[Federal Register Volume 66, Number 102 (Friday, May 25, 2001)]
[Rules and Regulations]
[Pages 28846-28849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13254]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 648

[Docket No. 010220043-1132-02; I.D. 120400D]
RIN 0648-AN65


Foreign Fishing and Fisheries of the Northeastern United States; 
Final 2001 Specifications for the Atlantic Herring Fishery and Foreign 
Fishing Restrictions

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

ACTION: Final 2001 specifications for the Atlantic herring fishery.

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SUMMARY: NMFS issues final specifications for the 2001 Atlantic herring 
fishery. The intent of the specifications is to conserve and manage the 
herring resource and provide for sustainable fisheries, and to comply 
with the provisions in the Fishery Management Plan for Atlantic Herring 
(FMP), which require annual specifications for the fishery.

DATES: Effective May 25, 2001 through December 31, 2001.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, Final Regulatory Flexibility 
Analysis (EA/RIR/FRFA), and the Essential Fish Habitat Assessment are 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298. The EA/RIR/FRFA is accessible via the 
Internet at http:/www.nero.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst, 
(978) 281-9104, e-mail at [email protected], fax at (978) 281-
9135.

SUPPLEMENTARY INFORMATION: Regulations implementing the FMP appear at 
50 CFR part 648, subpart K. Regulations governing foreign fishing 
appear at 50 CFR part 600, subpart F. The FMP requires the New England 
Fishery Management Council's (New England Council's) Atlantic Herring 
Plan Development Team (PDT) to meet at least annually, no later than 
July each year, with the Atlantic States Marine Fisheries Commission's 
(Commission) Atlantic Herring Plan Review Team (PRT) to develop and 
recommend the following specifications for consideration by the New 
England Council's Atlantic Herring Oversight Committee: Allowable 
biological catch (ABC), optimum yield (OY), domestic annual harvest 
(DAH), domestic annual processing (DAP), total foreign processing 
(JVPt), joint venture processing (JVP), internal waters processing 
(IWP), U.S. at-sea processing (USAP), border transfer (BT), total 
allowable level of foreign fishing (TALFF), and reserve (if any). The 
PDT and PRT also recommend the total allowable catch (TAC) for each 
management area and sub-area identified in the FMP. A proposed rule to 
implement the 2001 Atlantic herring specifications was published in the 
Federal Register on March 5, 2001 (66 FR 13279) with a comment period 
ending April 4, 2001.

Final 2001 Specifications

    The final 2001 specifications are contained in the following table. 
Changes from the 2000 specifications include increases in OY, DAH, 
TALFF, DAP, and the TAC reserve for Area 2. The impacts of these 
changes on the fishery were discussed in the preamble of the proposed 
rule and are not repeated here.

[[Page 28847]]



               Final 2001 Atlantic Herring Specifications
------------------------------------------------------------------------
                Specification                         Amount (mt)
------------------------------------------------------------------------
                     ABC                                       300,000
                     OY                                        250,000
                     DAH                                       245,000
                    TALFF                                        5,000
                     DAP                                       221,000
                    USAP                                        20,000
                     BT                                          4,000
                    JVPt                                        20,000
           JVP- Area 2 and Area 3                               10,000
                     IWP                                        10,000
                   Reserve                                           0
                 TAC-Area 1A                                    60,000
                 TAC-Area 1B                                    10,000
                 TAC-Area 2                                     50,000
                                                            (80,000 TAC
                 TAC-Area 3                                     50,000
------------------------------------------------------------------------

    The New England Council met in September 2000 and recommended 
conditions and restrictions for TALFF. Those recommendations include: A 
restriction on direct foreign fishing landward of 20 nautical miles 
from shore; a restriction limiting gear to midwater trawls; a condition 
that before foreign vessels can harvest more than 25 percent of their 
TALFF allocation, foreign vessels must receive 25 percent of its JVP 
allocation or provide proof for why this was not possible; a 
restriction on direct mealing by the foreign vessel; a restriction on 
fishing in regulated multispecies closed areas; and a prohibition on 
foreign fishing in Area 1 (Gulf of Maine). These conditions and 
restrictions are intended to strictly control any foreign fishing for 
TALFF for the benefit of the domestic fishery and in conformance with 
the objectives of the FMP. NMFS will consider these recommendations 
prior to authorizing TALFF. Such restrictions will be implemented 
within the authorization issued by NMFS to specific foreign vessels.

