Fisheries of the Northeastern United States; Atlantic Herring Fishery; Amendment 1, 11252-11281 [E7-4163]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Rules and Regulations]
[Pages 11252-11281]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-4163]



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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 Part 648



Fisheries of the Northeastern United States; Atlantic Herring Fishery; 
Amendment 1; Final Rule

Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 060901235-7027-02; I.D. 082406C]
RIN 0648-AQ87


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Amendment 1

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

ACTION: Final rule.

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SUMMARY: NMFS is implementing approved measures contained in Amendment 
1 to the Atlantic Herring Fishery Management Plan (FMP), developed by 
the New England Fishery Management Council (Council). Amendment 1 
establishes a limited access program. Amendment 1 also includes the 
following measures: An open access incidental catch permit; a change in 
the management area boundaries; establishment of a purse seine/fixed 
gear-only area; establishment of a maximum sustainable yield (MSY) 
proxy; an approach to determining the distribution of area-specific 
Total Allowable Catches (TACs); a multi-year specifications process; a 
research quota set-aside for herring-related research; a set-aside for 
fixed gear fisheries; a change in the midwater trawl gear definition; 
and additional measures that could be implemented through the framework 
adjustment process. Also, NMFS informs thepublic 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: Effective June 1, 2007, except for Sec. Sec.  648.200-648.203, 
and Sec. Sec.  648.206-648.207, which are effective April 11, 2007.

ADDRESSES: Copies of supporting documents used by the Council, 
including the Final Supplemental Environmental Impact Statement (FSEIS) 
and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility 
Analysis (IRFA), are available from Paul J. Howard, Executive Director, 
New England Fishery Management Council, 50 Water Street, Mill 2, 
Newburyport, MA 01950. These documents are also available online at 
https://www.nefmc.org. NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA), which is contained in the Classification section of 
the preamble of this final rule. Copies of the FRFA, Record of Decision 
(ROD), and the Small Entity Compliance Guide are available from the 
Regional Administrator, Northeast Regional Office, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298, and are also available via the 
internet at https://www.nero.nmfs.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to David Rostker at OMB by e-mail to David--
Rostker@omb.eop.gov, or fax to (202) 395-7285, or to the Federal e-
rulemaking portal https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, (978) 281-9259, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements the approved measures of Amendment 1, 
which was partially approved by NMFS on behalf of the Secretary of 
Commerce (Secretary) on December 6, 2006. A proposed rule for Amendment 
1 was published in the Federal Register on September 27, 2006 (71 FR 
56446), with comments accepted through November 13, 2006. The details 
of the development of Amendment 1 were contained in the preamble of the 
proposed rule and are not repeated here. In the proposed rule, NMFS 
requested comment on all proposed measures, but specifically 
highlighted three issues about which it had concern. The three 
highlighted issues were: (1) the proposed revision of existing 
provisions in Sec.  648.13 relating to the transfer of fish at sea in 
order to enforce the possession restrictions proposed in Amendment 1; 
(2) whether it was necessary to maintain the reserve option as part of 
the specification process; and (3) whether a vessel that sank, was 
destroyed, or was sold, and then replaced, should be able to meet the 
permit requirement for a limited access incidental catch permit if it 
had been issued a Federal permit to fish for Loligo or Illex squid, 
mackerel, butterfish, and/or whiting (a limited access Northeast 
multispecies permit also serves as a whiting permit), during the 2005 
fishing year as of November 10, 2005, and had landed at least 33,000 lb 
(15 mt) of herring in any calendar year between January 1, 1988, and 
December 31, 2003. A discussion of these issues, including NMFS 
consideration of public comments on the issues, follows:

1. Possession Limits for Transfers at Sea

    NMFS did not receive any comments on this issue and, since it 
simply clarifies the applicability of the possession limits for 
permitted herring vessels, regardless of the disposition of the catch, 
this final rule includes regulatory language to ensure that such 
possession limits are maintained and enforced. NMFS did receive comment 
on other aspects of the proposed regulations governing transfer of fish 
at sea, and has made revisions to this final rule as a result. These 
revisions are discussed under changes from the proposed rule and in the 
response to comment 25 in this preamble.

2. Maintenance of the Reserve

    NMFS recieved seven comments on this issue, including one from the 
Council, all in support of maintaining the reserve provision to ensure 
that the Council and NMFS have maximum flexibility to respond to 
changing circumstances in the fishery that arise during the course of 
the fishing year. In deference to these arguments, and, in particular, 
to the Council's wishes, this final rule maintains the reserve option 
as part of the specification process.

