28846 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

gillnet fishermen have significant

control over turtle catch rates by their

selection of fishing areas and other

fishing parameters (e.g., amount of net

and length of soak).

The specific details of any restrictions

implemented pursuant to the procedure

in this temporary rule will be

announced on the NOAA weather

channel, in newspapers, and other

media.

Additional Conservation Measures

The AA may withdraw or modify any

additional restriction on fishing

activities if the AA determines that such

action is warranted. The additional

restrictions in this temporary rule will

only become effective upon publication

of a subsequent notification in the

Federal Register. Notification of any

additional sea turtle conservation

measures, including any extensions of

any closure, will be published in the

Federal Register pursuant to 50 CFR

223.206(d)(4).

Classification

This action has been determined to be

not significant for purposes of Executive

Order 12866.

The AA has determined that this

action is necessary to provide adequate

protection for endangered and

threatened sea turtles, primarily the

loggerhead sea turtle, pursuant to the

ESA and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), the AA

finds that there is good cause to waive

prior notice and opportunity to

comment on this action. It would be

contrary to the public interest to provide

prior notice and opportunity for

comment because providing notice and

comment would prevent the agency

from implementing this action in a

timely manner to protect the listed sea

turtles. Notification of and opportunity

to comment on the procedures allowing

the implementation of temporary

measures to protect sea turtles was

provided through the proposed rule

which established these actions (57 FR

18446, April 30, 1992). For the same

reasons, the AA finds good cause also

under 5 U.S.C. 553(d)(3) not to delay the

effective date of this rule for 30 days.

NMFS is making this rule effective from

May 25, 2001, through June 30, 2001.

Any closures implemented pursuant to

this temporary rule will be effective

upon filing with the Office of the

Federal Register of a notification that

additional sea turtle takes in the

monkfish fishery are unauthorized. As

stated earlier, the specific details of any

restrictions implemented pursuant to

the procedure in this temporary rule

will be announced on the NOAA

weather channel, in newspapers, and

other media.

As prior notice and an opportunity for

public comment are not required to be

provided for this notification by 5

U.S.C. 553, or by any other law, the

analytical requirements of 5 U.S.C. 601

et seq., are inapplicable.

The AA prepared an Environmental

Assessment (EA) for the final rule (57

FR 57348, December 4, 1992) requiring

turtle excluder device use in shrimp

trawls and creating the regulatory

framework for the issuance of

determinations of unauthorized takings

and additional restrictions such as this.

Copies of the EA and cited references

are available (see ADDRESSES).

Authority: 16 U.S.C. 1531.

Dated: May 18, 2001.

Clarence G. Pautzke,

Acting Assistant Administrator for Fisheries.

[FR Doc. 01–13170 Filed 5–24–01; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 600 and 648

[Docket No. 010220043–1132–02; I.D.

120400D]

RIN 0648–AN65

Foreign Fishing and Fisheries of the

Northeastern United States; Final 2001

Specifications for the Atlantic Herring

Fishery and Foreign Fishing

Restrictions

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final 2001 specifications for the

Atlantic herring fishery.

SUMMARY: NMFS issues final

specifications for the 2001 Atlantic

herring fishery. The intent of the

specifications is to conserve and manage

the herring resource and provide for

sustainable fisheries, and to comply

with the provisions in the Fishery

Management Plan for Atlantic Herring

(FMP), which require annual

specifications for the fishery.

DATES: Effective May 25, 2001 through

December 31, 2001.

ADDRESSES: Copies of supporting

documents, including the

Environmental Assessment, Regulatory

Impact Review, Final Regulatory

Flexibility Analysis (EA/RIR/FRFA),

and the Essential Fish Habitat

Assessment are available from Patricia

A. Kurkul, Regional Administrator,

Northeast Region, National Marine

Fisheries Service, One Blackburn Drive,

Gloucester, MA 01930–2298. The EA/

RIR/FRFA is accessible via the Internet

at http:/www.nero.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT:

Myles Raizin, Fishery Policy Analyst,

(978) 281–9104, e-mail at

Myles.A.Raizin@noaa.gov, fax at (978)

281–9135.

