[Federal Register Volume 65, Number 45 (Tuesday, March 7, 2000)]
[Proposed Rules]
[Pages 11956-11973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4913]



[[Page 11956]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 648

[Docket No. 000105004-0004-01; I.D. 063099A]
RIN 0648-AI78


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Herring Fishery; Atlantic Herring Fishery Management Plan

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement the Atlantic Herring 
Fishery Management Plan (FMP). This proposed rule would: Establish 
target total allowable catch (TAC) levels for each of three management 
areas, one of which is divided into inshore and offshore sub-areas; 
establish a procedure for the development and revision of annual 
specifications; establish initial specifications for the 2000 fishing 
year; establish incidental harvest limits when a management area is 
closed to directed fishing for Atlantic herring; establish a vessel 
monitoring system (VMS) requirement; establish vessel size limits; 
establish a framework adjustment process; establish permitting and 
reporting requirements; impose restrictions on transfers at sea; and 
implement other measures for administration and enforcement. The 
purpose of this proposed action 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.

DATES: Comments must be received at the appropriate address or fax 
number, (See ADDRESSES), on or before 5:00 p.m., local time, on April 
21, 2000.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Atlantic Herring FMP.'' Comments also may be sent via 
facsimile (fax) to (978) 281-9135. Comments will not be accepted if 
submitted via e-mail or Internet.
    Comments regarding the collection-of-information requirements 
contained in this proposed rule should be sent to the Regional 
Administrator and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA 
Desk Officer).
    Copies of the FMP, its Regulatory Impact Review (RIR) and the 
Initial Regulatory Flexibility Analysis (IRFA) and the Supplement to 
the IRFA, and the Final Environmental Impact Statement (FEIS) are 
available from Paul J. Howard, Executive Director, New England Fishery 
Management Council (Council), 50 Water Street, The Tannery-Mill 2, 
Newburyport, MA 01950.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy 
Analyst, 978-281-9272, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The FMP was developed by the New England Fishery Management Council 
(Council) in response to concerns that the continued development and 
increased landings in the Atlantic herring fishery required 
implementation of management measures to prevent overfishing and to 
allow for the orderly development of the fishery. Development of the 
FMP was coordinated closely with the Mid-Atlantic Fishery Management 
Council and the Atlantic States Marine Fisheries Commission 
(Commission) to ensure that complementary management measures in both 
state and Federal waters were developed.
    Atlantic herring were first managed by a Council fishery management 
plan approved by the Secretary of Commerce (Secretary) and implemented 
on December 28, 1978. This fishery management plan used a quota system 
to control catches in the fishery. The quota system, however, proved 
ineffective at controlling harvests because of unresolved ambiguities 
over catches in state waters. On September 28, 1982, the Secretary 
withdrew approval of that fishery management plan. Management of the 
resource then relied upon efforts by the States of Maine, New 
Hampshire, Massachusetts, and Rhode Island to adopt complementary 
regulations through interstate fishery management plans. In 1995, NMFS 
adopted a Preliminary Management Plan for the Atlantic Herring of the 
Northwestern Atlantic (PMP) to regulate foreign joint venture 
activities for Atlantic herring in the exclusive economic zone (EEZ) 
(60 FR 37848, July 24, 1995). In 1996, the Council and the Commission 
resumed the development of additional management measures. Rather than 
develop a joint FMP, the Council and the Commission began the process 
of closely coordinating separate FMPs for state and Federal waters.
    The Council announced its intent to prepare an Environmental Impact 
Statement (EIS) for adoption, approval, and implementation of the FMP 
(62 FR 4384, August 2, 1997) and scoping hearings were held in Maine, 
Massachusetts, Rhode Island, and New Jersey in the fall of 1997. 
Preliminary discussions on the management measures began soon after. 
The Council published a draft EIS (DEIS)(63 FR 34871, June 26, 1998) 
and held public hearings in Maine, Massachusetts, Rhode Island, New 
Jersey, and Virginia in June and July 1998. These public hearings 
resulted in further refinements to the proposed management measures, 
which are presented in this proposed rule.
    The Council formally submitted the FMP for Secretarial review and 
NMFS published a notice of availability (NOA) in the Federal Register 
on July 27, 1999 (64 FR 40542) requesting public comments. The public 
comment period for the FMP ended September 27, 1999. All comments 
received through September 27, 1999, were considered in the approval/
disapproval decision on the FMP and will be addressed in the final 
rule. On October 27, 1999, NMFS, on behalf of the Secretary, approved 
all but four of the management measures contained in the FMP and 
informed the Council of its decision. The disapproved management 
measures were: (1) Effort limits through 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 a total 
allowable level of foreign fishing (TALFF). The proposed scheme to 
restrict fishing to specific days based on the proportion of the TAC 
that is caught in a management area was disapproved because fishers 
could easily work around the days-out restrictions and undermine the 
conservation intent of National Standard 1 of the Magnuson-Stevens Act. 
Some fishers may fish on bad weather days to work around the days-out 
restrictions, raising a safety issue under National Standard 10 of the 
Magnuson-Stevens Act. The costs of imposing days out of the fishery 
outweigh the uncertain benefits. NMFS disapproved the spawning area 
closures because it was not demonstrated that the benefits of imposing 
the closures outweigh the costs. The spawning area closures would not 
apply to mobile, bottom-tending vessels which may

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disturb spawning herring, but only to purse seiners and mid-water 
trawlers participating in the directed fishery for Atlantic herring. 
The conservation benefits of this measure are uncertain. Further, the 
NMFS Northeast Region Office of Law Enforcement stated that spawning 
area closures that allow the possession of herring on board pose 
enforcement problems. NMFS also disapproved the in-season adjustment of 
the TAC for Management Area 1A because there is no real-time mechanism 
by which the Administrator, Northeast Regional Office, NMFS (Regional 
Administrator) can monitor the Canadian catch or that catch information 
would be provided in a timely fashion in future years. This measure is 
not consistent with section 303(a)(1)(A) of the Magnuson-Stevens Act as 
it is not a necessary and appropriate conservation and management 
measure because it may not work. It is also inconsistent with National 
Standard 7 of the Magnuson-Stevens Act because it will only impose 
costs to NMFS without assured benefits. Lastly, NMFS disapproved the 
prohibition on specifying a TALFF because this prohibition would be 
inconsistent with sections 201(d) and (303)(a)(4)(B) of the Magnuson-
Stevens Act which require that any fishery management plan prepared by 
a Fishery Management Council, or by the Secretary, assess and specify 
the portion of optimum yield (OY) which, on an annual basis, will not 
be harvested by domestic fishing vessels and can be made available for 
foreign fishing. NMFS informed the Council that the proposed rule would 
provide for the annual specification of a TALFF, even if, in any given 
year, it is determined that the amount should be zero. Consequently, a 
TALFF is specified, albeit at zero, for the proposed initial 
specifications for the 2000 fishing year.
    Herring landings have steadily increased in the last 10 years, with 
an increasing proportion taken in the EEZ, rather than in state waters. 
About 70 percent of the landings is now taken in the inshore Gulf of 
Maine (GOM). As recently as the late 1970s the stop seine and weir 
fishery accounted for the majority of the landings. Now the fishery is 
prosecuted primarily by purse seine and mid-water trawl vessels and the 
proportion of the landings taken by fixed gear in state waters is 
insignificant. The two major markets for herring are the bait market 
and sardine canneries. The lobster fishery has grown to depend almost 
entirely on herring for bait in the absence of an alternative, and it 
is estimated that 60 to 70 percent of the herring caught is used for 
bait in the lobster or tuna fisheries; about 30 percent is used by the 
sardine canneries; and some is processed into meal, frozen for use as 
bait in other fisheries, or used for animal feed.
    The robust status of the herring resource, coupled with increasing 
regulation in other fisheries, has generated interest by fishermen to 
exploit the stock. The resource, serving as an alternative to the 
groundfish fishery for some fishermen, can support additional landings 
if spread throughout the range, but protection needs to be provided to 
individual spawning components. Scientists caution that the landings in 
the GOM inshore area should not increase; instead, any increase in 
landings of Atlantic herring should come from other areas.
    Therefore, the FMP contains an approved measure that has target 
TACs, assigned by management areas, that would help prevent overfishing 
of components of the stock complex.
    Atlantic herring is a key prey species in the North Atlantic Ocean 
and a food source for a wide variety of other fish species, marine 
mammals, and birds. If herring landings were to increase without any 
controls in place to prevent overfishing, there could be broad impacts 
on the entire ecosystem. For this reason, the Council has been cautious 
in setting the proposed specifications and target TACs for the fishery.
    The biological, economic, and social impacts of these measures and 
the cumulative impacts associated with other FMPs and regulations are 
discussed in the FMP and FEIS.

