(2) At-sea processors–(i) At-sea 

mackerel processors. Notwithstanding 

the provisions of § 648.4(a)(5), any 

vessel of the United States must have 

been issued and carry on board a valid 

at-sea processor permit issued under 

this section to receive over the side, 

possess, and process Atlantic mackerel 

harvested in or from the EEZ by a 

lawfully permitted vessel of the United 

States. 

(ii) Atlantic herring 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 


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11274 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

(USAP) allocation published by the 

Regional Administrator pursuant to 

§ 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 

§ 648.7(a). 

* * * * * 

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

revised to read as follows: 

§ 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 ≥ 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 § 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. 

* * * * * 

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

revised to read as follows: 

§ 648.9 VMS requirements. 

(c) * * * 

(2) * * * 

(i) * * * 

(C) The vessel has been issued a 

limited access herring permit, and is in 

port, unless required by other permit 

requirements for other fisheries to 

transmit the vessel’s location at all 

times. Such vessels must activate the 

VMS unit and enter the appropriate 

activity code prior to leaving port. 

* * * * * 

■ 9. In § 648.13, paragraph (f) is revised 

to read as follows: 

§ 648.13 Transfers at sea. 

* * * * * 

(f) Atlantic herring. With the 

exception of transfers made to an at-sea 

processing vessel issued the required 

permit under § 648.6(a)(2)(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 § 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 § 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 § 648.201. 

(2) Atlantic herring carrier vessels. (i) 

A vessel issued an Atlantic herring 

permit may operate as a herring carrier 

vessel and receive herring provided it is 

issued a carrier vessel letter of 

authorization and complies with the 

terms of that authorization, as specified 

in § 648.4(a)(10)(ii). 

(ii) A vessel issued an Atlantic herring 

permit may transfer herring at sea to an 

Atlantic herring carrier up to the 

applicable possession limits specified in 

§ 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 

§ 648.201. 

(3) If a herring management area has 

been closed to fishing as specified in 

§ 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 


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Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 11275 

pursuant to § 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 

§ 648.6(a)(2)(ii), up to the applicable 

possession limit specified in § 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 § 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 

§ 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 § 648.201. 

* * * * * 

■ 10. In § 648.14, paragraph (bb)(8) is 

removed and reserved; paragraphs 

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

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

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

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

follows: 

§ 648.14 Prohibitions. 

(a) * * * 

(166) Sell, purchase, receive, trade, 

barter, or transfer haddock or other 

regulated multispecies, or attempt to 

sell, purchase, receive, trade, barter, or 

transfer haddock or other regulated 

multispecies (cod, witch flounder, 

plaice, yellowtail flounder, pollock, 

winter flounder, windowpane flounder, 

redfish, and white hake) for, or intended 

for, human consumption landed by a 

vessel that has an All Areas Limited 

Access Herring Permit and/or an Areas 

2 and 3 Limited Access Herring Permit 

as defined in § 648.2. 

(167) Fail to comply with 

requirements for herring processors/ 

dealers that handle individual fish to 

separate out and retain all haddock 

offloaded from a 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 § 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 

§ 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 § 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 § 648.201(a), if the 

vessel has been issued a valid Atlantic 

herring permit. 

(8) [Reserved] 

* * * * * 

(10) Transit an area of the EEZ that is 

subject to a closure or other restraints on 

fishing to fishing for Atlantic herring 

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

(907.2 kg) of herring on board, unless all 

fishing gear is stowed as specified by 

§ 648.23(b). 

(11) Catch, take, or harvest Atlantic 

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

vessel that exceeds the size limits 

specified in § 648.4(a)(10)(iii). 

(12) Process Atlantic herring caught in 

or from the EEZ in excess of the 

specification of USAP with a U.S. vessel 

that exceeds the size limits specified in 

§ 648.4(a)(10)(iii). 

* * * * * 

(14) Catch, take, or harvest Atlantic 

herring in or from the EEZ for roe in 

excess of any allowed limit that may be 

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

(15) Catch, take, or harvest Atlantic 

herring in or from the EEZ, unless 

equipped with an operable VMS unit if 

the vessel is a limited access herring 

vessel as defined in § 648.2. 