SUPPLEMENTARY INFORMATION:

Regulations implementing the FMP

appear at 50 CFR part 648, subpart K.

Regulations governing foreign fishing

appear at 50 CFR part 600, subpart F.

The FMP requires the New England

Fishery Management Council’s (New

England Council’s) Atlantic Herring

Plan Development Team (PDT) to meet

at least annually, no later than July each

year, 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

Council’s Atlantic Herring Oversight

Committee: Allowable biological catch

(ABC), 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 also recommend the total

allowable catch (TAC) for each

management area and sub-area

identified in the FMP. A proposed rule

to implement the 2001 Atlantic herring

specifications was published in the

Federal Register on March 5, 2001 (66

FR 13279) with a comment period

ending April 4, 2001.

Final 2001 Specifications

The final 2001 specifications are

contained in the following table.

Changes from the 2000 specifications

include increases in OY, DAH, TALFF,

DAP, and the TAC reserve for Area 2.

The impacts of these changes on the

fishery were discussed in the preamble

of the proposed rule and are not

repeated here.

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28847

FINAL 2001 ATLANTIC HERRING SPECIFICATIONS

Specification Amount (mt)

ABC 300,000

OY 250,000

DAH 245,000

TALFF 5,000

DAP 221,000

USAP 20,000

BT 4,000

JVPt 20,000

JVP– Area 2 and Area 3 10,000

IWP 10,000

Reserve 0

TAC–Area 1A 60,000

TAC–Area 1B 10,000

TAC–Area 2 50,000

(80,000 TAC reserve)

TAC–Area 3 50,000

The New England Council met in

September 2000 and recommended

conditions and restrictions for TALFF.

Those recommendations include: A

restriction on direct foreign fishing

landward of 20 nautical miles from

shore; a restriction limiting gear to

midwater trawls; a condition that before

foreign vessels can harvest more than 25

percent of their TALFF allocation,

foreign vessels must receive 25 percent

of its JVP allocation or provide proof for

why this was not possible; a restriction

on direct mealing by the foreign vessel;

a restriction on fishing in regulated

multispecies closed areas; and a

prohibition on foreign fishing in Area 1

(Gulf of Maine). These conditions and

restrictions are intended to strictly

control any foreign fishing for TALFF

for the benefit of the domestic fishery

and in conformance with the objectives

of the FMP. NMFS will consider these

recommendations prior to authorizing

TALFF. Such restrictions will be

implemented within the authorization

issued by NMFS to specific foreign

vessels.

Comments and Responses

Fifty-two public comments were

received on the proposed specifications

prior to and during the comment period

that ended on April 4, 2001. Specific

comments related to the proposed

annual specifications are discussed and

responded to as follows:

Comment 1: A commenter supported

the allocation of Atlantic herring JVP

and TALFF.

Response: This final rule implements

the proposed allocation of Atlantic

herring JVP and TALFF.

Comment 2: Many commenters

opposed the allocation of Atlantic

herring TALFF. One stated that

commercial fishers have been unable to

harvest even a small percentage of the

TAC based on the current assessment of

the herring fishery, leading fishers to

believe that the assessments

overestimate the actual stock size by

orders of magnitude. The commenter

concluded that NMFS does not have the

data to support taking such a risk of

exploiting such a valuable resource by

establishing TALFF.

Response: The most recent stock

assessment for Atlantic herring (the 27th

Northeast Regional Stock Assessment

Workshop, December, 1998 (SAW–27))

concluded that the stock is at a high

level of biomass and is underexploited.

The total biomass of Atlantic herring

continued to increase in 1999, reaching

the highest levels observed in the NMFS

spring bottom trawl survey, and

significantly above the biomass

necessary to achieve maximum

sustainable yield. The PDT concluded

that biomass of the coastal stock

component is at or near the theoretical

carrying capacity. Projections based on

SAW-27 indicate fishing mortality

continues to be low. Landings of

Atlantic herring increased in 1999, to

approximately 90,000 mt, from about

82,000 mt in 1998, but were still below

the levels of 1996 and 1997. Landings in

the Gulf of Maine (Areas 1A and 1B)

increased from 47,000 mt to 65,000 mt,

while landings on Georges Bank (Area

3) declined from 18,000 mt to 5,500 mt.

