[Federal Register Volume 66, Number 180 (Monday, September 17, 2001)]
[Proposed Rules]
[Pages 48020-48024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23177]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010823216-1216-01; I.D. 071601A]
RIN 0648-AP32


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Delay of the Implementation Date of the Year-4 
Default Management Measures for Small-Mesh Multispecies

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to amend the regulations that implement 
Amendment 12 to the Northeast Multispecies Fishery Management Plan 
(FMP) to change the date of the Year-4 default management measures for 
small-mesh multispecies (silver hake (whiting), red hake and offshore 
hake), from May 1, 2002, to May 1, 2003. Delaying the implementation 
date for an additional year would be in conformance with the original 
intent of Amendment 12 to the FMP. As specified in the FMP, this action 
is necessary to provide at least 2 full years of data on the fishery so 
that the Whiting Monitoring Committee (WMC) may fully assess the 
effectiveness of the current management measures and recommend 
alternative default measures, if appropriate.

DATES: Comments on this proposed rule must be received on or before 
October 17, 2001.

ADDRESSES: Written comments on the proposed rule should be sent to 
Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional 
Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of 
the envelope ``Comments on whiting.'' Comments may also be sent via 
facsimile (fax) to (978) 281-9371. Comments will not be accepted if 
submitted via e-mail or the Internet.
    This action is based upon analyses conducted in support of 
Amendment 12 to the FMP. Copies of the Amendment 12 document, its 
Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis 
(IRFA) and the July 1, 1999, supplement to the IRFA prepared by NMFS, 
the Final Supplemental Environmental Impact Statement (FSEIS), and 
other supporting documents for Amendment 12 are available from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street, The Tannery-Mill 2, Newburyport, MA 01950. The Final 
Regulatory Flexibility Analysis for Amendment 12 consisted of the IRFA, 
public comments and responses contained in the final rule implementing 
Amendment 12 (65 FR 16766, March 29, 2000), and the summary of impacts 
and alternatives in that final rule.

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy 
Analyst, at 978-281-9279.

SUPPLEMENTARY INFORMATION:

Background

    Amendment 12 was developed to address the overfished condition of 
red hake and the southern stock of whiting, to reduce fishing mortality 
on northern whiting, which was approaching an overfished condition, and 
to establish management measures for offshore hake. The final rule 
implementing Amendment 12, which was partially approved by NMFS on 
behalf of the Secretary of Commerce on September 1, 1999, was published 
on March 29, 2000 (61 FR 16766), and became effective on April 28, 
2000. The New England Fishery Management Council (Council) intended for 
the measures in Amendment 12 to achieve the target fishing mortality 
rates (F) for whiting within 4 years of implementation, and to rebuild 
whiting and red hake stocks within 10 years.
    Under Amendment 12, fishing with small mesh is regulated in the 
North Atlantic region through the establishment of three large 
``Regulated Mesh Areas.'' In the Gulf of Maine/Georges Bank (GOM/GB) 
Regulated Mesh Area, vessels may fish for whiting with nets that have 
less than the minimum mesh size of 6-inch (15.24-cm) diamond mesh or 
6.5-inch (16.51-cm) square mesh when participating in certain exempted 
fisheries; each net has slightly differing requirements. The GOM/GB 
exempted fisheries for whiting include: The Small Mesh Northern Shrimp 
Fishery, the Cultivator Shoal Whiting Fishery, the Small Mesh Area 1/
Small Mesh Area 2 Exemptions, and the Raised Footrope Trawl Whiting 
Fishery. The Cultivator Shoal Whiting Fishery has a 3-inch (7.62-cm) 
minimum mesh size, and the Raised Footrope Trawl Whiting Fishery has a 
2.5-inch (6.35-cm) minimum mesh size. In the Southern New England 
Regulated Mesh Area, vessels are exempt from the minimum mesh size 
requirement throughout the area when fishing for

