77450 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 902

50 CFR Parts 600 and 648

[Docket No. 000105004-0260-02; I.D.

063099A]

RIN 0648-AI78

Magnuson-Stevens Fishery

Conservation and Management Act

Provisions; Fisheries of the

Northeastern United States; Atlantic

Herring Fishery; Atlantic Herring

Fishery Management Plan

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

implement approved measures

contained in the Atlantic Herring

Fishery Management Plan (FMP). These

regulations implement the following

measures: A target total allowable catch

(TAC) level for each of three

management areas, one of which is

divided into inshore and offshore subareas; a procedure for the development

and revision of annual specifications;

initial specifications for the 2000 fishing

year; incidental harvest limits upon

closure of a management area; a vessel

monitoring system (VMS) requirement

for certain vessels; vessel size limits; a

framework adjustment process;

permitting and reporting requirements;

restrictions on transfers at sea; and other

measures for administration and

enforcement. The intended effect of this

final rule is to manage the Atlantic

herring (Clupea harengus) fishery

pursuant to the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act) and the

FMP and to prevent overfishing of the

Atlantic herring resource. This final rule

also withdraws approval of the

Preliminary Management Plan (PMP) for

the Atlantic Herring Fishery of the

Northwestern Atlantic and removes

existing regulations related to Atlantic

herring upon the effective date of the

final rule. Finally, NMFS informs the

public of the approval by the Office of

Management and Budget (OMB) of the

collection-of-information requirements

contained in this final rule and

publishes the OMB control numbers for

these collections.

DATES: This final rule is effective

December 11, 2000, except for the

amendments to the following sections:

1. Sections 15 CFR 902.1, 50 CFR

600.525, 648.4, 648.5, 648.6, 648.7,

648.9, 648.11, 648.12, 648.13,

648.14(a)(103), (bb)(1)-(6), (bb)(8) and

(9), (bb)(11)-(14), (bb)(17) and (18),

648.203, 648.204, and 648.205(b)-(c),

which will be effective January 10,

2001; and

2. Sections 50 CFR 648.14(bb)(15) and

(16) and 648.205(a), which will be

effective March 12, 2001.

ADDRESSES: Copies of the FMP, its

Regulatory Impact Review (RIR), the

Final Regulatory Flexibility Analysis

(FRFA), and the Final Environmental

Impact Statement (FEIS), as prepared by

the New England Fishery Management

Council (Council), are available from

Paul J. Howard, Executive Director, New

England Fishery Management Council,

50 Water Street, The Tannery - Mill 2,

Newburyport, MA 01950.

Comments regarding the collection-ofinformation requirements contained in

this final rule should be sent to Patricia

A. Kurkul, Regional Administrator,

NMFS, Northeast Regional Office, One

Blackburn Drive, Gloucester, MA 01930,

and to the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Washington,

DC 20503 (Attn: NOAA Desk Officer).

Send comments regarding any

ambiguity or unnecessary complexity

arising from the language used in this

rule to Patricia Kurkul.

FOR FURTHER INFORMATION CONTACT: E.

Martin Jaffe, Fishery Policy Analyst,

978-281-9272.

SUPPLEMENTARY INFORMATION: This final

rule implements approved measures

contained in the FMP, which was

partially approved by NMFS on behalf

of the Secretary of Commerce

(Secretary) on October 27, 1999. All of

the measures but four were approved.

The disapproved measures and the

reasons for their disapproval are

described in the preamble to the

proposed rule to implement the

approved measures (65 FR 11956,

March 7, 2000) and are not repeated

here.

Details concerning the justification for

and development of the FMP and the

implementing regulations were also

provided in the notice of availability

(NOA) of the Atlantic Herring FMP (64

FR 40542, July 27, 1999) and in the

preamble to the proposed rule (65 FR

11956, March 7, 2000) and are not

repeated here.

Approved Measures

Annual Specifications

The FMP enacts a procedure for

establishing Optimum Yield (OY) that is

based on the allowable biological catch

(ABC). The ABC will be determined by

multiplying the estimate of current

stock size by the target fishing mortality

rate (F). OY cannot exceed ABC,

adjusted by the Canadian Georges Bank

(GB) and New Brunswick (NB) fixed

gear catches, which cannot exceed

20,000 mt for the Canadian NB fixed

gear harvest and 10,000 mt for the

Canadian GB harvest. The FMP limits

the amount of Canadian catch that will

be considered when setting OY. OY also

will not exceed the maximum

sustainable yield (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. However, OY

will not exceed MSY prior to the 2001

fishing year. Because of some

uncertainty in the current stock size

estimates, the Council recommended,

for purposes of setting the initial ABC,

that the current stock size be assumed

to equal BMSY(the biomass level that

produces MSY), rather than basing it on

actual estimates of current stock size,

which exceed BMSY. This precautionary

approach will limit catches until the

estimates can be improved. The

resulting ABC and OY, however, are

still more than twice the amount of

current landings.

The FMP establishes four additional

specifications: Total amount allocated to

processing by foreign ships (JVPt), either

in state waters (IWP) or in the exclusive

economic zone (EEZ) (JVP); amount of

the domestic annual processing (DAP)

allocated for at-sea processing by

domestic vessels that exceed the vessel

size limits established in the FMP

(USAP); total amount of herring that can

be taken in U.S. waters and transferred

to Canadian herring carriers for

transshipment to Canada (BT) as

authorized by the Sustainable Fisheries

Act (SFA)(Pub. L. 104-297, section

105(e)); and total allowable level of

foreign fishing (TALFF), if any, from

that portion of OY that will not be

harvested by domestic vessels. The

Council and the Atlantic States Marine

Fisheries Commission (Commission)

will consult annually to determine the

allocation of JVPt to IWP and JVP.

Initial Specifications

The FMP establishes initial

specifications for the 2000 fishing year.

(The FMP as submitted recommended

specifications for the 1999 fishing year

that would remain in effect for the 2000

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77451

fishing year, unless revised through the

specification process.) Because the 1999

fishing year has passed (the fishing year

coincides with the calendar year), the

initial specifications for the 2000 fishing

year are established at the levels

specified in the FMP for the 1999

fishing year.

The approved specifications include

an ABC of 300,000 mt and an OY of

224,000 mt. Because the domestic

annual harvest (DAH) is equal to the

OY, TALFF is specified at zero for the

2000 fishing year. Estimates of DAP are

based on recent processing estimates

and allow for possible errors in

estimates of the bait market and

increased development of processing

capacity. Since no herring is allocated to

USAP for the 2000 fishing year, at-sea

processing by domestic vessels

exceeding the proposed size limits

cannot take place. Table 1 contains the

initial specifications for the 2000

Atlantic herring fishery which are

effective January 1, 2000, through

December 31, 2000.

TABLE 1.—ANNUAL SPECIFICATIONS1

(MT) FOR THE ATLANTIC HERRING

FISHERY, JANUARY 1 THROUGH DECEMBER 31, 2000

Specification Atlantic

Herring

ABC 300,000

OY 224,000

DAH 224,000

DAP 180,000

USAP 0

BT 4,000

JVPt

JVP–Management Area 2 10,000

JVP– Management Area 3 5,000

JVP–Subtotal 15,000

IWP 25,000

JVPt–Total 40,000

TALFF 0

Reserve 0

1 See Table 2 for Area TACs for Fishing

Year 2000.

Management Areas

The FMP establishes three

management areas based on the existing

areas established by the Commission’s

FMP and the former PMP. However,

Management Area 1 is divided into

inshore (Area 1A) and offshore (Area

1B) areas. The Council uses the

management areas as the basis for

recommending the distribution of the

TAC to different spawning components

and for the distribution of JVP

allocations and may use the

management areas as the basis for

implementation of other management

measures in the future.

Total Allowable Catch

The FMP established a target TAC for

the 1999 fishing year that remains in

effect for the 2000 fishing year, unless

revised through the specification

process. Because the 1999 fishing year

has passed, the FMP establishes the

target TAC for the 2000 fishing year at

the level specified in the FMP for the

1999 fishing year. The TAC will be respecified for each fishing year beyond

2000. The TAC for a given year is

distributed to the management areas

based on existing knowledge of fishing

patterns, herring stock structure, and

herring migration. For the 2000 fishing

year, the percentage allocations for the

various areas are: Area 1A - 20 percent;

Area 1B - 11 percent; Area 2 - 22

percent; Area 3 - 22 percent; Area 2 TAC

Reserve - 24 percent. (Note: Does not

total 100 percent due to rounding. See

Table 2 for resultant management area

target TACs.) Each year, the Council’s

Herring Plan Development Team will

examine available data and recommend

a TAC and its distribution to the

Council. The Council will then consult

with the Commission before it

recommends a TAC to NMFS. NMFS

will review the Council’s

recommendations and set the TAC,

publish the proposed TAC in the

Federal Register for public comment,

make a final determination, and publish

the final TAC and responses to public

comments in the Federal Register. All

harvests of Atlantic herring, from both

state and Federal waters, will be applied

against the TAC.

The directed fishery for herring will

be closed in a management area after the

date on which 95 percent of the area

TAC would be caught, as projected by

NMFS. Closure of the directed fishery

with 5 percent remaining for an area

TAC will allow the incidental harvest of

herring in other fisheries to continue,

while minimizing the likelihood the

area TAC would be exceeded. This

percentage is based on estimates of the

incidental harvest of herring in other

fisheries. If the percentage allocated to

the incidental harvest overestimates the

amount caught (incidental harvests after

a closure are less than 5 percent), the 5-

percent remainder for a given area TAC

may be reduced by NMFS during the

annual specification process the

following year. If the percentage

allocated to the incidental harvest

underestimates the amount caught

(incidental harvests after a closure are

more than 5 percent), the remainder for

a given area TAC may be increased the

following year through a framework

adjustment. After an area is closed to

directed fishing, vessels are allowed to

possess, transfer, or land ≤ 2,000 lb

(907.2 kg) of herring in or from the

closed area. Vessels that harvest 2,000 lb

(907.2 kg) of herring in an open area are

allowed to transit the closed area,

provided all gear is stowed.

The industry will be notified of the

closure of the directed fishery for

herring in a management area through

notification published in the Federal

Register and a variety of other methods,

including news releases, and through

state agencies.

Area TACs for Fishing Year 2000

Table 2 lists the area TACs for the

2000 fishing year.

TABLE 2.—AREA TACS FOR FISHING

YEAR JANUARY 1, 2000, THROUGH

DECEMBER 31, 2000

Management Area TAC (mt)

Area 1A 45,000

Area 1B 25,000

Area 2 50,000

Area 3 50,000

TAC Reserve–Area 2 54,000

TAC Total 224,000

Transfers at Sea

There are no specific restrictions on

transfers of herring at sea, unless a

management area is closed to directed

fishing for Atlantic herring (i.e.,

harvesting more than 2,000 lb (907.2 kg)

of Atlantic herring per trip) and/or other

restrictions in the regulations apply.

When a management area is closed to

directed fishing for Atlantic herring,

transfers are limited to no more than

2,000 lb (907.2 kg) of herring per day,

in or from, an area subject to the

closure. A vessel may not transfer more

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

from a closed area, nor transfer or sell

any herring taken from a closed area to

a joint venture vessel.

U.S. vessels authorized pursuant to

the SFA, section 105(e), may not

transfer herring to Canadian herring

carriers that transship U.S.-caught

herring after the amount of herring

transshipped equals the amount of the

BT specification. Canadian herring

carriers may not receive U.S.-caught

herring after the amount transshipped

equals the amount of the BT

specification.

Vessel Size Limits

Domestic vessels ≥ 165 ft (50.3 m) in

length overall (LOA), or > 750 gross

registered tons (GRT)/(680.4 mt), or >

3,000 horsepower are not permitted to

catch, take, or harvest herring in or from

the EEZ. Domestic vessels > 165 ft (50.3

m) LOA or > 750 GRT (680.4 mt) are

77452 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

allowed, however, to process or receive

herring in the EEZ, but are limited to the

allocated amount specified pursuant to

the specification process for USAP,

which is zero for the 2000 fishing year.

Roe Fishery

The harvest of Atlantic herring for roe

is allowed, provided the carcasses are

not discarded. The Council will monitor

the development of a roe fishery and

may, in the future, recommend a limit

on the amount of herring that may be

harvested for roe. Any restrictions or

limitations on the amount of herring

harvested for roe must be implemented

through the amendment process or the

framework adjustment process in

accordance with 50 CFR 648.206.

Foreign Fishing Vessel Restrictions

Foreign fishing vessel permitting and

reporting requirements are established

by 50 CFR part 600, subpart F, which

include regulations on harvesting by

foreign fishing vessels and joint

ventures and internal waters processing

and support. The Council may

recommend joint ventures and TALFF

in all management areas, subject to an

annual review. The Council may choose

to determine joint venture specifications

and TALFF by management area. If joint

venture allocations and TALFF are

specified by area, all herring supplied to

the joint venture and/or TALFF must

come from that management area.

Vessel Monitoring Systems

The FMP requires the installation and

use of a VMS unit on vessels in the

directed herring fishery that caught >

500 mt in the previous year, or vessels

whose owner intends to harvest > 500

mt in the current year. A VMS helps

facilitate the monitoring of area-specific

TACs and assists with the enforcement

of closures of management areas to

directed fishing for Atlantic herring, as

well as facilitating the enforcement of

closures imposed under regulations

implementing other FMPs. If a vessel

owner does not declare the intention to

harvest > 500 mt at the start of the year,

and does not install a VMS unit on the

vessel, the vessel may not harvest > 500

mt in that fishing year. The VMS unit

must be installed no later than March

12, 2001 and/or prior to the beginning

of the subsequent fishing year in order

to land > 500 mt in that fishing year,

unless otherwise specified by the

Regional Administrator. Because in this

application VMS is intended primarily

to monitor areas fished as opposed to

days-at-sea effort, a VMS unit must be

operating any time an Atlantic herring

vessel is underway, but does not have

to be operating when a vessel is moored

or maneuvering in a harbor. This

minimizes communication costs to

vessel operators and removes the

necessity to provide power to a moored

vessel with a VMS unit.

Permitting Requirements

All commercial vessels meeting

certain eligibility criteria fishing for,

possessing, or landing herring in or from

the EEZ are required to obtain a Federal

Atlantic herring permit. Domestic

vessels ≥ 165 ft (50.3 m) LOA, or > than

750 GRT (680.4 mt), or > 3,000

horsepower are not eligible to be issued

a permit to harvest or take herring.