Landings in Southern New England and

the Mid-Atlantic (Area 2) increased by

2,500 mt. The maximum harvest of

5,000 mt of TALFF specification would

occur only in Areas 2 and 3 and is

already credited as part of the OY,

which represents the sum of DAH and

TALFF. In addition, the preferred ABC

specification of 300,000 mt was chosen

over an alternative that would have

utilized FTarget , yielding over 1

million mt of ABC. The conservative

approach in setting the ABC takes into

account the uncertainty about current

stock size, which may be overestimated

(NEFSC 1998), and addresses the need

to retain stability in the year-to-year

estimate of ABC in the event of a

downward shift in the biomass estimate.

The potential harvest of 5,000 mt of

TALFF would not result in a substantial

incidental catch in Areas 2 and 3 of

Atlantic herring or other non-targeted

species.

Comment 3: A commenter raised the

need for an ecosystem-wide, integrated

approach to population assessments,

and stated that removal of herring by the

foreign fleets could dramatically affect

the entire ecosystem food chain for both

whales and certain species of finfish.

The commenter concluded that any

surplus of herring not harvested by

domestic vessels should be reserved for

the ecosystem and those species that

depend upon them for food.

Response: In setting the harvest levels

established by this action, both the New

England Council and NMFS recognize

that herring is a key forage resource for

a number of finfish species, including

recreationally important species such as

striped bass and bluefish, and possibly

some species of cetaceans. In response,

the New England Council recommended

that allowable catch levels be

conservatively set. NMFS is

implementing the New England Council

recommendations. The TALFF

specification represents only 1.6 percent

of the conservatively set ABC and will

have no adverse biological impact on

the stock of herring or other forage

species. While ecosystem approaches to

fishery assessment and management are

desirable, such approaches are not yet

well developed. The current population

assessment is consistent with the best

available scientific information and

scientific practices, complies with

requirements of applicable law, and is

28848 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

adequate to manage effectively the

herring fishery.

Comment 4: A commenter argued that

foreign vessels intending to operate

under an allocation of TALFF would

greatly exceed the restrictions of the law

passed by Congress limiting the length,

weight, and horsepower of vessels

participating in the herring fishery.

Response: NMFS disagrees. In the

NMFS appropriations bills for fiscal

year 1999, Congress prohibited NMFS

from using funds to issue permits or

other authorization letters to domestic

vessels only to fish for herring and

mackerel that exceed the length, weight,

and horsepower limit restrictions

established by Congress until the New

England and Mid-Atlantic Fishery

Management Councils had the

opportunity to develop appropriate

management measures for herring and

mackerel. Current herring regulations

(§ 648.4(a)(10)(i)(B)) allow any domestic

vessel to obtain a permit to fish for or

retain herring in or from the EEZ, except

for vessels that exceed either 165 ft (50.3

m) in length overall and 750 gross

registered tons, or a shaft horsepower of

3000. These restrictions were put in

place to control the harvest capacity of

the domestic fleet and do not apply to

foreign vessels in a JVP program or

fishing for TALFF. In the case of foreign

vessels, the harvest is strictly limited by

the JVP and TALFF allocations.

Comment 5: One commenter

expressed concern that increases in JVP,

enhanced by the allocation of TALFF,

could have serious consequences for the

lobster fishery, which relies primarily

on herring for bait. The commenter

believed that herring fishing boats may

opt to supply foreign boats, as opposed

to landing their catch in New England

communities.

Response: If vessels that participate in

JVP operations would otherwise have

landed herring in New England

communities, it is possible that negative

social and economic impacts from the

reduced supply could result, including

both higher prices for lobster bait and

fewer onshore employment

opportunities, such as stevedoring.