Status of the Stocks

    In 1998, the 27th Northeast Regional Stock Assessment Workshop (SAW 
27) was convened to examine the status of several species, including 
the coastal stock complex of Atlantic herring. SAW 27 reported that the 
abundance of herring in continental shelf waters between Cape Hatteras 
and the GOM has been increasing steadily since the mid-1980s, and the 
Georges Bank (GB)/Nantucket Shoals component has fully recovered from 
over-exploitation brought about by heavy foreign fishing in the 1960s 
and 1970s. As indicated in its June 1998 plenary report, SAW 27 
estimated the current biomass of Atlantic herring as 2.9 million metric 
tons (mt), and spawning stock biomass as 1.8 million mt. Fishing 
mortality rate (F) of the entire stock complex is very low while 
recruitment in recent years appears to be very large. However, SAW 27 
cautioned that there is considerable uncertainty over the current stock 
size estimate, so that any increase in landings should be allowed 
gradually.
    SAW 27 estimated the maximum sustainable yield (MSY) as 317,000 mt, 
based on a conditioned run of a surplus production model. The Stock 
Assessment Review Committee (SARC), in reviewing this MSY estimate, 
expressed concern that it may be unrealistic. The SARC suggested that a 
yield-per-recruit model be used to estimate MSY. This model produced 
MSY estimates ranging from 108,000 to 290,000 mt. The SARC advised it 
would not be prudent to consider MSY to be above 200,000 mt until the 
size of recent year classes could be better estimated.
    SAW 27 also considered the status of various stock components. The 
NMFS Northeast Fisheries Science Center fall trawl survey data were 
examined in order to determine the relative abundance of herring in 
three different areas during spawning season. SAW 27 concluded that, 
during spawning season, 25 percent of the stock complex occupies the 
GOM area, 65 percent is in the Nantucket Shoals area, and 10 percent is 
on GB. Analysis of this data shows that the proportion on GB appears to 
be increasing. While the overall complex is underutilized, SAW 27 
concluded that the GOM component, which provides most of the commercial 
harvest, is fully utilized. The SARC recommended that any increases in 
Atlantic herring catches should not come from the GOM stock component.

Overfishing Definition

    This FMP establishes an overfishing definition for Atlantic herring 
in accordance with the national standards of the Magnuson-Stevens Act, 
as amended by the Sustainable Fisheries Act of October 1996. Under the 
revised standards, overfishing definitions must be composed of two 
reference points, one for F and one for stock biomass. ``Overfishing'' 
occurs whenever a stock or stock complex is subjected to an F value 
that jeopardizes the capacity of a stock or stock complex to produce 
MSY on a continuing basis. ``Overfished'' describes a stock or stock 
complex with a sufficiently low biomass to require a change in 
management practices to achieve the appropriate level or rate of stock 
rebuilding to the biomass target. Comments on the overfishing 
definition for this FMP were solicited in the NOA, because, although 
not codified in the regulatory text of the proposed rule, the 
overfishing definition is part of the FMP. The overfishing definition 
was approved by NMFS on October 27, 1997.

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Annual Specifications

    The proposed rule would establish a procedure for establishing OY 
that is based on the allowable biological catch (ABC). ABC would be 
determined by multiplying the estimate of current stock size by the 
target F. OY could not exceed ABC, adjusted by the Canadian GB and New 
Brunswick fixed gear catches, which could not exceed 20,000 mt for the 
Canadian New Brunswick fixed gear harvest and 10,000 mt for the 
Canadian GB harvest. The proposed rule would limit the amount of 
Canadian catch that would be considered when setting OY. OY also would 
not exceed MSY, unless an OY that exceeds MSY in a specific year is 
consistent with a control rule that ensures the achievement of MSY and 
OY on a continuing basis. However, OY would 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 maximum sustainable 
yield), rather than basing it on actual estimates of current stock 
size, which exceed BMSY. This precautionary approach would 
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 proposed rule would establish four additional specifications: 
Total amount allocated to processing by foreign ships (JVPt), either in 
state waters (IWP) or in the 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 (Pub. L. 104-297, section 
105(e)); and, TALFF, if any, from that portion of OY that would not be 
harvested by domestic vessels. The Council and the Commission would 
consult annually to determine the allocation of JVPt to IWP and JVP.

Initial Specifications

    This proposed rule would establish initial specifications for the 
2000 fishing year. The FMP established specifications for the 1999 
fishing year that would remain in effect for the 2000 fishing year, 
unless revised through the specification process. Because the 1999 
fishing year has passed (the fishing year coincides with the calendar 
year), this proposed rule would establish the initial specifications 
for the 2000 fishing year at the levels specified in the FMP for the 
1999 fishing year.
    The proposed specifications include an ABC equal to 300,000 mt and 
an OY equal to 224,000 mt. Because the Council determined that the 
domestic annual harvest (DAH) is equal to the OY, TALFF would be 
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. No herring would be allocated to USAP for the 2000 fishing 
year, which would prohibit at-sea processing by domestic vessels 
exceeding the proposed size limits. Table 1 contains the proposed 
initial specifications for the 2000 Atlantic herring fishery.

 Table 1--Proposed Annual Specifications1 (mt) for the Atlantic Herring
              Fishery, January 1 through December 31, 2000
------------------------------------------------------------------------
                                                               Atlantic
                       Specification                           Herring
------------------------------------------------------------------------
ABC........................................................      300,000
OY.........................................................      224,000
DAH........................................................      224,000
DAP........................................................      180,000
USAP.......................................................            0
BT.........................................................        4,000
JVPt.......................................................
    JVP - Management Area 2................................       10,000
    JVP - Management Area 3................................        5,000
    JVP - Subtotal.........................................       15,000
    IWP....................................................       25,000
JVPt - Total...............................................       40,000
TALFF......................................................            0
Reserve....................................................           0
------------------------------------------------------------------------
\1\ See Table 2 for Area TACs for Fishing Year 2000.

Management Areas

    The proposed rule would establish three management areas based on 
the existing areas established by the PMP and the Commission's FMP. 
However, Management Area 1 would be divided into an inshore (Area 1A) 
and an offshore (Area 1B) area. The Council would use the management 
areas as the basis for recommending the distribution of the TAC to 
different spawning components for the distribution of JVP allocations 
and could use the management areas as the basis for implementation of 
other management measures in the future.

Total Allowable Catch

    The proposed rule would establish a target TAC for the 2000 fishing 
year. The FMP established a target TAC for the 1999 fishing year that 
would remain in effect for the 2000 fishing year, unless revised 
through the specification process. Because the 1999 fishing year has 
passed, this proposed rule would establish the target TAC for the 2000 
fishing year at the level specified in the FMP for the 1999 fishing 
year. The TAC would be re-specified for each new fishing year. The TAC 
for a given year would be distributed to the management areas based on 
existing knowledge of fishing patterns, herring stock structure, and 
herring migration. For the 2000 fishing year the proposed percentage 
allocations for the various areas are: Area 1A - 20 percent; Area 1B - 
11 percent; Area 2 - 22 percent; Area 3 - 22 percent; Reserve Area 2 - 
24 percent. (See Table 2 for resultant management area target TACs.) 
Each year the Council's Herring Plan Development Team would examine 
available data and recommend a TAC and its distribution to the Council. 
The Council would then consult with the Commission before it recommends 
a TAC to NMFS. NMFS would 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, would be applied 
against the TAC.
    The directed fishery for herring would 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 would 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 could 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 5 percent remainder for a given area TAC could be 
increased the following year through a framework adjustment. After an 
area is closed, vessels would be allowed to possess, transfer, or land 
only 2,000 lb (907.2 kg) of herring, in or from, the closed area. 
Vessels that harvest herring in an open area would be allowed to

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transit the closed area, provided all gear is stowed.
    The industry would 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 proposed area TACs for the 2000 fishing year.

  Table 2--Proposed Area TACs for Fishing Year January 1, 2000, through
                            December 31, 2000
------------------------------------------------------------------------
                      Management Area                          TAC (mt)
------------------------------------------------------------------------
Area 1A....................................................       45,000
Area 1B....................................................       25,000
Area 2.....................................................       50,000
Area 3.....................................................       50,000
TAC Reserve - Area 2.......................................       54,000
                                                            ------------
TAC Total..................................................      224,000
------------------------------------------------------------------------

Transfers at Sea

    There would be no specific restrictions on transfers of herring at 
sea, unless a management area is closed to directed fishing for 
Atlantic herring and/or other restrictions in the regulations apply. 
When a management area is closed to directed fishing for Atlantic 
herring, transfers would be 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 could 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 could not transfer herring to Canadian herring 
carriers that transship U.S.-caught herring, if authorized pursuant to 
the Sustainable Fisheries Act (Pub. L. 104-297, section 105(e)), after 
the amount of herring transshipped equals the amount of the BT 
specification. Canadian herring carriers could not receive U.S.-caught 
herring after the amount transshipped equals the amount of the BT 
specification.