3. Vessels that Sank, were Destroyed, or Sold

    The Council submitted a comment in support of the provision that 
would clarify that vessels that sank, were destroyed, or were sold, and 
then replaced, would be subject to the same permit history criteria as 
vessels that apply directly for a limited access incidental catch 
permit. Therefore, to meet the permit history criteria for a limited 
access incidental catch permit, a vessel that is replacing a vessel 
that sank, was destroyed, or sold, must have been issued a Federal 
permit to fish for Atlantic herring, Loligo or Illex squid, mackerel, 
butterfish, and/or whiting (a limited access Northeast multispecies 
permit also serves as a whiting permit), between November 10, 2003, and 
November 9, 2005.
    For purposes of TAC monitoring, Amendment 1's revision to the 
management area boundaries required NMFS to consider how to attribute 
landings to the appropriate herring management area. This final rule 
changes the management boundaries for three of the areas (1B, 2, and 
3), with portions of Area 1B and Area 2 redesignated into Area 3. The 
reporting requirements for herring vessels require vessel owners/
operators to report their

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landings via interactive voice reporting (IVR) and vessel trip reports 
(VTR) based on the area boundaries in effect at the time of their 
fishing trip. Therefore, the catch reports for some fishing trips 
conducted prior to April 11, 2007 would be attributed to Areas 1B or 2 
when they should be attributed to Area 3. The Council did not consider 
this possibility in Amendment 1, but NMFS has determined that it will 
use the data available from the fishery (Vessel Monitoring System 
(VMS), IVR, and VTR) to reallocate, to the extent possible, the area-
specific landings that took place prior to the implementation of 
Amendment 1 to the areas as implemented by this final rule.

Disapproved Measures

    After reviewing Amendment 1, its supporting analyses, and public 
comments received on the amendment, NMFS, on behalf of the Secretary, 
disapproved one measure in Amendment 1, based on NMFS's determination 
that the measure was inconsistent with two of the National Standards of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The disapproved measure concerned the harvest of herring 
by fixed gear fishermen in Downeast Maine (east of Cutler-the Downeast 
Maine Fixed Gear Fishery). Amendment 1 proposed to allow the harvest of 
herring by fixed gear fishermen in Downeast Maine to be exempt from the 
TACs that govern the fishery. The specifications process would have 
presumed that catch from this Downeast fishery and the New Brunswick 
weir fishery would not exceed 20,000 mt. During the fishing season, 
catch from the Downeast Maine fixed gear fishery would not have been 
counted against the TAC for Area 1A, and the fixed gear fishery would 
have been allowed to continue to operate after the Area 1A TAC was 
reached.
    NMFS disapproved this measure because it was, prima facie, 
inconsistent with National Standard 1 of the Magnuson-Stevens Act. The 
measure would essentially allow a portion of the fishery to remain 
completely unregulated, without corresponding conservation benefits. If 
herring landings from the fixed-gear fishery in this area were to 
increase dramatically, NMFS would have no means of regulating that 
catch to ensure the integrity of the TACs established for the fishery. 
NMFS also found that the measure was inconsistent with National 
Standard 3, as it would fail to manage the stock throughout its range.

Approved Measures

    NMFS approved the remainder of the measures in Amendment 1, 
although not all approved measures require regulatory text in this 
final rule. A summary of the approved measures follows. This final rule 
also includes some non-substantive revisions to the existing text of 
the herring regulations that were included in the proposed rule but 
that were not part of Amendment 1; these revisions remove obsolete 
language, clarify the intent of the Council, and generally improve the 
organization and clarity of the regulations. NMFS has made several 
additional changes to clarify the administrative requirements 
associated with the Amendment 1 measures. These are described under 
Changes from the Proposed Rule in this preamble.

1. Exemption from Vessel Permit Requirements

    The following vessels may fish for, catch, possess, transport, or 
land Atlantic herring in or from the Exclusive Economic Zone without a 
Federal permit: A skiff or other similar craft used exclusively to 
deploy the net in a purse seine operation conducted by a vessel that is 
permitted to fish for Atlantic herring; and a vessel that possesses 
herring solely for its own use as bait, providing the vessel does not 
use or have on board purse seine, midwater trawl, pelagic gillnet, sink 
gillnet, or bottom trawl gear on any trip on which herring is fished 
for, possessed, or landed, and does not transfer, sell, trade, or 
barter such herring.

