[Federal Register Volume 65, Number 238 (Monday, December 11, 2000)]
[Rules and Regulations]
[Pages 77450-77470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31220]



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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 902

50 CFR Parts 600 and 648



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

50 CFR Part 648



Fisheries of the Northeastern United States; Atlantic Herring 
Fisheries; 2000 Specifications; Adjustment; Closure; Final Rule

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

[[Page 77450]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 600 and 648

[Docket No. 000105004-0260-02; I.D. 063099A]
RIN 0648-AI78


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement approved measures 
contained in the Atlantic Herring Fishery Management Plan (FMP). These 
regulations implement the following measures: A target total allowable 
catch (TAC) level for each of three management areas, one of which is 
divided into inshore and offshore sub-areas; a procedure for the 
development and revision of annual specifications; initial 
specifications for the 2000 fishing year; incidental harvest limits 
upon closure of a management area; a vessel monitoring system (VMS) 
requirement for certain vessels; vessel size limits; a framework 
adjustment process; permitting and reporting requirements; restrictions 
on transfers at sea; and other measures for administration and 
enforcement. The intended effect of this final rule is to manage the 
Atlantic herring (Clupea harengus) fishery pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
and the FMP and to prevent overfishing of the Atlantic herring 
resource. This final rule also withdraws approval of the Preliminary 
Management Plan (PMP) for the Atlantic Herring Fishery of the 
Northwestern Atlantic and removes existing regulations related to 
Atlantic herring upon the effective date of the final rule. Finally, 
NMFS informs the public of the approval by the Office of Management and 
Budget (OMB) of the collection-of-information requirements contained in 
this final rule and publishes the OMB control numbers for these 
collections.

DATES: This final rule is effective December 11, 2000, except for the 
amendments to the following sections:
    1. Sections 15 CFR 902.1, 50 CFR 600.525, 648.4, 648.5, 648.6, 
648.7, 648.9, 648.11, 648.12, 648.13, 648.14(a)(103), (bb)(1)-(6), 
(bb)(8) and (9), (bb)(11)-(14), (bb)(17) and (18), 648.203, 648.204, 
and 648.205(b)-(c), which will be effective January 10, 2001; and
    2. Sections 50 CFR 648.14(bb)(15) and (16) and 648.205(a), which 
will be effective March 12, 2001.

ADDRESSES: Copies of the FMP, its Regulatory Impact Review (RIR), the 
Final Regulatory Flexibility Analysis (FRFA), and the Final 
Environmental Impact Statement (FEIS), as prepared by the New England 
Fishery Management Council (Council), are available from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street, The Tannery - Mill 2, Newburyport, MA 01950.
    Comments regarding the collection-of-information requirements 
contained in this final rule should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 (Attn: NOAA Desk Officer).
    Send comments regarding any ambiguity or unnecessary complexity 
arising from the language used in this rule to Patricia Kurkul.

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

SUPPLEMENTARY INFORMATION: This final rule implements approved measures 
contained in the FMP, which was partially approved by NMFS on behalf of 
the Secretary of Commerce (Secretary) on October 27, 1999. All of the 
measures but four were approved. The disapproved measures and the 
reasons for their disapproval are described in the preamble to the 
proposed rule to implement the approved measures (65 FR 11956, March 7, 
2000) and are not repeated here.
    Details concerning the justification for and development of the FMP 
and the implementing regulations were also provided in the notice of 
availability (NOA) of the Atlantic Herring FMP (64 FR 40542, July 27, 
1999) and in the preamble to the proposed rule (65 FR 11956, March 7, 
2000) and are not repeated here.

Approved Measures

Annual Specifications

    The FMP enacts a procedure for establishing Optimum Yield (OY) that 
is based on the allowable biological catch (ABC). The ABC will be 
determined by multiplying the estimate of current stock size by the 
target fishing mortality rate (F). OY cannot exceed ABC, adjusted by 
the Canadian Georges Bank (GB) and New Brunswick (NB) fixed gear 
catches, which cannot exceed 20,000 mt for the Canadian NB fixed gear 
harvest and 10,000 mt for the Canadian GB harvest. The FMP limits the 
amount of Canadian catch that will be considered when setting OY. OY 
also will not exceed the maximum sustainable yield (MSY), unless an OY 
that exceeds MSY in a specific year is consistent with a control rule 
that ensures the achievement of MSY and OY on a continuing basis. 
However, OY will not exceed MSY prior to the 2001 fishing year. Because 
of some uncertainty in the current stock size estimates, the Council 
recommended, for purposes of setting the initial ABC, that the current 
stock size be assumed to equal BMSY(the biomass level that 
produces MSY), rather than basing it on actual estimates of current 
stock size, which exceed BMSY. This precautionary approach 
will limit catches until the estimates can be improved. The resulting 
ABC and OY, however, are still more than twice the amount of current 
landings.
    The FMP establishes four additional specifications: Total amount 
allocated to processing by foreign ships (JVPt), either in state waters 
(IWP) or in the exclusive economic zone (EEZ) (JVP); amount of the 
domestic annual processing (DAP) allocated for at-sea processing by 
domestic vessels that exceed the vessel size limits established in the 
FMP (USAP); total amount of herring that can be taken in U.S. waters 
and transferred to Canadian herring carriers for transshipment to 
Canada (BT) as authorized by the Sustainable Fisheries Act (SFA)(Pub. 
L. 104-297, section 105(e)); and total allowable level of foreign 
fishing (TALFF), if any, from that portion of OY that will not be 
harvested by domestic vessels. The Council and the Atlantic States 
Marine Fisheries Commission (Commission) will consult annually to 
determine the allocation of JVPt to IWP and JVP.

Initial Specifications

    The FMP establishes initial specifications for the 2000 fishing 
year. (The FMP as submitted recommended specifications for the 1999 
fishing year that would remain in effect for the 2000

[[Page 77451]]

fishing year, unless revised through the specification process.) 
Because the 1999 fishing year has passed (the fishing year coincides 
with the calendar year), the initial specifications for the 2000 
fishing year are established at the levels specified in the FMP for the 
1999 fishing year.
    The approved specifications include an ABC of 300,000 mt and an OY 
of 224,000 mt. Because the domestic annual harvest (DAH) is equal to 
the OY, TALFF is specified at zero for the 2000 fishing year. Estimates 
of DAP are based on recent processing estimates and allow for possible 
errors in estimates of the bait market and increased development of 
processing capacity. Since no herring is allocated to USAP for the 2000 
fishing year, at-sea processing by domestic vessels exceeding the 
proposed size limits cannot take place. Table 1 contains the initial 
specifications for the 2000 Atlantic herring fishery which are 
effective January 1, 2000, through December 31, 2000.

    Table 1.--Annual Specifications\1\ (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 FMP establishes three management areas based on the existing 
areas established by the Commission's FMP and the former PMP. However, 
Management Area 1 is divided into inshore (Area 1A) and offshore (Area 
1B) areas. The Council uses the management areas as the basis for 
recommending the distribution of the TAC to different spawning 
components and for the distribution of JVP allocations and may use the 
management areas as the basis for implementation of other management 
measures in the future.

Total Allowable Catch

    The FMP established a target TAC for the 1999 fishing year that 
remains in effect for the 2000 fishing year, unless revised through the 
specification process. Because the 1999 fishing year has passed, the 
FMP establishes the target TAC for the 2000 fishing year at the level 
specified in the FMP for the 1999 fishing year. The TAC will be re-
specified for each fishing year beyond 2000. The TAC for a given year 
is distributed to the management areas based on existing knowledge of 
fishing patterns, herring stock structure, and herring migration. For 
the 2000 fishing year, the percentage allocations for the various areas 
are: Area 1A - 20 percent; Area 1B - 11 percent; Area 2 - 22 percent; 
Area 3 - 22 percent; Area 2 TAC Reserve - 24 percent. (Note: Does not 
total 100 percent due to rounding. See Table 2 for resultant management 
area target TACs.) Each year, the Council's Herring Plan Development 
Team will examine available data and recommend a TAC and its 
distribution to the Council. The Council will then consult with the 
Commission before it recommends a TAC to NMFS. NMFS will review the 
Council's recommendations and set the TAC, publish the proposed TAC in 
the Federal Register for public comment, make a final determination, 
and publish the final TAC and responses to public comments in the 
Federal Register. All harvests of Atlantic herring, from both state and 
Federal waters, will be applied against the TAC.
    The directed fishery for herring will be closed in a management 
area after the date on which 95 percent of the area TAC would be 
caught, as projected by NMFS. Closure of the directed fishery with 5 
percent remaining for an area TAC will allow the incidental harvest of 
herring in other fisheries to continue, while minimizing the likelihood 
the area TAC would be exceeded. This percentage is based on estimates 
of the incidental harvest of herring in other fisheries. If the 
percentage allocated to the incidental harvest overestimates the amount 
caught (incidental harvests after a closure are less than 5 percent), 
the 5-percent remainder for a given area TAC may be reduced by NMFS 
during the annual specification process the following year. If the 
percentage allocated to the incidental harvest underestimates the 
amount caught (incidental harvests after a closure are more than 5 
percent), the remainder for a given area TAC may be increased the 
following year through a framework adjustment. After an area is closed 
to directed fishing, vessels are allowed to possess, transfer, or land 
 2,000 lb (907.2 kg) of herring in or from the closed area. 
Vessels that harvest 2,000 lb (907.2 kg) of herring in an open area are 
allowed to transit the closed area, provided all gear is stowed.
    The industry will be notified of the closure of the directed 
fishery for herring in a management area through notification published 
in the Federal Register and a variety of other methods, including news 
releases, and through state agencies.

Area TACs for Fishing Year 2000

    Table 2 lists the area TACs for the 2000 fishing year.

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

Transfers at Sea

    There are no specific restrictions on transfers of herring at sea, 
unless a management area is closed to directed fishing for Atlantic 
herring (i.e., harvesting more than 2,000 lb (907.2 kg) of Atlantic 
herring per trip) and/or other restrictions in the regulations apply. 
When a management area is closed to directed fishing for Atlantic 
herring, transfers are limited to no more than 2,000 lb (907.2 kg) of 
herring per day, in or from, an area subject to the closure. A vessel 
may not transfer more than 2,000 lb (907.2 kg) of herring taken from a 
closed area, nor transfer or sell any herring taken from a closed area 
to a joint venture vessel.
    U.S. vessels authorized pursuant to the SFA, section 105(e), may 
not transfer herring to Canadian herring carriers that transship U.S.-
caught herring after the amount of herring transshipped equals the 
amount of the BT specification. Canadian herring carriers may not 
receive U.S.-caught herring after the amount transshipped equals the 
amount of the BT specification.

Vessel Size Limits

    Domestic vessels  165 ft (50.3 m) in length overall 
(LOA), or > 750 gross registered tons (GRT)/(680.4 mt), or > 3,000 
horsepower are not permitted to catch, take, or harvest herring in or 
from the EEZ. Domestic vessels > 165 ft (50.3 m) LOA or > 750 GRT 
(680.4 mt) are

[[Page 77452]]

allowed, however, to process or receive herring in the EEZ, but are 
limited to the allocated amount specified pursuant to the specification 
process for USAP, which is zero for the 2000 fishing year.

Roe Fishery

    The harvest of Atlantic herring for roe is allowed, provided the 
carcasses are not discarded. The Council will monitor the development 
of a roe fishery and may, in the future, recommend a limit on the 
amount of herring that may be harvested for roe. Any restrictions or 
limitations on the amount of herring harvested for roe must be 
implemented through the amendment process or the framework adjustment 
process in accordance with 50 CFR 648.206.

Foreign Fishing Vessel Restrictions

    Foreign fishing vessel permitting and reporting requirements are 
established by 50 CFR part 600, subpart F, which include regulations on 
harvesting by foreign fishing vessels and joint ventures and internal 
waters processing and support. The Council may recommend joint ventures 
and TALFF in all management areas, subject to an annual review. The 
Council may choose to determine joint venture specifications and TALFF 
by management area. If joint venture allocations and TALFF are 
specified by area, all herring supplied to the joint venture and/or 
TALFF must come from that management area.

Vessel Monitoring Systems

    The FMP requires the installation and use of a VMS unit on vessels 
in the directed herring fishery that caught > 500 mt in the previous 
year, or vessels whose owner intends to harvest > 500 mt in the current 
year. A VMS helps facilitate the monitoring of area-specific TACs and 
assists with the enforcement of closures of management areas to 
directed fishing for Atlantic herring, as well as facilitating the 
enforcement of closures imposed under regulations implementing other 
FMPs. If a vessel owner does not declare the intention to harvest > 500 
mt at the start of the year, and does not install a VMS unit on the 
vessel, the vessel may not harvest > 500 mt in that fishing year. The 
VMS unit must be installed no later than March 12, 2001 and/or prior to 
the beginning of the subsequent fishing year in order to land > 500 mt 
in that fishing year, unless otherwise specified by the Regional 
Administrator. Because in this application VMS is intended primarily to 
monitor areas fished as opposed to days-at-sea effort, a VMS unit must 
be operating any time an Atlantic herring vessel is underway, but does 
not have to be operating when a vessel is moored or maneuvering in a 
harbor. This minimizes communication costs to vessel operators and 
removes the necessity to provide power to a moored vessel with a VMS 
unit.