Vessel Size Limits

    Domestic vessels  165 feet (50.3 m) in length overall 
(LOA), or > 750 gross registered tons (GRT)/(680.4 mt), or > 3,000 
horsepower would not be permitted to catch, take, or harvest herring in 
or from the EEZ. Domestic vessels > 165 feet (50.3 m) LOA, or > 750 GRT 
(680.4 mt) would be allowed, however, to process or receive herring in 
the EEZ, but would be limited to the allocated amount specified 
pursuant to the specification process for USAP.
    NMFS notes discrepancies in the size, capacity, and/or horsepower 
restrictions between the Atlantic Herring and Atlantic Mackerel FMPs. 
However, NMFS in its October 27, 1999, letter to the Council indicated 
that it intends to work with the New England and Mid-Atlantic Councils 
to resolve inconsistencies in vessel size measures between their 
Atlantic Herring and Atlantic Mackerel FMPs.

Roe Fishery

    The harvest of Atlantic herring for roe would be allowed, provided 
the carcasses are not discarded. The Council would monitor the 
development of a roe fishery and could, in the future, recommend a 
limit on the amount of herring that may be harvested for roe.
    In the NOA for the FMP, NMFS identified the specification of the 
amount of herring to be used for roe as a measure of concern because of 
an erroneous interpretation of the Council's intent with respect to the 
manner in which limitations on the amount of herring harvested for roe 
would be implemented. Any restriction would be implemented through the 
framework adjustment process in accordance with 50 CFR Sec. 648.206 
rather than through notice action.

Foreign Fishing Vessel Restrictions

    Foreign fishing vessel permitting and reporting requirements are 
established by 50 CFR 600, Subpart F, which include regulations on 
harvesting by foreign fishing vessels and joint ventures and internal 
waters processing and support. The Council would be allowed to 
recommend joint ventures and TALFF in all management areas, subject to 
an annual review. The Council could 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 would have to come from that management 
area.

Vessel Monitoring Systems

    The proposed rule would require 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 would help facilitate the monitoring of 
area-specific TACs and would assist with the enforcement of closures of 
management areas to directed fishing for Atlantic herring, as well as 
facilitate 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 prior to the 
beginning of the fishing year in order to land > 500 mt in that fishing 
year. Because in this application VMS is intended primarily to monitor 
areas fished as opposed to days-at-sea effort, a VMS unit would have to 
be operating any time an Atlantic herring vessel is underway, but would 
not have to be operating when a vessel is moored or maneuvering in a 
harbor. This would minimize communication costs to vessel operators and 
remove the necessity to provide power to a moored vessel with a VMS 
unit.

Permitting Requirements

    All commercial vessels meeting certain eligibility requirements 
fishing for, possessing, or landing herring in or from the EEZ would be 
required to obtain a Federal Atlantic herring permit. Domestic vessels 
 165 feet (50.3 m) LOA, or > than 750 GRT (680.4 mt), or > 
3,000 horsepower would not be eligible to be issued a permit to harvest 
or take herring. However, domestic vessels > 165 feet (50.3 m) LOA, or 
> 750 GRT (680.4 mt), regardless of horsepower, would be 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 would be no 
restrictions or qualification criteria necessary for a domestic vessel 
to receive a permit. A vessel with a Federal Atlantic herring fishing 
permit would have to be marked in accordance with 50 CFR 648.8.
    An Atlantic herring carrier vessel would be required to obtain, in 
addition to a Federal Atlantic herring permit, a letter of 
authorization from the Regional Administrator that would allow such 
vessel to transport herring caught by another fishing vessel.
    Operators of vessels issued an Atlantic herring fishing or 
processing permit would be required to obtain an operator permit. There 
would be no qualification or test for this permit. Dealers of Atlantic 
herring would be required to obtain a dealer permit and to comply with 
reporting requirements. To limit the number of entities that would have 
to comply with dealer permitting and reporting requirements, given the 
nature of herring fishing and processing, this rule narrowly defines 
Atlantic herring dealers as persons owning or operating a shore-based

[[Page 11960]]

pump that offloads herring from vessels with a Federal Atlantic herring 
permit, persons that purchase herring that is offloaded directly from 
vessels with a Federal Atlantic herring permit other than for their own 
use as bait, and persons owning or operating a processing vessel that 
receive Atlantic herring from vessels with a Federal Atlantic herring 
permit. The purpose of narrowly defining who is a dealer is to minimize 
the burden of dealer reporting requirements. Many persons purchase the 
herring that is offloaded through a shore-based pump from one vessel. 
Under these circumstances, this definition would require only the pump 
operator to obtain a dealer permit and to file dealer reports, rather 
than all the persons who receive herring from the pump operator.
    This proposed rule would require 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 could 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 
would need both permits.

Reporting Requirements

    This proposed rule would extend the existing Vessel Trip Report 
(VTR) system to vessels with Atlantic herring permits. This would 
require 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 would be 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 could not 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, this 
would make it difficult to accurately project landings in a timely way. 
In order to improve the timely collection of harvest information, this 
proposed rule would require that an owner/operator of a vessel required 
to be equipped with a VMS unit report its harvest (landings and 
discards), by area, on a weekly basis. These reports would be called in 
(using a toll free number) to an automated response system. An owner/
operator of a vessel with a VMS unit would have to call in a report for 
each week of the year, even if still at sea, including weeks they do 
not harvest herring. In addition, an owner/operator of a vessel that 
harvests  2,000 lb (907.2 kg) of herring on a trip would 
also call in a report by Tuesday of the following week, even if the 
herring had not yet been landed. This system would improve the 
timeliness of information on harvests of herring, which would 
facilitate more accurate predictions about when the TAC will be 
attained.
    Atlantic herring dealers would be 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 would not be 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 would be required to submit annually 
the Fishery Products Report, U.S. Processors, Annual Survey, (NOAA Form 
88-13). This report, collecting information on the uses of herring, 
would facilitate 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 proposed 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. For Atlantic herring, 
the NOA for the omnibus EFH amendment (63 FR 66110, December 1, 1998) 
stated that ``the omnibus amendment includes the EFH components of the 
FMP that is being developed by the [NEFMC Council]. The EFH information 
for Atlantic Herring will be incorporated by reference into the FMP 
when that FMP is 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 proposed framework 
adjustment process for Atlantic herring, measures could 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 could be 
adopted through a framework adjustment or FMP amendment, as 
appropriate. This process will begin in July of each year so that 
changes could be implemented by January 1 of the following fishing 
year. The Commission will be 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 
existed, NMFS could bypass the proposed rule stage and publish a final 
rule in the Federal Register. The management measures that could be 
implemented and adjusted through the framework process include the 
following: (1) Management area boundaries; (2) size, timing, or 
location of spawning area closures; (3) closed areas other than a 
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) 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

[[Page 11961]]

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 exclusive economic 
zone 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 proposes to withdraw approval of 
the PMP and to remove existing regulations related to Atlantic herring 
(50 CFR 600.525) at the time the final rule implementing the FMP 
becomes effective.

Classification

    The Regional Administrator determined that the FMP is necessary for 
the conservation and management of the Atlantic herring fishery and 
that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This action has been determined to be significant for the purposes 
of E.O. 12866.
    The Council prepared an FEIS for the FMP; a notice of availability 
was published on September 24, 1999 (64 FR 51753). A copy of the FEIS 
may be obtained from the Council (see ADDRESSES).
    In compliance with the Regulatory Flexibility Act, the Council has 
prepared an IRFA that describes the economic impacts of the proposed 
measures on a substantial number of small entities. Reasons why the 
action is considered, as well as the objectives and legal basis of the 
rule, are described in the preamble to this rule and are not repeated 
here. The impacts on small entities attributable to the preferred 
management measures for approved measures and alternative management 
measures to the approved measures are discussed below. The IRFA and 
Supplement to the IRFA also contain information on the impacts on small 
entities of the measures disapproved by NMFS.

Small Entities Affected by an Open Access Fishery

    The identification of the number of small entities affected by this 
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 IRFA 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, i.e., more than 20 percent, of the small entities in the 
fishery.
    The Council also considered adopting a limited entry or controlled 
access system alternative. The Council considered a comprehensive 
system that could be adopted for either the entire management unit or 
for specific management areas. This alternative included the 
possibility of using limited entry in the GOM where there is a desire 
to restrict harvests, but not in the offshore areas where there is a 
desire to increase fishing effort. The Council did not choose this 
approach, because it felt that it would limit the ability of some 
smaller vessels in rebuilding fisheries to shift into the herring 
fishery.
    The Council did not perform a detailed analysis of the impact of a 
limited entry or controlled access system on small businesses because 
this alternative was not pursued. The impacts of a controlled access or 
limited entry system on small businesses in the herring fishery depends 
on the qualification criteria used to limit the number of participants. 
It also depends on whether the limited entry system applied to all 
management areas or only particular management areas. The Council 
decided not to pursue the controlled access alternative because it 
conflicted with FMP goals and the full details of the proposal were not 
defined.

