[Federal Register Volume 67, Number 16 (Thursday, January 24, 2002)]
[Rules and Regulations]
[Pages 3442-3444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1761]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 011005245-2012-02; I.D. 092401C]
RIN 0648-AP37


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; 2002 Specifications

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

ACTION: Final 2002 specifications for the Atlantic herring fishery.

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SUMMARY: NMFS issues final specifications for the 2002 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. This rule 
also corrects and clarifies the final rule implementing the FMP by 
clarifying the vessel owners' or operators' reporting requirements.

DATES: The amendment to Sec.  648.7 is effective January 24, 2002; the 
specifications are effective January 24, 2002, through December 31, 
2002.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA), Essential Fish Habitat Assessment, Final 
Regulatory Flexibility Analysis, and the Stock Assessment and Fishery 
Evaluation (SAFE) Report for the 2000 Atlantic Herring Fishing Year are 
available from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The 
EA/RIR/IRFA is accessible via the Internet at http:/www.nefmc.org.

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. The FMP requires the New England Fishery 
Management Council (Council), with the Atlantic States Marine Fisheries 
Commission (Commission), to develop and recommend the following 
specifications annually: 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 Council and Commission also recommend the total 
allowable catch (TAC) for each management area and sub-area identified 
in the FMP. A proposed rule to implement the 2002 Atlantic herring 
specifications was published in the Federal Register on October 29, 
2001 (66 FR 54498), with a comment period ending November 28, 2001. The 
process used to develop the specifications was thoroughly described in 
the preamble to the proposed rule and is not repeated here.

Final 2002 Specifications

    Specifications for the 2002 fisheries are provided below. The only 
changes from the 2001 specifications are an increase in estimated DAH/
DAP by 5,000 mt and a resulting decrease in TALFF to zero. The impacts 
of this change are discussed in the proposed rule and the EA/RIR for 
the 2002 herring specifications.

    Table. Specifications and Area TACs for the 2002 Atlantic Herring
                                 Fishery
------------------------------------------------------------------------
                                                            Proposed
                    Specification                       Allocation (mt)
------------------------------------------------------------------------
ABC                                                              300,000
OY                                                               250,000
DAH                                                              250,000
DAP                                                              226,000
JVPt                                                              20,000
JVP                                                               10.000
                                                       (Area 2 & Area 3)
IWP                                                               10,000
USAP                                                              20,000
BT                                                                 4,000
TALFF                                                                  0
Reserve                                                                0
TAC-Area 1A                                                       60,000
TAC-Area 1B                                                       10,000
TAC-Area 2                                                        50,000
                                                            TAC reserve:
                                                                 80,000)
TAC-Area 3                                                        50,000
------------------------------------------------------------------------

    This rule also implements a change to Sec.  648.7(b)(1)(iii)(B) and 
adds Sec.  648.7(b)(1)(iii)(C) to clarify the Council's intent 
concerning the reporting requirements for owners or operators of 
vessels who have been issued Atlantic herring permits but who are not 
required to have a Vessel Monitoring System (VMS) unit on board the 
vessel. This rule clarifies that only owners or operators of vessels 
that catch 2,000 lb (907.2 kg) or more of Atlantic herring on any one 
trip in a week must submit an Atlantic herring catch report via the 
Interactive Voice Response (IVR) reporting system by Tuesday of the 
following week. Even if the herring has not yet been landed, the 
operator must estimate the amount of herring on board the vessel and 
report that amount via the IVR system. As currently written, the 
regulations imply that this provision applies at all times to any owner 
or operator of a vessel issued a Federal permit for Atlantic herring 
who is not required to have a VMS unit on board the vessel. In 
addition, this rule clarifies that owners or operators of vessels that 
catch 2,000 lb (907.2 kg) or more of Atlantic herring, some or all of 
which is caught in or from the EEZ, on any trip in a week, must submit 
an Atlantic herring catch report via the IVR system for that week. As 
currently written, the regulations require that the reporting provision 
also applies at all times to vessels catching herring in or from the 
EEZ. A review of the FMP and background material germane to the issue 
shows that this clarifying change is consistent with Council intent.

[[Page 3443]]

Changes from the Proposed Rule

    While the amounts of the specifications remain the same as those 
found in the proposed rule, the restriction in the proposed rule on JVP 
to Area 2 only has been modified to retain the 2001 restriction of JVP 
to Areas 2 and 3. JVP remains prohibited in Areas 1A and 1B. This 
change to the proposed rule is a result of comments regarding the 
proposed restriction, and is based on a determination that, on balance, 
net benefits to fishing will be enhanced by continuing to allow JVP 
activity in both Areas 2 and 3.