Permitting Requirements

    All commercial vessels meeting certain eligibility criteria fishing 
for, possessing, or landing herring in or from the EEZ are required to 
obtain a Federal Atlantic herring permit. Domestic vessels  
165 ft (50.3 m) LOA, or > than 750 GRT (680.4 mt), or > 3,000 
horsepower are not eligible to be issued a permit to harvest or take 
herring. However, domestic vessels > 165 ft (50.3 m) LOA or > 750 GRT 
(680.4 mt), regardless of horsepower, are eligible to obtain a 
processing permit to process or receive herring in the EEZ, limited to 
the amount allocated for USAP pursuant to the specification process. 
Other than this restriction on vessel size, there are no restrictions 
or qualification criteria necessary for a domestic vessel to receive a 
permit. A vessel with a Federal Atlantic herring fishing permit must be 
marked in accordance with 50 CFR 648.8.
    An Atlantic herring carrier vessel is required to obtain, in 
addition to a Federal Atlantic herring permit, a letter of 
authorization from the Regional Administrator that will allow such 
vessel to transport herring caught by another fishing vessel.
    Operators of vessels issued an Atlantic herring fishing or 
processing permit are required to obtain an operator permit. There is 
no qualification or test for this permit. Dealers of Atlantic herring 
are required to obtain a dealer permit and to comply with reporting 
requirements.
    This FMP requires Atlantic herring processors to obtain a 
processing permit and to comply with reporting requirements. Atlantic 
herring processors are defined as persons who receive or obtain 
unprocessed Atlantic herring for the purposes of rendering it suitable 
for human consumption, bait, commercial uses, industrial uses, or long-
term storage. These requirements may result in a person needing both a 
dealer and a processor permit. For example, a person who purchases 
herring directly from a vessel and then sells it as bait will need both 
permits.

Reporting Requirements

    The FMP extends the existing Vessel Trip Report (VTR) system to 
vessels with Atlantic herring permits. This requires the owner/operator 
to submit monthly reports on fishing effort, landings, and discards on 
forms supplied by the Regional Administrator. In addition, in order to 
improve real-time monitoring of the harvest, an Interactive Voice 
Response (IVR) system is required to be used. The FMP uses area-
specific TACs to control fishing mortality. To be effective, harvests 
need to be closely monitored to ensure that the TAC is not exceeded. 
Since only vessel operators can identify where they harvest herring, 
the area-specific TACs cannot be monitored effectively through only the 
dealer reporting system. The VTR system relies on monthly reports on 
paper that are entered into a database. Accurate harvest statistics 
from this system are typically not available until 30 to 45 days after 
fish are landed. Given the high harvest rates in the herring fishery at 
certain times of the year, the delay in obtaining statistics makes it 
difficult to project landings accurately in a timely way. In order to 
improve the timely collection of harvest information, this rule 
requires that an owner/operator of a vessel required to be equipped 
with a VMS unit report its harvest (landings and discards, both of 
which are applied against the TACs), by area, on a weekly basis. These 
reports are called in (using a toll free number) to an IVR system. An 
owner/operator of a vessel with a VMS unit must call in a report for 
each week of the year, even if still at sea, including weeks it does 
not harvest herring. In addition, an owner/operator of any vessel 
issued a permit for Atlantic herring that is not required by 
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 Atlantic 
herring catch report via the IVR system by Tuesday of the following 
week, even if the herring has not yet been landed. This system improves 
the timeliness of information on harvests of herring, which will 
facilitate more accurate predictions about when the TAC will be 
attained.
    Atlantic herring dealers are required to submit weekly dealer 
reports by mail. Although dealers are required to submit a weekly 
report to an IVR system for other Northeast Region quota-managed 
species, Atlantic herring dealers are not required to submit a weekly 
report to an IVR system unless the Regional Administrator determines 
that there is a need for such reports.
    Atlantic herring processors are required to submit annually the 
Fishery Products Report, U.S. Processors, Annual Survey, (NOAA Form 88-
13). This report, which collects information on the uses of herring, 
facilitates the management of the fishery to achieve OY.

[[Page 77453]]

Essential Fish Habitat

    The Council submitted an omnibus essential fish habitat (EFH) 
amendment to address EFH provisions for several FMPs for Northeastern 
fisheries. The omnibus EFH amendment document also included the EFH 
components of the Atlantic Herring FMP, which was then still under 
development by the Council. Although the Atlantic herring EFH 
components were included in the omnibus EFH amendment, they were not 
considered during Secretarial review of the omnibus EFH amendment. The 
EFH information for Atlantic herring was incorporated by reference into 
the FMP when that FMP was submitted for Secretarial approval. The NOA 
for the FMP invited comment on the approvability of the herring EFH 
provisions in the Council's omnibus EFH amendment. Under the framework 
adjustment process for Atlantic herring, measures may be added or 
adjusted to describe, identify, and protect EFH and designate habitat 
areas of particular concern within EFH.

Annual Monitoring and Framework Adjustment Measures

    The FMP will be monitored on an annual basis. The status of the 
resource and the fishery will be reviewed by the Council's Atlantic 
Herring Oversight Committee in consultation with the Commission's 
Atlantic Herring Section. Recommendations on specifications will be 
developed, as well as any suggested changes to the management measures. 
These will be forwarded by the Herring Oversight Committee to the 
Council, which will take appropriate action. Specifications will be 
recommended to NMFS, and changes to management measures may be adopted 
through a framework adjustment or FMP amendment, as appropriate. This 
process will begin by July of each year so that changes can be 
implemented by January 1 of the following fishing year. The Commission 
is expected to implement any corresponding changes in state waters.
    The framework adjustment process adopted in the FMP is identical to 
that used in other Northeast Region fisheries. This process allows 
changes to be made to the regulations in a timely manner, without going 
through the plan amendment process, as appropriate. It provides a 
formal opportunity for public comment that substitutes for the 
customary public comment period provided by publishing a proposed rule. 
If changes to the management measures were contemplated in the FMP and 
if sufficient opportunity for public comment on the framework action 
exists, NMFS may bypass the proposed rule stage and publish a final 
rule in the Federal Register. The management measures that may be 
implemented and adjusted through the framework process include: (1) 
Management area boundaries; (2) size, timing, or location of spawning 
area closures; (3) closed areas other than spawning closures; (4) 
restrictions in the amount of fishing time; (5) a days-at-sea effort 
control system; (6) adjustments to specifications; (7) adjustments to 
the Canadian catch deducted when determining specifications; (8) 
distribution of the TAC; (9) gear restrictions (such as mesh size) or 
requirements (such as bycatch-reduction devices); (10) vessel size or 
horsepower restrictions; (11) closed seasons; (12) minimum fish size; 
(13) trip limits; (14) seasonal, area, or industry sector quotas; (15) 
measures to describe EFH, fishing gear management measures to protect 
EFH, and designation of habitat areas of particular concern within EFH; 
(16) measures to facilitate aquaculture, such as minimum fish sizes, 
gear restrictions, minimum mesh sizes, possession limits, tagging 
requirements, monitoring requirements, reporting requirements, permit 
restrictions, area closures, establishment of special management areas 
or zones, and any other measures included in the FMP; (17) changes to 
the overfishing definition; (18) vessel monitoring system requirements; 
(19) limits or restrictions on the harvest of herring for specific 
uses; (20) quota monitoring tools, such as vessel, operator, or dealer 
reporting requirements; (21) permit and vessel upgrading restrictions; 
(22) implementation of measures to reduce gear conflicts, such as 
mandatory monitoring of a radio channel by fishing vessels, gear 
location reporting by fixed gear fishermen, mandatory plotting of gear 
by mobile fishermen, standards of operation when conflict occurs, fixed 
gear marking or setting practices; gear restrictions for certain areas, 
vessel monitoring systems, restrictions on the maximum number of 
fishing vessels, and special permitting conditions; (23) limited entry 
or controlled access system; (24) specification of the amount of 
herring to be used for roe; and (25) any other measure currently 
included in the FMP.

Clarification of Initial ``Fishing-up'' Period

    The Council, in its discussion of specifications for the Herring 
FMP, referred to an initial ``fishing-up'' period in which OY would not 
exceed MSY. A complete discussion is contained in section 3.2 of Volume 
I of the FMP. NMFS interprets the initial ``fishing-up'' period to mean 
the 2000 fishing year.

Preliminary Management Plan for the Atlantic Herring Fishery of the 
Northwestern Atlantic

    On July 24, 1995 (60 FR 37848), NMFS announced approval of the PMP 
to regulate foreign joint venture activities for Atlantic herring in 
the EEZ. The PMP, which set the initial specification for Atlantic 
herring, provided joint venture opportunities in the EEZ by allocating 
a portion of the allowable biological catch for joint venture 
processing. The PMP also established permit conditions and restrictions 
for foreign vessels that participate in joint ventures. Because the FMP 
addresses issues related to Atlantic herring foreign joint venture 
activities, NMFS withdraws approval of the PMP and removes existing 
regulations related to Atlantic herring (50 CFR 600.525) effective 
January 10, 2001.

Comments and Responses

    Twelve sets of written comments on the FMP were received during the 
comment period date established by the NOA, which ended September 27, 
1999. Those comments were considered by NMFS before it partially 
approved the FMP on October 27, 1999, and, while not specifically 
repeated here, those comments are characterized below.
    NMFS also received 14 sets of written comments on the proposed 
rule, some of which included comments on the FMP, during the comment 
period specified in the proposed rule, which ended on April 21, 2000. 
Because the comment period for the proposed rule was distinct from, and 
followed, the comment period for the FMP, comments received during the 
proposed rule comment period were not considered in NMFS' determination 
to approve the FMP. However, the comments addressing the proposed rule 
itself were considered in approval and implementation of the final rule 
effecting the FMP and its management measures and are responded to 
here. Those comments specifically addressing the FMP submitted after 
September 27, 1999, are not responded to here, since the comment period 
on the FMP had closed prior to their submission.
    Comment 1: A commenter expressed concern that the FMP prohibits 
TALFF even though the FMP acknowledges Atlantic herring is not fully 
harvested by the available domestic harvesting capacity. The commenter 
further stated that the provision on TALFF, as currently written, is 
not consistent with section 303(a)(4)(B) of the Magnuson-

[[Page 77454]]

Stevens Act and that the FMP should be revised to provide for an annual 
specification of TALFF even if, in any given year, it is determined 
that the amount should be zero.
    Response: NMFS concurs and disapproved the prohibition on TALFF. 
Section 303(a)(4)(B) of the Magnuson-Stevens Act provides that any 
fishery management plan that is prepared by any Council, or by the 
Secretary, with respect to any fishery, shall assess and specify the 
portion of OY which, on an annual basis, will not be harvested by fis 
hing vessels of the United States and can be made available for foreign 
fishing.
    Comment 2: A commenter reiterated EFH issues raised previously 
pertaining to the Northeast Omnibus EFH Amendment. The commenter also 
provided extensive comments on technical aspects of the Omnibus 
Amendment's discussion of potential impacts to EFH from oil, gas, and 
mineral extraction, and the recommended conservation and enhancement 
measures dealing with these activities.
    Response: The Northeast Omnibus EFH Amendment included the EFH 
components of the Atlantic Herring FMP, which was then still under 
development by the Council. When NMFS announced approval of the EFH 
amendments to several fishery management plans (64 FR 19503, April 21, 
1999) it stated that the EFH information for Atlantic herring would be 
incorporated by reference into the Atlantic Herring FMP when that FMP 
was submitted for Secretarial approval. NMFS responded to the 
commenter's comments submitted on the Northeast Omnibus EFH Amendment 
at that time.
    Comment 3: A commenter expressed concern about the level of effort 
in Management Area 1A and disagreed with NMFS' concerns about the 
following: Discrepancies in vessel size between the Atlantic mackerel 
and Atlantic herring fisheries (which the commenter asked to have 
clarified); the lack of a real-time mechanism to monitor Canadian catch 
(tied to the adjustment of the TAC for Management Area 1A); and the 
lack of sufficient benefits from adjusting the TAC in Management Area 
1A after October 1 because the fishing year ends December 31. The 
commenter also stated that a real-time monitoring system for the 
Canadian fishery does exist; that adjusting the TAC after October 1 
could have substantial benefits to the eastern Maine fixed gear 
fishery; that date-certain spawning closures are problematic and do not 
protect spawning herring; that the overall strategy for protection of 
spawning herring is inconsistent between Federal and state waters; and 
that NMFS and the Council need to address the impacts of other 
fisheries on spawning herring, whereby vessels from other fisheries are 
not constrained from fishing in the spawning closures.
    Response: Regarding the commenter's concern about the level of 
effort in Management Area 1A, the management measures are intended to 
reduce herring landings from this area. The FMP effects TACs, assigned 
by management areas, to help prevent overfishing of the resource, and 
Management Area 1A in particular.
    NMFS approved the vessel size restrictions. Regarding the 
commenter's request to clarify differences in domestic vessel size 
restrictions between the Atlantic herring and Atlantic mackerel 
fisheries, the FMP states that domestic vessels  165 ft 
(50.3 m) in length, or > 750 GRT, or > 3,000 horsepower are not 
permitted to catch, take, or harvest herring in or from the EEZ. 
Amendment 8 to the Atlantic Mackerel, Squid and Butterfish Fishery 
Management Plan, however, provides that domestic vessels > 165 ft (50.3 
m) in length and 750 GRT, or > 3,000 horsepower are not permitted to 
catch, take, or harvest mackerel in or from the EEZ.
    Further, regarding vessel restrictions for processing, the FMP 
states that domestic vessels > 165 ft (50.3 m) in length, or > 750 GRT, 
are allowed to process or receive herring in the EEZ, but are limited 
to the allocated amount specified pursuant to the specification process 
for USAP. Amendment 8 to the Atlantic Mackerel, Squid and Butterfish 
Fishery Management Plan, however, provides no size restrictions for 
processing vessels.
    The differences between the mackerel and herring size 
specifications do not result in any practical differential impact on 
vessels currently subject to these specifications. Nevertheless, NMFS 
will continue to work with the New England and Mid-Atlantic Councils 
(Councils) and the Commission to resolve these minor inconsistencies in 
order to facilitate FMP administration.
    Regarding NMFS' concern that there is no real-time mechanism to 
monitor Canadian catch, even if Canadian data could be obtained, there 
is no way to ensure that it would be provided in future years. 
Therefore, NMFS disapproved adjustment of the TAC for Management Area 
1A if the NB, Canada, fixed gear fishery would not harvest 20,000 mt of 
Atlantic herring by 
October 1.
    NMFS disapproved the spawning closures measure.
    Comment 4: The Commission commented in support of the FMP's full 
implementation and acknowledged its close coordination with the Council 
during the development of the FMP.
    Response: The Commission coordinated development of its Amendment 1 
to its Interstate Fishery Management Plan for Atlantic Sea Herring 
simultaneously with the Council's development of the FMP. In its 
attempt to maintain consistency with the Federal FMP, the Commission 
adopted the Council's proposed measures, where feasible, in its own 
plan, which was effective in February 1999. Disapproval by NMFS of 
several measures of concern in the Federal FMP has resulted in 
inconsistencies between the Commission and Federal plans. NMFS is 
working with the Commission and Councils to resolve any inconsistencies 
as they cooperatively develop future management measures.
    Comment 5: A commenter stated that the FMP fails to prevent 
overfishing, minimize bycatch, and protect EFH. With regard to EFH, the 
commenter said that the Omnibus EFH Amendment incorrectly concluded 
that mid-water trawls have minimal effects on EFH; the Omnibus 
Amendment and the FMP failed to minimize fishing gear impacts on EFH; 
and the FMP fails to protect herring egg beds throughout the range of 
the stock. The commenter also stated that the Environmental Impact 
Statement for the FMP fails to discuss adequately the direct, indirect 
and cumulative environmental impacts of the proposed action; and that 
NMFS failed to undertake an Endangered Species Act (ESA) Section 7 
formal consultation to determine the proposed action's potential to 
jeopardize threatened or endangered species.
    Response: The Northeast Fisheries Science Center (NEFSC) reviewed 
the overfishing definition for Atlantic herring for compliance with 
guidelines provided in 50 CFR part 600, including consideration of 
whether the overfishing definition has sufficient scientific merit, is 
likely to result in effective action to protect the stock from closely 
approaching or reaching an overfished status, provides a basis for the 
objective measurement of the status of the stock against the 
overfishing definition, and is operationally feasible. Based on its 
review, the NEFSC certified that the overfishing definition complies 
with 50 CFR part 600 guidelines. The NEFSC further stated that the 
current estimates of biological reference points for this stock complex 
are based on the best available scientific information but

