[Federal Register Volume 67, Number 16 (Thursday, January 24, 2002)]
[Rules and Regulations]
[Pages 3445-3446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1762]



[[Page 3445]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 011221308-1308-01; I.D. 112101A]
RIN 0648-AP44


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Framework Adjustment 1

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 management measures 
contained in Framework Adjustment 1 to the Atlantic Herring Fishery 
Management Plan (FMP). This final rule modifies the annual 
specification of herring quota for Management Area 1A by establishing 
two quota periods. The intent of this final rule is to cap the landings 
of herring from Area 1A during the winter/spring (January through May) 
season so that more annual quota will be available to vessels fishing 
during the summer/fall (June through December) peak demand season.

DATES: Effective January 24, 2002.

ADDRESSES: Copies of Framework Adjustment 1 to the Atlantic Herring 
FMP, including the Environmental Assessment (EA), and Regulatory Impact 
Review (RIR) are available upon request from Paul J. Howard, Executive 
Director, New England Fishery Management Council, 50 Water Street, Mill 
2, Newburyport, MA 01950. The EA/RIR is also accessible via the 
Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Management 
Specialist, (978) 281-9103, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule implements the measures 
contained in Framework 1 to the FMP. These measures require annual 
specification of herring quotas for two seasonal fishing periods for 
Management Area 1A (January - May and June - December). The annual 
quota (TAC) for each period will be established each year through the 
existing annual specifications' process outlined in 50 CFR 648.200. The 
annual Atlantic herring specifications for fishing year 2002 are 
published elsewhere in this edition of the Federal Register. This final 
rule also modifies the 2002 Area 1A TAC of 60,000 mt by allocating 
6,000 mt to the January - May period, leaving 54,000 mt for the June - 
December period. The annual 2002 TAC for Area 1A would remain 
unchanged. The intent of this final rule is to modify the 2002 Area 1A 
TAC upon implementation of the 2002 specifications. Complementary 
action is being proposed for implementation by the states through the 
Atlantic States Marine Fisheries Commission's Atlantic Sea Herring 
Interstate FMP (IFMP).
    Prior to this modification, the FMP required NMFS to close the 
directed herring fishery in a management area when 95 percent of the 
TAC for that area is harvested. Management area TACs were established 
by the states under the IFMP for the 2000 fishing year, and by NMFS 
under the FMP for the 2001 fishing year (66 FR 28846). Therefore, 2000 
was the first year landings from Area 1A were constrained by the TAC. 
The traditional peak demand for herring coming from Area 1A occurs 
during June - November, when the primary use is for lobster bait. In 
both 2000 and 2001, the TAC was attained prior to the end of November 
(October 27, 2000 under the ASMFC Plan; November 10, 2001 under the 
Atlantic Herring FMP (66 FR 56041), respectively).
    Over the past year, the New England Fishery Management Council 
(Council) and its Herring Oversight Committee discussed at several 
meetings the various proposed alternatives to address the industry's 
concerns, including limited entry or controlled access in Area 1A. 
Causes of the early attainment of the TAC in Area 1A, include excessive 
harvesting capacity of the herring fleet given Area 1A TAC levels 
specified in recent years, and the lower cost for vessels from Maine, 
New Hampshire, and Massachusetts to harvest herring from Area 1A 
compared to other areas located farther offshore. These vessels are 
induced to concentrate their effort in Area 1A in order to maximize 
profits, provided the fish are available in sufficient quantities. As a 
result, the herring TAC is reached earlier than desired by the fleet as 
a whole. For several years, the Council has considered developing an 
amendment to the FMP to establish a limited entry or controlled access 
program to address the capacity issue. However, other fishery issues 
have been identified as having higher priority, at least through 2002. 
Therefore, the Council developed Framework 1 to address the problem for 
the near future.