Comments and Responses

    Fifty-two public comments were received on the proposed 
specifications prior to and during the comment period that ended on 
April 4, 2001. Specific comments related to the proposed annual 
specifications are discussed and responded to as follows:
    Comment 1: A commenter supported the allocation of Atlantic herring 
JVP and TALFF.
    Response: This final rule implements the proposed allocation of 
Atlantic herring JVP and TALFF.
    Comment 2: Many commenters opposed the allocation of Atlantic 
herring TALFF. One stated that commercial fishers have been unable to 
harvest even a small percentage of the TAC based on the current 
assessment of the herring fishery, leading fishers to believe that the 
assessments overestimate the actual stock size by orders of magnitude. 
The commenter concluded that NMFS does not have the data to support 
taking such a risk of exploiting such a valuable resource by 
establishing TALFF.
    Response: The most recent stock assessment for Atlantic herring 
(the 27th Northeast Regional Stock Assessment Workshop, December, 1998 
(SAW-27)) concluded that the stock is at a high level of biomass and is 
underexploited. The total biomass of Atlantic herring continued to 
increase in 1999, reaching the highest levels observed in the NMFS 
spring bottom trawl survey, and significantly above the biomass 
necessary to achieve maximum sustainable yield. The PDT concluded that 
biomass of the coastal stock component is at or near the theoretical 
carrying capacity. Projections based on SAW-27 indicate fishing 
mortality continues to be low. Landings of Atlantic herring increased 
in 1999, to approximately 90,000 mt, from about 82,000 mt in 1998, but 
were still below the levels of 1996 and 1997. Landings in the Gulf of 
Maine (Areas 1A and 1B) increased from 47,000 mt to 65,000 mt, while 
landings on Georges Bank (Area 3) declined from 18,000 mt to 5,500 mt. 
Landings in Southern New England and the Mid-Atlantic (Area 2) 
increased by 2,500 mt. The maximum harvest of 5,000 mt of TALFF 
specification would occur only in Areas 2 and 3 and is already credited 
as part of the OY, which represents the sum of DAH and TALFF. In 
addition, the preferred ABC specification of 300,000 mt was chosen over 
an alternative that would have utilized FTarget , yielding over 1 
million mt of ABC. The conservative approach in setting the ABC takes 
into account the uncertainty about current stock size, which may be 
overestimated (NEFSC 1998), and addresses the need to retain stability 
in the year-to-year estimate of ABC in the event of a downward shift in 
the biomass estimate. The potential harvest of 5,000 mt of TALFF would 
not result in a substantial incidental catch in Areas 2 and 3 of 
Atlantic herring or other non-targeted species.
    Comment 3: A commenter raised the need for an ecosystem-wide, 
integrated approach to population assessments, and stated that removal 
of herring by the foreign fleets could dramatically affect the entire 
ecosystem food chain for both whales and certain species of finfish. 
The commenter concluded that any surplus of herring not harvested by 
domestic vessels should be reserved for the ecosystem and those species 
that depend upon them for food.
    Response: In setting the harvest levels established by this action, 
both the New England Council and NMFS recognize that herring is a key 
forage resource for a number of finfish species, including 
recreationally important species such as striped bass and bluefish, and 
possibly some species of cetaceans. In response, the New England 
Council recommended that allowable catch levels be conservatively set. 
NMFS is implementing the New England Council recommendations. The TALFF 
specification represents only 1.6 percent of the conservatively set ABC 
and will have no adverse biological impact on the stock of herring or 
other forage species. While ecosystem approaches to fishery assessment 
and management are desirable, such approaches are not yet well 
developed. The current population assessment is consistent with the 
best available scientific information and scientific practices, 
complies with requirements of applicable law, and is

[[Page 28848]]