[[Page 77455]]

added that the Herring Plan Development Team (PDT), Stock Assessment 
Review Committee (SARC)-Pelagic Working Group, and the Commission's 
Herring Section recognize that further work and analyses are necessary 
for the stock complex and its components, and revisions will probably 
be required. These committees will continue to work on improving 
estimates of Bmsy, Fmsy (the fishing mortality rate consistent with the 
production of MSY), and MSY for Atlantic herring and may recommend 
changes in the future. The NEFSC will continue to monitor abundance, 
recruitment, fishing mortality and other information for the Atlantic 
herring stock complex and fishery and will recommend adjustments, if 
and when necessary.
    The information available on the extent of bycatch in the herring 
fishery is summarized in sec. E.6.4.2.6. of the FMP and is further 
addressed throughout the FMP. This information, while not 
representative of the entire fishery in all areas and seasons, 
indicates that the traditional purse seine and mid-water trawl herring 
fisheries are relatively ``clean'' fisheries, with limited bycatch of 
other species.
    There is some concern over possible marine mammal interactions with 
the herring mid-water trawl fishery, based on experience with other 
mid-water trawl fisheries. For this reason, NOAA listed the herring 
mid-water trawl fishery as a Category II fishery (defined at Sec. 229.2 
(60 FR 45086, August 30, 1995)). This will facilitate the use of marine 
mammal observers to determine the extent of any interactions. Further, 
restrictions on the size of vessels in the herring fishery may reduce 
the likelihood of bycatch of marine mammals. Large pelagic trawlers in 
the mackerel fishery are known to have taken marine mammals. The 
prohibition on the catching of herring by large domestic vessels may 
prevent a possible recurrence of this problem.
    Management of the Atlantic herring fishery relies on accurate 
estimates of catches, catch rates, and bycatch. The FMP contains a 
measure that provides NMFS (and, cooperatively, the states) with the 
ability to place observers on board vessels to collect this information 
if necessary.
    With regard to EFH issues, NMFS disagrees that the omnibus 
amendment incorrectly concluded that mid-water trawls have minimal 
effects on EFH. The 1998 Auster and Langton report referenced in the 
Omnibus Amendment provided a literature review of all available 
scientific information pertaining to gear impacts on habitat. No 
reference was made to mid-water trawl gear. Pursuant to 50 CFR 648.2, a 
mid-water trawl is defined as trawl gear designed to fish for, or that 
is capable of fishing for, or that is being used to fish for pelagic 
species, no portion of which is designed to be or is operated in 
contact with the bottom at any time. Based upon this definition and the 
lack of information documenting adverse impacts to bottom habitat from 
mid-water trawls, the Council correctly concluded that mid-water trawls 
do not significantly impact the sea floor or other EFH.
    The Councils approached the evaluation of impacts from fishing 
gears methodically. They identified the major gears used in the region 
based on landings, described the major gears, identified that otter 
trawls and scallop dredges were the most likely to have adverse impacts 
on habitat, appended a summary of the literature on fishing gear 
impacts to habitat, and described other impacts from fishing activities 
such as the impacts of fishing-related marine debris and lost gear, 
impacts of aquaculture, and impacts of at-sea fish processing. The 
Councils also evaluated fisheries management measures currently in 
place and assessed their impact on EFH. Finally, the Councils 
identified a number of areas that require further research in order to 
provide a better basis for determining fishing gear impacts, such as 
the spatial distribution and extent of fishing effort for gear types; 
the effects of specific gear types along a gradient of effort on 
specific habitat types; and recovery rates of various habitat types 
following fishing activity. Although the commenter may disagree with 
the manner in which the information was presented, NMFS concludes that 
the Councils satisfied the requirements of the Magnuson-Stevens Act and 
the EFH requirements (50 CFR 600.815(a)(3)) regarding the assessment of 
fishing gear impacts.
    The Council can use the framework adjustment process to address 
future identified impacts to herring EFH. Based upon management 
measures in place in other fishery management plans, as well as those 
within the Herring FMP as explained in the Northeast Omnibus Amendment, 
the Council has satisfied its requirement under 50 CFR 
600.815(a)(3)(iii) to minimize, to the extent practicable, adverse 
effects on EFH.
    Environmental impacts of this action are discussed in section E.7.0 
of the FMP. The action is not expected to have a negative impact on the 
biological components of the herring fishery and is expected to have a 
net positive impact on the economic and social components of the 
herring fishery. Spawning stock biomass is projected to continue to 
increase at the same time that landings of herring could double. In the 
long-term, the establishment of TACs and effort controls are expected 
to result in a sustainable herring fishery. The social impacts of the 
action are not expected to be large in scale, long-term, or far-
reaching. Fishermen in the Gulf of Maine (GOM) may be the most 
affected, primarily by forcing a redistribution of fishing effort from 
the inshore area. Some fishermen in other fisheries will have the 
opportunity to enter the herring fishery, which may alleviate problems 
caused by increasing restrictions in those fisheries.
    NMFS completed a biological opinion (BO), pursuant to section 7 of 
the ESA, on the FMP on September 17, 1999. The BO concluded that while 
competition with the herring fishery may affect the availability of 
sufficient prey for endangered whales, the complexity of ecosystem 
interactions and the logistical difficulties of conducting necessary 
sampling have hindered conclusive demonstration of the existence of 
competition. This opinion further concluded that the proposed Federal 
herring fishery is not likely to jeopardize the continued existence of 
threatened or endangered species or designated critical habitat. The BO 
also includes an Incidental Take Statement that provides the fishery 
with an exemption from the take prohibitions established in section 9 
of the ESA.
    Comment 6: A commenter expressed concern that a serious decline in 
the herring stock in the GOM is due to mid-water trawling and suggested 
closing areas in the GOM to mid-water gear.
    Response: While NMFS acknowledges some concern for the inshore 
portion of the stock in the GOM, the stocks offshore are robust. There 
is no credible evidence that any decline in the herring stock in the 
inshore GOM is due to any particular type of gear. The FMP limits TACs 
in each of the established herring management areas. Attainment of the 
TAC, therefore, would close a management area to directed herring 
fishing by any gear type. The measures do not, however, include the 
establishment of closed areas to address fishing mortality or other 
concerns.
    Comment 7: A commenter supported the FMP as submitted, with the 
following exceptions: That the spawning area closures scheme is 
seriously flawed and should be rejected; JVP should be disapproved; and 
the word ``shoreside'' should be added to one of the FMP objectives, to 
read, ``To maximize domestic shoreside use and

[[Page 77456]]

encourage value-added product utilization.''
    In requesting that the Secretary reject spawning area closures, the 
commenter stated that the date-certain approach proposed in the FMP 
will eliminate fishing opportunities. The commenter added that it will 
also be unsuccessful in reducing spawning fish mortality if herring are 
not spawning during the dates that the areas are closed. The commenter 
further added that spawning closures should also apply to mobile, 
bottom-tending vessels in addition to purse seiners and mid-water 
trawlers. The commenter also opposed the 2,000-lb (907.2-kg) incidental 
catch allowance.
    In requesting disapproval of JVP, the commenter argued that the FMP 
seriously underestimates the amount of DAP that exists to freeze, or 
otherwise process, herring. The commenter also raised the equity issue 
that a zero allocation for JVP would be consistent with the zero 
allocation for USAP.
    The commenter requested that the word ``shoreside'' be added to one 
of the FMP objectives because the word was removed by the Council in 
finalizing this objective after 2 years of having been included in that 
objective. The commenter stated that, by eliminating this word, the 
Region's shoreside processors become less competitive globally than 
large offshore processing vessels would be, which the commenter found 
contrary to national standard 8.
    The commenter also included suggestions for EFH, which it submitted 
to the Council on July 27, 1998, and other suggestions for improving 
management of the fishery.
    Response: NMFS disapproved the spawning closures.
    Regarding the request for disapproval of JVP, the amount expected 
to be used by DAP was estimated and subtracted from the DAH, along with 
herring transported to Canada (BT). The FMP provides that, if there is 
any DAH remaining, it may be made available for JVP. Such was the case. 
Regarding the comment that since USAP is zero, JVP should be zero, the 
Council addressed this issue by voting at its July 1999 meeting to 
increase USAP to 20,000 mt for the 2000 fishing year and to establish 
the same amount for JVPt. The Council's request and attendant analysis 
are under NMFS review.
    In response to the commenter's request that the word ``shoreside'' 
should be added to one of the FMP objectives the Council, after public 
discussion, chose not to take the position that either shoreside 
processors or existing small freezer trawlers were more desirable than 
the other and decided to forward the FMP without the word ``shoreside'' 
in that objective. NMFS disagrees that the objective, as approved, 
violates national standard 8.
    The commenter's suggestions for EFH and improving management of the 
fishery are acknowledged and were previously responded to in 
association with approval of the Northeast Omnibus EFH Amendment.
    Comment 8: A commenter stated that USAP should be at least equal to 
JVP; the Mid-Atlantic Council should align large vessel size in the 
mackerel fishery with the New England Council's herring vessel size; 
the days out of the fishery scheme is too burdensome to be effective; 
and a roe fishery should not be allowed because while searching for 
herring with the proper roe content, large amounts of herring are 
discarded. The commenter added that allowing roe fishing is 
shortsighted because once established, the economic pressure of such a 
lucrative fishery would make curtailing it politically impossible.
    Response: As to USAP being equal to JVP, see response to comment 7.
    With regard to aligning large vessel size in the mackerel fishery 
with the vessel size established by this FMP, as stated previously, the 
Atlantic Herring and Atlantic Mackerel fishery management plans are 
separate from each other (neither adversely affecting the other). Their 
differences do not hinder either plan from meeting its respective 
objectives and there are no practical differential impacts on vessels 
currently subject to the size specifications. Nevertheless, NMFS will 
continue to work with the Councils and the Commission to resolve these 
inconsistencies in order to facilitate FMP administration as they 
continue to develop future management measures.
    NMFS disapproved the proposed days-out-of-the-fishery provision.
    After exploring alternatives for allowing a roe fishery, the 
Council chose to allow this activity and to monitor its development. 
This allows the cautious development of a fishery that takes advantage 
of the high value of herring roe, while at the same time protecting the 
resource. Furthermore, the possession of herring roe is only authorized 
if carcasses are retained. Should the amount of herring harvested for 
roe become a concern, the Council may initiate a framework adjustment 
action to implement additional management measures to limit the harvest 
of herring for roe.
    Comment 9: A commenter raised the need for an ecosystem-wide, 
integrated approach to population assessments.
    Response: NMFS acknowledges that ecosystem approaches to fishery 
assessment and management are desirable and is working on such 
approaches that may prove useful in the future. However, the current 
population assessment is consistent with the best available scientific 
information and scientific practices, is consistent with requirements 
of applicable law, and is adequate to manage the herring fishery 
effectively.
    Comment 10: A commenter argued for a prohibition on bottom trawls 
during the spawning season and added that fixed-date spawning closures 
will not be effective.
    Response: NMFS disapproved the spawning closures measure.
    Comment 11: A commenter disagreed with the size restrictions on 
domestic vessels and the establishment of an ``at-sea processing'' 
sector, which could discriminate against large vessels. The commenter 
argued that the size restriction was included in the FMP with the 
intent of eliminating an existing freezer trawler. The commenter argued 
further that there is no analysis on ``the effect or consequence of 
including or excluding vessels based on their length, tonnage, or 
horsepower either individually, all three, or a combination of any two 
of the specifications''. The commenter concluded that the vessel size 
limits adversely affect the ability of those who would develop and 
supply the export markets for whole round frozen-at-sea herring.
    Response: The Council did not intend to exclude any current 
participants in the herring fishery, but only to restrict the size of 
vessels. The Council reasoned that restricting the size of vessels 
entering the open access fishery would slow the increase in harvest 
rates. It stated that this is consistent with the 1998 SARC 
recommendation that the herring harvest be increased in an incremental 
manner until the precision of stock estimates can be improved. In 
actual effect, this measure allocates the herring resource to existing 
participants and future participants that comply with the size 
restrictions. For the vessels identified as having caught herring in 
1997, the maximum length was 126 ft (38.4 m), the maximum horsepower 
was 2,100, and the maximum GRT was 246. While there are mid-water trawl 
vessels that exceed these criteria and may desire to participate in the 
fishery in the future, there were no vessels actively participating in 
the herring fishery during development of this FMP that exceeded the 
size limits specified in the FMP.
    The FMP provides that vessels over the size limits for harvesting 
herring may participate in the fishery by