However, domestic vessels > 165 ft (50.3

m) LOA or > 750 GRT (680.4 mt),

regardless of horsepower, are eligible to

obtain a processing permit to process or

receive herring in the EEZ, limited to

the amount allocated for USAP pursuant

to the specification process. Other than

this restriction on vessel size, there are

no restrictions or qualification criteria

necessary for a domestic vessel to

receive a permit. A vessel with a Federal

Atlantic herring fishing permit must be

marked in accordance with 50 CFR

648.8.

An Atlantic herring carrier vessel is

required to obtain, in addition to a

Federal Atlantic herring permit, a letter

of authorization from the Regional

Administrator that will allow such

vessel to transport herring caught by

another fishing vessel.

Operators of vessels issued an

Atlantic herring fishing or processing

permit are required to obtain an

operator permit. There is no

qualification or test for this permit.

Dealers of Atlantic herring are required

to obtain a dealer permit and to comply

with reporting requirements.

This FMP requires Atlantic herring

processors to obtain a processing permit

and to comply with reporting

requirements. Atlantic herring

processors are defined as persons who

receive or obtain unprocessed Atlantic

herring for the purposes of rendering it

suitable for human consumption, bait,

commercial uses, industrial uses, or

long-term storage. These requirements

may result in a person needing both a

dealer and a processor permit. For

example, a person who purchases

herring directly from a vessel and then

sells it as bait will need both permits.

Reporting Requirements

The FMP extends the existing Vessel

Trip Report (VTR) system to vessels

with Atlantic herring permits. This

requires the owner/operator to submit

monthly reports on fishing effort,

landings, and discards on forms

supplied by the Regional Administrator.

In addition, in order to improve realtime monitoring of the harvest, an

Interactive Voice Response (IVR) system

is required to be used. The FMP uses

area-specific TACs to control fishing

mortality. To be effective, harvests need

to be closely monitored to ensure that

the TAC is not exceeded. Since only

vessel operators can identify where they

harvest herring, the area-specific TACs

cannot be monitored effectively through

only the dealer reporting system. The

VTR system relies on monthly reports

on paper that are entered into a

database. Accurate harvest statistics

from this system are typically not

available until 30 to 45 days after fish

are landed. Given the high harvest rates

in the herring fishery at certain times of

the year, the delay in obtaining statistics

makes it difficult to project landings

accurately in a timely way. In order to

improve the timely collection of harvest

information, this rule requires that an

owner/operator of a vessel required to

be equipped with a VMS unit report its

harvest (landings and discards, both of

which are applied against the TACs), by

area, on a weekly basis. These reports

are called in (using a toll free number)

to an IVR system. An owner/operator of

a vessel with a VMS unit must call in

a report for each week of the year, even

if still at sea, including weeks it does

not harvest herring. In addition, an

owner/operator of any vessel issued a

permit for Atlantic herring that is not

required by § 648.205 to have a VMS

unit on board, or any vessel that catches

herring in or from the EEZ, but 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 by Tuesday of the following

week, even if the herring has not yet

been landed. This system improves the

timeliness of information on harvests of

herring, which will facilitate more

accurate predictions about when the

TAC will be attained.

Atlantic herring dealers are required

to submit weekly dealer reports by mail.

Although dealers are required to submit

a weekly report to an IVR system for

other Northeast Region quota-managed

species, Atlantic herring dealers are not

required to submit a weekly report to an

IVR system unless the Regional

Administrator determines that there is a

need for such reports.

Atlantic herring processors are

required to submit annually the Fishery

Products Report, U.S. Processors,

Annual Survey, (NOAA Form 88-13).

This report, which collects information

on the uses of herring, facilitates the

management of the fishery to achieve

OY.

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77453

Essential Fish Habitat

The Council submitted an omnibus

essential fish habitat (EFH) amendment

to address EFH provisions for several

FMPs for Northeastern fisheries. The

omnibus EFH amendment document

also included the EFH components of

the Atlantic Herring FMP, which was

then still under development by the

Council. Although the Atlantic herring

EFH components were included in the

omnibus EFH amendment, they were

not considered during Secretarial

review of the omnibus EFH amendment.

The EFH information for Atlantic

herring was incorporated by reference

into the FMP when that FMP was

submitted for Secretarial approval. The

NOA for the FMP invited comment on

the approvability of the herring EFH

provisions in the Council’s omnibus

EFH amendment. Under the framework

adjustment process for Atlantic herring,

measures may be added or adjusted to

describe, identify, and protect EFH and

designate habitat areas of particular

concern within EFH.

Annual Monitoring and Framework

Adjustment Measures

The FMP will be monitored on an

annual basis. The status of the resource

and the fishery will be reviewed by the

Council’s Atlantic Herring Oversight

Committee in consultation with the

Commission’s Atlantic Herring Section.

Recommendations on specifications will

be developed, as well as any suggested

changes to the management measures.

These will be forwarded by the Herring

Oversight Committee to the Council,

which will take appropriate action.

Specifications will be recommended to

NMFS, and changes to management

measures may be adopted through a

framework adjustment or FMP

amendment, as appropriate. This

process will begin by July of each year

so that changes can be implemented by

January 1 of the following fishing year.

The Commission is expected to

implement any corresponding changes

in state waters.

The framework adjustment process

adopted in the FMP is identical to that

used in other Northeast Region fisheries.

This process allows changes to be made

to the regulations in a timely manner,

without going through the plan

amendment process, as appropriate. It

provides a formal opportunity for public

comment that substitutes for the

customary public comment period

provided by publishing a proposed rule.

If changes to the management measures

were contemplated in the FMP and if

sufficient opportunity for public

comment on the framework action

exists, NMFS may bypass the proposed

rule stage and publish a final rule in the

Federal Register. The management

measures that may be implemented and

adjusted through the framework process

include: (1) Management area

boundaries; (2) size, timing, or location

of spawning area closures; (3) closed

areas other than spawning closures; (4)

restrictions in the amount of fishing

time; (5) a days-at-sea effort control

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) or

requirements (such as bycatch-reduction

devices); (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 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; and (25)

any other measure currently included in

the FMP.

Clarification of Initial ‘‘Fishing-up’’

Period

The Council, in its discussion of

specifications for the Herring FMP,

referred to an initial ‘‘fishing-up’’ period

in which OY would not exceed MSY. A

complete discussion is contained in

section 3.2 of Volume I of the FMP.

NMFS interprets the initial ‘‘fishing-up’’

period to mean the 2000 fishing year.

Preliminary Management Plan for the

Atlantic Herring Fishery of the

Northwestern Atlantic

On July 24, 1995 (60 FR 37848),

NMFS announced approval of the PMP

to regulate foreign joint venture

activities for Atlantic herring in the

EEZ. The PMP, which set the initial

specification for Atlantic herring,

provided joint venture opportunities in

the EEZ by allocating a portion of the

allowable biological catch for joint

venture processing. The PMP also

established permit conditions and

restrictions for foreign vessels that

participate in joint ventures. Because

the FMP addresses issues related to

Atlantic herring foreign joint venture

activities, NMFS withdraws approval of

the PMP and removes existing

regulations related to Atlantic herring

(50 CFR 600.525) effective January 10,

2001.

Comments and Responses

Twelve sets of written comments on

the FMP were received during the

comment period date established by the

NOA, which ended September 27, 1999.

Those comments were considered by

NMFS before it partially approved the

FMP on October 27, 1999, and, while

not specifically repeated here, those

comments are characterized below.

NMFS also received 14 sets of written

comments on the proposed rule, some of

which included comments on the FMP,

during the comment period specified in

the proposed rule, which ended on

April 21, 2000. Because the comment

period for the proposed rule was

distinct from, and followed, the

comment period for the FMP, comments

received during the proposed rule

comment period were not considered in

NMFS’ determination to approve the

FMP. However, the comments

addressing the proposed rule itself were

considered in approval and

implementation of the final rule

effecting the FMP and its management

measures and are responded to here.

Those comments specifically addressing

the FMP submitted after September 27,

1999, are not responded to here, since

the comment period on the FMP had

closed prior to their submission.

Comment 1: A commenter expressed

concern that the FMP prohibits TALFF

even though the FMP acknowledges

Atlantic herring is not fully harvested

by the available domestic harvesting

capacity. The commenter further stated

that the provision on TALFF, as

currently written, is not consistent with

section 303(a)(4)(B) of the MagnusonVerDate 11<MAY>2000 15:45 Dec 08, 2000 Jkt 194001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\11DER4.SGM pfrm10 PsN: 11DER4
77454 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

Stevens Act and that the FMP should be

revised to provide for an annual

specification of TALFF even if, in any

given year, it is determined that the

amount should be zero.

Response: NMFS concurs and

disapproved the prohibition on TALFF.

Section 303(a)(4)(B) of the MagnusonStevens Act provides that any fishery

management plan that is prepared by

any Council, or by the Secretary, with

respect to any fishery, shall assess and

specify the portion of OY which, on an

annual basis, will not be harvested by

fis hing vessels of the United States and

can be made available for foreign

fishing.

Comment 2: A commenter reiterated

EFH issues raised previously pertaining

to the Northeast Omnibus EFH

Amendment. The commenter also

provided extensive comments on

technical aspects of the Omnibus

Amendment’s discussion of potential

impacts to EFH from oil, gas, and

mineral extraction, and the

recommended conservation and

enhancement measures dealing with

these activities.

Response: The Northeast Omnibus

EFH Amendment included the EFH

components of the Atlantic Herring

FMP, which was then still under

development by the Council. When

NMFS announced approval of the EFH

amendments to several fishery

management plans (64 FR 19503, April

21, 1999) it stated that the EFH

information for Atlantic herring would

be incorporated by reference into the

Atlantic Herring FMP when that FMP

was submitted for Secretarial approval.

NMFS responded to the commenter’s

comments submitted on the Northeast

Omnibus EFH Amendment at that time.

Comment 3: A commenter expressed

concern about the level of effort in

Management Area 1A and disagreed

with NMFS’ concerns about the

following: Discrepancies in vessel size

between the Atlantic mackerel and

Atlantic herring fisheries (which the

commenter asked to have clarified); the

lack of a real-time mechanism to

monitor Canadian catch (tied to the

adjustment of the TAC for Management

Area 1A); and the lack of sufficient

benefits from adjusting the TAC in

Management Area 1A after October 1

because the fishing year ends December

31. The commenter also stated that a

real-time monitoring system for the

Canadian fishery does exist; that

adjusting the TAC after October 1 could

have substantial benefits to the eastern

Maine fixed gear fishery; that datecertain spawning closures are

problematic and do not protect

spawning herring; that the overall

strategy for protection of spawning

herring is inconsistent between Federal

and state waters; and that NMFS and the

Council need to address the impacts of

other fisheries on spawning herring,

whereby vessels from other fisheries are

not constrained from fishing in the

spawning closures.

Response: Regarding the commenter’s

concern about the level of effort in

Management Area 1A, the management

measures are intended to reduce herring

landings from this area. The FMP effects

TACs, assigned by management areas, to

help prevent overfishing of the resource,

and Management Area 1A in particular.

NMFS approved the vessel size

restrictions. Regarding the commenter’s

request to clarify differences in

domestic vessel size restrictions

between the Atlantic herring and

Atlantic mackerel fisheries, the FMP

states that domestic vessels ≥ 165 ft

(50.3 m) in length, or > 750 GRT, or 

3,000 horsepower are not permitted to

catch, take, or harvest herring in or from

the EEZ. Amendment 8 to the Atlantic

Mackerel, Squid and Butterfish Fishery

Management Plan, however, provides

that domestic vessels > 165 ft (50.3 m)

in length and 750 GRT, or > 3,000

horsepower are not permitted to catch,

take, or harvest mackerel in or from the

EEZ.

Further, regarding vessel restrictions

for processing, the FMP states that

domestic vessels > 165 ft (50.3 m) in

length, or > 750 GRT, are allowed to

process or receive herring in the EEZ,

but are limited to the allocated amount

specified pursuant to the specification

process for USAP. Amendment 8 to the

Atlantic Mackerel, Squid and Butterfish

Fishery Management Plan, however,

provides no size restrictions for

processing vessels.

The differences between the mackerel

and herring size specifications do not

result in any practical differential

impact on vessels currently subject to

these specifications. Nevertheless,

NMFS will continue to work with the

New England and Mid-Atlantic

Councils (Councils) and the

Commission to resolve these minor

inconsistencies in order to facilitate

FMP administration.

Regarding NMFS’ concern that there

is no real-time mechanism to monitor

Canadian catch, even if Canadian data

could be obtained, there is no way to

ensure that it would be provided in

future years. Therefore, NMFS

disapproved adjustment of the TAC for

Management Area 1A if the NB, Canada,

fixed gear fishery would not harvest

20,000 mt of Atlantic herring by

October 1.

NMFS disapproved the spawning

closures measure.

Comment 4: The Commission

commented in support of the FMP’s full

implementation and acknowledged its

close coordination with the Council

during the development of the FMP.

Response: The Commission

coordinated development of its

Amendment 1 to its Interstate Fishery

Management Plan for Atlantic Sea

Herring simultaneously with the

Council’s development of the FMP. In

its attempt to maintain consistency with

the Federal FMP, the Commission

adopted the Council’s proposed

measures, where feasible, in its own

plan, which was effective in February

1999. Disapproval by NMFS of several

measures of concern in the Federal FMP

has resulted in inconsistencies between

the Commission and Federal plans.

NMFS is working with the Commission

and Councils to resolve any

inconsistencies as they cooperatively

develop future management measures.

Comment 5: A commenter stated that

the FMP fails to prevent overfishing,

minimize bycatch, and protect EFH.

With regard to EFH, the commenter said

that the Omnibus EFH Amendment

incorrectly concluded that mid-water

trawls have minimal effects on EFH; the

Omnibus Amendment and the FMP

failed to minimize fishing gear impacts

on EFH; and the FMP fails to protect

herring egg beds throughout the range of

the stock. The commenter also stated

that the Environmental Impact

Statement for the FMP fails to discuss

adequately the direct, indirect and

cumulative environmental impacts of

the proposed action; and that NMFS

failed to undertake an Endangered

Species Act (ESA) Section 7 formal

consultation to determine the proposed

action’s potential to jeopardize

threatened or endangered species.