Comments and Responses

    Eight sets of public comments were received on the proposed rule 
from two vessel owners, a Maine fisheries association, the State of 
Connecticut, the Mid-Atlantic Fishery Management Council, the Russian 
Federation, a U.S. JVP partner, and a shoreside processor.
    Comment 1: Two vessel owners and a Maine fisheries association 
opposed the elimination of JVP in Area 3 because they believe it would 
remove an opportunity for U.S. vessels to fish for herring at a time 
when fishing for other species is restricted or unavailable to them. 
The MAFMC, a representative of a canned sardine company, and the State 
of Connecticut specifically recommended that 10,000 mt of JVP should be 
made available in both Areas 2 and 3. The State of Connecticut believes 
that preventing JVP in Area 3 could leave fish unharvested in Area 3 
because it is not certain that U.S. shoreside processors will fully 
utilize the Area 3 TAC.
    Response: In 2001, 50,000 mt of TAC was allocated to Area 3. As of 
December 1, 2001, 28,700 mt, or 57 percent of the Area 3 TAC had been 
delivered to shoreside processors. While this figure represents a 
substantial increase in shoreside deliveries from 13,065 mt in 2000, it 
appears unlikely that shoreside processors will utilize the entire Area 
3 TAC of 50,000 mt in 2002, as the Council believed. While the increase 
in shoreside deliveries reflects the addition of a new herring 
processing facility in Gloucester, MA, it is still uncertain that U.S. 
processing capacity is sufficient to utilize the full Area 3 TAC of 
50,000 mt. NMFS agrees with the State of Connecticut that, while the 
export sector of the domestic industry has further developed over the 
past year, removing opportunities for U.S. vessels to participate in 
JVP operations in Area 3 would cause economic hardships of varying 
degrees to those vessels. Also, net benefits to the fishery will likely 
be enhanced by continuing to allow JVP activity in both areas. 
Therefore, this final rule allocates JVP to both Area 2 and Area 3.
    Comment 2: The Russian Federation commented that all products 
processed at sea by Russian vessels are sent to foreign markets in 
accordance with U.S. law. The Federation believes that allocating JVP 
and TALFF to Russia provides additional advantages to U.S. fishermen -- 
in particular, new possibilities for more profitable operations and 
full utilization of fishing capacities -- and also promotes rational 
use of marine resources. A U.S. partner of foreign fishing operations 
supported this view.
    Response: Based on an increase of estimated DAH/DAP by 5,000 mt for 
Atlantic herring over last year's estimate, the estimated portion of 
2002 OY not harvested by U.S. vessels is zero, and, therefore, TALFF is 
zero. The Council has concluded that TALFF, even in relatively small 
amounts, can compete with U.S. exports in limited global markets. The 
potentially negative economic impacts of competition with TALFF-caught 
fish is discussed in the RIR. However, an allocation of zero TALFF does 
not preclude opportunities for U.S. vessels to participate in JVP 
operations. NMFS accepts the Council's analysis and rationale; this 
final rule sets TALFF at zero.
    Comment 3: A Maine fisheries association and a U.S. JVP partner 
suggested increasing JVP to 20,000 mt for Atlantic herring.
    Response: NMFS believes that a JVP specification of 20,000 mt could 
potentially impact the development of shoreside processors and would 
not be consistent with the FMP. If the majority of a 20,000 mt JVP 
allocation is taken from Area 3, this would allow only approximately 
30,000 mt of herring to be delivered to shoreside processors. Since 
those processors have almost taken this amount in 2001, this would not 
leave additional allocation for further development of shoreside 
processing capabilities. However, NMFS will continue to closely monitor 
harvest from the various sectors of the fishery throughout the year, 
and if shoreside production falls short of expectations, NMFS, in 
consultation with the Council, could increase JVP allocation at any 
time during the fishing year, if warranted.
    Comment 4: A U.S. JVP partner recommended a separate herring 
allocation for the Maine purse seine fleet.
    Response: A separate allocation for Maine purse seiners was not 
within the scope of this action and would require an amendment or 
framework to the FMP. The commenter would have to convince the Council 
that such an action has enough merit to direct staff to develop a 
sufficient number of alternatives and supporting analyses, given the 
Council's current list of priorities.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    This action establishes the annual and management area 2002 TACs 
for the Atlantic herring fishery, which are used for the purpose of 
closing the fishery when the quotas are reached.
    Framework 1 to the FMP, as approved by the Secretary, is published 
elsewhere in today's Federal Register, effective immediately. That 
action gives NMFS the authority to divide the TAC for Management Area 
1A into two seasons to preserve the much larger traditional fishery 
that has occurred from June through December. The fishing year begins 
on January 1, and the TAC for the January through May period is being 
set as a percentage of the annual quota allocation established by this 
rule, currently equating to only 6,000 mt for the 2002 fishing year. As 
such, unless this rule, which establishes the annual specifications for 
herring, is made effective prior to, or at the same time as, Framework 
1, then there exists no basis upon which to determine the January 
through May TAC. Thus, the ability to implement Framework 1 is 
completely dependent upon the effectiveness of this action; without 
this rule in place, the basis upon which Framework 1 is predicated does 
not exist. Accordingly, the AA finds good cause, under 5 U.S.C. 
553(d)(3), to waive the 30 day delayed effectiveness for these 
specifications, since doing so is likely to prove necessary in order to 
close Area 1A.
    Additionally, waiving the 30 day delayed effectiveness for these 
specifications will relieve a restriction on JVP operations (i.e., U.S. 
harvesters delivering to foreign processors) who are currently waiting 
to deliver herring. Some of the foreign vessels who received herring 
from domestic fishermen in 2001 intend to engage in herring JVP 
operations in 2002, and are currently waiting to do so. However, until 
the herring specifications are finalized and these foreign vessels are 
permitted, they are prohibited from doing so. Thus, a delay in the 
effectiveness of this action would prolong a restriction upon those 
vessels, while making these specifications immediately effective will 
serve to relieve the existing restriction. Therefore, there exists 
authority under 5