[[Page 48021]]

exempted species, which include whiting and offshore hake. Finally, in 
the Mid-Atlantic Regulated Mesh Area, vessels may fish for whiting and 
offshore hake with nets of mesh less than the minimum size when not 
fishing under a multispecies day-at-sea (DAS), provided that the vessel 
does not possess or land regulated multispecies.
    The first 3 years of management under Amendment 12 include three 
possession limits, depending upon the minimum mesh size used. Vessels 
may possess and land up to a combined total of 3,500 lb (1,588 kg) of 
whiting and offshore hake, when fishing with mesh less than 2.5 inches 
(6.35 cm). Vessels may possess and land up to a combined total of 7,500 
lb (3,402 kg) of whiting and offshore hake, when fishing with mesh 
equal to or greater than 2.5 inches (6.35 cm) and less than 3.0 inches 
(7.62 cm). Vessels may possess and land up to a combined total of 
30,000 lb (13,608 kg) of whiting and offshore hake, when fishing with 
mesh equal to or greater than 3.0 inches (7.62 cm). These possession 
limits were intended to provide an incentive for vessels to utilize the 
larger 3-inch (7.62-cm) mesh when fishing for whiting. Since red hake 
is primarily an incidental species caught in whiting and other small-
mesh fisheries, the measures to protect whiting are expected to 
simultaneously protect red hake. Offshore hake, a species similar to 
whiting, was included in the management measures to provide basic 
protection for the species and to ensure that misidentification of 
offshore hake is accounted for.
    Amendment 12 establishes the WMC to review the effectiveness of 
management measures and to recommend adjustments. Such reviews will 
occur annually, beginning in 2001. The Council expected that the 
measures in Years 1, 2, and 3 would reduce exploitation by at least 50 
percent of the required amount, and that annual adjustments would 
indicate whether further management measures were needed. To ensure 
attainment of the FMP's mortality objectives, the default measures were 
developed for Year 4. The Council expected, and Amendment 12 specified, 
that the Whiting Monitoring Committee (WMC) would meet during the third 
year to determine if the Year-4 default measures would be necessary. 
Furthermore, during the third year, and based upon the effectiveness of 
the first three years of management, the WMC was charged with 
considering and recommending, if appropriate, small-mesh multispecies 
measures for Year 4, other than the default measures, to achieve the F 
targets.
    The Year-4 default measures prohibit vessels from using nets with 
mesh size less than 3 inches (7.62 cm)(square or diamond) in most 
fisheries operating within the three Regulated Mesh Areas in New 
England and Mid-Atlantic waters, and impose a 10,000-lb (4,536-kg) 
combined possession limit in most fisheries on whiting and offshore 
hake. In addition, the existing possession limit for whiting and 
offshore hake in the Small Mesh Northern Shrimp Fishery will be reduced 
from an amount equal to the total weight of shrimp on board (not to 
exceed 3,500 lb (1,588 kg)) to 100 lb (45.3 kg). Under the regulations 
that implement Amendment 12, these measures are scheduled to become 
effective May 1, 2002, unless superseded by revised measures.
    The Council voted at its December 1998 meeting that May 1, 1999, 
would begin Year 1 of Amendment 12, with the expectation that the 
Amendment would be implemented by the autumn of 1999. The Council 
submitted Amendment 12 to NMFS in April 1999. Based upon the Council's 
assumption that the Amendment would be implemented in the fall of 1999, 
the regulations implementing Amendment 12 specified that the Year-4 
default management measures would become effective on May 1, 2002. 
However, the implementing regulations did not become effective until 
April 28, 2000. Thus, Year 1 of Amendment 12 was only 3 days in 
duration (April 28 - April 30, 2000), rather than 8 to 10 months, as 
originally anticipated by the Council. As a result, under the current 
regulations, the WMC review process cannot be carried out as was 
intended in Amendment 12. Therefore, this action proposes to adjust the 
date on which the default measures will become effective, unless 
superseded, in order to be consistent with Amendment 12 and the 
Council's intent that a 3-year period be allotted to achieve the target 
fishing mortality rate before restrictive default measures currently 
specified for Year 4 would become effective. This proposed action is 
necessary to ensure that adequate data are available to determine 
whether the Year-4 default measures are necessary. Delay of the default 
measures by 1 year would not change the rebuilding timeframe of 10 
years contemplated by the Council or the current regulations. However, 
this action would push back the rebuilding schedule by one year to be 
consistent with the rebuilding schedule established in Amendment 12. 
The proposed regulatory change would not jeopardize the ability or 
likelihood of attaining the rebuilding objectives contained in 
Amendment 12. Any loss in rebuilding as a result of this action can be 
compensated for through adjustments to the small-mesh multispecies 
management measures by means of the annual adjustment or 4-year review 
process to insure that the established F targets are achieved.