2. Limited Access Vessel Permits

    This final rule implements two new categories of limited access 
permits that authorize vessels to fish for herring without being 
limited by a possession limit: (1) An All Areas Limited Access Herring 
Permit, which authorizes vessels to fish in all herring management 
areas; and (2) an Areas 2 and 3 Limited Access Herring Permit, which 
authorizes vessels to fish only in herring management areas 2 and 3. A 
vessel is eligible for either an All Areas Limited Access Herring 
Permit or an Areas 2 and 3 Limited Access Herring Permit if it meets 
both the permit history criteria and the landings requirements 
specified in this final rule. Vessels that qualify for such permits are 
not restricted by a possession or trip limit for herring, though they 
are subject to the other regulations established through this final 
rule. If 95 percent of an area TAC is reached in a management area, the 
directed fishery for herring will be closed, and All Areas Limited 
Access Herring permit holders and Areas 2 and 3 Limited Access Herring 
permit holders will be limited to 2,000 lb (907.2 kg) of herring per 
trip, with a limit of one landing per calendar day when fishing in the 
area.
    A vessel is eligible for either an All Areas Limited Access Herring 
Permit or an Areas 2 and 3 Limited Access Herring Permit it if meets 
the requisite history and landings criteria. First, the vessel must 
meet one of the two following permit history criteria: The vessel must 
have been issued a Federal herring permit (Category 1 or 2) that was 
valid as of November 10, 2005; or the vessel is replacing a vessel that 
was issued a Federal herring permit (Category 1 or 2) between November 
10, 2003, and November 9, 2005. To qualify as a replacement vessel, the 
replacement vessel and the vessel being replaced must both be owned by 
the same vessel owner; or, if the vessel being replaced was sunk or 
destroyed, the vessel owner must have owned the vessel at the time it 
sank or was destroyed; or, if the vessel being replaced was sold to 
another person, the vessel owner must provide a copy of a written 
agreement between the buyer and the owner/seller documenting that the 
vessel owner/seller retained the herring permit history and all herring 
landings history. This written agreement must be consistent with the 
permit splitting provisions outlined in Section 4 of this preamble.
    The vessel must also meet certain landings requirements, depending 
on the type of permit beings sought. The landings requirements to 
qualify for the All Areas Limited Access Herring Permit require the 
vessel and/or any vessel it replaced to have landed at least 500 mt of 
herring in any one calendar year between January 1, 1993, and December 
31, 2003, as verified by dealer reports submitted to NMFS or documented 
through valid dealer receipts, if dealer reports were not required by 
NMFS (dealers of Atlantic herring were required to obtain a dealer 
permit and to comply with reporting requirements as of January 10, 
2001). The landings requirements to qualify for an Areas 2 and 3 
Limited Access Herring Permit require the vessel and/or any vessel it 
replaced to have landed at least 250 mt of herring in any one calendar 
year between January 1, 1993, and December 31, 2003, as verified by 
dealer reports submitted to NMFS or documented through valid dealer 
receipts, if dealer reports were not required by NMFS (dealers of 
Atlantic herring were required to obtain a dealer permit and to comply 
with reporting

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requirements as of January 10, 2001). In those cases where a vessel has 
sold herring but there are no required dealer receipts, e.g., transfers 
of bait at sea and border transfers (BT), a vessel owner can submit 
other documentation that verifies such transactions and proves that the 
herring thus transferred should be added to the vessel's landings 
history.
    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has not been replaced, must see Section 
4 of this preamble for information about the requirement to obtain a 
confirmation of permit history (CPH).