However, it is not certain that JVP

participants would otherwise have sold

their catch in New England. But, even

if vessels that would otherwise have

sold their herring catch in New England

participate in the JVP fishery, the

magnitude of these impacts to

communities will not be substantial,

considering that the JVP allocation is

only 4 percent of the total allowable

harvest. This leaves 96 percent of the

allowable harvest available to be sold as

bait or for other domestic processing,

including the entire TAC in Areas 1A

and 1B, where JVP and TALFF are

prohibited under the FMP.

Comment 6: One commenter was

concerned about the potential harvest of

large amounts of river herring by foreign

vessels fishing off North Carolina and

Virginia.

Response: The Mid-Atlantic Fishery

Management Council (Mid-Atlantic

Council) has recommended restrictions

for the 2001 Atlantic mackerel fishery

that prohibit directed foreign fishing for

Atlantic mackerel south of 37° 30′ N. lat.

and that restrict river herring incidental

catch to no more than 0.25 percent of

the over-the-side transfers. Such

restrictions are imposed by NMFS on a

case-by-case basis as foreign fishing

permits are issued. NMFS will consider

placing the same restrictions on the

2001 Atlantic herring TALFF and JVP

fishery as were recommended by the

Mid-Atlantic Council, if it appears that

potential catches of river herring would

be a problem.

Comment 7: Two commenters

questioned the conclusion in the FMP

that 20 percent of the Area 2 harvest is

composed of Area 1 herring that migrate

to Area 2 in the winter. Based on this

conclusion, the specifications for 2001

presume that 10,000 mt of the Area 2

TAC is Area 1 herring. One commenter

stated that harvests in the Area 2 winter

fishery yielded only 18,878 mt and

19,957 mt in 1999 and 2000,

respectively. He also noted that

preliminary landings through March 17,

2001, are only 10,970 mt from Area 2,

compared to 15,669 mt for the same

period in 2000. The commenters

believed the correct estimate of Area 1

harvest from the Area 2 fishery should

be 3,000–5,000 mt because the Area 2

TAC is unlikely to be fully harvested.

They suggest this change would make

available an additional 5,000–7,000 mt

of Area 1 herring for harvest from Area

1A. One commenter estimated that an

additional 7,000 mt would increase

revenues to the herring fleet by

$770,000.

Response: The New England Council,

in its 1999 Stock Assessment and

Fishery Evaluation (SAFE) report,

indicated that there is no new

information on the distribution or

relative size of herring spawning

components that warrants a revision to

the distribution of the TAC. The New

England Council, in its September 8,

2000, submission of the recommended

annual specifications, used the 1999

SAFE report and other information

available in determining that a 50,000

mt TAC is appropriate for Area 2. The

FMP, however, allows for an inseason

adjustment of the TAC distribution if

new information becomes available. If

the commenters have new information

that would support an adjustment to the

2001 TAC distribution, they should

present this information to the New

England Council for further analysis.

The New England Council could

recommend an inseason adjustment to

the Area 1 and Area 2 TACs, if it

believes it is appropriate. Such an

adjustment, which transferred TAC from

Area 1B to Area 1A, was made in 2000

based on additional information that

became available to the New England

Council during the 2000 fishing year.

Comment 8: One commenter

suggested that NMFS require foreign

vessels to purchase JVP equal to its

TALFF allocation.

Response: As discussed in the

preamble to the proposed rule, the New

England Council has recommended that

a foreign vessel be allowed to harvest 25

percent of its TALFF allocation, but

before release of additional TALFF, the

vessel would be required to receive 25

percent of its JVP allocation or provide

proof for why this was not possible,

such as bad weather. This condition

appears to strike an appropriate balance

between creating an incentive for

foreign vessels to participate in the JVP

fishery and restricting foreign vessels

from exploiting their TALFF allocation

to the detriment of U.S. interests.

NMFS, nevertheless, will consider the

commenter’s suggestion and the New

England Council’s recommendation

when it issues authorization to

commence JVP or TALFF operations,

including conditions and restrictions for

individual foreign fishing vessels.

Classification

This final rule has been determined to

be not significant for purposes of

Executive Order 12866.