Classification

    This rule proposes to amend regulations that implement Amendment 12 
to the FMP. This action is categorically excluded from the requirement 
to prepare an environmental assessment because the proposed rule would 
only adjust the timeframe for implementation of measures that were 
fully considered in the EIS prepared for Amendment 12. The FSEIS 
prepared for Amendment 12 concluded that, although short-term negative 
impacts will result from lowered allowed catches of small-mesh 
multispecies, the management actions implemented by Amendment 12 would 
have long-term positive impacts on affected physical, biological, and 
human environments.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Amendment 12 to the Northeast Multispecies Fishery Management Plan 
(FMP) proposed initial management measures for small-mesh multispecies 
(silver hake (whiting), red hake, and offshore hake) to be in effect 
for 3 years, with more stringent default measures to be implemented in 
Year 4. The New England Fishery Management Council (Council) intended 
to review data from the initial years of the management program to 
determine, prior to implementation of the Year-4 default measures, 
whether the default measures were still necessary. However, due to 
delays in the initial implementation of Amendment 12, the regulations 
inadvertently created a 3-day fishing year for Year 1. Therefore, this 
rule proposes to delay the implementation date of the restrictive Year-
4 default management measures for one year from May 1, 2002, to May 1, 
2003. This proposed action is needed to provide information on the 
fishery based on at least 2 full years of small-mesh multispecies 
management measures, so that the Council may fully assess during Year 3 
the effectiveness of the existing management measures and recommend 
alternative measures, other than the intentionally restrictive Year-4 
default measures, if appropriate.

[[Page 48022]]

    Under the existing Year-4 default measures, which are currently 
scheduled to become effective on May 1, 2002, vessels would be 
prohibited from fishing with mesh smaller than 3 inches (square or 
diamond) in most New England and Mid-Atlantic fisheries. In addition, a 
10,000-lb combined possession limit would be implemented for whiting 
and offshore hake. Delay in implementation of these Year-4 default 
measures is consistent with the Council's original intent of Amendment 
12. Therefore, this proposed action is necessary to ensure that 
adequate data are available to determine whether the current 
restrictive default measures are necessary. Delaying the implementation 
date of the default measures by one year would not jeopardize the 
ability or likelihood of attaining the rebuilding objectives contained 
in Amendment 12.
    NMFS and the Council prepared an economic analysis for Amendment 
12, which indicated that implementation of the amendment, including the 
restrictive Year-4 default measures, would have a significant economic 
impact on a substantial number of small entities. The analysis 
indicated that 1,156 participating small entities reported landings of 
one or more combined pounds of whiting, red hake, and offshore hake 
during the calendar years 1995 to 1997. The management measures 
proposed for Years 1-3 were estimated to reduce gross revenues from all 
species by more than 5 percent for 81 vessels (7 percent of small mesh 
multispecies participants). If the default measures were to be 
implemented, 222 vessels (approximately 20 percent of small mesh 
multispecies fishery participants) were estimated to experience a 
reduction in annual gross revenues of 5 percent or more. Short- and 
long-run profitability analyses of small-mesh multispecies commercial 
fishing vessels indicated that management measures proposed under 
Amendment 12 would force some vessels to cease operations. In the 
short-run, vessels may be assumed to maintain business operations, 
provided operating costs can be paid. In the long-run, vessels may be 
able to maintain business operations only if all costs (fixed and 
operating) could be paid from gross receipts. Estimated profitability 
for the Years 1-3 and Year-4 default management measures indicated that 
25 vessels (2 percent), or more, of the vessels may not be able to 
operate at positive long-run profit upon implementation of the 
Amendment 12 measures. A total of 573 vessels were estimated to operate 
at positive profit under both the Year 1-3 and Year-4 default measures.
    This proposed action, which would delay the implementation date of 
Year-4 default measures, does not change the results of the economic 
analysis prepared for Amendment 12. It would only delay by one year the 
implementation date of Year-4 default measures. As such, it would not 
result in any significant economic impact on a substantial number of 
small entities. The proposed action itself has no impacts on small 
entities that were not already analyzed in connection with the 
implementation of Amendment 12. This rule merely adjusts the 
implementation timeframe of the default measures to be consistent with 
the timeframe analyzed in the economic analysis prepared for Amendment 
12. In fact, the proposed action would allow fishermen to maintain 
current levels of gross revenues before Year-4 default measures are 
implemented, if at all. This action is strongly supported by both the 
New England and Mid-Atlantic Fishery Management Councils, as well as by 
the commercial fishing industry.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 12, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