[[Page 11962]]

The Council did provide the public an opportunity to comment on a wide 
variety of possible qualification criteria, and illustrated how those 
criteria would limit participants in the fishery. These criteria and 
their impacts illustrate the number of small businesses that would be 
affected by a limited entry program. At one extreme, the fishery would 
have been limited to 15 vessels that fished in Management Area 1 in 
1996 or 1997 and possessed a letter of authorization to use small mesh 
nets in the GOM. If this qualification criteria were adopted for all 
management areas, 46 vessels that participated in the directed herring 
fishery in 1997 would be eliminated from the fishery. If only applied 
to Management Area 1A, it would eliminate 3-5 vessels that fished in 
this area but did not obtain a letter of authorization. It would also 
prevent vessels in other fisheries from participating in the herring 
fishery. At the other extreme, a proposed criteria would have issued a 
limited entry permit to any vessel that possessed a squid, mackerel, or 
butterfish permit. This would have qualified over 2,800 vessels for the 
fishery. The impacts of a large number of participants in the fishery 
on small businesses would be little different than the impacts from the 
open access alternative proposed by the Council.

Impacts of the Management Areas and Sub-areas

    The management areas adopted by the FMP are based on knowledge of 
the various spawning components. This allows the development of 
management measures that specifically target a particular spawning 
component. The management areas further provide the basis for TAC 
distribution and have been established to avoid the over-exploitation 
of individual spawning components that are included within the stock 
complex. The designation of management areas is not expected to have 
any direct economic impacts. The establishment of the areas would not 
impose any additional requirements on vessel operators, would not 
directly limit participation in the fishery, and would not restrict 
catches. The areas are, however, used to guide the distribution of the 
TACs, which would have economic impacts on vessels that are discussed 
in the following section.

Impacts of TAC Distribution

    Under the existing management scheme, there are no limits on the 
domestic harvest of herring. While overall revenues could increase 
under the FMP, there would be changes in which management areas supply 
those revenues. Historically, most domestic herring landings have come 
from the inshore GOM, defined now as Management Area 1A. The proposed 
management measures are not intended to reduce herring landings 
overall, but rather to reduce herring landings from Management Area 1A 
only. However, other TAC options considered by the Council also reduce 
the expected landings from Management Area 1A from current levels. The 
proposed TAC exceeds overall landings, and the proposed TAC by 
management area for Areas 1B, 2, and 3 exceed current landings from 
each of those management areas. Since specification of TACs in Areas 
1B, 2 and 3 that are greater than current landing levels would not 
constrain fishing activity, reduce revenues, or impact small 
businesses, the Council focused on analyzing the economic impacts of 
the TAC t in Management Area 1A.
    The range of options considered by the Council provided different 
levels of protection to individual spawning components. When 
considering the TAC distribution options, the Council did not just 
consider different TAC levels for the various management areas.
    Each option also identified a different process for distributing 
the TACs. While some of the options have less economic impact on 
Management Area 1A revenues than the proposed action (based on catches 
in 1997 and 1998), the rejected options included methods of 
distributing the TAC that were determined not to meet the conservation 
goals and objectives of the FMP.
    Option 1 proposed assigning a TAC to each of Management Areas 1A, 
1B, 2A and 2B/3. (The proposed Area 2A - the northern part of Area 2 - 
is not adopted by this FMP.) The seasonal (winter) TAC assigned to Area 
2A would have explicitly considered the mixing of GOM and GB/Nova 
Scotia fish in this area. By limiting the catch in this area, some 
control would have been exercised over the amount of GOM herring caught 
during the winter months. If the catch in this area during this time 
period was unlimited, it is possible that the GOM spawning component 
could be rapidly depleted without notice. Similarly, the TAC in Area 1A 
protects the GOM herring in this area during the remainder of the year. 
TACs for the other areas insure that the overall catch does not exceed 
the OY. This option was rejected because of uncertainty over the 
migration of GOM herring into the proposed Management Area 2. While the 
migration patterns can be estimated based on the location of herring in 
this area during the winter months when the GB stock had collapsed, the 
exact location of herring in this area is unknown.
    Option 2 proposed assigning a TAC to each of Management Areas 1A 
and 3. A TAC was also to be assigned to Management Areas 1B and 2 
combined (the TAC could be taken from these two areas regardless of 
catch location). TACs are assigned based on knowledge of stock 
structure and migration of herring. By limiting the catch in Management 
Area 1A, protection is provided to the GOM spawning component. Using a 
TAC to limit catches in Management Area 3 provides some protection to 
GB/Nantucket Shoals spawning component fish. The combined TAC in 
Management Areas 1B and 2 would simplify the administration of the TAC 
system. This option was rejected because the combined TAC for 
Management Areas 1B and 2 increases the risk of overfishing those 
herring in Management Area 1B in the summer months. Herring in this 
area are believed to come from both the GOM and GB/Nantucket Shoals 
spawning components. Large catches (in theory, at least, of up to the 
total TAC for these two areas) would unacceptably risk damaging these 
spawning components. While catches of this magnitude may be unlikely 
given recent landings in Area 1B, the strong market demand during the 
summer months when herring are in this area could result in an 
unacceptably high catch. By combining the TAC for this area with the 
TAC for Area 2, there is little protection provided to herring in 
Management Area 1B.
    Option 3 proposed assigning TACs to all four areas for each of 
three seasons. It makes explicit use of knowledge of stock structure 
and relative stock sizes to control catch in each area and time period 
so that individual spawning components are not damaged. In theory, this 
option provided the greatest protection to individual spawning 
components of herring. This option was rejected however because, in 
practice, it relied on a level of detail on stock structure that is 
lacking. The complexity of the scheme also made it less likely that it 
could be accurately monitored and implemented, reducing its 
effectiveness.
    Option 4 proposed assigning TACs to the three major management 
areas based on an estimate of the amount of fish that is present in 
these areas on an annual basis. It does not have as close a 
relationship to current knowledge on stock structure. It does provide 
some measure of protection to the individual spawning components, 
primarily through the use of conservative TACs. Because this method 
places less emphasis on seasonal migrations of

[[Page 11963]]

herring, any amount of herring assigned to Management Area 1B reduces 
the amount of herring available for Management Area 1A. TACs must be 
set at conservative levels to prevent overfishing of specific spawning 
components. This option was rejected because of its reliance on 
historic fishing patterns that may change.
    Option 5 proposed assigning one overall TAC to the entire coastal 
stock complex based on the ABC and OY. This option was rejected because 
it ignores any information on stock structure, and assumed that the 
entire coastal stock complex is one homogenous stock. For this reason, 
it provides no protection whatsoever to individual spawning components. 
In theory, the entire OY could be taken from the GOM in the summer 
months. Harvests at this level far exceed historical catches from this 
area and could not be supported. This approach could decimate herring 
stocks if all fishing effort is concentrated in one management area.
    The proposed TAC alternative would result in a greater decline in 
landings from 1996-97 levels in the in-shore GOM than the non-selected 
alternatives. (The potential changes in revenue under the various TAC 
options in Management Area 1A may be seen in Table E.58 of the FMP.) 
These rejected alternatives would increase the risk of overfishing the 
inshore herring resource. In general, the rejected options did not 
provide sufficient protection to specific spawning components of 
herring - specifically, the GOM spawning component of herring. (Note: 
The proposed options were developed prior to issuance of the report of 
the 27th SAW, which evaluated GOM herring as fully exploited.) The 27th 
SAW noted that current levels of F in the GOM may not be sustainable. 
The Council considered this report in selecting and determining its TAC 
distribution method and initial TACs.
    Sixty-one vessels participated in the directed herring fishery in 
1997. The negative impacts of the reduction in Area 1A TAC would not be 
uniform for all vessels or all sectors on the 61 vessels. It would most 
heavily impact those vessels that fished only in this area. Because 
almost 70 percent of the landings and 67 percent of the revenues from 
the entire herring fishery came from Area 1A in 1997, vessels that fish 
for herring exclusively or primarily within Area 1A are expected to 
experience the greatest negative impacts of the TACs established under 
the FMP. Of the 61 vessels in the entire directed fishery in 1997, 39 
fished at least a portion of the year in Area 1A. Of these, 9 had 
annual herring revenues of less than $1,000 per vessel, 13 had annual 
herring revenues of between $1,000-$29,000 per vessel; and 17 had 
annual herring revenues of more than $30,000 per vessel. Based on the 
1997 fishery (the most recent year landings data were available at the 
time the analysis was prepared), the imposition of the Area 1A TAC 
established under the FMP could reduce herring landings from this area 
by as much as 36.5 percent. Therefore, assuming proportional impacts of 
the TACs across all vessels fishing in Area 1A, 9 vessels could 
experience reductions in revenue of up to $365 per vessel, 13 could 
experience reductions of up to $10,843 per vessel, and 17 could 
experience reductions of more than $11,000 per vessel. Since about 67 
percent of revenues from the entire herring fishery in 1997 came from 
Area 1A, the TAC could result in a decline in total revenues to the 
fishery of as much as 25 percent.
    Actual impacts of the TAC are expected to be less than described 
above. The FMP establishes a TAC for the entire herring fishery at a 
level that would allow total landings to double over 1997 levels. Given 
that there is at least some flexibility for a portion of the 39 vessels 
that fished in Area 1A in 1997 to fish outside Area 1A for some or all 
of the fishing year, those vessels could harvest herring in other 
management areas and thereby replace some or all of the revenues lost 
to them due to Area 1A harvest restrictions. The extent of this revenue 
replacement depends on the willingness and ability of vessel owners to 
change ports or to travel farther to locate herring in other management 
areas, their ability to market their catch, and any ex-vessel price 
changes that might result. Furthermore, of the 39 vessels that fished 
in Area 1A in 1997, only 3 or 4 (purse seiners) fished exclusively 
within Area 1A. Although it is not possible to quantify the extent to 
which the other 35 or 36 vessels fished outside Area 1A, their 
dependence on Area 1A, and the precise impacts of Area 1A TAC 
restrictions on their revenues are likely less than those described 
above.
    In addition, the Council's analysis was based on the best available 
landings-related information for 1997. While the proposed TAC would 
reduce landings from the 1997 high levels, 1998 landings information 
available for Area 1A indicate that only 43,000 mt were landed. This 
amount is 2,000 mt less than the proposed 45,000 mt TAC for this area. 
However, because of wide variations in Atlantic herring landings over 
the past 20 years, it cannot be determined that the decrease in the 
1998 landings reflects a trend in the fishery. It is possible that 
other exogenous factors could have factored in the reduced 1998 
landings.