[[Page 77457]]

processing at sea. The annual specification process, in this case, 
USAP, which is set at zero initially, is intended to provide a 
mechanism for the Council to control, if necessary, the development of 
large vessel at-sea processing capability for the herring fishery. 
While the question of excess capacity is not solely one of vessel size, 
given the existence of available capacity in the Northeast Region and 
recent attempts to reduce overall capacity in other U.S. fisheries, the 
Council chose not to allow large domestic vessels in the fishery until 
it is certain that the capacity they represent can be accommodated.
    The Council set the initial specification for USAP at zero. 
However, it voted at its July 1999 meeting to request an increase in 
USAP to 20,000 mt for the 2000 fishing year. The Council request and 
analysis are currently under NMFS review.
    Comment 12: A commenter considered the FMP to be overly broad and 
exceeding the intent of Congress. The commenter specifically cited the 
breadth of EFH designation, noting that EFH appeared to be designated 
over the range of the species, and in estuarine and coastal waters of 
the states.
    Response: These concerns were addressed in the Northeast Omnibus 
EFH Amendment, which is incorporated into this action, and summarized 
here. The Magnuson-Stevens Act defines EFH as those waters and 
substrate necessary to fish for spawning, breeding, feeding, or growth 
to maturity. Therefore, the geographic scope of EFH must be 
sufficiently broad to encompass the biological requirements of the 
species. The information that the Councils used for EFH designation was 
primarily species distribution and relative abundance data, which is 
``level 2'' information under the EFH regulations (50 CFR 600.815). 
Since the information available was not more specific (e.g., did not 
show species production by habitat type), the approach prescribed by 
the regulations led to fairly broad EFH designations. The EFH 
regulations at 50 CFR 600.10 interpret the statutory definition of EFH 
to include aquatic areas that are used by fish, including historically 
used areas, where appropriate, to support a sustainable fishery and the 
managed species' contribution to a healthy ecosystem, provided that 
restoration is technologically and economically feasible. The Councils' 
EFH designation is consistent with these requirements.
    Comment 13: A commenter stated that the conservation and 
enhancement recommendations for non-fishing impacts to EFH that are 
provided in the omnibus EFH amendments are neither based on the best 
available science, nor sufficiently supported. The commenter contended 
that the recommended measures do not take into consideration current 
practices, and are likely to be in conflict with measures being pursued 
under other regulatory programs. The commenter also stated that the 
Magnuson-Stevens Act did not empower the Councils to address non-
fishing activities.
    Response: NMFS disagrees. The information presented in the omnibus 
EFH amendments is well researched and is substantiated by the best 
available scientific information. The commenter did not provide 
examples of specific information not considered by the Councils.
    Conservation and enhancement recommendations for non-fishing 
industries were included to satisfy the requirements of section 
303(a)(7) of the Magnuson-Stevens Act to ``identify other actions to 
encourage the conservation and enhancement of [EFH].'' This information 
is provided to assist non-fishing industries in avoiding impacts to 
EFH. The recommendations are neither posed as, nor meant to be, binding 
in nature. It is up to the discretion of the non-fishing industries and 
relevant regulatory agencies whether these recommendations are 
implemented.
    Additionally, under section 305(b) of the Magnuson-Stevens Act, 
NMFS is required, and the Councils are authorized, to make conservation 
recommendations to any Federal or state agency regarding any activity 
that would adversely affect EFH. Moreover, Federal agencies are 
required to respond to these recommendations in writing.
    Comment 14: A commenter stated that the amendment contains no 
meaningful threshold of significance or likelihood of adverse effect on 
habitat for non-fishing impacts. The commenter suggested that the 
consultation and conservation recommendation provisions of the 
Magnuson-Stevens Act will be burdensome and unworkable. The commenter 
also contended that the consultation procedures will be redundant with 
requirements of the National Environmental Policy Act (NEPA), costly, 
and time-consuming.
    Response: The Magnuson-Stevens Act requires Federal action agencies 
to consult with NMFS on activities that may adversely affect EFH. 
Adverse effects, as defined at 50 CFR 600.810(a), means any impact that 
reduces the quality and/or quantity of EFH. Adverse effects may 
include, for example, direct effects through contamination or physical 
disruption, indirect effects such as loss of prey or reduction in 
species fecundity, and site-specific or habitat-wide impacts, including 
individual, cumulative, or synergistic consequences of actions. Only 
actions that have a reasonably foreseeable adverse effect require 
consultation.
    Consultations are not likely to be redundant or inefficient. The 
EFH regulations provide for streamlined consultation procedures, such 
as general concurrences and abbreviated consultations, that may be used 
when the activities at issue do not have the potential to cause 
substantial adverse effects on EFH. The EFH consultation requirements 
will be consolidated with other existing consultation and environmental 
review procedures wherever appropriate. This approach will ensure that 
EFH consultations do not duplicate other environmental reviews, yet 
still fulfill the statutory requirement for Federal actions to consider 
potential effects on EFH.
    Comment 15: A commenter stated that the Omnibus EFH Amendment 
generally failed to address the potential for significant adverse 
impacts of this amendment on non-fishing entities, specifically citing 
the requirements of NEPA and the Regulatory Flexibility Act (RFA).
    Response: The conservation and enhancement recommendations outlined 
in the Omnibus EFH Amendment include a review of suggested measures for 
municipal, state, and Federal agencies and other organizations for the 
conservation and enhancement of EFH. As stated earlier, these 
recommendations are non-binding. Any regulatory action that may reflect 
these recommendations will be subject to the analysis and public review 
required by state or Federal law, which will be the appropriate vehicle 
for consideration of impacts to both fishing and non-fishing entities.
    In the environmental assessment (EA) included with the Omnibus EFH 
Amendment, the Council found, and NMFS concurs, that there will be no 
significant impacts on the human environment as a result of this 
amendment. The EFH regulations and NOAA policy require that NMFS 
coordinate EFH consultations with other consultation and commenting 
requirements under environmental review procedures currently in place. 
This will eliminate duplication and ensure a workable review process. 
The analytical requirements of the RFA apply only to regulatory actions 
for which a general notice of proposed rulemaking (i.e., notice-and- 
comment rulemaking) is required under the Administrative Procedure Act 
(APA) or

[[Page 77458]]

another statute. The requirements of the RFA did not apply to the 
approval of the EFH portions of the FMP, since a general notice of 
proposed rulemaking was not required. Nothing related to EFH of 
Atlantic herring was codified in regulatory text in 50 CFR part 600, 
because no regulatory measures related to EFH were proposed in the FMP.
    Comment 16: A commenter charged that the EFH provisions of the FMP 
do not comply with Magnuson-Stevens Act national standards 2 (best 
available scientific information), and 7 (unnecessary duplication).
    Response: As a part of the Council's Omnibus EFH Amendment, the 
Atlantic herring section was intended to address only habitat issues, 
including the EFH requirements of the Magnuson-Stevens Act.
    The Omnibus EFH Amendment was developed with significant input from 
scientists of the NEFSC and is based upon the best scientific 
information available. In the strategic plan portion of the amendment, 
the Councils clearly stated their commitment to updating the amendment 
as new information becomes available. NMFS finds the amendment 
consistent with national standard 2.
    The commenter did not elaborate upon the assertion that the 
amendment violates national standard 7, so NMFS assumes, for the 
purpose of responding to this comment, that the commenter believes that 
the EFH consultation process is duplicative of other federally required 
consultation processes. NMFS has determined that the EFH amendment is 
consistent with the Magnuson-Stevens Act, including national standard 
7. Inter-agency consultations on Federal activities that may adversely 
affect EFH are required by the Magnuson-Stevens Act; they are not 
optional. Section 305(b)(2) of the Magnuson-Stevens Act states: ``Each 
Federal agency shall consult with the Secretary with respect to any 
action authorized, funded, or undertaken, or proposed to be authorized, 
funded, or undertaken, by such agency that may adversely affect any 
essential fish habitat identified under this Act.''
    Existing Federal statutes such as the Fish and Wildlife 
Coordination Act, the Endangered Species Act (ESA), and NEPA already 
require consultation or coordination between NMFS and other Federal 
agencies. As explained earlier, EFH consultations will be conducted to 
the greatest extent possible under existing review processes and within 
existing process time frames. NMFS is committed to a consultation 
process that will be effective, efficient, and to the extent possible 
non-duplicative. The EFH regulations at 50 CFR 600.920 suggest that 
NMFS be consulted as early as possible in project planning so that 
appropriate conservation measures can minimize the potential for 
adverse effects to EFH. The amendment contains conservation 
recommendations that are appropriate for many Federal actions, and they 
can also serve as guidelines that should be considered during project 
planning.
    Comment 17: A commenter expressed concern regarding the application 
of a framework adjustment process to EFH. The commenter was concerned 
that the framework process would allow changes to these measures to be 
published as a final rule without first publishing them as a proposed 
rule. The commenter stated that non-fishing interests lack 
representation at Council meetings and, therefore, will not have an 
opportunity to comment on actions regarding EFH. The commenter asserted 
that the framework adjustment process will foster inconsistencies in 
treatment among the different NMFS Regions and the Fishery Management 
Councils, thereby complicating the EFH consultation process. The 
commenter requested that the inclusion of these measures be delayed 
until revision of NMFS EFH interim final regulations and guidelines.
    Response: The framework adjustment process requires the Councils, 
when making specifically allowed adjustments to the FMP, to develop and 
analyze the actions over the span of at least two Council meetings. The 
Councils must provide the public with advance notice of the meetings 
through publication of the meeting agenda in the Federal Register, the 
proposals and the analysis, and provide an opportunity to comment on 
the proposals prior to, and at, the second Council meeting. Upon review 
of the analysis and public comment, the Council may recommend to NMFS 
that the measures be published as a final rule, if certain conditions 
are met. NMFS may either publish the measures as a final rule, or as a 
proposed rule if NMFS or the Council determines that additional public 
comment is needed. NMFS believes that there is enough flexibility in 
the framework system to ensure that the affected parties will be able 
to participate. NMFS also believes that there is little likelihood of 
significant inconsistencies occurring between regions, since all 
measures are reviewed by NMFS Headquarters.
    The list of measures that can be implemented by framework included 
in the FMP is inclusive to give the Councils maximum flexibility to 
respond quickly to fishery information as it becomes available and to 
adjust the regulations accordingly. As such, modifications to EFH and 
Habitat Areas of Particular Concern (HAPC) can be implemented in an 
expedited manner if circumstances warrant, based upon Council and NMFS 
approval. The framework adjustment process requires adherence to all 
applicable law.
    Comment 18: A commenter recommended that the Area 1A TAC be 
adjusted upward, not to exceed 60,000 mt, with the condition that the 
combined TAC for Area 1A and 1B not exceed 70,000 mt. Other commenters 
asked for an upward adjustment to 55,000 mt or that Areas 1A and 1B be 
combined for a single quota of 70,000 mt.
    Response: Since NMFS may only approve or disapprove an FMP measure, 
it was constrained to accept the 45,000 mt TAC for Area 1A. However, 
the Council voted at its May 3-4, 2000, meeting to request an inseason 
transfer of 15,000 mt of TAC from Area 1B (offshore) to Area 1A 
(inshore). The Council's request would increase the Area 1A quota to 
60,000 mt and reduce the quota in Area 1B to 10,000 mt. The Council's 
request is currently under review.
    Comment 19: A commenter stated that language should be clarified to 
allow landing of herring caught in any open area in an area that has 
been closed to directed fishing due to attainment of that area's TAC.
    Response: The Council did not intend to disallow landing of herring 
caught in open areas in areas closed to directed fishing. Regulatory 
language has been clarified to allow landing of any amount of herring 
in areas where possession is restricted to 2,000 lb (907.2 kg) of 
Atlantic herring due to attainment of 95 percent of that area's TAC, 
provided such herring was caught lawfully in an open area and all gear 
is stowed and is not available for immediate use.
    Comment 20: A commenter stated that the regulations prohibit 
transferring fish in or from closed areas, but that IWPs and USAPs in 
state waters are allowed to do so.
    Response: The FMP allows vessels to transfer up to 2,000 lb (907.2 
kg) of herring per day to other U.S. vessels in or from closed areas in 
Federal waters.
    Comment 21: A commenter stated that the requirement that lobster 
and tuna fishermen who occasionally purchase bait at sea obtain permits 
is unnecessarily burdensome.
    Response: Section 648.4(a)(10)(i)(A)(1) exempts a vessel that 
possesses herring solely for its own use as bait, providing the vessel 
does not have purse seine, mid-water trawl,