Response: The Northeast Fisheries

Science Center (NEFSC) reviewed the

overfishing definition for Atlantic

herring for compliance with guidelines

provided in 50 CFR part 600, including

consideration of whether the overfishing

definition has sufficient scientific merit,

is likely to result in effective action to

protect the stock from closely

approaching or reaching an overfished

status, provides a basis for the objective

measurement of the status of the stock

against the overfishing definition, and is

operationally feasible. Based on its

review, the NEFSC certified that the

overfishing definition complies with 50

CFR part 600 guidelines. The NEFSC

further stated that the current estimates

of biological reference points for this

stock complex are based on the best

available scientific information but

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77455

added that the Herring Plan

Development Team (PDT), Stock

Assessment Review Committee (SARC)-

Pelagic Working Group, and the

Commission’s Herring Section recognize

that further work and analyses are

necessary for the stock complex and its

components, and revisions will

probably be required. These committees

will continue to work on improving

estimates of Bmsy, Fmsy (the fishing

mortality rate consistent with the

production of MSY), and MSY for

Atlantic herring and may recommend

changes in the future. The NEFSC will

continue to monitor abundance,

recruitment, fishing mortality and other

information for the Atlantic herring

stock complex and fishery and will

recommend adjustments, if and when

necessary.

The information available on the

extent of bycatch in the herring fishery

is summarized in sec. E.6.4.2.6. of the

FMP and is further addressed

throughout the FMP. This information,

while not representative of the entire

fishery in all areas and seasons,

indicates that the traditional purse seine

and mid-water trawl herring fisheries

are relatively ‘‘clean’’ fisheries, with

limited bycatch of other species.

There is some concern over possible

marine mammal interactions with the

herring mid-water trawl fishery, based

on experience with other mid-water

trawl fisheries. For this reason, NOAA

listed the herring mid-water trawl

fishery as a Category II fishery (defined

at § 229.2 (60 FR 45086, August 30,

1995)). This will facilitate the use of

marine mammal observers to determine

the extent of any interactions. Further,

restrictions on the size of vessels in the

herring fishery may reduce the

likelihood of bycatch of marine

mammals. Large pelagic trawlers in the

mackerel fishery are known to have

taken marine mammals. The prohibition

on the catching of herring by large

domestic vessels may prevent a possible

recurrence of this problem.

Management of the Atlantic herring

fishery relies on accurate estimates of

catches, catch rates, and bycatch. The

FMP contains a measure that provides

NMFS (and, cooperatively, the states)

with the ability to place observers on

board vessels to collect this information

if necessary.

With regard to EFH issues, NMFS

disagrees that the omnibus amendment

incorrectly concluded that mid-water

trawls have minimal effects on EFH.

The 1998 Auster and Langton report

referenced in the Omnibus Amendment

provided a literature review of all

available scientific information

pertaining to gear impacts on habitat.

No reference was made to mid-water

trawl gear. Pursuant to 50 CFR 648.2, a

mid-water trawl is defined as trawl gear

designed to fish for, or that is capable

of fishing for, or that 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.

Based upon this definition and the lack

of information documenting adverse

impacts to bottom habitat from midwater trawls, the Council correctly

concluded that mid-water trawls do not

significantly impact the sea floor or

other EFH.

The Councils approached the

evaluation of impacts from fishing gears

methodically. They identified the major

gears used in the region based on

landings, described the major gears,

identified that otter trawls and scallop

dredges were the most likely to have

adverse impacts on habitat, appended a

summary of the literature on fishing

gear impacts to habitat, and described

other impacts from fishing activities

such as the impacts of fishing-related

marine debris and lost gear, impacts of

aquaculture, and impacts of at-sea fish

processing. The Councils also evaluated

fisheries management measures

currently in place and assessed their

impact on EFH. Finally, the Councils

identified a number of areas that require

further research in order to provide a

better basis for determining fishing gear

impacts, such as the spatial distribution

and extent of fishing effort for gear

types; the effects of specific gear types

along a gradient of effort on specific

habitat types; and recovery rates of

various habitat types following fishing

activity. Although the commenter may

disagree with the manner in which the

information was presented, NMFS

concludes that the Councils satisfied the

requirements of the Magnuson-Stevens

Act and the EFH requirements (50 CFR

600.815(a)(3)) regarding the assessment

of fishing gear impacts.

The Council can use the framework

adjustment process to address future

identified impacts to herring EFH.

Based upon management measures in

place in other fishery management

plans, as well as those within the

Herring FMP as explained in the

Northeast Omnibus Amendment, the

Council has satisfied its requirement

under 50 CFR 600.815(a)(3)(iii) to

minimize, to the extent practicable,

adverse effects on EFH.

Environmental impacts of this action

are discussed in section E.7.0 of the

FMP. The action is not expected to have

a negative impact on the biological

components of the herring fishery and is

expected to have a net positive impact

on the economic and social components

of the herring fishery. Spawning stock

biomass is projected to continue to

increase at the same time that landings

of herring could double. In the longterm, the establishment of TACs and

effort controls are expected to result in

a sustainable herring fishery. The social

impacts of the action are not expected

to be large in scale, long-term, or farreaching. Fishermen in the Gulf of

Maine (GOM) may be the most affected,

primarily by forcing a redistribution of

fishing effort from the inshore area.

Some fishermen in other fisheries will

have the opportunity to enter the

herring fishery, which may alleviate

problems caused by increasing

restrictions in those fisheries.

NMFS completed a biological opinion

(BO), pursuant to section 7 of the ESA,

on the FMP on September 17, 1999. The

BO concluded that while competition

with the herring fishery may affect the

availability of sufficient prey for

endangered whales, the complexity of

ecosystem interactions and the logistical

difficulties of conducting necessary

sampling have hindered conclusive

demonstration of the existence of

competition. This opinion further

concluded that the proposed Federal

herring fishery is not likely to

jeopardize the continued existence of

threatened or endangered species or

designated critical habitat. The BO also

includes an Incidental Take Statement

that provides the fishery with an

exemption from the take prohibitions

established in section 9 of the ESA.

Comment 6: A commenter expressed

concern that a serious decline in the

herring stock in the GOM is due to midwater trawling and suggested closing

areas in the GOM to mid-water gear.

Response: While NMFS acknowledges

some concern for the inshore portion of

the stock in the GOM, the stocks

offshore are robust. There is no credible

evidence that any decline in the herring

stock in the inshore GOM is due to any

particular type of gear. The FMP limits

TACs in each of the established herring

management areas. Attainment of the

TAC, therefore, would close a

management area to directed herring

fishing by any gear type. The measures

do not, however, include the

establishment of closed areas to address

fishing mortality or other concerns.

Comment 7: A commenter supported

the FMP as submitted, with the

following exceptions: That the

spawning area closures scheme is

seriously flawed and should be rejected;

JVP should be disapproved; and the

word ‘‘shoreside’’ should be added to

one of the FMP objectives, to read, ‘‘To

maximize domestic shoreside use and

77456 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

encourage value-added product

utilization.’’

In requesting that the Secretary reject

spawning area closures, the commenter

stated that the date-certain approach

proposed in the FMP will eliminate

fishing opportunities. The commenter

added that it will also be unsuccessful

in reducing spawning fish mortality if

herring are not spawning during the

dates that the areas are closed. The

commenter further added that spawning

closures should also apply to mobile,

bottom-tending vessels in addition to

purse seiners and mid-water trawlers.

The commenter also opposed the 2,000-

lb (907.2-kg) incidental catch allowance.

In requesting disapproval of JVP, the

commenter argued that the FMP

seriously underestimates the amount of

DAP that exists to freeze, or otherwise

process, herring. The commenter also

raised the equity issue that a zero

allocation for JVP would be consistent

with the zero allocation for USAP.

The commenter requested that the

word ‘‘shoreside’’ be added to one of the

FMP objectives because the word was

removed by the Council in finalizing

this objective after 2 years of having

been included in that objective. The

commenter stated that, by eliminating

this word, the Region’s shoreside

processors become less competitive

globally than large offshore processing

vessels would be, which the commenter

found contrary to national standard 8.

The commenter also included

suggestions for EFH, which it submitted

to the Council on July 27, 1998, and

other suggestions for improving

management of the fishery.

Response: NMFS disapproved the

spawning closures.

Regarding the request for disapproval

of JVP, the amount expected to be used

by DAP was estimated and subtracted

from the DAH, along with herring

transported to Canada (BT). The FMP

provides that, if there is any DAH

remaining, it may be made available for

JVP. Such was the case. Regarding the

comment that since USAP is zero, JVP

should be zero, the Council addressed

this issue by voting at its July 1999

meeting to increase USAP to 20,000 mt

for the 2000 fishing year and to establish

the same amount for JVPt. The Council’s

request and attendant analysis are under

NMFS review.

In response to the commenter’s

request that the word ‘‘shoreside’’

should be added to one of the FMP

objectives the Council, after public

discussion, chose not to take the

position that either shoreside processors

or existing small freezer trawlers were

more desirable than the other and

decided to forward the FMP without the

word ‘‘shoreside’’ in that objective.

NMFS disagrees that the objective, as

approved, violates national standard 8.

The commenter’s suggestions for EFH

and improving management of the

fishery are acknowledged and were

previously responded to in association

with approval of the Northeast Omnibus

EFH Amendment.

Comment 8: A commenter stated that

USAP should be at least equal to JVP;

the Mid-Atlantic Council should align

large vessel size in the mackerel fishery

with the New England Council’s herring

vessel size; the days out of the fishery

scheme is too burdensome to be

effective; and a roe fishery should not be

allowed because while searching for

herring with the proper roe content,

large amounts of herring are discarded.

The commenter added that allowing roe

fishing is shortsighted because once

established, the economic pressure of

such a lucrative fishery would make

curtailing it politically impossible.

Response: As to USAP being equal to

JVP, see response to comment 7.

With regard to aligning large vessel

size in the mackerel fishery with the

vessel size established by this FMP, as

stated previously, the Atlantic Herring

and Atlantic Mackerel fishery

management plans are separate from

each other (neither adversely affecting

the other). Their differences do not

hinder either plan from meeting its

respective objectives and there are no

practical differential impacts on vessels

currently subject to the size

specifications. Nevertheless, NMFS will

continue to work with the Councils and

the Commission to resolve these

inconsistencies in order to facilitate

FMP administration as they continue to

develop future management measures.

NMFS disapproved the proposed

days-out-of-the-fishery provision.

After exploring alternatives for

allowing a roe fishery, the Council

chose to allow this activity and to

monitor its development. This allows

the cautious development of a fishery

that takes advantage of the high value of

herring roe, while at the same time

protecting the resource. Furthermore,

the possession of herring roe is only

authorized if carcasses are retained.

Should the amount of herring harvested

for roe become a concern, the Council

may initiate a framework adjustment

action to implement additional

management measures to limit the

harvest of herring for roe.

Comment 9: A commenter raised the

need for an ecosystem-wide, integrated

approach to population assessments.

Response: NMFS acknowledges that

ecosystem approaches to fishery

assessment and management are

desirable and is working on such

approaches that may prove useful in the

future. However, the current population

assessment is consistent with the best

available scientific information and

scientific practices, is consistent with

requirements of applicable law, and is

adequate to manage the herring fishery

effectively.

Comment 10: A commenter argued for

a prohibition on bottom trawls during

the spawning season and added that

fixed-date spawning closures will not be

effective.

Response: NMFS disapproved the

spawning closures measure.

Comment 11: A commenter disagreed

with the size restrictions on domestic

vessels and the establishment of an ‘‘atsea processing’’ sector, which could

discriminate against large vessels. The

commenter argued that the size

restriction was included in the FMP

with the intent of eliminating an

existing freezer trawler. The commenter

argued further that there is no analysis

on ‘‘the effect or consequence of

including or excluding vessels based on

their length, tonnage, or horsepower

either individually, all three, or a

combination of any two of the

specifications’’. The commenter

concluded that the vessel size limits

adversely affect the ability of those who

would develop and supply the export

markets for whole round frozen-at-sea

herring.

Response: The Council did not intend

to exclude any current participants in

the herring fishery, but only to restrict

the size of vessels. The Council

reasoned that restricting the size of

vessels entering the open access fishery

would slow the increase in harvest

rates. It stated that this is consistent

with the 1998 SARC recommendation

that the herring harvest be increased in

an incremental manner until the

precision of stock estimates can be

improved. In actual effect, this measure

allocates the herring resource to existing

participants and future participants that

comply with the size restrictions. For

the vessels identified as having caught

herring in 1997, the maximum length

was 126 ft (38.4 m), the maximum

horsepower was 2,100, and the

maximum GRT was 246. While there are

mid-water trawl vessels that exceed

these criteria and may desire to

participate in the fishery in the future,

there were no vessels actively

participating in the herring fishery

during development of this FMP that

exceeded the size limits specified in the

FMP.

The FMP provides that vessels over

the size limits for harvesting herring

may participate in the fishery by

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77457

processing at sea. The annual

specification process, in this case,

USAP, which is set at zero initially, is

intended to provide a mechanism for

the Council to control, if necessary, the

development of large vessel at-sea

processing capability for the herring

fishery. While the question of excess

capacity is not solely one of vessel size,

given the existence of available capacity

in the Northeast Region and recent

attempts to reduce overall capacity in

other U.S. fisheries, the Council chose

not to allow large domestic vessels in

the fishery until it is certain that the

capacity they represent can be

accommodated.

The Council set the initial

specification for USAP at zero.

However, it voted at its July 1999

meeting to request an increase in USAP

to 20,000 mt for the 2000 fishing year.

The Council request and analysis are

currently under NMFS review.

Comment 12: A commenter

considered the FMP to be overly broad

and exceeding the intent of Congress.

The commenter specifically cited the

breadth of EFH designation, noting that

EFH appeared to be designated over the

range of the species, and in estuarine

and coastal waters of the states.

Response: These concerns were

addressed in the Northeast Omnibus

EFH Amendment, which is incorporated

into this action, and summarized here.

The Magnuson-Stevens Act defines EFH

as those waters and substrate necessary

to fish for spawning, breeding, feeding,

or growth to maturity. Therefore, the

geographic scope of EFH must be

sufficiently broad to encompass the

biological requirements of the species.

The information that the Councils used

for EFH designation was primarily

species distribution and relative

abundance data, which is ‘‘level 2’’

information under the EFH regulations

(50 CFR 600.815). Since the information

available was not more specific (e.g., did

not show species production by habitat

type), the approach prescribed by the

regulations led to fairly broad EFH

designations. The EFH regulations at 50

CFR 600.10 interpret the statutory

definition of EFH to include aquatic

areas that are used by fish, including

historically used areas, where

appropriate, to support a sustainable

fishery and the managed species’

contribution to a healthy ecosystem,

provided that restoration is

technologically and economically

feasible. The Councils’ EFH designation

is consistent with these requirements.

Comment 13: A commenter stated that

the conservation and enhancement

recommendations for non-fishing

impacts to EFH that are provided in the

omnibus EFH amendments are neither

based on the best available science, nor

sufficiently supported. The commenter

contended that the recommended

measures do not take into consideration

current practices, and are likely to be in

conflict with measures being pursued

under other regulatory programs. The

commenter also stated that the

Magnuson-Stevens Act did not

empower the Councils to address nonfishing activities.