Impacts of Permitting and Reporting Requirements

    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 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 $112 per 
vessel for these measures. The total annual cost for dealers 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 processors 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.
    The Council's rationale for requiring permits, as opposed to taking 
no action in this regard, is to identify participants in the fishery. 
Currently, no comprehensive reporting requirements for vessels fishing 
for herring exist. When permitted, participants in the fishery would be 
identified and landings and purchases of herring would be reported. 
With the level of detailed reporting required, catches would be better 
monitored, enabling managers to more accurately calculate estimates of 
F and resource status.

Impacts of VMS Requirements

    Vessels that intend to harvest > 500 mt of herring, 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 
who would be required to have a VMS based on 1997 landings, this cost 
is equal to approximately 0.5

[[Page 11964]]

percent of the average revenues for this group.
    The Council considered requiring all vessels in the herring fishery 
to have a VMS. This alternative was rejected, as there seemed to be 
little justification to require a VMS on those vessels that land only a 
small amount of herring. The costs of installing and operating a VMS 
would exceed herring revenues for many of the vessels that landed only 
a small amount of herring, particularly those that did not participate 
in the directed fishery. The Council also considered not requiring a 
VMS on any herring fishing vessels. This alternative would have eased 
the burden on the small businesses in the herring fishery because they 
would not have had to pay for the installation and maintenance of the 
equipment. This option was rejected by the Council because it 
determined that it was crucial to require a VMS for administration and 
enforcement of the FMP. The FMP uses area-specific TACs to control F in 
the fishery. In order for there to be confidence in reported catch 
locations, there is a need for an independent method to verify fishing 
vessel location. The U.S. Coast Guard surveillance flights and aircraft 
could provide this verification, but are limited in number and could 
not cover the entire fishing area due to limited assets. A VMS system, 
on the other hand, would provide the ability to monitor vessel location 
whenever the vessel is underway. The VMS system would generate a record 
of each trip that could be compared to reported catch locations to make 
sure that catches were reported in the correct management areas. VMS 
would also make it easy for patrolling cutters and aircraft to locate 
herring fishing vessels and verify their activity. In addition, VMS 
would provide an additional capability to verify that vessels were not 
fishing in a management area when the area is closed because the TAC 
was exceeded. The Council determined that the benefits of a VMS 
requirement would exceed the costs imposed on small businesses.
    With a no action alternative, the entire area closure would require 
surveillance. The > 500 mt threshold requirement to use a VMS unit 
insures that the majority of herring landings would be monitored, while 
minimizing costs to the industry by only requiring a VMS unit for a 
small number of specific vessels.
    The compliance costs for the FMP would not result in an increase in 
the total costs of production by more than 5 percent.

Impacts of Vessel Size Limits

    The FMP establishes a size limit on domestic harvesting vessels in 
the herring fishery. The Council recommended a size limit  165 feet 
LOA, and no more than 750 GRT. Such vessels also must have no more than 
3,000 shaft horsepower. The Commission first adopted such restrictions 
in a Commission emergency action in 1997 (reacting to the interest of 
large factory trawler owners to exploit the herring resource) and the 
Council voted at that time to support the Commission's action. Congress 
further addressed the issue in the NMFS appropriations bill for fiscal 
year 1998, and again in 1999, restricting NMFS from using any of its 
funds to issue permits or other authorization letters to vessels 
exceeding like size restrictions. The size limit restrictions, 
established by the Commission and later in several congressional bills, 
are larger than any of the vessels that landed herring in 1996 or 1997. 
No vessels larger than the restrictions have participated in the 
herring fishery in the past. (For vessels identified as having caught 
herring in 1997, the maximum LOA was 126 ft., the maximum horsepower 
was 2,100, and the maximum GRTs was 246.) The size limits will maintain 
the existing industry structure. This restriction would not have a 
negative impact on the small businesses in the herring fishery.
    Because the herring resource is underutilized, there would be some 
room for growth in harvesting and processing capacity. The Council 
feels that a number of large vessels would rapidly reach the proposed 
limits on the TAC. The resultant rapid attainment of the TAC would 
reduce the supply of fresh herring to the bait and cannery markets. 
There is also the possibility that large catcher/processors would 
monopolize the resource.
    The Council is also limiting processing by large, domestic vessels 
to an amount specified on an annual basis. These two restrictions 
comprise the preferred alternative of the Council and are intended to 
provide some control over the development of excess fishing capacity in 
the region, and to take into account the concerns of fishing 
communities and historic herring fishery participants.
    One of the objectives of the FMP is to provide controlled 
opportunities for fishers in other fisheries in New England and the 
mid-Atlantic regions. Many fishers are facing additional restrictions 
in the groundfish, scallop, monkfish, dogfish, and whiting fisheries 
due to poor resource conditions. The ability to enter the herring 
fishery would provide an opportunity for them to shift their effort 
onto a robust resource until rebuilding plans in these fisheries can be 
accomplished. The number of vessels that can enter this fishery is 
dependent on each vessel's share of the resource. The limits on vessel 
size would encourage more small vessels to enter the fishery and 
harvest a share of the available TAC, ameliorating the impacts of 
restrictions in other fisheries.
    For the first year of the FMP, the recommended specification for 
large at-sea domestic processors is 0 mt. This is a precautionary 
approach that would give the Council time to evaluate the impacts of 
the management program before introducing large domestic processors 
into the fishery. The proposed specification would minimize impacts on 
the small businesses in the fishery. Existing small businesses would 
compete within the existing industry structure, with established 
markets clearly identified. One possible negative impact of the 
proposed specification on small businesses is that it would limit the 
market available to existing markets, depriving small vessels of an 
additional venue (the large vessel) to sell their catch. This measure 
explicitly considers the concerns of those communities and small 
entities in the northeast region that are dependent on the herring 
fishing industry and the possible impacts that may result from the 
uncontrolled entry of large domestic processors. The ``no action'' 
alternative would allow large domestic vessels to enter the fishery 
unfettered. The most likely role would be as processing vessels. While 
the impacts of allowing such large domestic processors into the fishery 
are not clearly understood, they could result in displacement of 
shoreside processors that depend on herring and may limit the 
development of additional shoreside processing capacity.
    One possible benefit of the ``no action'' alternative, however, is 
if large domestic processing vessels enter the fishery and hire local 
catcher vessels to supply them herring. The increased revenues from 
this activity could benefit small entities and communities suffering 
from reduced revenues caused by resource shortfalls and increasing 
regulation of the fishing industry. Some are concerned, however, that 
the companies that own these vessels may bring their own catcher 
vessels into the region. As a result, the benefits would then accrue to 
the regions that are less dependent on the fishing industry.

[[Page 11965]]

Impacts of Joint Venture Specifications and Restrictions

    The FMP specifies zero TALFF, which would preclude directed foreign 
fishing and result in benefits from the fishery accruing to domestic 
fishers. The expansion of the herring fishery would require domestic 
fishers to develop markets and invest in the vessels and processing 
capability to enter those markets.
    However, the FMP provides for foreign participation in the fishery 
in the EEZ through joint venture processing (just as the states provide 
for such participation through internal waters processing). In the EEZ, 
these vessels are permitted into the fishery only when it suits the 
needs of the U.S., and such vessels are limited to processing fish in 
excess of the capacity needed for domestic processors. The total 
allocations (DAP, JVPt, BT and the Reserve) in any one management area 
or subarea would not exceed the TAC set for that area or subarea during 
the fishing year. A figure of 40,000 mt is recommended for JVPt after 
reviewing recent foreign processing performance. While this level is 
lower than the 80,000 mt allocated by the Commission for the 1998/1999 
IWP season, it is over three times higher than the highest actual 
combined JVP and IWP performance in the last 10 years and allows for 
substantial temporary participation by foreign vessels in the U.S. 
fishery. This would allow foreign vessels to purchase herring from U.S. 
harvesting vessels, providing an additional market for them. Not only 
would this benefit the small entities currently in the fishery, it 
could provide additional opportunities for some vessels to target 
herring rather than species that may be overfished. It would also allow 
those fishers that participate in mackerel joint ventures to sell 
herring when it is caught along with mackerel.
    In the event of a closure to a directed herring fishery in any one 
area or subarea, BT, JVP and IWP (the Council and the Commission agree 
on the recommended allocation of JVPt to JVP and IWP) operations would 
cease to receive any herring caught from a closed area or subarea. A 
key element in the review of JV activities is the impact on domestic 
processing activity - specifically, on the east coast, shoreside 
processors (since there have not been any large domestic at-sea 
processors in east coast fisheries).
    In recent years there has been little interest by foreign vessels 
to participate in herring joint ventures and the actual performance of 
herring JVs has been insignificant, occurring only in connection with 
mackerel JVs. (Confidentiality restrictions prevent listing actual JV 
herring catches in 1997.) The demand for herring JVs is directly linked 
to world herring prices, most notably herring prices from the North Sea 
herring fishery.