3. Limited Access Incidental Catch Herring Permit

    This final rule implements a Limited Access Incidental Catch 
Herring Permit to accommodate vessels that have an incidental catch of 
herring while fishing in other small-mesh, high-volume fisheries for 
species including Atlantic mackerel, Loligo squid, and whiting. A 
vessel must meet both the permit history criteria and the eligibility 
requirements specified in this rule.
    A vessel is eligible for and may be issued a limited access 
Incidental Catch Herring Permit if it meets the requisite permit 
history and landings requirements. First, the vessel must must have 
been issued a Federal permit to fish for Atlantic herring, Loligo or 
Illex squid, mackerel, butterfish, and/or whiting (a limited access 
Northeast multispecies permit also serves as a whiting permit), during 
the 2005 fishing year as of November 10, 2005; or the vessel is 
replacing a vessel that was issued a Federal permit to fish for 
Atlantic herring,Loligo or Illex squid, mackerel, butterfish, and/or 
whiting (a limited access Northeast multispecies permit also serves as 
a whiting permit) between November 10, 2003, and November 9, 2005. To 
qualify as a replacement vessel, the replacement vessel and the vessel 
being replaced must both be owned by the same vessel owner; or, if the 
vessel being replaced was sunk or destroyed, the vessel owner must have 
owned the vessel at the time it sank or was destroyed; or, if the 
vessel being replaced was sold to another person, the vessel owner must 
provide a copy of a written agreement between the buyer and the owner/
seller documenting that the vessel owner/seller retained the herring 
permit history and all herring landings history. This written agreement 
must be consistent with the permit splitting provisions outlined in 
Section 4 of this preamble.
    To qualify for a limited access incidental catch herring permit, 
the vessel and/or any vessel it replaced must also document that it 
landed at least 33,000 lb (15 mt) of herring in any calendar year 
between January 1, 1988, and December 31, 2003, as verified by dealer 
reports submitted to or documented through valid dealer receipts, if 
dealer reports were not required by NMFS (dealers of Atlantic herring 
were required to obtain a dealer permit and to comply with reporting 
requirements as of January 10, 2001). In those cases where a vessel has 
sold herring but there are no dealer receipts, e.g., transfers of bait 
at sea and BT, a vessel owner can submit other documentation that 
captures such transactions and proves that the herring thus transferred 
should be added to the vessel's landings history. A person who does not 
currently own a fishing vessel, but who has owned a qualifying vessel 
that has not been replaced, must see Section 4 of this preamble for 
information about the requirement to obtain a CPH.
    Vessels with limited access incidental catch permits are restricted 
by a possession limit of 55,000 lb (25 mt) of herring and limited to 
one landing of herring per calendar day. If 95 percent of an area TAC 
is reached in a management area, the directed fishery for herring will 
be closed, and limited access incidental catch permit holders will be 
limited to 2,000 lb (907.2 kg) of herring per trip, with a limit of one 
landing per calendar day, when fishing in the area.
    A vessel may be issued multiple herring permits. For instance, a 
vessel could qualify for the Areas 2 and 3 Limited Access Herring 
Permit, but not the All Areas Limited Access Herring Permit. Such a 
vessel could also qualify for a Limited Access Incidental Catch Permit. 
In this case, the vessel could not possess herring in excess of the 
Limited Access Incidental Catch Herring Permit possession limit of 
55,000 lb (25 mt) if it fishes any part of a trip in Area 1, regardless 
of whether it catches herring from Areas 2 or 3. However, the vessel 
could catch and land herring in excess of 55,000 lb (25 mt) in or from 
Areas 2 and 3, provided it stowed its gear while transiting Area 1.

4. Limited Access Vessel Permit Provisions

    This final rule establishes measures to govern future transactions 
related to limited access vessels, such as purchases, sales, or 
reconstruction. These measures apply to all limited access vessels.

Initial Eligibility

    Initial eligibility for a herring limited access permit must be 
established during the first year after the permit is required. A 
vessel owner is required to submit an application for a herring limited 
access permit or CPH by May 31, 2008.

CPH

    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has sunk, been destroyed, or transferred 
to another person, can apply for and receive a CPH if the herring 
fishing and permit history of such vessel has been retained lawfully by 
the applicant. To be eligible to obtain a CPH, the applicant has to 
show that the qualifying vessel meets the eligibility requirements for 
the limited access herring permit in question, and that all other 
permit restrictions are satisfied (e.g., permit splitting). Issuance of 
a valid CPH preserves the eligibility of the applicant to apply for a 
limited access permit for a replacement vessel based on the qualifying 
vessel's fishing and permit history at a subsequent time. A CPH has to 
be applied for by the due date in order for the applicant to preserve 
the limited access eligibility of the qualifying vessel. Vessel owners 
who are issued a CPH can obtain a vessel permit for a replacement 
vessel based upon the previous vessel's history utilizing the CPH, 
consistent with the vessel size upgrade restrictions.
    The owner of a qualifying vessel that has sunk, been destroyed, or 
been transferred to another person without the Atlantic herring fishing 
history, but not yet replaced, must submit an application for a CPH by 
May 31, 2008.