Response: NMFS disagrees. The

information presented in the omnibus

EFH amendments is well researched

and is substantiated by the best

available scientific information. The

commenter did not provide examples of

specific information not considered by

the Councils.

Conservation and enhancement

recommendations for non-fishing

industries were included to satisfy the

requirements of section 303(a)(7) of the

Magnuson-Stevens Act to ‘‘identify

other actions to encourage the

conservation and enhancement of

[EFH].’’ This information is provided to

assist non-fishing industries in avoiding

impacts to EFH. The recommendations

are neither posed as, nor meant to be,

binding in nature. It is up to the

discretion of the non-fishing industries

and relevant regulatory agencies

whether these recommendations are

implemented.

Additionally, under section 305(b) of

the Magnuson-Stevens Act, NMFS is

required, and the Councils are

authorized, to make conservation

recommendations to any Federal or state

agency regarding any activity that

would adversely affect EFH. Moreover,

Federal agencies are required to respond

to these recommendations in writing.

Comment 14: A commenter stated that

the amendment contains no meaningful

threshold of significance or likelihood

of adverse effect on habitat for nonfishing impacts. The commenter

suggested that the consultation and

conservation recommendation

provisions of the Magnuson-Stevens Act

will be burdensome and unworkable.

The commenter also contended that the

consultation procedures will be

redundant with requirements of the

National Environmental Policy Act

(NEPA), costly, and time-consuming.

Response: The Magnuson-Stevens Act

requires Federal action agencies to

consult with NMFS on activities that

may adversely affect EFH. Adverse

effects, as defined at 50 CFR 600.810(a),

means any impact that reduces the

quality and/or quantity of EFH. Adverse

effects may include, for example, direct

effects through contamination or

physical disruption, indirect effects

such as loss of prey or reduction in

species fecundity, and site-specific or

habitat-wide impacts, including

individual, cumulative, or synergistic

consequences of actions. Only actions

that have a reasonably foreseeable

adverse effect require consultation.

Consultations are not likely to be

redundant or inefficient. The EFH

regulations provide for streamlined

consultation procedures, such as general

concurrences and abbreviated

consultations, that may be used when

the activities at issue do not have the

potential to cause substantial adverse

effects on EFH. The EFH consultation

requirements will be consolidated with

other existing consultation and

environmental review procedures

wherever appropriate. This approach

will ensure that EFH consultations do

not duplicate other environmental

reviews, yet still fulfill the statutory

requirement for Federal actions to

consider potential effects on EFH.

Comment 15: A commenter stated that

the Omnibus EFH Amendment

generally failed to address the potential

for significant adverse impacts of this

amendment on non-fishing entities,

specifically citing the requirements of

NEPA and the Regulatory Flexibility Act

(RFA).

Response: The conservation and

enhancement recommendations

outlined in the Omnibus EFH

Amendment include a review of

suggested measures for municipal, state,

and Federal agencies and other

organizations for the conservation and

enhancement of EFH. As stated earlier,

these recommendations are nonbinding. Any regulatory action that may

reflect these recommendations will be

subject to the analysis and public

review required by state or Federal law,

which will be the appropriate vehicle

for consideration of impacts to both

fishing and non-fishing entities.

In the environmental assessment (EA)

included with the Omnibus EFH

Amendment, the Council found, and

NMFS concurs, that there will be no

significant impacts on the human

environment as a result of this

amendment. The EFH regulations and

NOAA policy require that NMFS

coordinate EFH consultations with other

consultation and commenting

requirements under environmental

review procedures currently in place.

This will eliminate duplication and

ensure a workable review process. The

analytical requirements of the RFA

apply only to regulatory actions for

which a general notice of proposed

rulemaking (i.e., notice-and- comment

rulemaking) is required under the

Administrative Procedure Act (APA) or

77458 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

another statute. The requirements of the

RFA did not apply to the approval of the

EFH portions of the FMP, since a

general notice of proposed rulemaking

was not required. Nothing related to

EFH of Atlantic herring was codified in

regulatory text in 50 CFR part 600,

because no regulatory measures related

to EFH were proposed in the FMP.

Comment 16: A commenter charged

that the EFH provisions of the FMP do

not comply with Magnuson-Stevens Act

national standards 2 (best available

scientific information), and 7

(unnecessary duplication).

Response: As a part of the Council’s

Omnibus EFH Amendment, the Atlantic

herring section was intended to address

only habitat issues, including the EFH

requirements of the Magnuson-Stevens

Act.

The Omnibus EFH Amendment was

developed with significant input from

scientists of the NEFSC and is based

upon the best scientific information

available. In the strategic plan portion of

the amendment, the Councils clearly

stated their commitment to updating the

amendment as new information

becomes available. NMFS finds the

amendment consistent with national

standard 2.

The commenter did not elaborate

upon the assertion that the amendment

violates national standard 7, so NMFS

assumes, for the purpose of responding

to this comment, that the commenter

believes that the EFH consultation

process is duplicative of other federally

required consultation processes. NMFS

has determined that the EFH

amendment is consistent with the

Magnuson-Stevens Act, including

national standard 7. Inter-agency

consultations on Federal activities that

may adversely affect EFH are required

by the Magnuson-Stevens Act; they are

not optional. Section 305(b)(2) of the

Magnuson-Stevens Act states: ‘‘Each

Federal agency shall consult with the

Secretary with respect to any action

authorized, funded, or undertaken, or

proposed to be authorized, funded, or

undertaken, by such agency that may

adversely affect any essential fish

habitat identified under this Act.’’

Existing Federal statutes such as the

Fish and Wildlife Coordination Act, the

Endangered Species Act (ESA), and

NEPA already require consultation or

coordination between NMFS and other

Federal agencies. As explained earlier,

EFH consultations will be conducted to

the greatest extent possible under

existing review processes and within

existing process time frames. NMFS is

committed to a consultation process that

will be effective, efficient, and to the

extent possible non-duplicative. The

EFH regulations at 50 CFR 600.920

suggest that NMFS be consulted as early

as possible in project planning so that

appropriate conservation measures can

minimize the potential for adverse

effects to EFH. The amendment contains

conservation recommendations that are

appropriate for many Federal actions,

and they can also serve as guidelines

that should be considered during project

planning.

Comment 17: A commenter expressed

concern regarding the application of a

framework adjustment process to EFH.

The commenter was concerned that the

framework process would allow changes

to these measures to be published as a

final rule without first publishing them

as a proposed rule. The commenter

stated that non-fishing interests lack

representation at Council meetings and,

therefore, will not have an opportunity

to comment on actions regarding EFH.

The commenter asserted that the

framework adjustment process will

foster inconsistencies in treatment

among the different NMFS Regions and

the Fishery Management Councils,

thereby complicating the EFH

consultation process. The commenter

requested that the inclusion of these

measures be delayed until revision of

NMFS EFH interim final regulations and

guidelines.

Response: The framework adjustment

process requires the Councils, when

making specifically allowed

adjustments to the FMP, to develop and

analyze the actions over the span of at

least two Council meetings. The

Councils must provide the public with

advance notice of the meetings through

publication of the meeting agenda in the

Federal Register, the proposals and the

analysis, and provide an opportunity to

comment on the proposals prior to, and

at, the second Council meeting. Upon

review of the analysis and public

comment, the Council may recommend

to NMFS that the measures be published

as a final rule, if certain conditions are

met. NMFS may either publish the

measures as a final rule, or as a

proposed rule if NMFS or the Council

determines that additional public

comment is needed. NMFS believes that

there is enough flexibility in the

framework system to ensure that the

affected parties will be able to

participate. NMFS also believes that

there is little likelihood of significant

inconsistencies occurring between

regions, since all measures are reviewed

by NMFS Headquarters.

The list of measures that can be

implemented by framework included in

the FMP is inclusive to give the

Councils maximum flexibility to

respond quickly to fishery information

as it becomes available and to adjust the

regulations accordingly. As such,

modifications to EFH and Habitat Areas

of Particular Concern (HAPC) can be

implemented in an expedited manner if

circumstances warrant, based upon

Council and NMFS approval. The

framework adjustment process requires

adherence to all applicable law.

Comment 18: A commenter

recommended that the Area 1A TAC be

adjusted upward, not to exceed 60,000

mt, with the condition that the

combined TAC for Area 1A and 1B not

exceed 70,000 mt. Other commenters

asked for an upward adjustment to

55,000 mt or that Areas 1A and 1B be

combined for a single quota of 70,000

mt.

Response: Since NMFS may only

approve or disapprove an FMP measure,

it was constrained to accept the 45,000

mt TAC for Area 1A. However, the

Council voted at its May 3-4, 2000,

meeting to request an inseason transfer

of 15,000 mt of TAC from Area 1B

(offshore) to Area 1A (inshore). The

Council’s request would increase the

Area 1A quota to 60,000 mt and reduce

the quota in Area 1B to 10,000 mt. The

Council’s request is currently under

review.

Comment 19: A commenter stated that

language should be clarified to allow

landing of herring caught in any open

area in an area that has been closed to

directed fishing due to attainment of

that area’s TAC.

Response: The Council did not intend

to disallow landing of herring caught in

open areas in areas closed to directed

fishing. Regulatory language has been

clarified to allow landing of any amount

of herring in areas where possession is

restricted to 2,000 lb (907.2 kg) of

Atlantic herring due to attainment of 95

percent of that area’s TAC, provided

such herring was caught lawfully in an

open area and all gear is stowed and is

not available for immediate use.

Comment 20: A commenter stated that

the regulations prohibit transferring fish

in or from closed areas, but that IWPs

and USAPs in state waters are allowed

to do so.

Response: The FMP allows vessels to

transfer up to 2,000 lb (907.2 kg) of

herring per day to other U.S. vessels in

or from closed areas in Federal waters.

Comment 21: A commenter stated that

the requirement that lobster and tuna

fishermen who occasionally purchase

bait at sea obtain permits is

unnecessarily burdensome.

Response: Section

648.4(a)(10)(i)(A)(1) exempts a vessel

that possesses herring solely for its own

use as bait, providing the vessel does

not have purse seine, mid-water trawl,

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77459

pelagic gillnet, sink gillnet, or bottom

trawl gear on board, from the

requirement to obtain an Atlantic

herring permit. Also exempted under

§ 648.4(a)(10)(i)(2) is a skiff or other

similar craft used exclusively to deploy

the net in a purse seine operation during

the fishing trip of a vessel that is duly

permitted under part 648.

Comment 22: A commenter stated that

defining a shore-based pump operator as

a herring dealer will add confusion to

dealer reporting requirements and will

decrease report quality.

Response: NMFS agrees and has

removed shore-based pump operators

from the herring dealer definition.

Comment 23: A commenter stated that

the definition for the VMS currently

limits fishers to one approved system

and that the regulation should provide

a choice of VMS systems. Another

commenter, who proposed its own VMS

system as a low cost alternative to the

existing NMFS-approved system,

suggested that the unnecessarily high

cost of the one approved VMS is

inconsistent with national standard 8.

Response: To ensure efficient and

expeditious implementation of the VMS

requirement in the herring fishery, the

Regional Administrator has determined

that such requirements, at this time,

should be consistent with existing VMS

requirements in other fisheries, such as

the Atlantic scallop fishery. The

definition does not limit the fishery to

one approved system. The opportunity

exists for any vendor to apply to the

Regional Administrator for approval of

the vendor’s VMS system. NMFS will

annually approve VMS systems that

meet the minimum performance criteria

specified in § 648.9(b). Any changes to

the performance criteria will be

published annually in the Federal

Register and a list of approved VMS

systems will be published in the

Federal Register upon addition or

deletion of a VMS from the list.

Comment 24: A commenter stated that

the final rule should consider

incorporating the Council’s

recommended 2000 specifications

previously approved by the Council

(decreases JVPt by 20,000 mt and

increases USAP by 20,000 mt).

Response: The Council has submitted

its recommended 2000 specifications

with an accompanying analysis to

NMFS. Its submission package is

undergoing NMFS review and is being

processed separately as an inseason

adjustment.

Comment 25: A commenter stated that

it is unfair to U.S. fishermen selling

herring to Canadian carriers to be

limited by the FMP. The commenter

suggested that the Boat Transfer (BT) of

4,000 mt be removed from the FMP to

enhance free trade. The commenter

further stated that the fixed gear (weir/

stop seine) sector of the U.S. herring

fishery should be exempted from the

Area 1 TAC, as the Canadian fixed gear

fishery is in New Brunswick, at least

until the sector’s annual harvest

becomes a significant portion of the

region’s herring fishery.

Response: Because the removal of

herring for purposes of transferring to

Canadian carriers is part of the DAH, it

must be included in OY calculations

and restricted accordingly. The

specification of BT allows the

continuation of the historic trade in

herring between the U.S. and Canada,

while addressing the concerns of other

U.S. processors by preventing this trade

from being an unlimited transfer that

reduces their access to the resource.

While the commenter’s suggestions are

directed to future management measures

rather than to these regulations, upon

implementation of this rule the Council

will have the ability to revise the

specifications and TAC distribution

method. It would be appropriate for the

commenter to raise his concerns in the

Council forum.

Comment 26: A commenter stated that

the regulations should clarify the intent

of the FMP, which is that a vessel may

only land 2,000 lb (907.2 kg) of herring

taken in an area closed because the TAC

has been reached in a given calendar

day. Other commenters stated that the

regulations correctly note this limit, but

do not include the FMP language, which

reflects the Council’s intent that a vessel

on a 5-day trip (for instance) would not

be allowed to land 10,000 lb (4,536 kg)

of herring.

Response: The regulations have been

clarified.

Comment 27: A commenter stated that

NMFS authorized the broad use of

framework adjustments to allow for

expedited rulemaking, without

demonstrating a need for such a

provision. The commenter stated that

this violates the APA because

regulations could be implemented

without adequate opportunity for public

comment. The commenter also stated

that the framework process violates the

Magnuson-Stevens Act because it fails

to conform with the statutorily required

FMP process for proposing regulatory

changes.

Response: The FMP allows the

Council to 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 FMP, or to address gear conflicts.

After a management action has been

initiated, the Council develops and

analyzes appropriate actions over the

span of at least two Council meetings.

Prior to the second Council meeting, a

framework document is prepared that

discusses and shows the impacts of the

alternatives, which is made available to

the public prior to the second or final

framework meeting. The public is

invited to participate and comment, in

person or writing, at all pertinent

Council and Committee meetings during

the development of the framework

action. If the Council recommends to

NMFS that the action be issued as a

final rule, the Council must first

consider and provide support and

analysis for several factors, one of which

is whether there has been adequate

notice and opportunity for participation

by the public and members of the

affected industry.