Impacts of Initial and Annual Specifications

    The domestic Atlantic herring fishery has not been subject to 
limits on catch by a Federal FMP since 1982. Because of the lack of 
current permitting and reporting systems, there is some uncertainty in 
the current levels of fishing effort and the actual harvest of Atlantic 
herring. There is also uncertainty in the ability of U.S. fishers to 
develop new markets for the increased catch levels that are possible, 
and for U.S. processors to process increased catches of herring that 
may occur under this FMP.
    These uncertainties make it difficult to predict exactly how the 
fishery would develop. The Council has adopted a precautionary approach 
to many elements of the management program in order to account for 
these uncertainties.
    DAP is based on existing processing capacity with the addition of 
nearly 80,000 mt to account for the introduction of new capacity, 
possible misreporting in the bait fishery, and increases in processing 
by existing processors.
    The amount allocated to BT is about 10 percent larger than the 
highest amount reported transferred to Canadian canneries in any of the 
last 10 years. These transfers are part of a traditional cross-border 
trade in raw herring that helps U.S. sardine canneries obtain herring 
during periods of low resource abundance in U.S. waters.
    The zero amount specified for USAP would prevent large domestic 
processing vessels from entering the fishery in 1999. Concern has been 
expressed that this results in unfair treatment to such vessels, which 
could not participate in at-sea processing while large foreign vessels 
could (through JVs). The Council's initial recommendation to specify 
USAP at zero was because of a desire to maintain the status quo in the 
industry until the effectiveness of the FMP could be evaluated. By 
contrast to JVs, large domestic processing vessels would have a great 
deal of flexibility once allowed into the fishery. They could compete 
in the same markets as other processors without restraints. Once 
allowed into a fishery, there is a perception that they would have 
earned permanent ``rights'' to participate. The possible impacts of 
large at-sea processors in the Atlantic herring fishery are not clearly 
understood, arguing for a cautious approach to their introduction into 
the fishery. While the specification for USAP may be set at a level 
other than zero mt in the future, the Council's recommendation to 
allocate zero mt initially is within the Council's discretion.

Impacts of Transfers at Sea

    Allowing a vessel to transfer herring at sea during a closure 
complicates the enforcement of the 2,000-lb (907.2-kg) trip/possession 
limit. A complete prohibition on all transfers, however, would 
unnecessarily restrict the lobster and tuna fisheries. Vessels in these 
fisheries frequently obtain fresh bait through transfers (sales) at-
sea. Allowing these transfers thus benefits the small businesses that 
sell the herring and those small businesses who purchase it for bait 
(i.e., lobster and tuna fishers). Enabling these small entities to 
obtain fresh bait at sea minimizes their costs since they wouldn't have 
to travel into port for it. It also benefits them by assuring that the 
bait is of higher quality in that it is more likely to be fresh.
    This measure would place some controls on transfers at-sea to 
prevent wide scale violations of the trip limit.

Disapproved Measures

    On October 27, 1999, NMFS disapproved the proposed spawning area 
closures and the proposed scheme to restrict fishing to specific days 
based on the proportion of the TAC caught in a management area 
(mandatory days out provision). The reason for the disapproval of these 
measures is described elsewhere in this preamble. These measures are 
contained in the IRFA and supplement to the IRFA and, therefore, are 
also discussed in this classification section.

Impacts of Spawning Closures

    At the time the Council prepared the IRFA, the Council determined 
that the proposed spawning closures were expected to have an impact on 
herring landings and revenues, subject to the ability of fishers to 
locate herring in other areas or at other times. The total impacts of 
these closures were estimated to be a reduction of 10,332 mt in herring 
landings and $1.1 million in revenues. The actual decline in landings 
and reduction in revenues due to the spawning closures was likely to be 
less, however. The displacement of effort to other areas, opening of a 
large area south of 42 deg.30'N. latitude to fishing by the proposed 
action, and the interaction of the spawning closures with the

[[Page 11966]]

Management Area 1A TAC would have reduced the negative impacts on 
landings and revenues. Further, spawning closures were not established 
in Management Areas 2 and 3 because the Council wanted to promote 
interest in developing the offshore fishery.
    The Council considered other spawning area closure alternatives. It 
originally considered four areas that, through complementary Commission 
action, may have extended to the shore. These proposed restrictions 
would not have allowed any directed fishing subject to the limitation 
on catch of spawning fish and would have created an offshore boundary, 
providing a limited opportunity for fishers to move into offshore 
areas. Small herring vessels in Maine ports would have been 
disadvantaged by this. Such vessels would have been at risk of losing 
their market, and may not have been able to regain it when the closed 
areas reopened. The expected result of the original Council proposal 
would have been the potential loss of all herring landed during the 
Commission's existing closures, which would have been mitigated by the 
opportunity of fishers to fish seaward of the closure boundaries. Also, 
fishers may have been able to harvest the herring after the closure - a 
delay in the catch, rather than a complete loss.
    The preferred alternative differed from the above option 
significantly. All closure areas would have applied only to Federal 
waters. The closure area off Massachusetts and New Hampshire had been 
significantly reduced in size. The impact of this change would have 
significantly reduced the negative economic impacts of the spawning 
closures. By reducing the area covered by the closures, the impact of 
the closures on landings was expected to have been reduced. The action 
also proposed to open an area that had previously been limited to an 
incidental catch limit. While the amount of catch in this area cannot 
be predicted due to a lack of information on harvest rates and effort 
in this area, this should have resulted in higher catches of herring 
further reducing the economic impact of the closures. This would have 
significantly reduced the negative economic impacts of the spawning 
closures. In a qualitative sense, the proposed alternative should have 
also reduced impacts on smaller vessels, as it would have provided 
options to fish seaward of the boundary, in state waters, or in areas 
of Federal waters that remained opened, and would have reduced the 
necessity for any vessel to fish seaward of the closure boundaries.
    The Council also considered a number of variations for determining 
the starting dates of the closures. These variations were predicated on 
the biological condition of spawning herring. While the economic 
impacts would not likely have differed significantly from the preferred 
alternative, this approach would have introduced uncertainty into the 
timing of the closures. The fixed date selected by the Council in the 
preferred alternative would have allowed vessels and dealers to plan 
fishing operations around known closure dates and was initially 
preferred by many in the industry. It also would have avoided the 
administrative costs necessary to operate a sampling program that would 
have been a required part of determining the closure dates.
    Finally, the Council also considered the option of not establishing 
any spawning restrictions in Management Areas 1A or 1B. In the short 
term, landings and revenues would increase if this option were 
selected. Over a longer period, the practice of fishing on spawning 
aggregations in this intensely fished area would be expected to have a 
negative impact on the biological condition of the resource. Failure to 
provide protection during the spawning periods could result in the 
elimination of individual spawning components, even while remaining 
within overall mortality goals set by the TAC. This would result in 
either lower TACs to reduce effort on spawning fish, or, in the 
extreme, could damage the resource sufficiently so that fishing would 
have to be prohibited in the area. Either result would reduce revenues 
from this area. As vessels moved into other areas to find herring, 
operating costs would be expected to increase with the additional 
transit time offshore.

Impacts of Mandatory Days out of the Fishery

    The Council determined that fishing effort would have been reduced 
as the TAC was approached by requiring vessels to take mandatory days 
out of the fishery. The number of days taken out of the fishery would 
have been determined by how close the catch was to approaching the TAC. 
This measure would have been expected to reduce catch rates as the TAC 
is approached. This would have helped prevent the TAC from being 
exceeded before the fishing year was over.
    This measure also would have redistributed fishing effort to other 
areas. As the number of days out of the fishery increased, some vessels 
may have chosen to relocate to areas that remain open. The Council 
selected this measure over other alternatives because it would have 
minimized impacts on the industry while extending the season. It would 
have allowed fishing activity to continue unfettered in management 
areas where landings were at a lower level and were not approaching the 
TAC. This would have encouraged a shift in effort from areas with 
restrictions into other open areas, particularly when three or four 
days were closed to the directed fishery. Shifting effort would not 
have been without cost however. As fishing days were restricted, 
vessels would have incurred higher operating costs if they chose to 
fish in other areas further from their home port.
    The major reason for this measure was to provide a supply of 
herring to the market for a longer period of time than if there were no 
controls put into place until the overall TAC was reached and the 
fishery was closed. For this reason, the Council rejected the no 
controls approach.
    The Council also considered trip limits as an alternative, but 
rejected the idea because of concerns over discards, enforcement 
difficulties, and difficulty in creating an equitable system.
    The Council also considered apportioning the TAC over a shorter 
time period - rather than an annual basis. See Option 3 under `Impacts 
of TAC Distribution', above. It rejected this alternative because it 
would have resulted in unacceptable administrative costs to monitor the 
TAC.