(16) Receive Atlantic herring in or 

from the EEZ solely for transport, unless 

issued a letter of authorization from the 

Regional Administrator. 

(17) Fail to comply with any of the 

requirements of a letter of authorization 

from the Regional Administrator. 

(18) If the vessel is a limited access 

herring vessel and is fishing for herring, 

fail to notify the NMFS Office of Law 

Enforcement of the time and date of 

landing via VMS at least 6 hr prior to 

landing or crossing the VMS 

demarcation line on its return trip to 

port. 

(19) If the vessel is a limited access 

herring vessel and is fishing for herring 

in the GOM/GB Exemption Area 

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

NMFS at least 72 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 

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

effective date of the determination that 

the haddock cap has been reached 

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

the herring possessed or landed by a 

vessel was caught outside of that area. 

(21) If fishing with midwater trawl or 

a purse seine gear, fail to comply with 

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

(22) If a limited access herring vessel, 

discard haddock at sea that has been 

brought on deck or pumped into the 

hold. 

(23) Transit the GOM/GB Herring 

Exemption Area when that area is 

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

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

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

unless all the herring on board was 

caught outside of that area and all 

fishing gear is stowed and not available 

for immediate use as required by 

§ 648.23(b). 

(24) Fish for herring in Area 1A 

between June 1 and September 30 with 

any gear other than purse seines or fixed 

gear. 

(25) Transit Area 1A between June 1 

and September 30 with more than 2,000 

lb (907.2 kg) of herring on board with 

mid-water trawl gear not properly 

stowed as per § 648.23(b). 

(26) Possess or land more herring than 

is allowed for by the vessel’s Atlantic 

herring permit. 

* * * * * 


rwilkins on PROD1PC63 with RULES
11276 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

■ 11. In § 648.15, paragraphs (d)(1) and 

(e) are revised to read as follows: 

§ 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. 

■ 12. In § 648.80, paragraphs (d)(2)(ii), 

(d)(4)–(6) and (e)(3)–(6) are revised to 

read as follows: 

§ 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 

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

regulated NE multispecies may not be 

sold, purchased, received, traded, 

bartered, or transferred, or attempted to 

be sold, purchased, received, traded, 

bartered, or transferred for, or intended 

for, human consumption. Haddock or 

other regulated NE multispecies that are 

separated out from the herring catch 

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

purchased, received, traded, bartered, or 

transferred, or attempted to be sold, 

purchased, received, traded, bartered, or 

transferred for any purpose. 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 § 648.2, 

may possess and land haddock or other 

regulated species consistent with the 

incidental catch allowance and bycatch 

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

haddock or other regulated multispecies 

may not be sold, purchased, received, 

traded, bartered, or transferred, or 

attempted to be sold, purchased, 

received, traded, bartered, or transferred 

for, or intended for, human 

consumption. Haddock or other 

regulated species that are separated out 

from the herring catch pursuant to 

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

received, traded, bartered, or 

transferred, or attempted to be sold, 

purchased, received, traded, bartered, or 

transferred for any purpose. 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. 

* * * * * 

■ 13. In § 648.83, paragraph (b)(4) is 

revised to read as follows: 

§ 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 § 648.83, consistent 

with the bycatch caps specified in 

§§ 648.86(a)(3) and 648.86(k). Such fish 

may not be sold for human 

consumption. 

* * * * * 

■ 14. In § 648.85, paragraph (d) is 

revised to read as follows: 

§ 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 


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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 

§ 648.90(a) for a particular multispecies 

fishing year. 

■ 15. In § 648.86, paragraphs (a)(3), and 

(k) are revised to read as follows: 

§ 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 § 648.80(d) and (e). 

(ii) Haddock incidental catch cap. 