[[Page 77459]]

pelagic gillnet, sink gillnet, or bottom trawl gear on board, from the 
requirement to obtain an Atlantic herring permit. Also exempted under 
Sec. 648.4(a)(10)(i)(2) is a skiff or other similar craft used 
exclusively to deploy the net in a purse seine operation during the 
fishing trip of a vessel that is duly permitted under part 648.
    Comment 22: A commenter stated that defining a shore-based pump 
operator as a herring dealer will add confusion to dealer reporting 
requirements and will decrease report quality.
    Response: NMFS agrees and has removed shore-based pump operators 
from the herring dealer definition.
    Comment 23: A commenter stated that the definition for the VMS 
currently limits fishers to one approved system and that the regulation 
should provide a choice of VMS systems. Another commenter, who proposed 
its own VMS system as a low cost alternative to the existing NMFS-
approved system, suggested that the unnecessarily high cost of the one 
approved VMS is inconsistent with national standard 8.
    Response: To ensure efficient and expeditious implementation of the 
VMS requirement in the herring fishery, the Regional Administrator has 
determined that such requirements, at this time, should be consistent 
with existing VMS requirements in other fisheries, such as the Atlantic 
scallop fishery. The definition does not limit the fishery to one 
approved system. The opportunity exists for any vendor to apply to the 
Regional Administrator for approval of the vendor's VMS system. NMFS 
will annually approve VMS systems that meet the minimum performance 
criteria specified in Sec.  648.9(b). Any changes to the performance 
criteria will be published annually in the Federal Register and a list 
of approved VMS systems will be published in the Federal Register upon 
addition or deletion of a VMS from the list.
    Comment 24: A commenter stated that the final rule should consider 
incorporating the Council's recommended 2000 specifications previously 
approved by the Council (decreases JVPt by 20,000 mt and increases USAP 
by 20,000 mt).
    Response: The Council has submitted its recommended 2000 
specifications with an accompanying analysis to NMFS. Its submission 
package is undergoing NMFS review and is being processed separately as 
an inseason adjustment.
    Comment 25: A commenter stated that it is unfair to U.S. fishermen 
selling herring to Canadian carriers to be limited by the FMP. The 
commenter suggested that the Boat Transfer (BT) of 4,000 mt be removed 
from the FMP to enhance free trade. The commenter further stated that 
the fixed gear (weir/stop seine) sector of the U.S. herring fishery 
should be exempted from the Area 1 TAC, as the Canadian fixed gear 
fishery is in New Brunswick, at least until the sector's annual harvest 
becomes a significant portion of the region's herring fishery.
    Response: Because the removal of herring for purposes of 
transferring to Canadian carriers is part of the DAH, it must be 
included in OY calculations and restricted accordingly. The 
specification of BT allows the continuation of the historic trade in 
herring between the U.S. and Canada, while addressing the concerns of 
other U.S. processors by preventing this trade from being an unlimited 
transfer that reduces their access to the resource. While the 
commenter's suggestions are directed to future management measures 
rather than to these regulations, upon implementation of this rule the 
Council will have the ability to revise the specifications and TAC 
distribution method. It would be appropriate for the commenter to raise 
his concerns in the Council forum.
    Comment 26: A commenter stated that the regulations should clarify 
the intent of the FMP, which is that a vessel may only land 2,000 lb 
(907.2 kg) of herring taken in an area closed because the TAC has been 
reached in a given calendar day. Other commenters stated that the 
regulations correctly note this limit, but do not include the FMP 
language, which reflects the Council's intent that a vessel on a 5-day 
trip (for instance) would not be allowed to land 10,000 lb (4,536 kg) 
of herring.
    Response: The regulations have been clarified.
    Comment 27: A commenter stated that NMFS authorized the broad use 
of framework adjustments to allow for expedited rulemaking, without 
demonstrating a need for such a provision. The commenter stated that 
this violates the APA because regulations could be implemented without 
adequate opportunity for public comment. The commenter also stated that 
the framework process violates the Magnuson-Stevens Act because it 
fails to conform with the statutorily required FMP process for 
proposing regulatory changes.
    Response: The FMP allows the Council to initiate action to add or 
adjust management measures if it finds that action is necessary to meet 
or be consistent with the goals and objectives of the FMP, or to 
address gear conflicts. After a management action has been initiated, 
the Council develops and analyzes appropriate actions over the span of 
at least two Council meetings. Prior to the second Council meeting, a 
framework document is prepared that discusses and shows the impacts of 
the alternatives, which is made available to the public prior to the 
second or final framework meeting. The public is invited to participate 
and comment, in person or writing, at all pertinent Council and 
Committee meetings during the development of the framework action. If 
the Council recommends to NMFS that the action be issued as a final 
rule, the Council must first consider and provide support and analysis 
for several factors, one of which is whether there has been adequate 
notice and opportunity for participation by the public and members of 
the affected industry.
    NMFS believes that there is enough flexibility in the framework 
system to ensure that the affected parties are able to participate. For 
further discussion of the framework adjustment process, see response 
17.
    Comment 28: A commenter stated that the final rule needs to clearly 
express NMFS' commitment to protecting EFH of Atlantic herring to the 
greatest extent practicable and that HAPC need to be identified. At a 
minimum, at least one of the identified herring schools in each inshore 
and offshore area should be managed as a no-take school. The commenter 
also stated that this final rule should explicitly state that the 
Council, through its EFH Committee, consider impacts of fishing gear 
and practices (as well as non-fishing impacts) to this school-as-
habitat approach to EFH and HAPC for herring.
    Response: As stated in the Northeast Omnibus EFH Amendment 
incorporated into the FMP and this action, the Council determined, and 
NMFS concurred, that the most appropriate way to identify EFH for 
herring was by using scientific studies to quantify herring abundance 
and distribution, and applying this information as a proxy for 
estimating habitat utilization. The identification of HAPC is 
recommended by the EFH regulations, but not required. Further, the 
approach proposed by the commenter appears to be more of an attempt to 
manage the herring fishery than a provision for conservation of herring 
EFH.
    Comment 29: A commenter stated that the final rule should require 
the applicable fishery managers to factor in the dietary needs of 
humpback whales and other marine mammals that are feeding on the 
Atlantic herring resource. The commenter said that the whale watching 
industry has been significantly impacted by the departure of whales

[[Page 77460]]

from nearshore Federal waters due to the commercial removals of entire 
herring schools from areas such as Schoodic Ledge.
    Response: The FMP states that the annual specification of OY will 
include consideration of economic, social, and ecological factors, 
which is consistent with the Magnuson-Stevens Act and national standard 
guidelines. For fishing year 2000, the OY has been set at 224,000 mt 
with a total herring biomass estimated at 2.9 million mt. It is 
projected that there will be a 39 percent increase in overall stock 
size. The 2000 specifications have been set at a conservative level 
well below ABC to allow for controlled industry growth. This 
conservative specification level also acknowledges the need to provide 
for an adequate forage base for marine mammals. However, the degree to 
which whales are dependent on the herring resource is unknown. Trophic 
interactions between the herring fishery and humpback and fin whales, 
as well as other marine mammals, were considered during the ESA 
consultation on the FMP. Given the complexity of ecosystem 
interactions, there is no demonstrated link between herring abundance 
and marine mammal survival and recovery. The ESA consultation 
recognizes that in the past the herring fishery has apparently affected 
the distribution of whales that eat herring. However, it also notes 
that the conversion of the herring fishery into a regulated fishery 
will benefit protected species management by the overall monitoring of 
effort patterns in the fishery and the designation of area-based TACs 
based on the health of the resource in those areas. In addition, one 
effect of the FMP is to limit harvest from Area 1 in the Gulf of Maine 
where the resource is considered fully utilized and move more of the 
fishery further offshore to Areas 2 and 3, where the resource is not 
considered fully utilized. The combination of area-based TACs and the 
movement of the herring fishery further offshore would benefit the 
whale watching industry in the nearshore Federal waters by preventing 
localized depletions of herring that may affect the distribution of 
whales in that area.
    Comment 30: A commenter stated that the NEFMC/Commission meetings 
were held in locations that were relatively inaccessible to the fixed 
gear fishermen in the herring fishery. The commenter said that this 
resulted in unfair representation at Council meetings of some sectors 
of the industry.
    Response: Both the Council and Commission attempt to accommodate as 
much as possible all sectors of the fisheries within their areas of 
authority. Council meetings are held throughout New England during the 
course of the year. In deciding upon meeting sites, the Council and 
Commission must balance budgetary, staff, travel, facilities and other 
issues. Industry representatives and members of the public have the 
opportunity to submit written comments for the Council to consider 
during its deliberations. However, at least one representative of the 
fixed gear sector of this fishery is a member of the Council.
    Regarding the 2001 meeting schedule, the commenter may 
appropriately raise his concern directly with the Council and 
Commission.
    Comment 31: A commenter stated the need to clarify vessel sizes in 
the regulations. Another commenter would extend this clarification to 
capacity, horsepower, and to discrepancies between Herring and Mackerel 
fishery management plans. A third commenter asked for clarification 
that a vessel's total (not a single engine) horsepower of its main 
propulsion machinery cannot exceed 3,000 horsepower.
    Response: Clarifications have been made, where possible, through 
modification of the regulatory text in this final rule (See Changes 
from the Proposed Rule).
    Comment 32: A commenter suggested that the Atlantic herring dealer 
definition include harvesters who sell herring to individuals for 
personal use.
    Response: The definition of a dealer is not intended to identify 
persons who sell herring to end users, but rather to identify the 
person who first receives herring from a harvesting vessel. Including 
harvesters who sell herring to individuals for personal use in the 
Atlantic herring dealer definition, therefore, was not the intent of 
the Council, nor would it be consistent with the definition of a dealer 
in Sec. 648.2.
    Comment 33: A commenter stated that the definition of USAP is not 
clear as to whether the specification refers to the quantity of whole 
round herring received by vessels for processing, or the quantity of 
finished, processed product.
    Response: The definition of USAP has been modified in this final 
rule to clarify that it is the quantity of whole round herring that can 
be received for processing by U.S. vessels issued an Atlantic herring 
processing permit.
    Comment 34: A commenter stated that the SARC recommended that it 
would not be prudent to consider MSY above 200,000 mt until the sizes 
of recent year classes were better estimated.
    Response: The Council's Herring PDT and the Commission's Technical 
Committee considered the SARC's recommendation. Their response and a 
complete discussion of this issue may be found in the Overfishing 
Definition Section, Volume I, section 2.6 of the FMP.
    Comment 35: A commenter mentioned that, because of NMFS' rejected 
management measures in the proposed rule that would have protected 
species of concern, it must undertake an additional Section 7 formal 
consultation to determine if the regulations implementing the partially 
approved FMP jeopardize any of these listed species.
    Response: On July 13, 1999, a BO on the proposed FMP concluded that 
the operation of the Federal Atlantic herring fishery under the FMP 
could adversely affect but would not likely jeopardize the continued 
existence of endangered and threatened species under NMFS' jurisdiction 
and also would not likely destroy or adversely modify right whale 
critical habitat.
    Subsequent to completion of the BO, NMFS disapproved certain 
management measures in the proposed FMP. These included: (1) mandatory 
days out of the fishery; (2) spawning area closures; (3) adjustment of 
the TAC for Management Area 1A; and (4) a prohibition on specifying 
TALFF. Modification of the FMP does not automatically trigger 
reinitiating a formal Section 7 consultation. Re-initiation is only 
required if the consulting agency has retained involvement or control 
over the action, and the agency action has been modified in a manner 
that causes an effect to the listed species or critical habitat not 
considered in the BO. The FMP, as amended, will not cause an effect to 
listed species or critical habitat that has not been previously 
considered in the BO.
    As stated in the BO, the primary benefit of regulating the Atlantic 
herring fishery will be the overall monitoring of effort patterns in 
the fishery and designation of area-based TACs established based on the 
health of the resource in those areas. An annual scientific review of 
the resource will allow for adjustments to the fishery as a result of 
fluctuations in stock size. The BO considered the adjustment of TAC in 
Management Area 1A, mandatory days out of the fishery and prohibition 
on specifying a TALFF as supporting administrative measures to the 
area-based TAC effort control measure. Since the method for controlling 
effort in the herring fishery has not been changed, disapproval of the 
measure for adjustment of the Area 1A TAC is not expected to result in 
effects to protected species or critical habitat not previously 
considered in the BO. Similarly,

[[Page 77461]]

although the measure that would have required mandatory days out of the 
fishery has been disapproved, the trigger that closes the fishery in 
any one management area is still in place and is the same as what was 
considered in the BO. Finally, while NMFS disapproved the prohibition 
on establishing a TALFF, it has set the TALFF for the herring fishery 
at zero. Even if specified above zero, a TALFF would be specified from 
that portion of the OY that would not be taken in the domestic harvest. 
Therefore, disapproval of a prohibition on setting a TALFF is not 
expected to result in an effect to protected species that was not 
considered in the BO.
    The Council included Area 1 spawning closures as an additional 
measure to help ensure the health of the herring resource. The Council 
also included a provision to add area closures by framework action. 
That provision of the FMP remains in place. The BO considered the 
effect that spawning closures would have on listed species, and 
concluded that spawning closures could provide some benefit to listed 
species. This conclusion was moderated, however, with information in 
the BO that the efficacy of spawning closures could be affected by the 
2,000-lb (907.2-kg)/day incidental catch allowance and/or be offset by 
the potential for effort shifts causing amplification of any adverse 
effects of the fishery during the time right before and after spawning 
closures and in areas outside the boundaries of these closures. In 
addition to these considerations, the BO also examined the trophic 
relationships between listed species and herring in the current fishery 
where there are no spawning closures. Given the limited information 
available on these trophic relationships, the BO could only conclude 
that while competition with the herring fishery may affect the 
availability of sufficient prey for endangered whales, the complexity 
of ecosystem interactions and the logistical difficulties of conducting 
necessary sampling have hindered conclusive demonstration of the 
existence of competition. Since the BO did consider the effects to 
listed species and critical habitat in the presence and absence of 
spawning closures, re-initiation of the Section 7 consultation is not 
required. A new Section 7 consultation would not provide any additional 
or new information that could change the final determination of the BO.