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. 648.14, paragraph (z)(2) introductory text is revised to 
read as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (z) * * *
    (2) In addition to the general prohibitions specified in 
Sec. 600.725 of this chapter and in paragraph (a) of this section, 
beginning May 1, 2003, it is unlawful for an owner or operator of a 
vessel issued a valid Federal multispecies permit to do any of the 
following:
* * * * *

    3. In Sec. 648.80, the first sentence of paragraph (a)(3)(i)(A); 
paragraphs (a)(3)(i)(B), (a)(4)(i)(B) and (a)(4)(i)(C); the first 
sentence in each of paragraphs (a)(7)(i)(B), (a)(8)(i)(A), and 
(a)(8)(i)(B); paragraph (a)(9)(i)(D)(1) and (a)(9)(i)(D)(2); the first 
sentence in each of paragraphs (a)(14)(i)(B) and (a)(14)(i)(C); 
paragraph (b)(3)(i)(A); the first sentence of paragraph (b)(3)(i)(B); 
and paragraph (c)(2)(iii) are revised to read as follows:


Sec. 648.80  Multispecies regulated mesh areas and restrictions on gear 
and methods of fishing.

* * * * *
    (a) * * *
    (3) * * *
    (i) * * *
    (A) Through April 30, 2003, an owner or operator of a vessel 
fishing in the northern shrimp fishery described in this section under 
this exemption may not fish for, possess on board, or land any species 
of fish other than shrimp, except for the following, with the 
restrictions noted, as allowable incidental species: Longhorn sculpin; 
combined silver hake and offshore hake--up to an amount equal to the 
total weight of shrimp possessed on board or landed, not to exceed 
3,500 lb (1,588 kg); and American lobster--up to 10 percent, by weight, 
of all other species on board or 200 lobsters, whichever is less, 
unless otherwise restricted by landing limits specified in Sec. 697.17 
of this chapter. * * *
    (B) Beginning May 1, 2003, an owner or operator of a vessel fishing 
for northern shrimp may not fish for, possess on board, or land any 
species of fish other than shrimp, except for the following, with the 
restrictions noted, as allowable incidental species: Longhorn sculpin; 
combined silver hake and offshore hake--up to 100 lb (45.36 kg); and 
American lobster--up to 10 percent, by weight, of all other species on 
board or 200 lobsters, whichever is less, unless otherwise restricted 
by landing limits specified in Sec. 697.17 of this chapter.
* * * * *
    (4) * * *
    (i) * * *
    (B) Through April 30, 2003, an owner or operator of a vessel 
fishing in this area may not fish for, possess on board, or land any 
species of fish other than whiting and offshore hake combined--up to a 
maximum of 30,000 lb (13,608 kg), except for the following, with the 
restrictions noted, as allowable incidental species: Herring; longhorn 
sculpin; squid; butterfish; Atlantic mackerel; dogfish, and red hake--
up to 10 percent each, by weight, of all other species on board; 
monkfish and monkfish parts--up to 10 percent, by weight, of all other 
species on board or