adequate to manage effectively the herring fishery.
    Comment 4: A commenter argued that foreign vessels intending to 
operate under an allocation of TALFF would greatly exceed the 
restrictions of the law passed by Congress limiting the length, weight, 
and horsepower of vessels participating in the herring fishery.
    Response: NMFS disagrees. In the NMFS appropriations bills for 
fiscal year 1999, Congress prohibited NMFS from using funds to issue 
permits or other authorization letters to domestic vessels only to fish 
for herring and mackerel that exceed the length, weight, and horsepower 
limit restrictions established by Congress until the New England and 
Mid-Atlantic Fishery Management Councils had the opportunity to develop 
appropriate management measures for herring and mackerel. Current 
herring regulations (Sec. 648.4(a)(10)(i)(B)) allow any domestic vessel 
to obtain a permit to fish for or retain herring in or from the EEZ, 
except for vessels that exceed either 165 ft (50.3 m) in length overall 
and 750 gross registered tons, or a shaft horsepower of 3000. These 
restrictions were put in place to control the harvest capacity of the 
domestic fleet and do not apply to foreign vessels in a JVP program or 
fishing for TALFF. In the case of foreign vessels, the harvest is 
strictly limited by the JVP and TALFF allocations.
    Comment 5: One commenter expressed concern that increases in JVP, 
enhanced by the allocation of TALFF, could have serious consequences 
for the lobster fishery, which relies primarily on herring for bait. 
The commenter believed that herring fishing boats may opt to supply 
foreign boats, as opposed to landing their catch in New England 
communities.
    Response: If vessels that participate in JVP operations would 
otherwise have landed herring in New England communities, it is 
possible that negative social and economic impacts from the reduced 
supply could result, including both higher prices for lobster bait and 
fewer onshore employment opportunities, such as stevedoring. However, 
it is not certain that JVP participants would otherwise have sold their 
catch in New England. But, even if vessels that would otherwise have 
sold their herring catch in New England participate in the JVP fishery, 
the magnitude of these impacts to communities will not be substantial, 
considering that the JVP allocation is only 4 percent of the total 
allowable harvest. This leaves 96 percent of the allowable harvest 
available to be sold as bait or for other domestic processing, 
including the entire TAC in Areas 1A and 1B, where JVP and TALFF are 
prohibited under the FMP.
    Comment 6: One commenter was concerned about the potential harvest 
of large amounts of river herring by foreign vessels fishing off North 
Carolina and Virginia.
    Response: The Mid-Atlantic Fishery Management Council (Mid-Atlantic 
Council) has recommended restrictions for the 2001 Atlantic mackerel 
fishery that prohibit directed foreign fishing for Atlantic mackerel 
south of 37 deg. 30' N. lat. and that restrict river herring incidental 
catch to no more than 0.25 percent of the over-the-side transfers. Such 
restrictions are imposed by NMFS on a case-by-case basis as foreign 
fishing permits are issued. NMFS will consider placing the same 
restrictions on the 2001 Atlantic herring TALFF and JVP fishery as were 
recommended by the Mid-Atlantic Council, if it appears that potential 
catches of river herring would be a problem.
    Comment 7: Two commenters questioned the conclusion in the FMP that 
20 percent of the Area 2 harvest is composed of Area 1 herring that 
migrate to Area 2 in the winter. Based on this conclusion, the 
specifications for 2001 presume that 10,000 mt of the Area 2 TAC is 
Area 1 herring. One commenter stated that harvests in the Area 2 winter 
fishery yielded only 18,878 mt and 19,957 mt in 1999 and 2000, 
respectively. He also noted that preliminary landings through March 17, 
2001, are only 10,970 mt from Area 2, compared to 15,669 mt for the 
same period in 2000. The commenters believed the correct estimate of 
Area 1 harvest from the Area 2 fishery should be 3,000-5,000 mt because 
the Area 2 TAC is unlikely to be fully harvested. They suggest this 
change would make available an additional 5,000-7,000 mt of Area 1 
herring for harvest from Area 1A. One commenter estimated that an 
additional 7,000 mt would increase revenues to the herring fleet by 
$770,000.
    Response: The New England Council, in its 1999 Stock Assessment and 
Fishery Evaluation (SAFE) report, indicated that there is no new 
information on the distribution or relative size of herring spawning 
components that warrants a revision to the distribution of the TAC. The 
New England Council, in its September 8, 2000, submission of the 
recommended annual specifications, used the 1999 SAFE report and other 
information available in determining that a 50,000 mt TAC is 
appropriate for Area 2. The FMP, however, allows for an inseason 
adjustment of the TAC distribution if new information becomes 
available. If the commenters have new information that would support an 
adjustment to the 2001 TAC distribution, they should present this 
information to the New England Council for further analysis. The New 
England Council could recommend an inseason adjustment to the Area 1 
and Area 2 TACs, if it believes it is appropriate. Such an adjustment, 
which transferred TAC from Area 1B to Area 1A, was made in 2000 based 
on additional information that became available to the New England 
Council during the 2000 fishing year.
    Comment 8: One commenter suggested that NMFS require foreign 
vessels to purchase JVP equal to its TALFF allocation.
    Response: As discussed in the preamble to the proposed rule, the 
New England Council has recommended that a foreign vessel be allowed to 
harvest 25 percent of its TALFF allocation, but before release of 
additional TALFF, the vessel would be required to receive 25 percent of 
its JVP allocation or provide proof for why this was not possible, such 
as bad weather. This condition appears to strike an appropriate balance 
between creating an incentive for foreign vessels to participate in the 
JVP fishery and restricting foreign vessels from exploiting their TALFF 
allocation to the detriment of U.S. interests. NMFS, nevertheless, will 
consider the commenter's suggestion and the New England Council's 
recommendation when it issues authorization to commence JVP or TALFF 
operations, including conditions and restrictions for individual 
foreign fishing vessels.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Because this final rule only establishes either year-long quotas 
for Atlantic herring to be used for the sole purpose of closing the 
fishery when the quotas are reached and does not establish any 
requirements for which a regulatory entity must come into compliance, 
it is unnecessary to delay for 30 days the effective date of this final 
rule. Therefore, the Assistant Administrator for Fisheries, NOAA, finds 
good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed 
effectiveness period for the 2001 Atlantic herring specifications.
    NMFS determined that this action is consistent to the maximum 
extent practicable with the enforceable policies of the approved 
coastal management programs of Maine, New Hampshire, Massachusetts, 
Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, 
Delaware, Maryland,