(A)(1) When the Regional Administrator 

has determined that the incidental catch 

allowance in § 648.85(d) has been 

caught, all vessels issued an Atlantic 

herring permit or fishing in the Federal 

portion of the GOM/GB Herring 

Exemption Area, defined 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 § 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° 33.05′ 70° 00′ 

2 41° 20′ 70° 00′ 

3 41° 20′ 69° 50′ 

4 41° 10′ 69° 50′ 

5 41° 10′ 69° 30′ 

6 41° 00′ 69° 30′ 

7 41° 00′ 68° 50′ 

8 39° 50′ 68° 50′ 

9 39° 50′ 66 °40′ 

10 40 °30′ 66° 40′ 

11 40 °30′ 64 °44.34′ 

12 41 °50′ 66 °51.94′ 

13 41 °50′ 67 °40′ 

14 44 °00′ 67 °40′ 

15 44 °00′ 67 °50′ 

16 44 °10′ 67 °50′ 

17 44 °27′ 67 °59.18′ 

18 ME, NH, 

MA 

Coastlines 

19 41 °33.05′ 70° 00′ 

(2) The haddock incidental catch cap 

specified is for the NE multispecies 

fishing year (May 1 April 30), which 

differs from the herring fishing year 

(January 1 December 31). If the haddock 

catch cap is attained by the limited 

access herring fishery, the 2,000–lb 

(907.2–kg) limit on herring possession 

and landings in the GOM/GB Herring 

Exemption Area will be in effect until 

the end of the NE multispecies fishing 

year. For example, the 2006 haddock 

catch cap would be specified for the 

period May 1, 2006 April 30, 2007, and 

the 2007 haddock catch cap would be 

specified for the period May 1, 2007 

April 30, 2008. If the catch of haddock 

by limited access herring vessels 

reached the 2006 catch cap at any time 

prior to the end of the NE multispecies 

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

lb (907.2–kg) limit on possession or 

landing herring in the GOM/GB Herring 

Exemption Area would extend through 

April 30, 2007, at which time the 2007 

catch cap would go into effect. 

(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 § 648.80(d) and (e). Such 

fish may not be sold for human 

consumption. 

■ 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 

§ 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 

§ 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 


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11278 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

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°00′ W. long. and 

41°39′ N. to 42°53′14′′ N. lat., 67° 44′35′′ 

W. long., thence northerly along the 

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

to include state and Federal waters 

adjacent to the States of Maine, New 

Hampshire, and Massachusetts. 

Management Area 1 is divided into Area 

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

line dividing these areas is described by 

the following coordinates: 

Point N. lat. W. long. 

1 41°58′ 70° 00′ 

2 42°38′ 70° 00′ 

3 42°53′ 69° 40′ 

4 43°12′ 69° 00′ 

5 43°40′ 68° 00′ 

6 43°58′ 67° 22′(the U.S.–

Canada Maritime 

Boundary) 

(2) Management Area 2 (South 

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

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

include state and Federal waters 

adjacent to the States of Massachusetts, 

Rhode Island, Connecticut, New York, 

New Jersey, Delaware, Maryland, 

Virginia, and North Carolina. 

(3) Management Area 3 (Georges 

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

long. and southeast of the line that runs 

from a point at 70°00′ W. long. and 

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

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

long. 

§ 648.201 Closures and TAC controls. 

(a) If NMFS determines that catch will 

reach 95 percent of the annual TAC 

allocated to a management area before 

the end of the fishing year, or 95 percent 

of the Area 1A TAC allocated to the first 

seasonal period as set forth in paragraph 

(f) of this section, NMFS shall prohibit 

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 


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Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 11279 

through the specification process 

described in § 648.200. Any lowering of 

the percent of the TAC that triggers the 

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

paragraph (a) of this section must be 

accomplished through the framework 

adjustment or amendment processes. 

(c) A vessel may transit an area that 

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

limit specified in paragraph (a) of this 

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

herring on board, 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 § 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 § 648.23(b), and 

provided the vessel is issued a vessel 

permit appropriate to the amount of 

herring on board and the area where the 

herring was harvested. 