[[Page 48023]]

up to 50 lb (23 kg) tail-weight/166 lb (75 kg) whole-weight of monkfish 
per trip, as specified in Sec. 648.94(c)(4), whichever is less; and 
American lobster--up to 10 percent, by weight, of all other species on 
board or 200 lobsters, whichever is less, unless otherwise restricted 
by landing limits specified in Sec. 697.17 of this chapter.
    (C) Beginning May 1, 2003, an owner or operator of a vessel fishing 
in this area is subject to the mesh size restrictions specified in 
paragraph (a)(4)(i)(D) of this section and may not fish for, possess on 
board, or land any species of fish other than whiting and offshore hake 
combined--up to a maximum of 10,000 lb (4,536 kg), except for the 
allowable incidental species listed in paragraph (a)(4)(i)(B) of this 
section.
* * * * *
    (7) * * *
    (i) * * *
    (B) Small-mesh multispecies. Beginning May 1, 2003, an exemption 
may be added in an existing fishery for which there are sufficient data 
or information to ascertain the amount of small-mesh multispecies 
bycatch, if the Regional Administrator, after consultation with the 
NEFMC, determines that the percentage of small-mesh multispecies caught 
as bycatch is, or can be reduced to, less than 10 percent, by weight, 
of total catch and that such exemption will not jeopardize fishing 
mortality objectives. * * *
* * * * *
    (8) * * *
    (i)(A) Unless otherwise prohibited in Sec. 648.81, through April 
30, 2003, a vessel subject to the minimum mesh size restrictions 
specified in paragraph (a)(2) of this section may fish with or possess 
nets with a mesh size smaller than the minimum size, provided the 
vessel complies with the requirements of paragraphs (a)(3)(ii) or 
(a)(8)(ii) of this section and Sec. 648.86(d) from July 15 through 
November 15, when fishing in Small-mesh Area 1, and from January 1 
through June 30, when fishing in Small-mesh Area 2. * * *
    (B) Unless otherwise prohibited in Sec. 648.81, beginning May 1, 
2003, in addition to the requirements specified in paragraph 
(a)(8)(i)(A) of this section, nets may not have a mesh size of less 
than 3 in (7.62 cm) square or diamond mesh counting the first 100 
meshes (200 bars in the case of square mesh) from the terminus of the 
net for vessels greater than 60 ft (18.28 m) in length and the first 50 
meshes (100 bars in the case of square mesh) from the terminus of the 
net for vessels less than or equal to 60 ft (18.28 m) in length. * * *
* * * * *
    (9) * * *
    (i) * * *
    (D)(1) Through April 30, 2003, the following species may be 
retained, with the restrictions noted, as allowable incidental species 
in the Nantucket Shoals Dogfish Fishery Exemption Area: Longhorn 
sculpin; silver hake--up to 200 lb (90.72 kg); monkfish and monkfish 
parts--up to 10 percent, by weight, of all other species on board or up 
to 50 lb (23 kg) tail-weight/166 lb (75 kg) whole-weight of monkfish 
per trip, as specified in Sec. 648.94(c)(4), whichever is less; 
American lobster--up to 10 percent, by weight, of all other species on 
board or 200 lobsters, whichever is less, unless otherwise restricted 
by landing limits specified in Sec. 697.17 of this chapter; and skate 
or skate parts--up to 10 percent, by weight, of all other species on 
board.
    (2) Beginning May 1, 2003, all nets must comply with a minimum mesh 
size of 3 in (7.62 cm) square or diamond mesh counting the first 100 
meshes (200 bars in the case of square mesh) from the terminus of the 
net for vessels greater than 60 ft (18.28 m) in length and the first 50 
meshes (100 bars in the case of square mesh) from the terminus of the 