Conclusion

    The proposed regulations would allow increased landings of herring, 
the extent of which may depend more on market conditions than on the 
regulations. The FMP could, however, change fishing patterns, 
particularly in the GOM. The restrictive TAC in the inshore GOM could 
force fishing effort into other areas where harvest rates may not be as 
high, possibly increasing operating costs.
    A copy of the IRFA and the Supplement to the IRFA are available 
from the Council (see ADDRESSES).
    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 proposed 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

[[Page 11967]]

number 0648-0075. These reports are estimated at 6 minutes/response.
    This proposed rule also contains 12 new collection-of-information 
requirements subject to the PRA, which have been submitted to OMB for 
approval. The public reporting burden for each collection of 
information per response is indicated in parentheses in the following 
list of new requirements, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments 
regarding these reporting burden estimates or any other aspect of the 
collection of information, including suggestions for reducing the 
burden, to NMFS and OMB (see ADDRESSES).
    The new requirements are:
    Open access Atlantic herring permits (30 minutes/response).
    Operator permits (60 minutes/response).
    Dealer permits (5 minutes/response(trip)).
    Processor permits (5 minutes/response).
    Vessel trip reports (5 minutes/response).
    Interactive voice response system reports (4 minutes/response).
    Dealer logbooks reports (2 minutes/response).
    Annual processor reports (30 minutes/response).
    Vessel monitoring system verification requirement (2 minutes/
response).
    Vessel monitoring system reports (5 seconds/response).
    Vessel monitoring system installation (60 minutes/response).
    Herring carrier exemption from VMS requirements authorization 
letter (2 minutes/response).

List of Subjects in 50 CFR Parts 600 and 648

    Fisheries, Fishing, Foreign Vessels, Reporting and recordkeeping 
requirements.

    Dated: February 23, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR parts 600 and 648 
are proposed to be amended as follows:

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.


Sec. 600.525  [Removed]

    2. Remove Sec. 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 Sec. 648.1, the first sentence of paragraph (a) is revised to 
read as follows:


Sec. 648.1  Purpose and scope.

    (a) This part implements the fishery management plans (FMPs) for 
the Atlantic mackerel, squid, and butterfish fisheries (Atlantic 
mackerel, Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon 
FMP); the Atlantic sea scallop fishery (Atlantic Sea Scallop FMP); the 
Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam and 
Ocean Quahog FMP); the Northeast multispecies and monkfish fisheries 
((NE Multispecies FMP) and (Monkfish FMP)); the summer flounder, scup, 
and black sea bass fisheries (Summer Flounder, Scup, and Black Sea Bass 
FMP); the Atlantic bluefish fishery (Atlantic Bluefish FMP); the spiny 
dogfish fishery (Spiny Dogfish FMP); and the Atlantic herring fishery 
(Atlantic Herring FMP). * * *
* * * * *
    3. In Sec. 648.2, the definitions for ``Council'' and ``Vessel 
Monitoring System'' are revised and the definitions for ``Atlantic 
herring'', ``Atlantic herring carrier'', ``Atlantic herring dealer'', 
``Atlantic herring processor'', ``Border transfer'', ``Horsepower'', 
``IVR System'', ``JVPt'', ``Processing'', and ``U.S. at-sea-
processing'' are added alphabetically to read as follows:


Sec. 648.2  Definitions.

* * * * *
    Atlantic herring means Clupea harengus.
    Atlantic herring carrier means a 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) A person owning or operating a shore-based pump that uses such 
pump to offload any Atlantic herring from a vessel with a Federal 
Atlantic herring permit; or
    (2) A person who purchases any herring directly from a vessel with 
a Federal Atlantic herring permit that is offloaded from the vessel 
other than with a shore-based pump for purposes other than for the 
purchaser's own use as bait; or
    (3) A person owning or operating a processing vessel that receives 
any Atlantic herring from a vessel with 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 with a Federal Atlantic herring 
permit or an Atlantic herring dealer for the purposes of processing; or 
the owner or operator of a vessel that processes Atlantic herring; or 
an Atlantic herring dealer who purchases Atlantic herring for resale as 
bait.
* * * * *
    Border transfer (BT) means the amount of herring specified pursuant 
to Sec. 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; and the Atlantic bluefish fishery.
* * * * *
    Horsepower, with respect to the Atlantic herring fishery, means the 
total maximum continuous shaft horsepower of all a vessel's main 
propulsion machinery.
* * * * *
    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

[[Page 11968]]

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, other than icing, bleeding, heading or gutting, 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 Sec. 648.200, of the 
amount of herring that can be received from, or processed by, U.S. 
vessels issued an Atlantic herring processing permit as described in 
Sec. 648.4(a)(10)(ii).
* * * * *
    Vessel Monitoring System (VMS) means a vessel monitoring system or 
VMS unit as set forth in Sec. 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 Sec. 648.4, paragraphs (a)(10) and (c)(2)(vi) are added to 
read as follows:


Sec. 648.4  Vessel and individual commercial permits.

    (a) * * *
    (10) Atlantic herring vessels. (i) Atlantic herring permit. (A) 
Except as provided herein, any vessel of the United States must have 
been issued and have on board a valid Atlantic herring permit to fish 
for, catch, possess, 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 engine 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 
Sec. 648.200. Such vessel may not receive or process Atlantic herring 
unless the vessel has been 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 
Sec. 648.9.
* * * * *
    5. In Sec. 648.5, the first sentence of paragraph (a) is revised to 
read as follows:


Sec. 648.5  Operator permits.

    (a) General. Any operator of a vessel fishing for or possessing 
Atlantic sea scallops in excess of 40 lb (18.1 kg), NE multispecies, 
spiny dogfish, monkfish, Atlantic herring, Atlantic mackerel, squid, 
butterfish, scup, or black sea bass, 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 Sec. 648.6, paragraph (a) is revised to read as follows:


Sec. 648.6  Dealer/processor permits.

    (a) General. All NE multispecies, monkfish, Atlantic herring, 
Atlantic sea scallop, spiny dogfish, summer flounder, surf clam, ocean 
quahog, Atlantic mackerel, squid, butterfish, scup, and black sea bass 
dealers, surf clam and ocean quahog processors, and Atlantic herring 
processors or purchasers as described in Sec. 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.
* * * * *
    7. In Sec. 648.7, the heading of paragraph (b)(1)(i) is removed and 
the first sentence is revised, and the first sentence of paragraphs 
(a)(1)(i), (a)(2)(i), (a)(3)(i), and paragraph (f)(3) are revised and 
new paragraphs (a)(3)(iii) and are added, to read as follows:


Sec. 648.7  Recordkeeping and reporting requirements.

    (a) * * *
    (1) * * *
    (i) All dealers issued a dealer permit under this part, with the 
exception of those utilizing the surf clam or ocean quahog dealer 
permit, must provide: Dealer name and mailing address; dealer permit 
number; name and permit number or name and hull number (USCG 
documentation number or state registration number, whichever is 
applicable) of vessels from which fish are landed or received; trip 
identifier for 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

[[Page 11969]]

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) * * *
    (i) All dealers issued a dealer permit under this part, with the 
exception of those processing only surf clams or ocean quahogs, must 
complete the ``Employment Data'' section of the Annual Processed 
Products Report; completion of the other sections of that form is 
voluntary. * * *
* * * * *
    (iii) Atlantic herring processors including processing vessels must 
complete and submit all sections of the Annual Processed Products 
Report.
    (b) * * *
    (1) * * *
    (i) The owner or operator of any vessel issued a permit under this 
part must maintain on board the vessel and submit an accurate daily 
fishing log report for all fishing trips, regardless of species fished 
for or taken, on forms supplied by or approved by the Regional 
Administrator. * * *
* * * * *
    (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 
IVR system 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 Sec. 648.7.
    (A) The owner or operator of any vessel issued a permit for 
Atlantic herring that is required by Sec. 648.205 to have a VMS unit on 
board must submit an IVR report 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 Sec. 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 IVR report for that week as required by the 
Regional Administrator.
    (C) 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 Sec. 648.9, paragraphs (c)(1), (c)(2)(i) and (f) are revised 
to read as follows:


Sec. 648.9  VMS requirements.