NMFS believes that there is enough

flexibility in the framework system to

ensure that the affected parties are able

to participate. For further discussion of

the framework adjustment process, see

response 17.

Comment 28: A commenter stated that

the final rule needs to clearly express

NMFS’ commitment to protecting EFH

of Atlantic herring to the greatest extent

practicable and that HAPC need to be

identified. At a minimum, at least one

of the identified herring schools in each

inshore and offshore area should be

managed as a no-take school. The

commenter also stated that this final

rule should explicitly state that the

Council, through its EFH Committee,

consider impacts of fishing gear and

practices (as well as non-fishing

impacts) to this school-as-habitat

approach to EFH and HAPC for herring.

Response: As stated in the Northeast

Omnibus EFH Amendment incorporated

into the FMP and this action, the

Council determined, and NMFS

concurred, that the most appropriate

way to identify EFH for herring was by

using scientific studies to quantify

herring abundance and distribution, and

applying this information as a proxy for

estimating habitat utilization. The

identification of HAPC is recommended

by the EFH regulations, but not

required. Further, the approach

proposed by the commenter appears to

be more of an attempt to manage the

herring fishery than a provision for

conservation of herring EFH.

Comment 29: A commenter stated that

the final rule should require the

applicable fishery managers to factor in

the dietary needs of humpback whales

and other marine mammals that are

feeding on the Atlantic herring resource.

The commenter said that the whale

watching industry has been significantly

impacted by the departure of whales

77460 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

from nearshore Federal waters due to

the commercial removals of entire

herring schools from areas such as

Schoodic Ledge.

Response: The FMP states that the

annual specification of OY will include

consideration of economic, social, and

ecological factors, which is consistent

with the Magnuson-Stevens Act and

national standard guidelines. For fishing

year 2000, the OY has been set at

224,000 mt with a total herring biomass

estimated at 2.9 million mt. It is

projected that there will be a 39 percent

increase in overall stock size. The 2000

specifications have been set at a

conservative level well below ABC to

allow for controlled industry growth.

This conservative specification level

also acknowledges the need to provide

for an adequate forage base for marine

mammals. However, the degree to

which whales are dependent on the

herring resource is unknown. Trophic

interactions between the herring fishery

and humpback and fin whales, as well

as other marine mammals, were

considered during the ESA consultation

on the FMP. Given the complexity of

ecosystem interactions, there is no

demonstrated link between herring

abundance and marine mammal

survival and recovery. The ESA

consultation recognizes that in the past

the herring fishery has apparently

affected the distribution of whales that

eat herring. However, it also notes that

the conversion of the herring fishery

into a regulated fishery will benefit

protected species management by the

overall monitoring of effort patterns in

the fishery and the designation of areabased TACs based on the health of the

resource in those areas. In addition, one

effect of the FMP is to limit harvest from

Area 1 in the Gulf of Maine where the

resource is considered fully utilized and

move more of the fishery further

offshore to Areas 2 and 3, where the

resource is not considered fully utilized.

The combination of area-based TACs

and the movement of the herring fishery

further offshore would benefit the whale

watching industry in the nearshore

Federal waters by preventing localized

depletions of herring that may affect the

distribution of whales in that area.

Comment 30: A commenter stated that

the NEFMC/Commission meetings were

held in locations that were relatively

inaccessible to the fixed gear fishermen

in the herring fishery. The commenter

said that this resulted in unfair

representation at Council meetings of

some sectors of the industry.

Response: Both the Council and

Commission attempt to accommodate as

much as possible all sectors of the

fisheries within their areas of authority.

Council meetings are held throughout

New England during the course of the

year. In deciding upon meeting sites, the

Council and Commission must balance

budgetary, staff, travel, facilities and

other issues. Industry representatives

and members of the public have the

opportunity to submit written

comments for the Council to consider

during its deliberations. However, at

least one representative of the fixed gear

sector of this fishery is a member of the

Council.

Regarding the 2001 meeting schedule,

the commenter may appropriately raise

his concern directly with the Council

and Commission.

Comment 31: A commenter stated the

need to clarify vessel sizes in the

regulations. Another commenter would

extend this clarification to capacity,

horsepower, and to discrepancies

between Herring and Mackerel fishery

management plans. A third commenter

asked for clarification that a vessel’s

total (not a single engine) horsepower of

its main propulsion machinery cannot

exceed 3,000 horsepower.

Response: Clarifications have been

made, where possible, through

modification of the regulatory text in

this final rule (See Changes from the

Proposed Rule).

Comment 32: A commenter suggested

that the Atlantic herring dealer

definition include harvesters who sell

herring to individuals for personal use.

Response: The definition of a dealer is

not intended to identify persons who

sell herring to end users, but rather to

identify the person who first receives

herring from a harvesting vessel.

Including harvesters who sell herring to

individuals for personal use in the

Atlantic herring dealer definition,

therefore, was not the intent of the

Council, nor would it be consistent with

the definition of a dealer in § 648.2.

Comment 33: A commenter stated that

the definition of USAP is not clear as to

whether the specification refers to the

quantity of whole round herring

received by vessels for processing, or

the quantity of finished, processed

product.

Response: The definition of USAP has

been modified in this final rule to

clarify that it is the quantity of whole

round herring that can be received for

processing by U.S. vessels issued an

Atlantic herring processing permit.

Comment 34: A commenter stated that

the SARC recommended that it would

not be prudent to consider MSY above

200,000 mt until the sizes of recent year

classes were better estimated.

Response: The Council’s Herring PDT

and the Commission’s Technical

Committee considered the SARC’s

recommendation. Their response and a

complete discussion of this issue may

be found in the Overfishing Definition

Section, Volume I, section 2.6 of the

FMP.

Comment 35: A commenter

mentioned that, because of NMFS’

rejected management measures in the

proposed rule that would have

protected species of concern, it must

undertake an additional Section 7

formal consultation to determine if the

regulations implementing the partially

approved FMP jeopardize any of these

listed species.

Response: On July 13, 1999, a BO on

the proposed FMP concluded that the

operation of the Federal Atlantic herring

fishery under the FMP could adversely

affect but would not likely jeopardize

the continued existence of endangered

and threatened species under NMFS’

jurisdiction and also would not likely

destroy or adversely modify right whale

critical habitat.

Subsequent to completion of the BO,

NMFS disapproved certain management

measures in the proposed FMP. These

included: (1) mandatory days out of the

fishery; (2) spawning area closures; (3)

adjustment of the TAC for Management

Area 1A; and (4) a prohibition on

specifying TALFF. Modification of the

FMP does not automatically trigger

reinitiating a formal Section 7

consultation. Re-initiation is only

required if the consulting agency has

retained involvement or control over the

action, and the agency action has been

modified in a manner that causes an

effect to the listed species or critical

habitat not considered in the BO. The

FMP, as amended, will not cause an

effect to listed species or critical habitat

that has not been previously considered

in the BO.

As stated in the BO, the primary

benefit of regulating the Atlantic herring

fishery will be the overall monitoring of

effort patterns in the fishery and

designation of area-based TACs

established based on the health of the

resource in those areas. An annual

scientific review of the resource will

allow for adjustments to the fishery as

a result of fluctuations in stock size. The

BO considered the adjustment of TAC in

Management Area 1A, mandatory days

out of the fishery and prohibition on

specifying a TALFF as supporting

administrative measures to the areabased TAC effort control measure. Since

the method for controlling effort in the

herring fishery has not been changed,

disapproval of the measure for

adjustment of the Area 1A TAC is not

expected to result in effects to protected

species or critical habitat not previously

considered in the BO. Similarly,

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77461

although the measure that would have

required mandatory days out of the

fishery has been disapproved, the trigger

that closes the fishery in any one

management area is still in place and is

the same as what was considered in the

BO. Finally, while NMFS disapproved

the prohibition on establishing a

TALFF, it has set the TALFF for the

herring fishery at zero. Even if specified

above zero, a TALFF would be specified

from that portion of the OY that would

not be taken in the domestic harvest.

Therefore, disapproval of a prohibition

on setting a TALFF is not expected to

result in an effect to protected species

that was not considered in the BO.

The Council included Area 1

spawning closures as an additional

measure to help ensure the health of the

herring resource. The Council also

included a provision to add area

closures by framework action. That

provision of the FMP remains in place.

The BO considered the effect that

spawning closures would have on listed

species, and concluded that spawning

closures could provide some benefit to

listed species. This conclusion was

moderated, however, with information

in the BO that the efficacy of spawning

closures could be affected by the 2,000-

lb (907.2-kg)/day incidental catch

allowance and/or be offset by the

potential for effort shifts causing

amplification of any adverse effects of

the fishery during the time right before

and after spawning closures and in areas

outside the boundaries of these closures.

In addition to these considerations, the

BO also examined the trophic

relationships between listed species and

herring in the current fishery where

there are no spawning closures. Given

the limited information available on

these trophic relationships, the BO

could only conclude that while

competition with the herring fishery

may affect the availability of sufficient

prey for endangered whales, the

complexity of ecosystem interactions

and the logistical difficulties of

conducting necessary sampling have

hindered conclusive demonstration of

the existence of competition. Since the

BO did consider the effects to listed

species and critical habitat in the

presence and absence of spawning

closures, re-initiation of the Section 7

consultation is not required. A new

Section 7 consultation would not

provide any additional or new

information that could change the final

determination of the BO.

Changes from the Proposed Rule

In § 648.2, the definition of ‘‘Atlantic

herring dealer’’ is changed to reflect that

shore-based pump operators do not

automatically qualify as Atlantic herring

dealers. In the proposed rule, shorebased pump operators were designated

as dealers because of the difficulty in

identifying all the persons who receive

herring from the pump operator. These

persons have since been identified and

will provide fisheries managers with

better and more complete data.

In § 648.2, the definition of ‘‘Atlantic

herring processor’’ is clarified by

stipulating that an Atlantic herring

dealer who purchases Atlantic herring

for resale as bait must do so from a

fishing vessel with a Federal Atlantic

herring permit to be considered an

Atlantic herring processor.

In § 648.2, the definition of ‘‘Council’’

is modified by adding ‘‘spiny dogfish

fishery’’ to the list of fisheries under the

auspices of the Mid-Atlantic Fishery

Management Council. This brings the

definition up to date to reflect approval

of the Spiny Dogfish Fishery

Management Plan.

In § 648.2, the definition of

‘‘horsepower’’ is removed because, as

proposed, it would have been

administratively inconsistent with its

use as applied to other fisheries of the

Northeastern United States.

In § 648.2, the definition of

‘‘processing’’ is corrected by removing

the words ‘‘icing, bleeding, heading or

gutting’’ of Atlantic herring as an

exception to the means of preparation of

herring to render it suitable for use as

bait.

In § 648.2, the definition of ‘‘U.S. atsea processing (USAP)’’ is clarified to

show that USAP means the specification

of the total amount of herring available

for processing by U.S. vessels issued an

Atlantic herring processing permit.

In § 648.4, paragraph (a)(10)(i)(B) is

clarified to show that the total

horsepower of a vessel’s main

propulsion machinery cannot exceed

3,000 horsepower. Prior to this

clarification, the regulation could have

been interpreted to apply horsepower

restrictions to a single engine, which

would have allowed a multi-engine

vessel to exceed the limit established in

the FMP.

In § 648.4, paragraph (c)(2)(vi)(C) is

revised to indicate that the VMS vendor

receipt required for certain vessels must

be submitted initially not later than

March 12, 2001.

In § 648.6, the first sentence of

paragraph (a) is corrected by

substituting the word ‘‘dealers’’ for

‘‘purchasers.’’ The section further

retains language pertaining to smallmesh multispecies used as bait, which

was added to § 648.6 after submission

of the proposed rule for Atlantic

herring. Atlantic herring is also added

as an exemption from the requirement

to possess a valid permit or letter of

authorization when purchasing herring

at sea if it is to be used for one’s own

use as bait and certain specific fishing

gear is not on board.

In § 648.7, the first sentence of

paragraphs (a)(3)(i) and (b)(1)(i) were

proposed for revision and the heading of

paragraph (b)(1)(i) was proposed for

removal. However, these revisions were

implemented in the final rule

implementing Amendment 1 to the FMP

for Atlantic Bluefish Fishery and,

therefore, are not repeated in this final

rule.

In § 648.7, paragraph (b)(1)(iii)(A) is

clarified.

In § 648.11, paragraph (a) is corrected

by substituting the word ‘‘require’’ for

the word ‘‘request’’ as pertains to the

Regional Administrator’s authority to

place sea samplers/observers aboard

federally permitted fishing vessels.

In § 648.13, paragraph (e) is

redesignated as paragraph (f) and is

further corrected by modifying

paragraph (f)(1) to reflect that persons

receiving bait at sea for their own

personal use are exempt from the

requirement to possess a valid Atlantic

herring permit or a letter of

authorization from the Regional

Administrator, providing certain

specific fishing gear is not on board the

vessel.

In § 648.14, paragraph (a)(103) is

corrected to reflect that purchasers of

herring at sea to be used for their own

use as bait do not require an Atlantic

herring dealer permit.

In § 648.200, paragraph (a) is

corrected to reflect that the Atlantic

Herring Plan Development Team shall

meet at least annually, but no later than

July, with the Commission’s Atlantic

Herring Plan Review Team to develop

and recommend specifications for the

following year to the Council. The

requirement in the proposed rule to

present the specifications

recommendation to the Council at its

July meeting is removed.

In § 648.202, paragraph (d) is

redesignated as paragraph (e) and a new

paragraph (d) is added. The new

paragraph (d) corrects an inadvertent

omission in the proposed rule by

allowing the landing of herring in

closed areas if such herring were caught

in open areas. Paragraph (a) is corrected

to reflect the addition of paragraph (d)

and the newly re-designated paragraph

(e). Paragraph (a) is also modified to

clarify that once the TAC is reached, a

vessel may only land 2,000 lb (907.2 kg)

of herring in a given calendar day,

without regard to the length of the trip.

77462 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

In § 648.203, paragraph (b) is

corrected to refer to the U.S. at-sea

processing specification as ‘‘USAP.’’

In § 648.206, the title is changed from

‘‘Framework specifications’’ to

‘‘Framework provisions.’’

NOAA codifies its OMB control

numbers for information collection at 15

CFR part 902. Part 902 collects and

displays the control numbers assigned

to information collection requirements

of NOAA by OMB pursuant to the

Paperwork Reduction Act (PRA). This

final rule codifies OMB control numbers

for 0648-0404 for §§ 648.9 and 648.205.