net for vessels less than or equal to 60 ft (18.28 m) in length. 
Vessels may retain the allowable incidental species listed in paragraph 
(a)(9)(i)(D)(1) of this section.
* * * * *
    (14) * * *
    (i) * * *
    (B) Up to and including April 30, 2003, all nets must comply with a 
minimum mesh size of 2.5-inch (6.35-cm) square or diamond mesh, subject 
to the restriction as specified in paragraph (a)(14)(i)(D) of this 
section. * * *
    (C) Beginning May 1, 2003, in addition to the requirements 
specified in paragraph (a)(14)(i)(B) of this section, all nets must 
comply with a minimum mesh size of 3-inch (7.62 cm) square or diamond 
mesh, subject to the restrictions as specified in paragraph 
(a)(14)(i)(D) of this section. * * *
* * * * *
    (b) * * *
    (3) * * *
    (i) * * *
    (A) Through April 30, 2003, owners and operators of vessels subject 
to the minimum mesh size restrictions specified in paragraph (b)(2) of 
this section may fish for, harvest, possess, or land butterfish, 
dogfish (trawl only), herring, Atlantic mackerel, ocean pout, scup, 
shrimp, squid, summer flounder, silver hake and offshore hake, and 
weakfish with nets of a mesh size smaller than the minimum size 
specified in the SNE Regulated Mesh Area, provided such vessels comply 
with requirements specified in paragraph (b)(3)(ii) of this section and 
with the mesh size and possession limit restrictions specified under 
Sec. 648.86(d).
    (B) Beginning May 1, 2003, owners and operators of vessels subject 
to the minimum mesh size restrictions specified in paragraph (b)(2) of 
this section may not use nets with mesh size less than 3 in (7.62 cm), 
unless exempted pursuant to paragraph (b)(4) of this section, and may 
fish for, harvest, possess, or land butterfish, dogfish (trawl only), 
herring, Atlantic mackerel, ocean pout, scup, shrimp, squid, summer 
flounder, silver hake and offshore hake--up to 10,000 lb (4,536 kg), 
and weakfish with nets of a mesh size smaller than the minimum size 
specified in the SNE Regulated Mesh Area, provided such vessels comply 
with requirements specified in paragraph (b)(3)(ii) of this section and 
with the possession limit restrictions specified under Sec. 648.86. * * 
*
* * * * *
    (c) * * *
    (2) * * *
    (iii) Small mesh beginning May 1, 2003. Beginning May 1, 2003, nets 
may not have a mesh size of less than 3 in (7.62 cm) square or diamond 
mesh counting the first 100 meshes (200 bars in the case of square 
mesh) from the terminus of the net for vessels greater than 60 ft 
(18.28 m) in length and the first 50 meshes (100 bars in the case of 
square mesh) from the terminus of the net for vessels less than or 
equal to 60 ft (18.28 m) in length.
* * * * *

    4. In Sec. 648.86, the headings to paragraphs (d) and (e) are 
revised to read as follows:


Sec. 648.86  Multispecies possession restrictions.

* * * * *
    (d)Small-mesh multispecies through April 30, 2003.
* * * * *
    (e)Small-mesh multispecies beginning on May 1, 2003--
* * * * *

    5. In Sec. 648.90, the last sentence of paragraph (a)(2) is revised 
to read as follows:


Sec. 648.90  Multispecies framework specifications.

    (a) * * *
    (2) * * * In addition, for the 2003 fishing year, the WMC must 
consider,

[[Page 48024]]

and recommend as appropriate, management options other than the default 
measures for small-mesh multispecies management (mesh and possession 
limit restrictions for small-mesh multispecies beginning May 1, 2003).
* * * * *
[FR Doc. 01-23177 Filed 9-12-01; 4:01 pm]
BILLING CODE 3510-22-S