Abbreviated Rulemaking

    NMFS is making these revisions to the regulations under the 
framework abbreviated rulemaking procedure codified at 50 CFR 648.206. 
This procedure requires the Council, when making specifically allowed 
adjustments to the FMP, to develop and analyze the actions over the 
span of at least two Council meetings, where comments are accepted. The 
Council must provide the public with advance notice of both the 
framework proposals and the associated analysis and provide an 
opportunity to comment on them, specifically prior to and at the second 
Council meeting. Upon review of the analyses and public comments, the 
Council may recommend to NMFS that the measures be published as a final 
rule, or as a proposed rule if additional public comment is necessary. 
For this action, the Council recommended, and NMFS concurred after 
review of current circumstances in this fishery as further explained in 
the classification section of the final rule, that the measures be 
published as a final rule.
    The initial and final meetings for Framework 1 at which public 
comment was received were on July 24-26, 2001, and September 25-27, 
2001, respectively. The Council's Herring Oversight Committee and 
Herring Advisory Panel also met in August, between the two Council 
meetings, to take public comments and to discuss the action under 
consideration. Documents summarizing the Council's proposals and the 
analysis of biological, economic and social impacts were available for 
public review one week prior to the final meeting, as is required under 
the framework adjustment process. Written comments were accepted up to 
and during the final meeting. The Council received no written comments 
on the proposed action.

Classification

    The fishing year for the Atlantic herring fishery begins on January 
1, and the TAC for the January - May period is being set at only 6,000 
mt for the 2002 fishing year in this final rule. Because herring are 
currently plentiful in Area 1A and landings data from the fishery 
indicate that significant catches are being made, the TAC may be 
reached within a few weeks. Without this rule in place, NMFS would have 
no authority to close the directed herring fishery once 95 percent of 
the seasonal TAC is attained. Furthermore, NMFS needs some lead time 
before a closure is effected in order to notify industry of the 
closure. Therefore, it is essential that this action be implemented as 
quickly

[[Page 3446]]

as possible in order to avoid exceeding the TAC for the first quota 
period, which would defeat the purpose of the action, as described in 
the preamble to this final rule. Therefore, the Assistant Administrator 
for NOAA (AA) finds that the July 24-26, 2001, and the September 25-27, 
2001, Council meetings provided adequate prior notice and opportunity 
for public comment and, because any further delay could result in the 
seasonal TAC for the first quota period being exceeded, further notice 
and opportunity for public comment are impracticable. Therefore, the 
AA, under 5 U.S.C. 553(b)(B), finds good cause exists to waive 
additional opportunity for prior public comment.
    The AA also finds good cause under 5 U.S.C. 553(d)(3) to waive the 
30-day delayed effectiveness period for this final rule. The TAC for 
the 2002 fishery for Management Area 1A implemented in the 2002 
Atlantic Herring specifications (published elsewhere in this edition of 
the Federal Register) is 60,000 mt. This action modifies the annual 
specification for Management Area 1A by establishing two quota periods 
so that more annual quota will be available to vessels fishing during 
the summer/fall peak demand season. Because this action caps the 
landings of herring from Area 1A during the January - May season, state 
agencies and fishers must be notified of the new cap in order to plan 
accordingly. In order for industry to plan accordingly for the upcoming 
fishing year, this modification of the annual specifications for the 
herring fishery must be published on or about January 1. Further, as 
explained in the preceding paragraphs, the availability of herring in 
Area 1A in January 2002 and preliminary landings information from the 
industry indicate that the directed fishery in Area 1A may need to be 
closed within a few weeks. Without this final rule's measures in place, 
the authority to close the fishery at 95 percent of the 6000 mt TAC in 
Area 1A would not exist, and the expected benefits of this action would 
be lost in 2002. As such, it is contrary to the public interest and 
impracticable to delay effectiveness for 30 days.
    Because a prior notice and opportunity for public comment is not 
required for this final rule under 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    This final rule has been determined not to be not significant for 
purposes of Executive Order 12866.

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.  648.200, the first two sentences of paragraph (a) are 
revised to read as follows:


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, including seasonal quotas as 
specified at Sec.  648.202(f). * * *
* * * * *

    3. In Sec.  648.202, the first sentence of paragraphs (a) is 
revised, and paragraph (f) is added to read as follows:


Sec.  648.202  Total allowable catch (TAC) controls

    (a) If NMFS determines that catch will reach or exceed 95 percent 
of the annual TAC allocated to a management area before the end of the 
fishing year, or 95 percent of the Area 1A TAC allocated to the first 
seasonal period as set forth in paragraph (f) of this section, 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. * * *
* * * * *
    (f) The TAC for Management Area 1A is divided into two seasonal 
periods. The first season extends from January 1 through May 31, and 
the second season extends from June 1 through December 31. Seasonal 
TACs for Area 1A shall be set through the annual specification process 
described in Sec.  648.200.
[FR Doc. 02-1762 Filed 1-18-02; 3:45 pm]
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