Changes from the Proposed Rule

    In Sec. 648.2, the definition of ``Atlantic herring dealer'' is 
changed to reflect that shore-based pump operators do not automatically 
qualify as Atlantic herring dealers. In the proposed rule, shore-based 
pump operators were designated as dealers because of the difficulty in 
identifying all the persons who receive herring from the pump operator. 
These persons have since been identified and will provide fisheries 
managers with better and more complete data.
    In Sec. 648.2, the definition of ``Atlantic herring processor'' is 
clarified by stipulating that an Atlantic herring dealer who purchases 
Atlantic herring for resale as bait must do so from a fishing vessel 
with a Federal Atlantic herring permit to be considered an Atlantic 
herring processor.
    In Sec. 648.2, the definition of ``Council'' is modified by adding 
``spiny dogfish fishery'' to the list of fisheries under the auspices 
of the Mid-Atlantic Fishery Management Council. This brings the 
definition up to date to reflect approval of the Spiny Dogfish Fishery 
Management Plan.
    In Sec. 648.2, the definition of ``horsepower'' is removed because, 
as proposed, it would have been administratively inconsistent with its 
use as applied to other fisheries of the Northeastern United States.
    In Sec. 648.2, the definition of ``processing'' is corrected by 
removing the words ``icing, bleeding, heading or gutting'' of Atlantic 
herring as an exception to the means of preparation of herring to 
render it suitable for use as bait.
    In Sec. 648.2, the definition of ``U.S. at-sea processing (USAP)'' 
is clarified to show that USAP means the specification of the total 
amount of herring available for processing by U.S. vessels issued an 
Atlantic herring processing permit.
    In Sec. 648.4, paragraph (a)(10)(i)(B) is clarified to show that 
the total horsepower of a vessel's main propulsion machinery cannot 
exceed 3,000 horsepower. Prior to this clarification, the regulation 
could have been interpreted to apply horsepower restrictions to a 
single engine, which would have allowed a multi-engine vessel to exceed 
the limit established in the FMP.
    In Sec. 648.4, paragraph (c)(2)(vi)(C) is revised to indicate that 
the VMS vendor receipt required for certain vessels must be submitted 
initially not later than March 12, 2001.
    In Sec. 648.6, the first sentence of paragraph (a) is corrected by 
substituting the word ``dealers'' for ``purchasers.'' The section 
further retains language pertaining to small-mesh multispecies used as 
bait, which was added to Sec.  648.6 after submission of the proposed 
rule for Atlantic herring. Atlantic herring is also added as an 
exemption from the requirement to possess a valid permit or letter of 
authorization when purchasing herring at sea if it is to be used for 
one's own use as bait and certain specific fishing gear is not on 
board.
    In Sec. 648.7, the first sentence of paragraphs (a)(3)(i) and 
(b)(1)(i) were proposed for revision and the heading of paragraph 
(b)(1)(i) was proposed for removal. However, these revisions were 
implemented in the final rule implementing Amendment 1 to the FMP for 
Atlantic Bluefish Fishery and, therefore, are not repeated in this 
final rule.
    In Sec. 648.7, paragraph (b)(1)(iii)(A) is clarified.
    In Sec.  648.11, paragraph (a) is corrected by substituting the 
word ``require'' for the word ``request'' as pertains to the Regional 
Administrator's authority to place sea samplers/observers aboard 
federally permitted fishing vessels.
    In Sec.  648.13, paragraph (e) is redesignated as paragraph (f) and 
is further corrected by modifying paragraph (f)(1) to reflect that 
persons receiving bait at sea for their own personal use are exempt 
from the requirement to possess a valid Atlantic herring permit or a 
letter of authorization from the Regional Administrator, providing 
certain specific fishing gear is not on board the vessel.
    In Sec.  648.14, paragraph (a)(103) is corrected to reflect that 
purchasers of herring at sea to be used for their own use as bait do 
not require an Atlantic herring dealer permit.
    In Sec.  648.200, paragraph (a) is corrected to reflect that the 
Atlantic Herring Plan Development Team shall meet at least annually, 
but no later than July, with the Commission's Atlantic Herring Plan 
Review Team to develop and recommend specifications for the following 
year to the Council. The requirement in the proposed rule to present 
the specifications recommendation to the Council at its July meeting is 
removed.
    In Sec.  648.202, paragraph (d) is redesignated as paragraph (e) 
and a new paragraph (d) is added. The new paragraph (d) corrects an 
inadvertent omission in the proposed rule by allowing the landing of 
herring in closed areas if such herring were caught in open areas. 
Paragraph (a) is corrected to reflect the addition of paragraph (d) and 
the newly re-designated paragraph (e). Paragraph (a) is also modified 
to clarify that once the TAC is reached, a vessel may only land 2,000 
lb (907.2 kg) of herring in a given calendar day, without regard to the 
length of the trip.

[[Page 77462]]

    In Sec.  648.203, paragraph (b) is corrected to refer to the U.S. 
at-sea processing specification as ``USAP.''
    In Sec.  648.206, the title is changed from ``Framework 
specifications'' to ``Framework provisions.''
    NOAA codifies its OMB control numbers for information collection at 
15 CFR part 902. Part 902 collects and displays the control numbers 
assigned to information collection requirements of NOAA by OMB pursuant 
to the Paperwork Reduction Act (PRA). This final rule codifies OMB 
control numbers for 0648-0404 for Secs.  648.9 and 648.205.
    Under NOAA Administrative Order 205-11, dated December 17, 1990, 
the Under Secretary for Oceans and Atmosphere, NOAA, has delegated to 
the Assistant Administrator for Fisheries, NOAA, the authority to sign 
material for publication in the Federal Register.
    The President has directed Federal agencies to use plain language 
in their communications with the public including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising form the language used in this rule. 
Send comments to Patricia Kurkul (see ADDRESSES).

Classification

    NMFS has determined that the FMP that this rule implements is 
necessary for the conservation and management of the Atlantic herring 
fishery and is consistent with the national standards of the Magnuson-
Stevens Act and other applicable laws.
    Because current data indicate that the 2000 TAC this final rule 
implements for Management Area 1A is fast being reached, and an 
inseason adjustment that has been requested by the Council to address 
the situation cannot be considered until the 2000 specifications are in 
place, and given the immediate conservation benefit that would result 
from implementing the 2000 fishing specifications, it is contrary to 
the public interest to delay for 30 days the effective date of 
regulatory provisions establishing the specification process, 
management areas, TAC controls and prohibitions related to the TAC 
controls. Failure to implement the 2000 specifications without delay 
could have a negative impact on fishers and other entities dependent on 
a steady supply of herring. Therefore, the Assistant Administrator for 
Fisheries, NOAA, finds under 5 U.S.C. 553(d)(3) that good cause exists 
not to delay for 30 days the effective date of Secs.  648.14(x)(10) and 
(bb)(7) and (bb)(10), 648.200, 648.201 and 648.202. In addition, Secs.  
648.1, 648.2 and 648.206 contain provisions which have no substantive 
effect and therefore 5 U.S.C. 553 does not apply.
    This action has been determined to be significant for the purposes 
of Executive Order 12866.
    The Council prepared an FEIS for the FMP; a notice of availability 
was published on September 24, 1999 (64 FR 51753). NMFS determined, 
upon review of the FMP/FEIS and public comments, that approval and 
implementation of the FMP is environmentally preferable to the status 
quo. The FEIS demonstrates that it contains management measures able to 
prevent overfishing; protect harbor porpoise; provide economic and 
social benefits to the fishing industry in the long term; and 
contribute to better balance in the ecosystem in terms of the herring 
resource.
    NMFS completed a FRFA that contains the items specified in 5 U.S.C. 
604(a) as follows:

Final Regulatory Flexibility Analysis

Need for and Objectives of the Final Rule

    This final rule is necessary to implement approved measures 
contained in the Atlantic Herring FMP. The intent of this final rule is 
to manage the Atlantic herring fishery in compliance with the 
regulations pursuant to the Magnuson-Stevens Act and the FMP and to 
prevent overfishing of the herring resource. This final rule also 
withdraws approval of the Atlantic herring PMP and removes previous 
regulations related to Atlantic herring (50 CFR 600.525).

Public Comments

    There were 12 sets of public comments on the FMP submitted during 
the comment period established by the NOA. Those comments were 
considered by NMFS before it partially approved the FMP and are 
characterized and responded to by NMFS in the Comments and Responses 
section of this final rule. NMFS also received 14 sets of written 
comments on the proposed rule and those comments that specifically 
addressed the proposed rule were considered in approval and 
implementation of the final rule effecting the FMP and its management 
measures. Responses to comments on economic impacts of the proposed 
rule are contained in the Response to Comments section in the preamble 
and are not repeated here. Most of the comments made on the proposed 
rule addressed the management measures in the FMP that were previously 
disapproved by NMFS, rather than the proposed rule itself. No 
significant changes to the rule were made as a result of comments 
received.

Number of Small Entities

     The identification of the number of small entities affected by 
this final rule is complicated in two ways. First, vessels fishing for 
herring are not currently required to possess Federal herring permits. 
Second, while many vessels currently landing herring possess other 
Federal permits or letters of authorization, there are some vessels 
that fish for herring only in state waters that do not possess such 
permits or authorizations. Only those vessels that have another Federal 
permit are required to submit vessel trip reports and can be readily 
identified in the permit, vessel trip report, and dealer weighout 
databases.
    Because some vessels may target herring for a small number of trips 
each year, vessels were identified as participating in a ``directed'' 
fishery for herring if they landed at least one trip of one metric ton 
(2,205 lb) or more of herring during 1997. There were only 61 vessels, 
which landed 97,300 mt, amounting to 99 percent of all herring landings 
in the Northeast, while 140 vessels landing herring during 1997 
accounted for less than 71 mt. Expressed in terms of revenues, the 61 
vessels derived about $10.7 million from herring fishing while the 
remaining vessels' total herring revenues did not exceed $8,000. 
Therefore, for RFA purposes, the set of affected vessels is limited to 
these 61 vessels in the directed herring fishery.
    Of the 61 vessels, 17 of them derived, on average, less than $1,000 
in herring revenues in 1997. The remaining 44 vessels were divided into 
two groups. The first group of 25 vessels derived, on average, $5,534 
from herring revenues in 1997. The remaining group of 19 vessels 
earned, on average, $524,000 from herring revenues in 1997. The 44 
vessels constitute 22 percent of the 201 vessels that landed some 
herring in 1997 and 72 percent of the 61 vessels in the directed 
herring fishery. The regulations would mostly affect the group of 19 
vessels that, on average, earned $524,000 from herring revenues in 
1997. These vessels alone represent 31 percent of all business entities 
in the directed herring fishery. Whether the affected set of vessels is 
defined to include only 61 vessels or all of the 201 vessels that 
landed herring in 1997, the regulations would affect a substantial 
number of the small entities in the fishery.

[[Page 77463]]

Cost of Compliance

    Vessels, dealers, and processors would be required to obtain 
permits and comply with reporting requirements. Some participants in 
the fishery already have a Federal permit and comply with reporting 
requirements for another fishery. The compliance costs are primarily 
due to the time required to complete and submit the necessary forms. 
The annual costs to comply with these requirements, per vessel, are 
estimated at $7.80 for vessel permits, $25.32 for operator permits, 
$27.00 for vessel trip reports, and $52.00 (maximum) for interactive 
voice reports. Total annual compliance costs per vessel are thus about 
$112 per vessel for these measures. The total annual cost for each 
dealer is estimated to be $1.58 for permits and $78.70 for weekly 
landing reports, for an annual total of about $80 per dealer. The 
annual compliance costs for each processor is also estimated to be 
$1.58 for permits and $7.83 for an annual report, or a total of $9.41 
per processor. These costs are considered insignificant relative to 
other costs of doing business.
    Vessels that intend to harvest > 500 mt of herring per year, or 
that harvested > 500 mt of herring in the previous year, would be 
required to operate a VMS unit. The annual cost per vessel to purchase, 
install, and operate a VMS unit is estimated to be $2,700. Additional 
costs would be incurred due to burden-hour estimates of the 
requirements associated with VMS, estimated at an additional $111 per 
vessel per year. At the > 500 mt threshold, this would be approximately 
4 percent of annual revenues from herring. When compared to the average 
herring revenues of the 19 vessels that landed most of the herring in 
1997 and that would be required to have a VMS, based on their 1997 
landings, this cost is equal to approximately 0.5 percent of the 
average revenues for this group.

Minimizing Significant Economic Impacts on Small Entities

    An analysis indicated that the alternatives implemented by this 
final rule would minimize significant economic impacts while achieving 
the conservation goals and objectives of the FMP. The Council 
considered other alternatives but did not choose them because it 
determined that they would limit the ability of some smaller vessels in 
other fisheries to shift into the herring fishery, or would be 
difficult to implement or monitor accurately, or would conflict with 
FMP goals. For a description of the alternatives considered but 
rejected, see the section of the proposed rule (65 FR 11956).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection-of-
information displays a currently valid OMB control number.
    This final rule references foreign fishing vessel activity reports, 
which is a collection-of-information requirement subject to the PRA 
that was previously approved by OMB under control number 0648-0075. 
These reports are estimated to require 6 minutes/response.
    This final rule also contains 12 new collection-of-information 
requirements subject to the PRA. The collection of this information has 
been approved by OMB, and the OMB control numbers and the estimated 
time for a response are listed as follows:
    Open access Atlantic herring permits, OMB control number 0648-0202 
(30 minutes/response).
    Operator permits, OMB control number 0648-0202 (60 minutes/
response).
    Dealer permits, OMB control number 0648-0202 (5 minutes/
response(trip)).
    Processor permits, OMB control number 0648-0202 (5 minutes/
response).
    Vessel trip reports, OMB control number 0648-0212 (5 minutes/
response).
    Interactive voice response system reports, OMB control number 0648-
0212 (4 minutes/response).
    Dealer logbooks reports, OMB control number 0648-0229 (2 minutes/
response).
    Annual processor reports, OMB control number 0648-0018 (30 minutes/
response).
    Vessel monitoring system verification requirement, OMB control 
number 0648-0404 (2 minutes/response).
    Vessel monitoring system reports, OMB control number 0648-0404 (5 
seconds/response).
    Vessel monitoring system installation, OMB control number 0648-0404 
(60 minutes/response).
    Herring carrier exemption from VMS requirements authorization 
letter, OMB control number 0648-0404 (2 minutes/response).
    The aforementioned response estimates include the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Parts 600 and 648

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

    Dated: November 29, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 15 CFR chapter IX, part 
902 and 50 CFR chapter VI, parts 600 and 648 are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, the table in paragraph (b) under 50 CFR is 
amended by revising the OMB control number in numerical order for Sec.  
648.9, and by adding in numerical order an entry for Sec.  648.205 with 
a new OMB control number to read as follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
     (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
CFR part or section where the information  (all numbers begin with 0648-
    collection requirement is located                    )
------------------------------------------------------------------------
    *            *             *             *             *
 
50 CFR
    *            *             *             *             *
 648.9                                     * * * -0202, -0307, and -0404
    *            *             *             *             *
648.205                                    -0404
    *            *             *             *             *
 
------------------------------------------------------------------------


[[Page 77464]]

50 CFR Chapter VI

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

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


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'', ``IVR system'', 
and ``Vessel Monitoring System'' are revised and the definitions for 
``Atlantic herring'', ``Atlantic herring carrier'', ``Atlantic herring 
dealer'', ``Atlantic herring processor'', ``Border transfer'', 
``JVPt'', ``Processing'', and ``U.S. at-sea-processing'' are added 
alphabetically to read as follows:


Sec. 648.2  Definitions.