Under NOAA Administrative Order

205-11, dated December 17, 1990, the

Under Secretary for Oceans and

Atmosphere, NOAA, has delegated to

the Assistant Administrator for

Fisheries, NOAA, the authority to sign

material for publication in the Federal

Register.

The President has directed Federal

agencies to use plain language in their

communications with the public

including regulations. To comply with

this directive, we seek public comment

on any ambiguity or unnecessary

complexity arising form the language

used in this rule. Send comments to

Patricia Kurkul (see ADDRESSES).

Classification

NMFS has determined that the FMP

that this rule implements is necessary

for the conservation and management of

the Atlantic herring fishery and is

consistent with the national standards

of the Magnuson-Stevens Act and other

applicable laws.

Because current data indicate that the

2000 TAC this final rule implements for

Management Area 1A is fast being

reached, and an inseason adjustment

that has been requested by the Council

to address the situation cannot be

considered until the 2000 specifications

are in place, and given the immediate

conservation benefit that would result

from implementing the 2000 fishing

specifications, it is contrary to the

public interest to delay for 30 days the

effective date of regulatory provisions

establishing the specification process,

management areas, TAC controls and

prohibitions related to the TAC controls.

Failure to implement the 2000

specifications without delay could have

a negative impact on fishers and other

entities dependent on a steady supply of

herring. Therefore, the Assistant

Administrator for Fisheries, NOAA,

finds under 5 U.S.C. 553(d)(3) that good

cause exists not to delay for 30 days the

effective date of §§ 648.14(x)(10) and

(bb)(7) and (bb)(10), 648.200, 648.201

and 648.202. In addition, §§ 648.1,

648.2 and 648.206 contain provisions

which have no substantive effect and

therefore 5 U.S.C. 553 does not apply.

This action has been determined to be

significant for the purposes of Executive

Order 12866.

The Council prepared an FEIS for the

FMP; a notice of availability was

published on September 24, 1999 (64 FR

51753). NMFS determined, upon review

of the FMP/FEIS and public comments,

that approval and implementation of the

FMP is environmentally preferable to

the status quo. The FEIS demonstrates

that it contains management measures

able to prevent overfishing; protect

harbor porpoise; provide economic and

social benefits to the fishing industry in

the long term; and contribute to better

balance in the ecosystem in terms of the

herring resource.

NMFS completed a FRFA that

contains the items specified in 5 U.S.C.

604(a) as follows:

Final Regulatory Flexibility Analysis

Need for and Objectives of the Final

Rule

This final rule is necessary to

implement approved measures

contained in the Atlantic Herring FMP.

The intent of this final rule is to manage

the Atlantic herring fishery in

compliance with the regulations

pursuant to the Magnuson-Stevens Act

and the FMP and to prevent overfishing

of the herring resource. This final rule

also withdraws approval of the Atlantic

herring PMP and removes previous

regulations related to Atlantic herring

(50 CFR 600.525).

Public Comments

There were 12 sets of public

comments on the FMP submitted during

the comment period established by the

NOA. Those comments were considered

by NMFS before it partially approved

the FMP and are characterized and

responded to by NMFS in the

Comments and Responses section of this

final rule. NMFS also received 14 sets

of written comments on the proposed

rule and those comments that

specifically addressed the proposed rule

were considered in approval and

implementation of the final rule

effecting the FMP and its management

measures. Responses to comments on

economic impacts of the proposed rule

are contained in the Response to

Comments section in the preamble and

are not repeated here. Most of the

comments made on the proposed rule

addressed the management measures in

the FMP that were previously

disapproved by NMFS, rather than the

proposed rule itself. No significant

changes to the rule were made as a

result of comments received.

Number of Small Entities

The identification of the number of

small entities affected by this final rule

is complicated in two ways. First,

vessels fishing for herring are not

currently required to possess Federal

herring permits. Second, while many

vessels currently landing herring

possess other Federal permits or letters

of authorization, there are some vessels

that fish for herring only in state waters

that do not possess such permits or

authorizations. Only those vessels that

have another Federal permit are

required to submit vessel trip reports

and can be readily identified in the

permit, vessel trip report, and dealer

weighout databases.

Because some vessels may target

herring for a small number of trips each

year, vessels were identified as

participating in a ‘‘directed’’ fishery for

herring if they landed at least one trip

of one metric ton (2,205 lb) or more of

herring during 1997. There were only 61

vessels, which landed 97,300 mt,

amounting to 99 percent of all herring

landings in the Northeast, while 140

vessels landing herring during 1997

accounted for less than 71 mt.

Expressed in terms of revenues, the 61

vessels derived about $10.7 million

from herring fishing while the

remaining vessels’ total herring

revenues did not exceed $8,000.

Therefore, for RFA purposes, the set of

affected vessels is limited to these 61

vessels in the directed herring fishery.

Of the 61 vessels, 17 of them derived,

on average, less than $1,000 in herring

revenues in 1997. The remaining 44

vessels were divided into two groups.

The first group of 25 vessels derived, on

average, $5,534 from herring revenues

in 1997. The remaining group of 19

vessels earned, on average, $524,000

from herring revenues in 1997. The 44

vessels constitute 22 percent of the 201

vessels that landed some herring in

1997 and 72 percent of the 61 vessels in

the directed herring fishery. The

regulations would mostly affect the

group of 19 vessels that, on average,

earned $524,000 from herring revenues

in 1997. These vessels alone represent

31 percent of all business entities in the

directed herring fishery. Whether the

affected set of vessels is defined to

include only 61 vessels or all of the 201

vessels that landed herring in 1997, the

regulations would affect a substantial

number of the small entities in the

fishery.

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77463

Cost of Compliance

Vessels, dealers, and processors

would be required to obtain permits and

comply with reporting requirements.

Some participants in the fishery already

have a Federal permit and comply with

reporting requirements for another

fishery. The compliance costs are

primarily due to the time required to

complete and submit the necessary

forms. The annual costs to comply with

these requirements, per vessel, are

estimated at $7.80 for vessel permits,

$25.32 for operator permits, $27.00 for

vessel trip reports, and $52.00

(maximum) for interactive voice reports.

Total annual compliance costs per

vessel are thus about $112 per vessel for

these measures. The total annual cost

for each dealer is estimated to be $1.58

for permits and $78.70 for weekly

landing reports, for an annual total of

about $80 per dealer. The annual

compliance costs for each processor is

also estimated to be $1.58 for permits

and $7.83 for an annual report, or a total

of $9.41 per processor. These costs are

considered insignificant relative to other

costs of doing business.

Vessels that intend to harvest > 500

mt of herring per year, or that harvested

> 500 mt of herring in the previous year,

would be required to operate a VMS

unit. The annual cost per vessel to

purchase, install, and operate a VMS

unit is estimated to be $2,700.

Additional costs would be incurred due

to burden-hour estimates of the

requirements associated with VMS,

estimated at an additional $111 per

vessel per year. At the > 500 mt

threshold, this would be approximately

4 percent of annual revenues from

herring. When compared to the average

herring revenues of the 19 vessels that

landed most of the herring in 1997 and

that would be required to have a VMS,

based on their 1997 landings, this cost

is equal to approximately 0.5 percent of

the average revenues for this group.

Minimizing Significant Economic

Impacts on Small Entities

An analysis indicated that the

alternatives implemented by this final

rule would minimize significant

economic impacts while achieving the

conservation goals and objectives of the

FMP. The Council considered other

alternatives but did not choose them

because it determined that they would

limit the ability of some smaller vessels

in other fisheries to shift into the

herring fishery, or would be difficult to

implement or monitor accurately, or

would conflict with FMP goals. For a

description of the alternatives

considered but rejected, see the section

of the proposed rule (65 FR 11956).

Notwithstanding any other provision

of law, no person is required to respond

to nor shall any person be subject to a

penalty for failure to comply with a

collection of information subject to the

requirements of the Paperwork

Reduction Act (PRA) unless that

collection-of-information displays a

currently valid OMB control number.

This final rule references foreign

fishing vessel activity reports, which is

a collection-of-information requirement

subject to the PRA that was previously

approved by OMB under control

number 0648-0075. These reports are

estimated to require 6 minutes/

response.

This final rule also contains 12 new

collection-of-information requirements

subject to the PRA. The collection of

this information has been approved by

OMB, and the OMB control numbers

and the estimated time for a response

are listed as follows:

Open access Atlantic herring permits,

OMB control number 0648–0202 (30

minutes/response).

Operator permits, OMB control

number 0648–0202 (60 minutes/

response).

Dealer permits, OMB control number

0648–0202 (5 minutes/response(trip)).

Processor permits, OMB control

number 0648–0202 (5 minutes/

response).

Vessel trip reports, OMB control

number 0648–0212 (5 minutes/

response).

Interactive voice response system

reports, OMB control number 0648–

0212 (4 minutes/response).

Dealer logbooks reports, OMB control

number 0648–0229 (2 minutes/

response).

Annual processor reports, OMB

control number 0648–0018 (30 minutes/

response).

Vessel monitoring system verification

requirement, OMB control number

0648–0404 (2 minutes/response).

Vessel monitoring system reports,

OMB control number 0648–0404 (5

seconds/response).

Vessel monitoring system installation,

OMB control number 0648–0404 (60

minutes/response).

Herring carrier exemption from VMS

requirements authorization letter, OMB

control number 0648–0404 (2 minutes/

response).

The aforementioned response

estimates include the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

Send comments regarding these burden

estimates, or any other aspect of this

data collection, including suggestions

for reducing the burden, to NMFS and

OMB (see ADDRESSES ).

List of Subjects

15 CFR Part 902

Reporting and recordkeeping

requirements.

50 CFR Parts 600 and 648

Fisheries, Fishing, Foreign Vessels,

Reporting and recordkeeping

requirements.

Dated: November 29, 2000.

William T. Hogarth,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 15 CFR chapter IX, part 902

and 50 CFR chapter VI, parts 600 and

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 revising

the OMB control number in numerical

order for § 648.9, and by adding in

numerical order an entry for § 648.205

with a new OMB control number 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

*****

648.9 * * * -0202, -0307,

and -0404

*****

648.205 -0404

*****

77464 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

50 CFR Chapter VI

PART 600—MAGNUSON-STEVENS

ACT PROVISIONS

1. The authority citation for part 600

continues to read as follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801

et seq.

§ 600.525 [Removed]

2. Remove § 600.525.

PART 648—FISHERIES OF THE

NORTHEASTERN UNITED STATES

1. The authority citation for part 648

continues to read as follows:

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

2. In § 648.1, the first sentence of

paragraph (a) is revised to read as

follows:

§ 648.1 Purpose and scope.

(a) This part implements the fishery

management plans (FMPs) for the

Atlantic mackerel, squid, and butterfish

fisheries (Atlantic mackerel, Squid, and

Butterfish FMP); Atlantic salmon

(Atlantic Salmon FMP); the Atlantic sea

scallop fishery (Atlantic Sea Scallop

FMP); the Atlantic surf clam and ocean

quahog fisheries (Atlantic Surf Clam

and Ocean Quahog FMP); the Northeast

multispecies and monkfish fisheries

((NE Multispecies FMP) and (Monkfish

FMP)); the summer flounder, scup, and

black sea bass fisheries (Summer

Flounder, Scup, and Black Sea Bass

FMP); the Atlantic bluefish fishery

(Atlantic Bluefish FMP); the spiny

dogfish fishery (Spiny Dogfish FMP);

and the Atlantic herring fishery

(Atlantic Herring FMP).* * *

* * * * *

3. In § 648.2, the definitions for

‘‘Council’’, ‘‘IVR system’’, and ‘‘Vessel

Monitoring System’’ are revised and the

definitions for ‘‘Atlantic herring’’,

‘‘Atlantic herring carrier’’, ‘‘Atlantic

herring dealer’’, ‘‘Atlantic herring

processor’’, ‘‘Border transfer’’, ‘‘JVPt’’,

‘‘Processing’’, and ‘‘U.S. at-seaprocessing’’ are added alphabetically to

read as follows:

§ 648.2 Definitions.

* * * * *

Atlantic herring means Clupea

harengus.

Atlantic herring carrier means a

fishing vessel with an Atlantic herring

permit that does not have any gear on

board capable of catching or processing

herring and that has on board a letter of

authorization from the Regional

Administrator to transport herring

caught by another fishing vessel.

Atlantic herring dealer means:

(1) Any person who purchases or

receives for a commercial purpose other

than solely for transport or pumping

operations any herring from a vessel

issued a Federal Atlantic herring permit,

whether offloaded directly from the

vessel or from a shore-based pump, for

any purpose other than for the

purchaser’s own use as bait; or

(2) Any person owning or operating a

processing vessel that receives any

Atlantic herring from a vessel issued a

Federal Atlantic herring permit whether

at sea or in port.

Atlantic herring processor means a

person who receives unprocessed

Atlantic herring from a fishing vessel

issued a Federal Atlantic herring permit

or from an Atlantic herring dealer for

the purposes of processing; or the owner

or operator of a fishing vessel that

processes Atlantic herring; or an

Atlantic herring dealer who purchases

Atlantic herring from a fishing vessel

with a Federal Atlantic herring permit

for resale as bait.

* * * * *

Border transfer (BT) means the

amount of herring specified pursuant to

§ 648.200 that may be transferred to a

Canadian transport vessel that is

permitted under the provisions of Pub.

L. 104-297, section 105(e).

* * * * *

Council means the New England

Fishery Management Council (NEFMC)

for the Atlantic herring, Atlantic sea

scallop, and the NE multispecies

fisheries, and the Mid-Atlantic Fishery

Management Council (MAFMC) for the

Atlantic mackerel, squid, and butterfish;

the Atlantic surf clam and ocean

quahog; the summer flounder, scup, and

black sea bass fisheries; the spiny

dogfish fishery; and the Atlantic

bluefish fishery.

* * * * *

IVR System means the Interactive

Voice Response reporting system

established by the Regional

Administrator for the purpose of

monitoring harvest levels for certain

species.

* * * * *

JVPt, with respect to the Atlantic

herring fishery, means the specification

of the total amount of herring available

for joint venture processing by foreign

vessels in the EEZ and state waters.

* * * * *

Processing, or to process, in the

Atlantic herring fishery means the

preparation of Atlantic herring to render

it suitable for human consumption, bait,

commercial uses, industrial uses, or

long-term storage, including but not

limited to cooking, canning, roe

extraction, smoking, salting, drying,

freezing, or rendering into meal or oil.

* * * * *

U.S. at-sea processing (USAP), with

respect to the Atlantic herring fishery,

means the specification, pursuant to §

648.200, of the amount of herring

available for processing by U.S. vessels

issued an Atlantic herring processing

permit as described in § 648.4(a)(10)(ii).