* * * * *
    (c) * * *
    (1) Except as provided in paragraph (c)(2) of this section, all 
required VMS units must transmit a signal indicating the vessel's 
accurate position every hour, 24 hours a day, throughout the year.
    (2) Power-down exemption. (i) Any vessel that is required to have 
on board a fully operational VMS unit at all times, as specified in 
paragraph (b)(2) of this section, is exempt from this requirement 
provided:
    (A) The vessel will be continuously out of the water for more than 
72 consecutive hours; and
    (B) A valid letter of exemption obtained pursuant to paragraph 
(c)(2)(ii) of this section has been issued to the vessel and is on 
board the vessel, and the vessel is in compliance with all conditions 
and requirements of said letter.
    (C) Any VMS-equipped vessel with an Atlantic herring permit, unless 
required by other 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, 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 Sec. 648.11, the first sentence of paragraph (a) is revised 
to read as follows:


Sec. 648.11  At-sea sampler/observer coverage.

    (a) The Regional Administrator may request 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, or butterfish, scup, black sea 
bass, or a moratorium permit for summer flounder. * * *
* * * * *
    10. In Sec. 648.12, the first sentence of the introductory text is 
revised to read as follows:


Sec. 648.12  Experimental fishing.

    The Regional Administrator may exempt any person or vessel from the 
requirements of subparts A (General Provisions), B (Atlantic Mackerel, 
Squid, and Butterfish Fisheries), D (Atlantic Sea Scallop Fishery), E 
(Atlantic Surf Clam and Ocean Quahog Fisheries), F (NE Multispecies and 
Monkfish Fisheries), G (Summer Flounder Fishery), H (Scup Fishery), I 
(Black Sea Bass Fishery), J (Atlantic Bluefish Fishery), K (Atlantic 
Herring Fishery), or L (Spiny Dogfish Fishery) of this part for the 
conduct of experimental fishing beneficial to the management of the 
resources or fishery managed under that subpart. * * *
* * * * *
    11. In Sec. 648.13, paragraph (e) is added to read as follows:


Sec. 648.13  Transfers at sea.

* * * * *
    (e) Atlantic herring. Any person or vessel is prohibited from 
transferring, or 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 vessel has been issued a valid 
Atlantic herring permit and/or other applicable authorization, such as 
a letter of authorization from the Regional Administrator, to transfer 
or receive herring.

[[Page 11970]]

    (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 directing fishing for Atlantic 
herring.
    (3) The vessel does not transfer to an IWP or Joint Venture vessel 
herring in or from an area closed to directed fishing for Atlantic 
herring.
    (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 Sec. 648.200.
    12. In Sec. 648.14, paragraph (a)(103) is revised, and paragraphs 
(x)(9) and (bb) are added to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (103) Sell, barter, trade, or transfer, or attempt to sell, barter, 
trade, or transfer, other than solely for transport, any Atlantic 
herring, multispecies, or monkfish, unless the dealer or transferee has 
a dealer permit issued under Sec. 648.6.
* * * * *
    (x) * * *
    (9) Atlantic herring. All Atlantic herring retained or possessed on 
a vessel issued any permit under Sec. 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 
Sec. 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 Sec. 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 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 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 
Sec. 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 
Sec. 648.202(a), if the vessel has been issued an 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 Sec. 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 
Sec. 648.202(a) with > 2,000 lb (907.2 kg) of herring on board unless 
all fishing gear is stowed as specified by Sec. 648.23(b).
    (11) Catch, take, or harvest Atlantic herring with a U.S. vessel 
that exceeds the size limits specified in Sec. 648.203.
    (12) Process Atlantic herring in excess of the specification of 
USAP with a U.S. vessel that exceeds the size limits specified in 
Sec. 648.203(b).
    (13) Discard herring carcasses at sea after removing the roe.
    (14) Catch, take, or harvest Atlantic herring for roe in excess of 
any allowed limit that may be established pursuant to Sec. 648.204(b).
    (15) Catch, take, or harvest Atlantic herring 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 Sec. 648.205(a).
    (16) Catch, take, or harvest > 500 mt Atlantic herring during the 
fishing year unless equipped with an operable VMS unit as required by 
Sec. 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:

Subpart K--Management Measures for the Atlantic Herring Fishery

Sec.
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 specifications.


Sec. 648.200  Specifications.

    (a) The Atlantic Herring Plan Development Team (PDT) shall meet at 
least annually 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

[[Page 11971]]

allowable catch (TAC) for each management area and sub-area. 
Recommended specifications shall be presented to the New England 
Fishery Management Council (Council) at its July meeting.
    (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 New Brunswick (NB) 
fixed gear and Georges Bank (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;
    (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. 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.
    (f) 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.


Sec. 648.201  Management areas.

    (a) Three management areas, which may have different management 
measures, are established for the Atlantic herring fishery. Management 
Area 1 shall be subdivided into inshore and offshore sub-areas. The 
management areas are defined as follows:
    (1) Management Area 1 (GOM): All U.S. waters of the GOM north of a 
line extending from the eastern shore of Monomoy Island at 
41o 35' N. lat. eastward to a point at 41o 35' N. 
lat., 69o 00' W. long., thence northeasterly to a point 
along the Hague Line at 42o 53'14'' N. lat., 67o 
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). This line 
identifies inshore fishing grounds that have supported most of the 
catch to date. The line dividing these areas is described by the 
following coordinates:

 
------------------------------------------------------------------------
         Point N. Latitude                       W. Longitude
------------------------------------------------------------------------
  .................................   70 deg. 00' at Cape Cod shoreline
42 deg. 38.4'......................                         70 deg. 00'
42 deg. 53'........................                         69 deg. 40'
43 deg. 12'........................                         69 deg. 00'
43 deg. 40'........................                         68 deg. 00'

[[Page 11972]]

 
43 deg. 58'........................                         67 deg. 22'
(the U.S.-Canada maritime
 Boundary)\1\
------------------------------------------------------------------------
\1\ Northward along the irregular U.S.-Canada maritime boundary to the
  shoreline.

    (2) Management Area 2 (South Coastal Area): All waters west of 
69 deg.00' W. long. and south of 41 deg.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.
    (3) Management Area 3 (Georges Bank): All U.S. waters east of 
69 deg.00' W. long. and southeast of the line that runs from a point at 
69 deg.00' W. long. and 41 deg.35' N. lat., northeasterly to the Hague 
Line at 67 deg.44'35'' W. long. and 42 deg.53'14'' N. lat.
    (b) [Reserved]


Sec. 648.202  Total allowable catch (TAC) controls.

    (a) If NMFS determines that catch will reach or exceed 95 percent 
of the TAC in a management area before the end of the fishing year, 
NMFS shall prohibit a vessel, beginning the date the catch is projected 
to reach 95 percent of the TAC, from fishing for, possessing, catching, 
transferring, or landing > 2,000 lb (907.2 kg) of Atlantic herring per 
trip and/or > 2,000 lb (907.2 kg) of Atlantic herring per day in such 
area pursuant to paragraph (d) of this section, except as provided in 
paragraph (c) of this section. These limits shall be enforced based on 
a calendar day.
    (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 
Sec. 648.200. Any lowering of the percent of the TAC that triggers the 
2,000 lb (907.2 kg) limit specified in paragraph (a) of this section 
must be accomplished through the framework adjustment or amendment 
processes.
    (c) A vessel may transit an area that is limited to the 2,000-lb 
(907.2-kg) limit specified in paragraph (a) of this section with > 
2,000 lb (907.2 kg) of herring on board providing all fishing gear is 
stowed and not available for immediate use as required by 
Sec. 648.23(b).
    (d) 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.


Sec. 648.203  Vessel size/horsepower limits.

    (a) A U.S. vessel issued an Atlantic herring permit must not exceed 
the specifications contained in Sec. 48.4(a)(10)(i)(B) to catch, take, 
or harvest Atlantic herring. 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 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 
Sec. 648.4(a)(10)(ii) and that the total amount of herring received or 
processed by such vessel does not exceed the SAP established in 
accordance with Sec. 648.200.


Sec. 648.204  Herring roe restrictions.

    (a) Retention of herring roe. Herring may be processed for roe 
provided that the carcasses of the herring are not discarded.
    (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 Sec. 648.206.


Sec. 648.205  VMS requirements.

    (a) Except for Atlantic herring carrier vessels, the owner or 
operator of any vessel issued an Atlantic herring permit that caught or 
landed > 500 mt of Atlantic herring in the previous fishing year, or 
intends to catch or land, or catches or lands > 500 mt of Atlantic 
herring in the current fishing year, must have an operable VMS unit 
installed on board that meets the requirements of Sec. 648.9.
    (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. The VMS unit must be certified, installed on board, 
and operable before the vessel may begin fishing.
    (c) Except for Atlantic herring carrier vessels, the owner or 
operator of a vessel cannot land > 500 mt of Atlantic herring during a 
fishing year unless it has complied with Sec. 648.205(b).


Sec. 648.206  Framework specifications.

    (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 Sec. 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 Sec. 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

[[Page 11973]]

as defined under Sec. 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) Action by NMFS. 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 a 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
    (25) 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. 00-4913 Filed 3-6-00; 8:45 am]
BILLING CODE 3510-22-F