* * * * *
    Atlantic herring means Clupea harengus.
    Atlantic herring carrier means a fishing vessel with an Atlantic 
herring permit that does not have any gear on board capable of catching 
or processing herring and that has on board a letter of authorization 
from the Regional Administrator to transport herring caught by another 
fishing vessel.
    Atlantic herring dealer means:
    (1) Any person who purchases or receives for a commercial purpose 
other than solely for transport or pumping operations any herring from 
a vessel issued a Federal Atlantic herring permit, whether offloaded 
directly from the vessel or from a shore-based pump, for any purpose 
other than for the purchaser's own use as bait; or
    (2) Any person owning or operating a processing vessel that 
receives any Atlantic herring from a vessel issued a Federal Atlantic 
herring permit whether at sea or in port.
    Atlantic herring processor means a person who receives unprocessed 
Atlantic herring from a fishing vessel issued a Federal Atlantic 
herring permit or from an Atlantic herring dealer for the purposes of 
processing; or the owner or operator of a fishing vessel that processes 
Atlantic herring; or an Atlantic herring dealer who purchases Atlantic 
herring from a fishing vessel with a Federal Atlantic herring permit 
for resale as bait.
* * * * *
    Border transfer (BT) means the amount of herring specified pursuant 
to 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; the spiny dogfish fishery; and the Atlantic bluefish 
fishery.
* * * * *
     IVR System means the Interactive Voice Response reporting system 
established by the Regional Administrator for the purpose of monitoring 
harvest levels for certain species.
* * * * *
    JVPt, with respect to the Atlantic herring fishery, means the 
specification of the total amount of herring available for joint 
venture processing by foreign vessels in the EEZ and state waters.
* * * * *
    Processing, or to process, in the Atlantic herring fishery means 
the preparation of Atlantic herring to render it suitable for human 
consumption, bait, commercial uses, industrial uses, or long-term 
storage, including but not limited to cooking, canning, roe extraction, 
smoking, salting, drying, freezing, or rendering into meal or oil.
* * * * *
    U.S. at-sea processing (USAP), with respect to the Atlantic herring 
fishery, means the specification, pursuant to Sec.  648.200, of the 
amount of herring available for processing 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, the section heading is revised, and paragraphs 
(a)(10) and (c)(2)(vi) are added to read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (10) Atlantic herring vessels--(i) Atlantic herring permit.
    (A) Except as provided herein, any vessel of the United States must 
have been issued and have on board a valid Atlantic herring permit to 
fish for, catch, possess, transport, land, or process Atlantic herring 
in or from the EEZ. This requirement does not apply to the following:
    (1) A vessel that possesses herring solely for its own use as bait, 
providing the vessel does not have purse seine, mid-water trawl, 
pelagic gillnet, sink gillnet, or bottom trawl gear on board; or
    (2) A skiff or other similar craft used exclusively to deploy the 
net in a purse seine operation during a fishing trip of a vessel that 
is duly permitted under this part.
    (B) Eligibility. A vessel of the United States is eligible for and 
may be issued an Atlantic herring permit to fish for, catch, take, 
harvest, and possess Atlantic herring in or from the EEZ unless the 
vessel is  165 feet (50.3 m) in length overall (LOA), or > 
750 GRT (680.4 mt), or the vessel's total main propulsion machinery is 
> 3,000 horsepower.
    (ii) Atlantic herring processing permit. A vessel of the United 
States that is > 165 feet (50.3 m) LOA, or > 750 GRT (680.4 mt) is 
eligible to obtain an Atlantic herring processing permit to receive and 
process Atlantic herring subject to the U.S. at-sea processing (USAP) 
allocation published by the Regional Administrator pursuant to Sec.  
648.200. Such vessel may not receive or process Atlantic herring caught 
in or from the EEZ unless the vessel has been

[[Page 77465]]

 issued and has on board an Atlantic herring processing permit.
    (iii) Atlantic herring carrier vessels--letter of authorization. An 
Atlantic herring carrier vessel permitted under paragraph (a)(10)(i)(A) 
of this section must have been issued and have on board the vessel a 
letter of authorization to transport Atlantic herring caught by another 
permitted fishing vessel. The letter of authorization exempts such 
vessel from the VMS and IVR reporting requirements as specified in 
subpart K, except as otherwise required by this part. An Atlantic 
herring carrier vessel may request and obtain a letter of authorization 
from the Regional Administrator.
    (iv) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
* * * * *
    (c) * * *
    (2) * * *
    (vi) An application for an Atlantic herring permit must also 
contain the following information:
    (A) If the vessel operator caught > 500 mt of Atlantic herring in 
the previous fishing year, a statement so stating;
    (B) If the vessel operator intends to catch > 500 mt of Atlantic 
herring in the current fishing year, a statement so stating;
     (C) If the vessel operator either caught > 500 mt of Atlantic 
herring in the previous fishing year, or intends to catch > 500 mt of 
Atlantic herring in the current fishing year, a copy of a vendor 
installation receipt from a NMFS-approved VMS vendor, as described in 
Sec. 648.9, must also be provided:
    (1) From January 10, 2001, through March 12, 2001, not later than 
March 12, 2001;
    (2) After March 12, 2001, with the application.
* * * * *

    5. In 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 surf clam, ocean 
quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, or 
bluefish, harvested in or from the EEZ, or issued a permit, including 
carrier and processing permits, for these species under this part, must 
have been issued under this section, and carry on board, a valid 
operator permit.* * *
* * * * *

    6. In Sec. 648.6, paragraph (a) is revised to read as follows:


Sec. 648.6  Dealer/processor permits.

    (a) General. (1) All dealers of NE multispecies, monkfish, Atlantic 
herring, Atlantic sea scallop, spiny dogfish, summer flounder, Atlantic 
surf clam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, 
bluefish, and black sea bass, Atlantic surf clam and ocean quahog 
processors, and Atlantic herring processors or dealers as described in 
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. Persons 
aboard vessels receiving small-mesh multispecies and/or Atlantic 
herring at sea for their own use exclusively as bait are deemed not to 
be dealers, and are not required to possess a valid dealer permit under 
this section, for purposes of receiving such small-mesh multispecies 
and/or Atlantic herring, provided the vessel complies with the 
provisions of Sec. 648.13.
    (2) [Reserved]
* * * * *

    7. In Sec. 648.7, the first sentence of paragraphs (a)(1)(i), and 
(a)(2)(i), and paragraph (f)(3) are revised; and new paragraphs 
(a)(3)(iii) and (b)(1)(iii) are added, to read as follows:


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 a trip from which fish are landed or received; dates of 
purchases; pounds by species (by market category, if applicable); price 
per pound by species (by market category, if applicable) or total value 
by species (by market category, if applicable); port landed; signature 
of person supplying the information; and any other information deemed 
necessary by the Regional Administrator. * * *
* * * * *
    (2) * * *
    (i) Federally permitted dealers, other than Atlantic herring 
dealers, purchasing quota-managed species not deferred from coverage by 
the Regional Administrator pursuant to paragraph (a)(2)(ii) of this 
section must submit, within the time period specified in paragraph (f) 
of this section, the following information, and any other information 
required by the Regional Administrator, to the Regional Administrator 
or to an official designee, via the IVR system established by the 
Regional Administrator: Dealer permit number; dealer code; pounds 
purchased, by species, other than Atlantic herring; reporting week in 
which species were purchased; and state of landing for each species 
purchased. * * *
* * * * *
    (3) * * *
    (iii) Atlantic herring processors, including processing vessels, 
must complete and submit all sections of the Annual Processed Products 
Report.
    (b) * * *
    (1) * * *
    (iii) The owner or operator of a vessel described here must report 
catches (retained and discarded) of herring each week to an IVR system. 
The report shall include at least the following information, and any 
other information required by the Regional Administrator: Vessel 
identification, reporting week in which species are caught, pounds 
retained, pounds discarded, management area fished, and pounds of 
herring caught in each management area for the previous week. Weekly 
Atlantic herring catch reports must be submitted via the IVR system by 
midnight, Eastern time, each Tuesday for the previous week. Reports are 
required even if herring caught during the week has not yet been 
landed. This report does not exempt the owner or operator from other 
applicable reporting requirements of Sec. 648.7.
    (A) The owner or operator of any vessel issued a permit for 
Atlantic herring subject to the requirements specified by 
Sec. 648.4(c)(2)(vi)(C) that is required by Sec. 648.205 to have a VMS 
unit on board must submit an Atlantic herring catch report via the IVR 
system each week (including weeks when no herring is caught), unless 
exempted from this requirement by the Regional Administrator.
    (B) An owner or operator of any vessel issued a permit for Atlantic 
herring that is not required by 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 Atlantic herring catch report via the IVR 
system for that week as required by the Regional Administrator.

[[Page 77466]]

    (C) Atlantic herring IVR reports are not required from Atlantic 
herring carrier vessels.
* * * * *
    (f) * * *
    (3) At-sea purchasers, receivers, or processors. All persons, 
except persons on Atlantic herring carrier vessels, purchasing, 
receiving, or processing any Atlantic herring, summer flounder, 
Atlantic mackerel, squid, butterfish, scup, or black sea bass at sea 
for landing at any port of the United States must submit information 
identical to that required by paragraphs (a)(1) or (a)(2) of this 
section, as applicable, and provide those reports to the Regional 
Administrator or designee on the same frequency basis.
* * * * *

    8. In Sec. 648.9, paragraphs (c)(1) and (f) are revised and 
paragraph (c)(2)(iii) is added to read as follows:


Sec. 648.9  VMS requirements.

* * * * *
    (c) * * *
    (1) Except as provided in paragraph (c)(2) of this section, or 
unless otherwise required by Sec. 648.58(h), all required VMS units 
must transmit a signal indicating the vessel's accurate position at 
least every hour, 24 hours a day, throughout the year.
    (2) * * *
    (iii) Any VMS-equipped vessel with an Atlantic herring permit, 
unless required by other fishery regulations to have on board a fully 
operational VMS unit at all times, need not transmit a signal when the 
vessel is in port.
* * * * *
    (f) Access. As a condition to obtaining a limited access scallop or 
multispecies permit, or an Atlantic herring permit, all vessel owners 
must allow NMFS, the USCG, and their authorized officers or designees 
access to the vessel's DAS data, if applicable, and location data 
obtained from its VMS unit, if required, at the time of or after its 
transmission to the vendor or receiver, as the case may be.
* * * * *

     9. In 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 require any vessel holding any 
of the following permits to carry a NMFS-approved sea sampler/observer: 
Atlantic sea scallop, Atlantic herring, NE multispecies, monkfish, 
Atlantic mackerel, spiny dogfish, squid, butterfish, scup, bluefish, 
black sea bass, or a moratorium permit for summer flounder. * * *
* * * * *

    10. In 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 (f) is added to read as follows:


Sec. 648.13  Transfers at sea.

* * * * *
    (f) Atlantic herring. Except for a person who purchases and/or 
receives Atlantic herring at sea for his own personal use as bait and 
who does not have purse seine, mid-water trawl, pelagic gillnet, sink 
gillnet, or bottom trawl gear on board, any person or vessel is 
prohibited from transferring, receiving, or attempting to transfer or 
receive any Atlantic herring taken from the EEZ, and any vessel issued 
an Atlantic herring permit is prohibited from transferring, receiving, 
or attempting to transfer or receive, Atlantic herring, unless the 
person or vessel complies with the following:
    (1) The transferring and receiving vessels have been issued valid 
Atlantic herring permits and/or other applicable authorization, such as 
a letter of authorization from the Regional Administrator, to transfer 
or receive herring.
    (2) The vessel does not transfer to a U.S. vessel, and a U.S. 
vessel does not receive, > 2,000 lb (907.2 kg) of herring per day in or 
from a management area closed to directed fishing for Atlantic herring.
    (3) The vessel does not transfer herring in or from an area closed 
to directed fishing for Atlantic herring to an IWP or Joint Venture 
vessel.
    (4) The vessel does not transfer Atlantic herring to a Canadian 
transshipment vessel that is permitted in accordance with Pub. L. 104-
297 after the amount of herring transshipped equals the amount of the 
BT specified pursuant to Sec. 648.200.