* * * * *

Vessel Monitoring System (VMS)

means a vessel monitoring system or

VMS unit as set forth in § 648.9 and

approved by NMFS for use on Atlantic

sea scallop, NE multispecies, monkfish,

and Atlantic herring vessels, as required

by this part.

* * * * *

4. In § 648.4, the section heading is

revised, and paragraphs (a)(10) and

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

§ 648.4 Vessel permits.

(a) * * *

(10) Atlantic herring vessels—(i)

Atlantic herring permit.

(A) 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, catch,

possess, transport, land, or process

Atlantic herring in or from the EEZ.

This requirement does not apply to the

following:

(1) A vessel that possesses herring

solely for its own use as bait, providing

the vessel does not have purse seine,

mid-water trawl, pelagic gillnet, sink

gillnet, or bottom trawl gear on board;

or

(2) 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.

(B) Eligibility. A vessel of the United

States is eligible for and may be issued

an Atlantic herring permit to fish for,

catch, take, harvest, and possess

Atlantic herring in or from the EEZ

unless the vessel is ≥ 165 feet (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.

(ii) Atlantic herring processing

permit. A vessel of the United States

that is > 165 feet (50.3 m) LOA, or > 750

GRT (680.4 mt) is eligible to obtain an

Atlantic herring processing permit to

receive and process Atlantic herring

subject to the U.S. at-sea processing

(USAP) allocation published by the

Regional Administrator pursuant to §

648.200. Such vessel may not receive or

process Atlantic herring caught in or

from the EEZ unless the vessel has been

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77465

issued and has on board an Atlantic

herring processing permit.

(iii) Atlantic herring carrier vessels—

letter of authorization. An Atlantic

herring carrier vessel permitted under

paragraph (a)(10)(i)(A) of this section

must have been issued and have on

board the vessel a letter of authorization

to transport Atlantic herring caught by

another permitted fishing vessel. The

letter of authorization exempts such

vessel from the VMS and IVR reporting

requirements as specified in subpart K,

except as otherwise required by this

part. An Atlantic herring carrier vessel

may request and obtain a letter of

authorization from the Regional

Administrator.

(iv) Change in ownership. See

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

* * * * *

(c) * * *

(2) * * *

(vi) An application for an Atlantic

herring permit must also contain the

following information:

(A) If the vessel operator caught > 500

mt of Atlantic herring in the previous

fishing year, a statement so stating;

(B) If the vessel operator intends to

catch > 500 mt of Atlantic herring in the

current fishing year, a statement so

stating;

(C) If the vessel operator either caught

> 500 mt of Atlantic herring in the

previous fishing year, or intends to

catch > 500 mt of Atlantic herring in the

current fishing year, a copy of a vendor

installation receipt from a NMFSapproved VMS vendor, as described in

§ 648.9, must also be provided:

(1) From January 10, 2001, through

March 12, 2001, not later than March

12, 2001;

(2) After March 12, 2001, with the

application.

* * * * *

5. In § 648.5, the first sentence of

paragraph (a) is revised to read as

follows:

§ 648.5 Operator permits.

(a) General. Any operator of a vessel

fishing for or possessing Atlantic sea

scallops in excess of 40 lb (18.1 kg), NE

multispecies, spiny dogfish, monkfish,

Atlantic herring, Atlantic surf clam,

ocean quahog, Atlantic mackerel, squid,

butterfish, scup, black sea bass, or

bluefish, harvested in or from the EEZ,

or issued a permit, including carrier and

processing permits, for these species

under this part, must have been issued

under this section, and carry on board,

a valid operator permit.* * *

* * * * *

6. In § 648.6, paragraph (a) is revised

to read as follows:

§ 648.6 Dealer/processor permits.

(a) General. (1) All dealers of NE

multispecies, monkfish, Atlantic

herring, Atlantic sea scallop, spiny

dogfish, summer flounder, Atlantic surf

clam, ocean quahog, Atlantic mackerel,

squid, butterfish, scup, bluefish, and

black sea bass, Atlantic surf clam and

ocean quahog processors, and Atlantic

herring processors or dealers as

described in § 648.2, must have been

issued under this section, and have in

their possession, a valid permit or

permits for these species. A person who

meets the requirements of both the

dealer and processor definitions of any

of the aforementioned species’ fishery

regulations may need to obtain both a

dealer and a processor permit,

consistent with the requirements of that

particular species’ fishery regulations.

Persons aboard vessels receiving smallmesh multispecies and/or Atlantic

herring at sea for their own use

exclusively as bait are deemed not to be

dealers, and are not required to possess

a valid dealer permit under this section,

for purposes of receiving such smallmesh multispecies and/or Atlantic

herring, provided the vessel complies

with the provisions of § 648.13.

(2) [Reserved]

* * * * *

7. In § 648.7, the first sentence of

paragraphs (a)(1)(i), and (a)(2)(i), and

paragraph (f)(3) are revised; and new

paragraphs (a)(3)(iii) and (b)(1)(iii) are

added, to read as follows:

§ 648.7 Recordkeeping and reporting

requirements.

(a) * * *

(1) * * *

(i) All dealers issued a dealer permit

under this part, with the exception of

those utilizing the surf clam or ocean

quahog dealer permit, must provide:

Dealer name and mailing address; dealer

permit number; name and permit

number or name and hull number

(USCG documentation number or state

registration number, whichever is

applicable) of vessels from which fish

are landed or received; trip identifier for

a trip from which fish are landed or

received; dates of purchases; pounds by

species (by market category, if

applicable); price per pound by species

(by market category, if applicable) or

total value by species (by market

category, if applicable); port landed;

signature of person supplying the

information; and any other information

deemed necessary by the Regional

Administrator. * * *

* * * * *

(2) * * *

(i) Federally permitted dealers, other

than Atlantic herring dealers,

purchasing quota-managed species not

deferred from coverage by the Regional

Administrator pursuant to paragraph

(a)(2)(ii) of this section must submit,

within the time period specified in

paragraph (f) of this section, the

following information, and any other

information required by the Regional

Administrator, to the Regional

Administrator or to an official designee,

via the IVR system established by the

Regional Administrator: Dealer permit

number; dealer code; pounds

purchased, by species, other than

Atlantic herring; reporting week in

which species were purchased; and

state of landing for each species

purchased. * * *

* * * * *

(3) * * *

(iii) Atlantic herring processors,

including processing vessels, must

complete and submit all sections of the

Annual Processed Products Report.

(b) * * *

(1) * * *

(iii) The owner or operator of a vessel

described here must report catches

(retained and discarded) of herring each

week to an IVR system. The report shall

include at least the following

information, and any other information

required by the Regional Administrator:

Vessel identification, reporting week in

which species are caught, pounds

retained, pounds discarded,

management area fished, and pounds of

herring caught in each management area

for the previous week. Weekly Atlantic

herring catch reports must be submitted

via the IVR system by midnight, Eastern

time, each Tuesday for the previous

week. Reports are required even if

herring caught during the week has not

yet been landed. This report does not

exempt the owner or operator from

other applicable reporting requirements

of § 648.7.

(A) The owner or operator of any

vessel issued a permit for Atlantic

herring subject to the requirements

specified by § 648.4(c)(2)(vi)(C) that is

required by § 648.205 to have a VMS

unit on board must submit an Atlantic

herring catch report via the IVR system

each week (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 a permit for Atlantic herring that

is not required by § 648.205 to have a

VMS unit on board, or any vessel that

catches herring in or from the EEZ, but

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.

77466 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

(C) Atlantic herring IVR reports are

not required from Atlantic herring

carrier vessels.

* * * * *

(f) * * *

(3) At-sea purchasers, receivers, or

processors. All persons, except persons

on Atlantic herring carrier vessels,

purchasing, receiving, or processing any

Atlantic herring, summer flounder,

Atlantic mackerel, squid, butterfish,

scup, or black sea bass at sea for landing

at any port of the United States must

submit information identical to that

required by paragraphs (a)(1) or (a)(2) of

this section, as applicable, and provide

those reports to the Regional

Administrator or designee on the same

frequency basis.

* * * * *

8. In § 648.9, paragraphs (c)(1) and (f)

are revised and paragraph (c)(2)(iii) is

added to read as follows:

§ 648.9 VMS requirements.

* * * * *

(c) * * *

(1) Except as provided in paragraph

(c)(2) of this section, or unless otherwise

required by § 648.58(h), all required

VMS units must transmit a signal

indicating the vessel’s accurate position

at least every hour, 24 hours a day,

throughout the year.

(2) * * *

(iii) Any VMS-equipped vessel with

an Atlantic herring permit, unless

required by other fishery regulations to

have on board a fully operational VMS

unit at all times, need not transmit a

signal when the vessel is in port.

* * * * *

(f) Access. As a condition to obtaining

a limited access scallop or multispecies

permit, or an Atlantic herring permit, all

vessel owners must allow NMFS, the

USCG, and their authorized officers or

designees access to the vessel’s DAS

data, if applicable, and location data

obtained from its VMS unit, if required,

at the time of or after its transmission to

the vendor or receiver, as the case may

be.

* * * * *

9. In § 648.11, the first sentence of

paragraph (a) is revised to read as

follows:

§ 648.11 At-sea sampler/observer

coverage.

(a) The Regional Administrator may

require any vessel holding any of the

following permits to carry a NMFSapproved sea sampler/observer: Atlantic

sea scallop, Atlantic herring, NE

multispecies, monkfish, Atlantic

mackerel, spiny dogfish, squid,

butterfish, scup, bluefish, black sea bass,

or a moratorium permit for summer

flounder. * * *

* * * * *

10. In § 648.12, the first sentence of

the introductory text is revised to read

as follows:

§ 648.12 Experimental fishing.

The Regional Administrator may

exempt any person or vessel from the

requirements of subparts A (General

Provisions), B (Atlantic Mackerel,

Squid, and Butterfish Fisheries), D

(Atlantic Sea Scallop Fishery), E

(Atlantic Surf Clam and Ocean Quahog

Fisheries), F (NE Multispecies and

Monkfish Fisheries), G (Summer

Flounder Fishery), H (Scup Fishery), I

(Black Sea Bass Fishery), J (Atlantic

Bluefish Fishery), K (Atlantic Herring

Fishery), or L (Spiny Dogfish Fishery) of

this part for the conduct of experimental

fishing beneficial to the management of

the resources or fishery managed under

that subpart. * * *

* * * * *

11. In § 648.13, paragraph (f) is added

to read as follows:

§ 648.13 Transfers at sea.

* * * * *

(f) Atlantic herring. Except for a

person who purchases and/or receives

Atlantic herring at sea for his own

personal use as bait and who does not

have purse seine, mid-water trawl,

pelagic gillnet, sink gillnet, or bottom

trawl gear on board, any person or

vessel is prohibited from transferring,

receiving, or attempting to transfer or

receive any Atlantic herring taken from

the EEZ, and any vessel issued an

Atlantic herring permit is prohibited

from transferring, receiving, or

attempting to transfer or receive,

Atlantic herring, unless the person or

vessel complies with the following:

(1) The transferring and receiving

vessels have been issued valid Atlantic

herring permits and/or other applicable

authorization, such as a letter of

authorization from the Regional

Administrator, to transfer or receive

herring.

(2) The vessel does not transfer to a

U.S. vessel, and a U.S. vessel does not

receive, > 2,000 lb (907.2 kg) of herring

per day in or from a management area

closed to directed fishing for Atlantic

herring.

(3) The vessel does not transfer

herring in or from an area closed to

directed fishing for Atlantic herring to

an IWP or Joint Venture vessel.

(4) The vessel does not transfer

Atlantic herring to a Canadian

transshipment vessel that is permitted

in accordance with Pub. L. 104-297 after

the amount of herring transshipped

equals the amount of the BT specified

pursuant to § 648.200.

12. In § 648.14, paragraph (a)(103) is

revised, and paragraphs (x)(10) and (bb)

are added to read as follows:

§ 648.14 Prohibitions.

(a) * * *

(103) Sell, barter, trade, or transfer, or

attempt to sell, barter, trade, or transfer,

other than solely for transport, any

Atlantic herring, multispecies, or

monkfish, unless the dealer or transferee

has a valid dealer permit issued under

§ 648.6. A person who purchases and/or

receives Atlantic herring at sea for his

own personal use as bait, and does not

have purse seine, mid-water trawl,

pelagic gillnet, sink gillnet, or bottom

trawl gear on board, is exempt from the

requirement to possess an Atlantic

herring dealer permit.

* * * * *

(x) * * *

(10) Atlantic herring. All Atlantic

herring retained or possessed on a

vessel issued any permit under § 648.4

are deemed to have been harvested from

the EEZ, unless the preponderance of all

submitted evidence demonstrates that

such Atlantic herring were harvested by

a vessel fishing exclusively in state

waters.

* * * * *

(bb) In addition to the general

prohibitions specified in § 600.725 of

this chapter and in paragraph (a) of this

section, it is unlawful for any person to

do any of the following:

(1) Fish for, possess, retain or land

Atlantic herring, unless:

(i) The Atlantic herring are being

fished for or were harvested in or from

the EEZ by a vessel holding a valid

Atlantic herring permit under this part,

and the operator on board such vessel

has been issued an operator permit that

is on board the vessel; or

(ii) The Atlantic herring were

harvested by a vessel not issued an

Atlantic herring permit that was fishing

exclusively in state waters; or

(iii) The Atlantic herring were

harvested in or from the EEZ by a vessel

engaged in recreational fishing; or

(iv) Unless otherwise specified in

accordance with § 648.17.

(2) Operate, or act as an operator of,

a vessel with an Atlantic herring permit,

or a vessel fishing for or possessing

Atlantic herring in or from the EEZ,

unless the operator has been issued, and

is in possession of, a valid operator

permit.

(3) Purchase, possess, receive, or

attempt to purchase, possess, or receive,

as a dealer, or in the capacity of a

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77467

dealer, Atlantic herring that were

harvested in or from the EEZ, without

having been issued, and in possession

of, a valid Atlantic herring dealer

permit.

(4) Purchase, possess, receive, or

attempt to purchase, possess, or receive,

as a processor, or in the capacity of a

processor, Atlantic herring from a

fishing vessel with an Atlantic herring

permit or from a dealer with an Atlantic

herring dealer permit, without having

been issued, and in possession of, a

valid Atlantic herring processor permit.

(5) Sell, barter, trade, or otherwise

transfer, or attempt to sell, barter, trade,

or otherwise transfer, for a commercial

purpose, any Atlantic herring, unless

the vessel has been issued an Atlantic

herring permit, or unless the Atlantic

herring were harvested by a vessel

without an Atlantic herring permit that

fished exclusively in state waters.