(e) NMFS shall implement fishing 

restrictions as specified in paragraph (a) 

of this section by publication of a 

notification in the Federal Register, 

without further opportunity for public 

comment. 

(f) The TAC for Management Area 1A 

is divided into two seasonal periods. 

The first season extends from January 1 

through May 31, and the second season 

extends from June 1 through December 

31. Seasonal TACs for Area 1A, 

including the specification of the 

seasonal periods, shall be set through 

the annual specification process 

described in § 648.200. 

(g) 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° 36.2 N. 

Lat. and 67° 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. 

§ 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 § 648.23(b). 

Vessels may use any authorized gear 

type to harvest herring in Area 1A from 

October 1 – May 31. 

(b) [Reserved] 

§ 648.203 Gear restrictions. 

(a) Midwater trawl gear may only be 

used by a vessel issued a valid herring 

permit in the GOM/GB Exemption Area 

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

Nantucket Lightship Area as described 

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

with the midwater trawl gear exemption 

requirements specified under the NE 

multispecies regulations at § 648.80(d), 

including issuance of a Letter of 

Authorization. 

(b) Purse seine gear may only be used 

by a vessel issued a valid herring permit 

in the GOM/GB Exemption Area as 

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

complies with the purse seine 

exemption requirements specified under 

the NE multispecies requirements at 

§ 648.80(e), including issuance of a 

Letter of Authorization. 

§ 648.204 Possession restrictions. 

(a) A vessel must be issued a valid 

limited access herring permit to fish for, 

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

mt) of Atlantic herring from or in the 

EEZ from any herring management area, 

provided that the area has not been 

closed due to the attainment of 95 

percent of the TAC allocated to the area, 

as specified in § 648.201. 

(1) A vessel issued an All Areas 

Limited Access Herring Permit is 

authorized to fish for, possess, or land 

Atlantic herring with no possession 

restriction from any of the herring 

management areas defined in 

§ 648.200(f), provided that the area has 

not been closed due to the attainment of 

95 percent of the TAC allocated to the 

area, as specified in § 648.201. 

(2) A vessel issued only an Areas 2 

and 3 Limited Access Herring Permit is 

authorized to fish for, possess, or land 

Atlantic herring with no possession 

restriction only from Area 2 or Area 3 

as defined in § 648.200(f), provided that 

the area has not been closed due to the 

attainment of 95 percent of the TAC 

allocated to the area, as specified in 

§ 648.201. Such a vessel may fish in 

Area 1 only if issued an open access 

herring permit or a Limited Access 

Incidental Catch Herring Permit, and 

only as authorized by the respective 

permit. 

(3) A vessel issued a Limited Access 

Incidental Catch Herring Permit is 

authorized to fish for, possess, or land 

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

herring in any calendar day, from any 

management area defined in 

§ 648.200(f), provided that the area has 

not been closed due to the attainment of 

95 percent of the TAC allocated to the 

area. 

(4) A vessel issued an open access 

herring permit may not fish for, possess, 

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

Atlantic herring from any herring 

management area per trip and/or per 

calendar day, provided that the area has 

not been closed due to the attainment of 

95 percent of the TAC allocated to the 

area, as specified in § 648.201. 

(5) 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. 

§ 648.205 VMS requirements. 

The owner or operator of any limited 

access herring vessel with the exception 

of fixed gear fishermen must install and 

operate a VMS unit consistent with the 

requirements of § 648.9. The VMS unit 

must be installed on board, and must be 

operable before the vessel may begin 

fishing. Atlantic herring carrier vessels 

are not required to have VMS. At least 

1 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. 

§ 648.206 Framework provisions. 

(a) Framework adjustment process. In 

response to the triennial review, or at 

any other time, the Council may initiate 

action to add or adjust management 

measures if it finds that action is 

necessary to meet or be consistent with 

the goals and objectives of the Atlantic 

Herring FMP, or to address gear 

conflicts as defined under § 600.10 of 

this chapter. 

(1) Adjustment process. After a 

management action has been initiated, 


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11280 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

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. 

§ 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, 


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


rwilkins on PROD1PC63 with RULES