[[Page 3444]]

U.S.C. 553(d)(1) to waive the 30-day delayed effectiveness period for 
this rule.
    NMFS prepared a final regulatory flexibility act analysis (FRFA) 
for this action. A copy of the FRFA, which incorporates the IRFA, is 
available from the Council (see ADDRESSES). 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 new reporting and recordkeeping requirements. It will 
not duplicate, overlap, or conflict with any other Federal rules. This 
action is taken under authority of the Magnuson-Stevens Act and 
regulations at 50 CFR part 648.

Public Comments

    Eight sets of public comments were received on the proposed rule. 
None of the comments directly addressed the results of the IRFA. 
However, comments 1 through 3 addressed economic impacts to vessels and 
shoreside processors. Responses to those comments are provided in the 
preamble of this final rule.

Number of Small Entities

    All of the affected businesses (fishing vessels and dealers) are 
considered small entities. The last full year of data available for the 
herring fishery is the year 2000. There were 169 vessels, 6 processors, 
and 104 dealers participating in the fishery in 2000.

Minimizing Economic Impacts on Small Entities

    The only change from the 2001 specifications is an increase in 
estimated DAH/DAP by 5,000 mt and a resulting decrease in TALFF to 
zero. The impacts of this change in DAP could benefit domestic 
processors because domestic shoreside processing has increased 
recently. The impacts were discussed in the proposed rule published on 
October 29, 2001 (66 FR 54498) and in the EA/RIR/IRFA for the 2002 
herring specifications. The Regulatory Flexibility Act requires an 
agency to consider alternative measures that would mitigate adverse 
economic impacts to small businesses. While this action would eliminate 
TALFF fees to the Nation and decrease the profitability of foreign 
fishing vessels that previously participated in JVP/TALFF operations, 
it would not have an adverse economic impact on U.S. herring processors 
or other U.S. small businesses as compared to the status quo, which 
allocates 5,000 mt of TALFF and would have a negative impact on U.S. 
processors who are attempting to penetrate emerging markets for 
herring. The Council also considered a specification of 20,000 mt of 
TALFF and concluded that this level of TALFF would also cause 
significant negative impacts on U.S. processors by competing directly 
with the U.S. export market for herring. NMFS did not adopt the 
recommendation of the Council to limit JVP to Area 2, because it is 
likely there would be significant negative economic impacts to several 
vessels in 2002 that participated in Area 3 JVPs in 2001. However, NMFS 
did not adopt Council non-preferred alternatives that would have 
increased JVP up to 50,000 mt because amounts over the 10,000 mt 
preferred specification of JVP could limit the supply of herring going 
to U.S processors while providing foreign nations with additional 
amounts of herring to sell into emerging markets in direct competition 
with U.S. exports.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rule making process, a permit holder letter that also serves as a 
small entity compliance guide was prepared. The guide (i.e., permit 
holder letter) will be sent to all holders of permits issued for the 
Atlantic herring fishery. In addition, copies of this final rule and 
guide (i.e., permit holder letter) are available from the Regional 
Administrator (see ADDRESSES) and are also available at the following 
web site http://www.nero.nmfs/gov/ro/doc/nero.html.
    This action clarifies a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) that has been approved by 
OMB under control number 0648-0212. Public reporting burden for this 
collection of information is estimated to average 4 minutes per 
response, including 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 this burden estimate, or any other aspect of this data 
collection, including suggestions for reducing the burden, to NMFS (see 
ADDRESSES) and to OMB at the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Washington, DC. 20503 
(Attention: NOAA Desk Officer).
    Notwithstanding any other provision of the 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 PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing.

    Dated: January 18, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 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.  648.7, paragraph (b)(1)(iii)(B) is revised, paragraph 
(b)(1)(iii)(C) is redesignated as paragraph (b)(1)(iii)(D), and a new 
paragraph (b)(1)(iii)(C) is added to read as follows:


Sec.  648.7  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (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 and that 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.
    (C) An owner or operator of any vessel that catches  
2,000 lb (907.2 kg) of Atlantic herring, some or all of which is caught 
in or from the EEZ, 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.
* * * * *
[FR Doc. 02-1761 Filed 1-18-02; 3:41 pm]
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