Because this final rule only

establishes either year-long quotas for

Atlantic herring to be used for the sole

purpose of closing the fishery when the

quotas are reached and does not

establish any requirements for which a

regulatory entity must come into

compliance, it is unnecessary to delay

for 30 days the effective date of this

final rule. Therefore, the Assistant

Administrator for Fisheries, NOAA,

finds good cause under 5 U.S.C.

553(d)(3) to waive the 30-day delayed

effectiveness period for the 2001

Atlantic herring specifications.

NMFS determined that this action is

consistent to the maximum extent

practicable with the enforceable policies

of the approved coastal management

programs of Maine, New Hampshire,

Massachusetts, Rhode Island,

Connecticut, New York, Pennsylvania,

New Jersey, Delaware, Maryland,

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28849

Virginia, and North Carolina. This

determination was submitted for review

by the responsible state agencies on

November 14, 2000, under section 307

of the Coastal Zone Management Act.

Rhode Island, Delaware, and

Pennsylvania concurred with this

determination. New Jersey disagreed

with NMFS’ determination for Atlantic

herring and advocated that the

specification of TALFF is inconsistent

with the economic protection provisions

of their coastal management program

vis-a-vis employment and financial

opportunities for commercial, charter,

and party vessels. NMFS and the New

England Council disagree. The TALFF

allocation is intended to foster JVPs

which could involve vessels from New

Jersey. This will move the fishery

toward achieving the OY from the

fishery. Further, the administrative

record underlying this proposal

reasonably supports the conclusion that

foreign-caught Atlantic herring will not

compete with Atlantic herring

processed and exported by domestic

businesses. Because no response was

received from Maine, New Hampshire,

Massachusetts, Connecticut, New York,

Maryland, Virginia, and North Carolina,

state concurrence on consistency is

inferred.

NMFS prepared an FRFA for this

action, which includes comments on the

IRFA, responses contained herein, and a

summary of the analyses done in

support of these specifications. A copy

of the FRFA is available from NMFS

(see ADDRESSES). The preamble to the

proposed rule included a detailed

summary of the analyses contained in

the IRFA, and that discussion is not

repeated in its entirety here. A summary

of the FRFA follows:

A description of the reasons why

action by the agency is being considered

and the objectives of the action are

explained in the preamble to the

proposed rule and are not repeated here.

This action does not contain any

collection-of-information, reporting, or

recordkeeping requirements. It will not

duplicate, overlap, or conflict with any

other Federal rules. This action is taken

under authority of the MagnusonStevens Fishery Conservation and

Management Act and regulations at 50

CFR part 648.

Public Comments

Fifty-two public comments were

received on the proposed rule to

implement the 2001 herring

specifications, but none of them were

specific to the IRFA. Commenters were

concerned with possible economic

impacts to the American lobster fishery

(Comment 5), which are discussed

below, and with the potential of

foregone revenue to the herring fleet

associated with a potential increase in

Area 1A TAC (Comment 7). NMFS

addressed these comments in the

Comments and Responses section of the

preamble to the rule.

Number of Small Entities

All of the affected businesses (fishing

vessels and dealers) qualify as small

entities under the standards described

in NMFS guidelines. There were 2,215

vessels, 6 known processors, and 72

known dealers participating in the

fishery in 1999.

Minimizing Economic Impacts on Small

Entities

The FRFA and Comment 5 in the

Comments and Responses section of this

rule discuss potential economic impacts

on the lobster bait market that could

result from vessels supplying JVP

operations, as opposed to domestic

shoreside processors and bait dealers.

The magnitude of any economic impact

to shoreside processors due to the

specification of JVP (enhanced by a

specification of TALFF) is uncertain. A

reduction in supply of herring to

shoreside processors could result in an

increase in the cost of herring to

shoreside processors or bait dealers.

However, as noted in the response to

Comment 5, the JVP allocation is only

4 percent of the allowable harvest,

leaving 96 percent of the allowable

harvest available to be sold as bait or

otherwise processed shoreside,

including the entire TAC in Areas 1A

and 1B, where JVP and TALFF are

prohibited under the FMP.

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

Dated: May 22, 2001.

John Oliver,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 01–13254 Filed 5–22–01; 3:00 pm]

BILLING CODE 3510–22–S