[[Page 28849]]

Virginia, and North Carolina. This determination was submitted for 
review by the responsible state agencies on November 14, 2000, under 
section 307 of the Coastal Zone Management Act. Rhode Island, Delaware, 
and Pennsylvania concurred with this determination. New Jersey 
disagreed with NMFS' determination for Atlantic herring and advocated 
that the specification of TALFF is inconsistent with the economic 
protection provisions of their coastal management program vis-a-vis 
employment and financial opportunities for commercial, charter, and 
party vessels. NMFS and the New England Council disagree. The TALFF 
allocation is intended to foster JVPs which could involve vessels from 
New Jersey. This will move the fishery toward achieving the OY from the 
fishery. Further, the administrative record underlying this proposal 
reasonably supports the conclusion that foreign-caught Atlantic herring 
will not compete with Atlantic herring processed and exported by 
domestic businesses. Because no response was received from Maine, New 
Hampshire, Massachusetts, Connecticut, New York, Maryland, Virginia, 
and North Carolina, state concurrence on consistency is inferred.
    NMFS prepared an FRFA for this action, which includes comments on 
the IRFA, responses contained herein, and a summary of the analyses 
done in support of these specifications. A copy of the FRFA is 
available from NMFS (see ADDRESSES). The preamble to the proposed rule 
included a detailed summary of the analyses contained in the IRFA, and 
that discussion is not repeated in its entirety here. A summary of the 
FRFA follows:
    A description of the reasons why action by the agency is being 
considered and the objectives of the action are explained in the 
preamble to the proposed rule and are not repeated here. This action 
does not contain any collection-of-information, reporting, or 
recordkeeping requirements. It will not duplicate, overlap, or conflict 
with any other Federal rules. This action is taken under authority of 
the Magnuson-Stevens Fishery Conservation and Management Act and 
regulations at 50 CFR part 648.

Public Comments

    Fifty-two public comments were received on the proposed rule to 
implement the 2001 herring specifications, but none of them were 
specific to the IRFA. Commenters were concerned with possible economic 
impacts to the American lobster fishery (Comment 5), which are 
discussed below, and with the potential of foregone revenue to the 
herring fleet associated with a potential increase in Area 1A TAC 
(Comment 7). NMFS addressed these comments in the Comments and 
Responses section of the preamble to the rule.

Number of Small Entities

    All of the affected businesses (fishing vessels and dealers) 
qualify as small entities under the standards described in NMFS 
guidelines. There were 2,215 vessels, 6 known processors, and 72 known 
dealers participating in the fishery in 1999.

Minimizing Economic Impacts on Small Entities

    The FRFA and Comment 5 in the Comments and Responses section of 
this rule discuss potential economic impacts on the lobster bait market 
that could result from vessels supplying JVP operations, as opposed to 
domestic shoreside processors and bait dealers. The magnitude of any 
economic impact to shoreside processors due to the specification of JVP 
(enhanced by a specification of TALFF) is uncertain. A reduction in 
supply of herring to shoreside processors could result in an increase 
in the cost of herring to shoreside processors or bait dealers. 
However, as noted in the response to Comment 5, the JVP allocation is 
only 4 percent of the allowable harvest, leaving 96 percent of the 
allowable harvest available to be sold as bait or otherwise processed 
shoreside, including the entire TAC in Areas 1A and 1B, where JVP and 
TALFF are prohibited under the FMP.

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

    Dated: May 22, 2001.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-13254 Filed 5-22-01; 3:00 pm]
BILLING CODE 3510-22-S