(6) Purchase, possess, or receive, for a

commercial purpose, or attempt to

purchase, possess or receive, for a

commercial purpose, Atlantic herring

caught by a vessel without an Atlantic

herring permit, unless the Atlantic

herring were harvested by a vessel

without an Atlantic herring permit that

fished exclusively in state waters.

(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 an area of the EEZ

subject to restrictions pursuant to

§ 648.202(a).

(8) 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 state waters subject

to restrictions pursuant to § 648.202(a),

if the vessel has been issued a valid

Atlantic herring permit.

(9) Transfer or attempt to transfer

Atlantic herring to a Canadian

transshipment vessel that is permitted

in accordance with Pub. L. 104-297 after

the amount of herring transshipped

equals the amount of the BT specified

pursuant to § 648.200.

(10) Transit an area of the EEZ that is

subject to a closure to directed fishing

for Atlantic herring or restrictions

pursuant to § 648.202(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 § 648.203.

(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

§ 648.203(b).

(13) Discard herring carcasses in the

EEZ, or at sea if a federally-permitted

vessel, after removing the roe.

(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 § 648.204(b).

(15) Catch, take, or harvest Atlantic

herring in or from the EEZ, unless

equipped with an operable VMS unit if

a vessel caught > 500 mt of Atlantic

herring in the previous fishing year, or

intends to catch > 500 mt of Atlantic

herring in the current fishing year, as

required by § 648.205(a).

(16) Catch, take, or harvest > 500 mt

of Atlantic herring in or from the EEZ

during the fishing year, unless equipped

with an operable VMS unit as required

by § 648.205(a).

(17) Receive Atlantic herring in or

from the EEZ solely for transport, unless

issued a letter of authorization from the

Regional Administrator.

(18) Fail to comply with any of the

requirements of a letter of authorization

from the Regional Administrator.

13. Subpart K is added to read as

follows:

PART 648—FISHERIES OF THE

NORTHEASTERN UNITED STATES

Sec.

Subpart K—Management Measures for the

Atlantic Herring Fishery

648.200 Specifications.

648.201 Management areas.

648.202 Total allowable catch (TAC)

controls.

648.203 Vessel size/horsepower limits.

648.204 Herring roe restrictions.

648.205 VMS requirements.

648.206 Framework provisions.

§ 648.200 Specifications.

(a) The Atlantic Herring Plan

Development Team (PDT) shall meet at

least annually, but no later than July,

with the Atlantic States Marine

Fisheries Commission’s (Commission)

Atlantic Herring Plan Review Team

(PRT) to develop and recommend the

following specifications 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), and reserve (if any). The PDT

and PRT shall also recommend the total

allowable catch (TAC) for each

management area and sub-area.

Recommended specifications shall be

presented to the New England Fishery

Management Council (Council)

(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)

minus an estimate of the expected

Canadian NB fixed gear and GB herring

catch, which shall not exceed 20,000 mt

for the NB fixed gear harvest and 10,000

mt for the Canadian GB harvest.

(2) OY shall not exceed maximum

sustainable yield (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; however, OY

shall not exceed MSY prior to the 2001

fishing year.

(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.

77468 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

(4) Adjustments to TALFF, if any, will

be made based on updated information

relating to status of stocks, estimated

and actual performance of domestic and

foreign fleets, and other relevant factors.

(c) The Atlantic Herring Oversight

Committee shall review the

recommendations of the PDT and shall

consult with the Commission’s Herring

Section. Based on these

recommendations and any public

comment received, the Herring

Oversight Committee shall recommend

to the Council appropriate

specifications. The Council shall review

these recommendations and, after

considering public comment, shall

recommend appropriate specifications

to NMFS. NMFS shall review the

recommendations, consider any

comments received from the

Commission and, on or about September

15, shall publish notification in the

Federal Register proposing

specifications and providing a 30-day

public comment period. 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 this section.

(d) On or about November 1 of each

year, 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 unless revised through

the specification process. NMFS shall

issue notification in the Federal

Register if the previous year’s

specifications will not be changed.

(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.

§ 648.201 Management areas.

Three management areas, which may

have different management measures,

are established for the Atlantic herring

fishery. Management Area 1 is

subdivided into inshore and offshore

sub-areas. The management areas are

defined as follows:

(a) Management Area 1 (Gulf of

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

Maine (GOM) north of a line extending

from the eastern shore of Monomoy

Island at 41° 35’ N. lat., eastward to a

point at 41° 35’ N. lat., 69° 00’ W. long.,

thence northeasterly to a point along the

Hague Line at 42° 53’14’’ N. lat., 67°

44’35’’ W. long., thence northerly along

the Hague Line to the U.S.-Canadian

border, to include state and Federal

waters adjacent to the States of Maine,

New Hampshire, and Massachusetts.

Management Area 1 is divided into Area

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

line dividing these areas is described by

the following coordinates:

AREA 1

N. Latitude W. Longitude

41° 58’ 70° 00’ at Cape Cod

shoreline

42°38.4’ 70° 00’

42° 53’ 69° 40’

43°12’ 69° 00’

43°40’ 68° 00’

43° 58’ 67° 22’ (the U.S.-

Canada Maritime

Boundary)

(1) (1)

1Northward along the irregular U.S.-Canada

maritime boundary to the shoreline.

(b) Management Area 2 (South

Coastal Area): All waters west of 69° 00’

W. long. and south of 41° 35’ 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.

(c) Management Area 3 (Georges

Bank): All U.S. waters east of 69° 00’ W.

long. and southeast of the line that runs

from a point at 69° 00’ W. long. and 41°

35’ N. lat., northeasterly to the Hague

Line at 67° 44’35’’ W. long. and 42°

53’14’’ N. lat.

§ 648.202 Total allowable catch (TAC)

controls.

(a) If NMFS determines that catch will

reach or exceed 95 percent of the TAC

in a management area before the end of

the fishing year, NMFS shall prohibit a

vessel, beginning the date the catch is

projected to reach 95 percent of the

TAC, from fishing for, possessing,

catching, transferring, or landing > 2,000

lb (907.2 kg) of Atlantic herring per trip

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

herring per day in such area pursuant to

paragraph (e) of this section, except as

provided in paragraphs (c) and (d) of

this section. These limits shall be

enforced based on a calendar day,

without regard to the length of the trip.

(b) NMFS may raise the percent of the

TAC that triggers imposition of the

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

paragraph (a) of this section through the

annual specification process described

in § 648.200. Any lowering of the

percent of the TAC that triggers the

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

paragraph (a) of this section must be

accomplished through the framework

adjustment or amendment processes.

(c) A vessel may transit an area that

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

specified in paragraph (a) of this section

with > 2,000 lb (907.2 kg) of herring on

board, providing all fishing gear is

stowed and not available for immediate

use as required by § 648.23(b).

(d) A vessel may land in an area that

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

specified in paragraph (a) of this section

with > 2,000 lb (907.2 kg) of herring on

board, providing such herring were

caught in an area or areas not subject to

the 2,000-lb (907.2-kg) limit specified in

paragraph (a) of this section and

providing all fishing gear is stowed and

not available for immediate use as

required by § 648.23(b).

(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.

§ 648.203 Vessel size/horsepower limits.

(a) To catch, take, or harvest Atlantic

herring, a U.S. vessel issued an Atlantic

herring permit must not exceed the

specifications contained in

§ 648.4(a)(10)(i)(B). If any such vessel

exceeds such specifications, its permit

automatically becomes invalid and the

vessel may not catch, take, or harvest

Atlantic herring, as applicable, in or

from the EEZ.

(b) A U.S. vessel issued an Atlantic

herring processor permit may receive

and process herring, providing such

vessel is ≤ 165 feet (50.3 m) in length

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77469

overall, and ≤ 750 GRT (680.4 mt). A

U.S. vessel that is > 165 feet (50.3 m) in

length overall, or > 750 GRT (680.4 mt),

may only receive and process herring

provided that the vessel is issued an

‘‘Atlantic herring processor permit’’

described in § 648.4(a)(10)(ii) and that

the total amount of herring received or

processed by such vessel does not

exceed the USAP established in

accordance with § 648.200.

§ 648.204 Herring roe restrictions.

(a) Retention of herring roe. Herring

may be processed for roe, provided that

the carcasses of the herring are not

discarded at sea.

(b) Limits on the harvest of herring for

roe. The Council may recommend to

NMFS a limit on the amount of herring

that may be harvested for roe to be

implemented by framework adjustment

in accordance with § 648.206.

§ 648.205 VMS requirements.

(a) Except for Atlantic herring carrier

vessels, the owner or operator of any

vessel issued an Atlantic herring permit

that caught or landed > 500 mt of

Atlantic herring in the previous fishing

year, or intends to catch or land, or

catches or lands > 500 mt of Atlantic

herring in the current fishing year, must

have an operable VMS unit installed on

board that meets the requirements of

§ 648.9. The VMS unit must be certified,

installed on board, and operable before

the vessel may begin fishing.

(b) A vessel owner or operator, except

an owner or operator of an Atlantic

herring carrier vessel, who intends to

catch and land > 500 mt of Atlantic

herring must declare such intention to

the Regional Administrator prior to

obtaining an Atlantic herring fishing

permit for the fishing year.

(c) Except for Atlantic herring carrier

vessels, the owner or operator of a

vessel is prohibited from landing > 500

mt of Atlantic herring caught in or from

the EEZ during a fishing year, unless in

compliance with § 648.205(b).

§ 648.206 Framework provisions.

(a) Annual review. The Herring PDT,

in consultation with the Commission’s

PRT, shall review the status of the stock

and the fishery. The PDT shall review

available data pertaining to commercial

and recreational catches, current

estimates of fishing mortality, stock

status, estimates of recruitment, virtual

population analysis, 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, the

impact of other fisheries on herring

mortality, and any other relevant

information. Based on this review, the

PDT shall report to the Council’s

Herring Oversight Committee no later

than July, any necessary adjustments to

the management measures and

recommendations for the Atlantic

herring annual specifications. The PDT,

in consultation with the PRT, shall

recommend the specifications, as well

as an estimated TAC, as required by

§ 648.200, for the following fishing year.

(b) Based on these recommendations,

the Herring Oversight Committee shall

further recommend to the Council any

measures necessary to insure that the

annual specifications shall not be

exceeded. The Council shall review

these recommendations and any public

comment received and, after consulting

with the Commission, shall recommend

appropriate specifications to NMFS, as

described in § 648.200. Any suggested

revisions to management measures may

be implemented through the framework

process or through an amendment to the

FMP.

(c) Framework adjustment process. In

response to the annual review, or at any

other time, the Council may initiate

action to add or adjust management

measures if it finds that action is

necessary to meet or be consistent with

the goals and objectives of the Atlantic

herring FMP, or to address gear conflicts

as defined under § 600.10 of this

chapter.

(1) Adjustment process. After a

management action has been initiated,

the Council shall develop and analyze

appropriate management actions 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), (ii), (iii) and (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.

(d) Possible framework adjustment

measures. Measures that may be

changed or implemented through

framework action include:

(1) Management area boundaries or

additional management areas;

77470 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

(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; and

(5) Any other measure currently

included in the FMP.

(e) 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.

[FR Doc. 00–31220 Filed 12–8–00; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 000105004–0260–02 ;I.D.

120400A]

RIN 0648–AI78

Fisheries of the Northeastern United

States; Atlantic Herring Fisheries; 2000

Specifications; Adjustment; Closure

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Inseason adjustment of the 2000

Atlantic herring specifications; closure

of Area 1A.

SUMMARY: NMFS adjusts the 2000

annual specifications for the Atlantic

herring fishery including total joint

venture processing (JVPt), joint venture

processing (JVP), internal waters

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

(USAP), and total allowable catch (TAC)

for Areas 1A and 1B. The intent is to

reapportion allowable catches of herring

within the fishery sectors and areas to

allow for the achievement of the

objectives of the Fishery Management

Plan for Atlantic Herring (FMP). NMFS

also announces that the directed fishery

for Atlantic herring in Area 1A in the

exclusive economic zone (EEZ) will be

closed.

DATES: The closure of Area 1A is

effective December 14, 2000 through

0001 hours, January 1, 2001. After 0001

hours, December 14, 2000, vessels may

not fish for, possess, catch, transfer, or

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

Atlantic herring per trip and per

calendar day. Comments on the

inseason adjustment must be received

by January 10, 2001.

ADDRESSES: Comments on the inseason

adjustment should be sent to Patricia A.

Kurkul, Regional Administrator, NMFS,

Northeast Regional Office, 1 Blackburn

Drive, Gloucester, MA 01930. Mark on

the outside of the envelope ‘‘Comments

on Inseason Adjustment of 2000

Atlantic herring specifications.’’

Comments may also be sent via

facsimile (fax) to (978) 281–9371.

Comments will not be accepted if

submitted via e–mail or the Internet.

FOR FURTHER INFORMATION CONTACT:

Myles Raizin, Fishery Policy Analyst,

978–281–9288, fax at (978) 281–9135.

SUPPLEMENTARY INFORMATION:

Inseason Adjustment

The inseason adjustment adjusts the

2000 specifications for the Atlantic

herring fishery by transferring 5,000 mt

specified for JVP and 15,000 mt

specified for IWP to USAP, and

transferring 15,000 mt of Atlantic

herring from the Area 1B TAC to the

Area 1A TAC. This action is consistent

with the FMP.

JVP is the amount of herring

purchased over the side from U.S.

vessels and processed by foreign vessels

in the EEZ; IWP is the amount of herring

purchased over the side from U.S.

vessels and processed by foreign vessels

at anchor in state waters; JVPt is the

sum of JVP and IWP; and USAP is the

amount of herring purchased over the

side from U.S. vessels and processed in

the EEZ by U.S. vessels of the United

States that are larger than 165 ft (50.3 m)

in length overall or greater than 750

gross registered tons (680.4 mt). For

fishing year 2000, JVP allocations were

specified for Areas 2 and 3.

Regulations at § 648.200(e) allow

NMFS, after consulting with the New

England Fishery Management Council

(Council), to adjust annual

specifications for the Atlantic herring

fishery during the fishing year by

publishing notification in the Federal

Register stating the reasons for such

action and providing an opportunity for

public comment. Any adjustments must

be consistent with the FMP objectives

and other FMP provisions.

2000 Herring Specifications

The FMP, which was submitted for

Secretarial review by the Council on

March 8, 1999, and partially approved

on October 27, 1999, contains

specifications for the 1999 fishery. The

2000 specifications are unchanged from

those designated as 1999 specifications

in the FMP (see Table 1). The FMP and

the 2000 fishery specifications were

implemented through a final rule

published in the final rule section of

this edition of the Federal Register.