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 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
 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 sub-areas; 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-of-information 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 
                        ( print page 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 HerringABC
300,000OY
224,000DAH
224,000DAP
180,000USAP
0BT
4,000JVPtJVP-Management Area 2
10,000JVP- Management Area 3
5,000JVP-Subtotal
15,000IWP
25,000JVPt-Total
40,000TALFF
01
                             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 re-specified 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
45,000Area 1B
25,000Area 2
50,000Area 3
50,000TAC Reserve-Area 2
54,000TAC 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 
                        ( print page 77452)
                        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 real-time 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. 
 
 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 Magnuson-
                        ( print page 77454)
                        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 Magnuson-Stevens 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 date-certain 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 
                        ( print page 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 mid-water 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 long-term, 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 far-reaching.  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 mid-water 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 
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                        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 “at-sea 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 
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                        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 non-fishing 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 non-fishing 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 non-binding.  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 
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                        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, 
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                        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 
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                        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 area-based 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 area-based 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, 
                        ( print page 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, shore-based 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. at-sea 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 small-mesh 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. 
 
 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. 
 
 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
 
 (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*        *         *         *         *
 
 
 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
  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
  (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-sea-processing”  are  added  alphabetically  to  read  as  follows: § 648.2
  
 *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
  (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 
                                ( print page 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  NMFS-approved  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
  (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
  (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  small-mesh  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  small-mesh  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
  (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. 
 
 (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
  
 (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
  (a)  The  Regional  Administrator  may  require  any  vessel  holding  any  of  the  following  permits  to  carry  a  NMFS-approved  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
  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
  
 (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
  (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 
                                ( print page 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
 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
 (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. 
 
 (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
  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. Longitude41° 58'
70° 00' at Cape Cod shoreline42°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)1
                                    Northward   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
  (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
  (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 
                                ( print page 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
  (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
  (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
  (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; 
 
 (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