    12. In Sec. 648.14, paragraph (a)(103) is revised, and paragraphs 
(x)(10) 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 valid dealer permit issued under Sec. 648.6. A person who purchases 
and/or receives Atlantic herring at sea for his own personal use as 
bait, and does not have purse seine, mid-water trawl, pelagic gillnet, 
sink gillnet, or bottom trawl gear on board, is exempt from the 
requirement to possess an Atlantic herring dealer permit.
* * * * *
    (x) * * *
    (10) Atlantic herring. All Atlantic herring retained or possessed 
on a vessel issued any permit under 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

[[Page 77467]]

 dealer, Atlantic herring that were harvested in or from the EEZ, 
without having been issued, and in possession of, a valid Atlantic 
herring dealer permit.
    (4) Purchase, possess, receive, or attempt to purchase, possess, or 
receive, as a processor, or in the capacity of a processor, Atlantic 
herring from a fishing vessel with an Atlantic herring permit or from a 
dealer with an Atlantic herring dealer permit, without having been 
issued, and in possession of, a valid Atlantic herring processor 
permit.
    (5) Sell, barter, trade, or otherwise transfer, or attempt to sell, 
barter, trade, or otherwise transfer, for a commercial purpose, any 
Atlantic herring, unless the vessel has been issued an Atlantic herring 
permit, or unless the Atlantic herring were harvested by a vessel 
without an Atlantic herring permit that fished exclusively in state 
waters.
    (6) Purchase, possess, or receive, for a commercial purpose, or 
attempt to purchase, possess or receive, for a commercial purpose, 
Atlantic herring caught by a vessel without an Atlantic herring permit, 
unless the Atlantic herring were harvested by a vessel without an 
Atlantic herring permit that fished exclusively in state waters.
    (7) Possess, transfer, receive, or sell, or attempt to transfer, 
receive, or sell > 2,000 lb (907.2 kg) of Atlantic herring per trip, or 
land, or attempt to land > 2,000 lb (907.2 kg) of Atlantic herring per 
day in or from an area of the EEZ subject to restrictions pursuant to 
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 a valid Atlantic herring 
permit.
    (9) Transfer or attempt to transfer Atlantic herring to a Canadian 
transshipment vessel that is permitted in accordance with Pub. L. 104-
297 after the amount of herring transshipped equals the amount of the 
BT specified pursuant to 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 in or from the EEZ 
with a U.S. vessel that exceeds the size limits specified in 
Sec. 648.203.
    (12) Process Atlantic herring caught in or from the EEZ in excess 
of the specification of USAP with a U.S. vessel that exceeds the size 
limits specified in Sec. 648.203(b).
    (13) Discard herring carcasses in the EEZ, or at sea if a 
federally-permitted vessel, after removing the roe.
     (14) Catch, take, or harvest Atlantic herring in or from the EEZ 
for roe in excess of any allowed limit that may be established pursuant 
to Sec. 648.204(b).
    (15) Catch, take, or harvest Atlantic herring in or from the EEZ, 
unless equipped with an operable VMS unit if a vessel caught > 500 mt 
of Atlantic herring in the previous fishing year, or intends to catch > 
500 mt of Atlantic herring in the current fishing year, as required by 
Sec. 648.205(a).
    (16) Catch, take, or harvest > 500 mt of Atlantic herring in or 
from the EEZ during the fishing year, unless equipped with an operable 
VMS unit as required by 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:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

Sec.
Subpart K--Management Measures for the Atlantic Herring Fishery
648.200  Specifications.
648.201  Management areas.
648.202  Total allowable catch (TAC) controls.
648.203   Vessel size/horsepower limits.
648.204  Herring roe restrictions.
648.205  VMS requirements.
648.206  Framework provisions.


Sec. 648.200  Specifications.

    (a) The Atlantic Herring Plan Development Team (PDT) shall meet at 
least annually, but no later than July, with the Atlantic States Marine 
Fisheries Commission's (Commission) Atlantic Herring Plan Review Team 
(PRT) to develop and recommend the following specifications for 
consideration by the New England Fishery Management Council's Atlantic 
Herring Oversight Committee: Optimum yield (OY), domestic annual 
harvest (DAH), domestic annual processing (DAP), total foreign 
processing (JVPt), joint venture processing (JVP), internal waters 
processing (IWP), U.S. at-sea processing (USAP), border transfer (BT), 
total allowable level of foreign fishing (TALFF), and reserve (if any). 
The PDT and PRT shall also recommend the total allowable catch (TAC) 
for each management area and sub-area. Recommended specifications shall 
be presented to the New England Fishery Management Council (Council)
    (b) Guidelines. As the basis for its recommendations under 
paragraph (a) of this section, the PDT shall review available data 
pertaining to: commercial and recreational catch data; current 
estimates of fishing mortality; stock status; recent estimates of 
recruitment; virtual population analysis results and other estimates of 
stock size; sea sampling and trawl survey data or, if sea sampling data 
are unavailable, length frequency information from trawl surveys; 
impact of other fisheries on herring mortality; and any other relevant 
information. The specifications recommended pursuant to paragraph (a) 
of this section must be consistent with the following:
    (1) OY must be equal to or less than the allowable biological catch 
(ABC) minus an estimate of the expected Canadian NB fixed gear and GB 
herring catch, which shall not exceed 20,000 mt for the NB fixed gear 
harvest and 10,000 mt for the Canadian GB harvest.
    (2) OY shall not exceed maximum sustainable yield (MSY), unless an 
OY that exceeds MSY in a specific year is consistent with a control 
rule that ensures the achievement of MSY and OY on a continuing basis; 
however, OY shall not exceed MSY prior to the 2001 fishing year.
    (3) Factors to be considered in assigning an amount, if any, to the 
reserve shall include:
    (i) Uncertainty and variability in the estimates of stock size and 
ABC;
    (ii) Uncertainty in the estimates of Canadian harvest from the 
coastal stock complex;
    (iii) The requirement to insure the availability of herring to 
provide controlled opportunities for vessels in other fisheries in the 
Mid-Atlantic and New England;
    (iv) Excess U.S. harvesting capacity available to enter the herring 
fishery;
    (v) Total world export potential by herring producer countries;
    (vi) Total world import demand by herring consuming countries;
    (vii) U.S. export potential based on expected U.S. harvests, 
expected U.S. consumption, relative prices, exchange rates, and foreign 
trade barriers;
    (viii) Increased/decreased revenues to U.S. harvesters (with/
without joint ventures);
    (ix) Increased/decreased revenues to U.S. processors and exporters; 
and
    (x) Increased/decreased U.S. processing productivity.

[[Page 77468]]

    (4) Adjustments to TALFF, if any, will be made based on updated 
information relating to status of stocks, estimated and actual 
performance of domestic and foreign fleets, and other relevant factors.
     (c) The Atlantic Herring Oversight Committee shall review the 
recommendations of the PDT and shall consult with the Commission's 
Herring Section. Based on these recommendations and any public comment 
received, the Herring Oversight Committee shall recommend to the 
Council appropriate specifications. The Council shall review these 
recommendations and, after considering public comment, shall recommend 
appropriate specifications to NMFS. NMFS shall review the 
recommendations, consider any comments received from the Commission 
and, on or about September 15, shall publish notification in the 
Federal Register proposing specifications and providing a 30-day public 
comment period. If the proposed specifications differ from those 
recommended by the Council, the reasons for any differences shall be 
clearly stated and the revised specifications must satisfy the criteria 
set forth in this section.
    (d) On or about November 1 of each year, NMFS shall make a final 
determination concerning the specifications for Atlantic herring. 
Notification of the final specifications and responses to public 
comments shall be published in the Federal Register. If the final 
specification amounts differ from those recommended by the Council, the 
reason(s) for the difference(s) must be clearly stated and the revised 
specifications must be consistent with the criteria set forth in 
paragraph (b) of this section. The previous year's specifications shall 
remain effective unless revised through the specification process. NMFS 
shall issue notification in the Federal Register if the previous year's 
specifications will not be changed.
    (e) In-season adjustments. (1) The specifications and TACs 
established pursuant to this section may be adjusted by NMFS, after 
consulting with the Council, during the fishing year by publishing 
notification in the Federal Register stating the reasons for such 
action and providing an opportunity for prior public comment. Any 
adjustments must be consistent with the Atlantic Herring FMP objectives 
and other FMP provisions.
    (2) If a total allowable catch reserve (TAC reserve) is specified 
for an area, NMFS may make any or all of that TAC reserve available to 
fishers after consulting with the Council. NMFS shall propose any 
release of the TAC reserve in the Federal Register and provide an 
opportunity for public comment. After considering any comments 
received, any release of the TAC reserve shall be announced through 
notification in the Federal Register.


Sec. 648.201  Management areas.

    Three management areas, which may have different management 
measures, are established for the Atlantic herring fishery. Management 
Area 1 is subdivided into inshore and offshore sub-areas. The 
management areas are defined as follows:
    (a) Management Area 1 (Gulf of Maine): All U.S. waters of the Gulf 
of Maine (GOM) north of a line extending from the eastern shore of 
Monomoy Island at 41 deg. 35' N. lat., eastward to a point at 41 deg. 
35' N. lat., 69 deg. 00' W. long., thence northeasterly to a point 
along the Hague Line at 42 deg. 53'14'' N. lat., 67 deg. 44'35'' W. 
long., thence northerly along the Hague Line to the U.S.-Canadian 
border, to include state and Federal waters adjacent to the States of 
Maine, New Hampshire, and Massachusetts. Management Area 1 is divided 
into Area 1A (inshore) and Area 1B (offshore). The line dividing these 
areas is described by the following coordinates:

                                 Area 1
------------------------------------------------------------------------
                  N. Latitude                          W. Longitude
------------------------------------------------------------------------
41 deg. 58'                                      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'
43 deg. 58'                                       67 deg. 22' (the U.S.-
                                                         Canada Maritime
                                                               Boundary)
\(1)\                                                              \(1)\
------------------------------------------------------------------------
\1\Northward along the irregular U.S.-Canada maritime boundary to the
  shoreline.

    (b) Management Area 2 (South Coastal Area): All waters west of 
69 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.
    (c) 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.


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 (e) of this section, except as provided in 
paragraphs (c) and (d) of this section. These limits shall be enforced 
based on a calendar day, without regard to the length of the trip.
    (b) NMFS may raise the percent of the TAC that triggers imposition 
of the 2,000-lb (907.2-kg) limit specified in paragraph (a) of this 
section through the annual specification process described in 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) A vessel may land in an area that is limited to the 2,000-lb 
(907.2-kg) limit specified in paragraph (a) of this section with > 
2,000 lb (907.2 kg) of herring on board, providing such herring were 
caught in an area or areas not subject to the 2,000-lb (907.2-kg) limit 
specified in paragraph (a) of this section and providing all fishing 
gear is stowed and not available for immediate use as required by Sec.  
648.23(b).
    (e) NMFS shall implement fishing restrictions as specified in 
paragraph (a) of this section by publication of a notification in the 
Federal Register, without further opportunity for public comment.


Sec. 648.203  Vessel size/horsepower limits.

    (a) To catch, take, or harvest Atlantic herring, a U.S. vessel 
issued an Atlantic herring permit must not exceed the specifications 
contained in Sec. 648.4(a)(10)(i)(B). If any such vessel exceeds such 
specifications, its permit automatically becomes invalid and the vessel 
may not catch, take, or harvest Atlantic herring, as applicable, in or 
from the EEZ.
    (b) A U.S. vessel issued an Atlantic herring processor permit may 
receive and process herring, providing such vessel is  165 
feet (50.3 m) in length

[[Page 77469]]

overall, and  750 GRT (680.4 mt). A U.S. vessel that is > 
165 feet (50.3 m) in length overall, or > 750 GRT (680.4 mt), may only 
receive and process herring provided that the vessel is issued an 
``Atlantic herring processor permit'' described in Sec.  
648.4(a)(10)(ii) and that the total amount of herring received or 
processed by such vessel does not exceed the USAP established in 
accordance with 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 at sea.
    (b) Limits on the harvest of herring for roe. The Council may 
recommend to NMFS a limit on the amount of herring that may be 
harvested for roe to be implemented by framework adjustment in 
accordance with 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. The VMS 
unit must be certified, installed on board, and operable before the 
vessel may begin fishing.
    (b) A vessel owner or operator, except an owner or operator of an 
Atlantic herring carrier vessel, who intends to catch and land > 500 mt 
of Atlantic herring must declare such intention to the Regional 
Administrator prior to obtaining an Atlantic herring fishing permit for 
the fishing year.
    (c) Except for Atlantic herring carrier vessels, the owner or 
operator of a vessel is prohibited from landing > 500 mt of Atlantic 
herring caught in or from the EEZ during a fishing year, unless in 
compliance with Sec. 648.205(b).


Sec. 648.206  Framework provisions.

    (a) Annual review. The Herring PDT, in consultation with the 
Commission's PRT, shall review the status of the stock and the fishery. 
The PDT shall review available data pertaining to commercial and 
recreational catches, current estimates of fishing mortality, stock 
status, estimates of recruitment, virtual population analysis, and 
other estimates of stock size, sea sampling and trawl survey data or, 
if sea sampling data are unavailable, length frequency information from 
trawl surveys, the impact of other fisheries on herring mortality, and 
any other relevant information. Based on this review, the PDT shall 
report to the Council's Herring Oversight Committee no later than July, 
any necessary adjustments to the management measures and 
recommendations for the Atlantic herring annual specifications. The 
PDT, in consultation with the PRT, shall recommend the specifications, 
as well as an estimated TAC, as required by 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 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) 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;

[[Page 77470]]

    (2) Size, timing, or location of new or existing spawning area 
closures;
    (3) Closed areas other than spawning closures;
    (4) Restrictions in the amount of fishing time;
    (5) A days-at-sea system;
    (6) Adjustments to specifications;
    (7) Adjustments to the Canadian catch deducted when determining 
specifications;
    (8) Distribution of the TAC;
    (9) Gear restrictions (such as mesh size, etc.) or requirements 
(such as bycatch-reduction devices, etc.);
    (10) Vessel size or horsepower restrictions;
    (11) Closed seasons;
    (12) Minimum fish size;
    (13) Trip limits;
    (14) Seasonal, area, or industry sector quotas;
    (15) Measures to describe and identify essential fish habitat 
(EFH), fishing gear management measures to protect EFH, and designation 
of habitat areas of particular concern within EFH;
    (16) Measures to facilitate aquaculture, such as minimum fish 
sizes, gear restrictions, minimum mesh sizes, possession limits, 
tagging requirements, monitoring requirements, reporting requirements, 
permit restrictions, area closures, establishment of special management 
areas or zones, and any other measures included in the FMP;
    (17) Changes to the overfishing definition;
    (18) Vessel monitoring system requirements;
    (19) Limits or restrictions on the harvest of herring for specific 
uses;
    (20) Quota monitoring tools, such as vessel, operator, or dealer 
reporting requirements;
    (21) Permit and vessel upgrading restrictions;
    (22) Implementation of measures to reduce gear conflicts, such as 
mandatory monitoring of a radio channel by fishing vessels, gear 
location reporting by fixed gear fishermen, mandatory plotting of gear 
by mobile fishermen, standards of operation when conflict occurs, fixed 
gear marking or setting practices; gear restrictions for certain areas, 
vessel monitoring systems, restrictions on the maximum number of 
fishing vessels, and special permitting conditions;
    (23) Limited entry or controlled access system;
    (24) Specification of the amount of herring to be used for roe; and
    (5) Any other measure currently included in the FMP.
    (e) Emergency action. Nothing in this section is meant to derogate 
from the authority of the Secretary to take emergency action under 
section 305(e) of the Magnuson-Stevens Act.
[FR Doc. 00-31220 Filed 12-8-00; 8:45 am]
BILLING CODE 3510-22-S