Landings History

    Unless NMFS data already demonstrate that a vessel made landings of 
herring that satisfy the eligibility criteria for a limited access 
permit, applicants must submit valid dealer receipts that verify 
landings. The owners of pair trawl vessels may divide the catch history 
between the two vessels in the pair through third party verification 
and supplemental information, such as VTR or dealer reporting. The two 
owners must apply for a limited access permit jointly and must submit 
proof that they have agreed to the division of their landings. In those 
cases where a vessel has sold herring but there are no required dealer 
receipts, e.g., transfers of bait at sea and BTs, a vessel owner can 
submit other documentation that captures such transactions and proves 
that the herring

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thus transferred should be added to the vessel's landings history.

Extension of Qualification Period

    A vessel owner who can prove that a vessel was under construction, 
reconstruction, or was under written contract for purchase as of 
December 31, 2003, and landed the amount of fish required by the 
limited access program as of December 31, 2004, can apply for and 
obtain a limited access permit as long as the vessel meets the permit 
eligibility criteria. This measure provides such vessel owners with a 
1-year extension of the qualification period for the landings portion 
of the eligibility criteria.

Permit Transfers

    An Atlantic herring limited access permit and fishery history is 
presumed to transfer with a vessel at the time it is bought, sold, or 
otherwise transferred from one owner to another, unless it is retained 
through a written agreement signed by both parties in the vessel sale 
or transfer.

Permit Splitting

    Limited access herring permits are governed by the permit splitting 
provision currently in effect for other limited access fisheries in the 
region. Therefore, a limited access permit may not be issued to a 
vessel if the vessel's permit or fishing history has been used to 
qualify another vessel for a limited access permit. This means all 
limited access permits, including herring limited access permits, must 
be transferred as a package when a vessel is replaced or sold. As 
specified in Amendment 1, the permit-splitting provision applies to the 
transfer/sale of herring fishing history prior to the implementation of 
this final rule. Thus, vessel owners who sold vessels with limited 
access permits and retained the herring history with the intention of 
qualifying a different vessel for the herring limited access program 
are not eligible for a limited access permit, unless the limited access 
permits on the sold vessel are permanently relinquished by the owner.

Qualification Restriction

    Consistent with previous limited access programs, no more than one 
vessel may qualify, at any one time, for a limited access permit or CPH 
based on that or another vessel's fishing and permit history. If more 
than one vessel owner claims eligibility for a limited access permit or 
CPH, based on one vessel's fishing and permit history, the 
Administrator, Northeast Region, NMFS (Regional Administrator) will 
determine who is entitled to qualify for the permit or CPH.

Appeal of Permit Denial

    There is an appeals process for applicants who are initially denied 
a limited access Atlantic herring permit. Such applicants can appeal in 
writing to the Regional Administrator within 30 days of the denial. Any 
such appeal may only be based on the grounds that the information used 
by the Regional Administrator to evaluate the application was 
incorrect.
    The appeals process provides an opportunity for a hearing before a 
hearing officer designated by the Regional Administrator. The owner of 
a vessel denied a limited access herring permit may fish for herring, 
pending the outcome of an appeal, provided that the denial has been 
appealed, the appeal is pending, and the vessel has on board a letter 
from the Regional Administrator authorizing the vessel to fish under 
the limited access category. The Regional Administrator will issue such 
a letter for the pendency of any appeal. If the appeal is ultimately 
denied, the Regional Administrator will send a notice of final denial 
to the vessel owner, and the authorizing letter becomes invalid 5 days 
after receipt of the notice of denial, but no later than 10 days from 
the date of the letter of denial.

Vessel Upgrades

    A vessel can be upgraded in size, whether through refitting or 
replacement, and be eligible to retain or renew a limited access 
herring permit, only if the upgrade complies with the following 
limitations. The vessel's horsepower (HP) can be increased only once, 
whether through refitting or replacement. Such an increase cannot 
exceed 20 percent of the HP of the vessel's baseline specifications, as 
applicable. The vessel's length, gross registered tonnage (GRT), and 
net tonnage (NT) can be increased only once, whether through refitting 
or replacement. Any increase in any of these three specifications of 
vessel size cannot exceed 10 percent of the vessel's baseline 
specifications, as applicable. If any of these three specifications is 
increased, any increase in the other two must be performed at the same 
time. This type of upgrade can be done separately from an engine HP 
upgrade.
    This final rule makes no changes to the existing specification of 
maximum length, size, and HP for vessels engaged in the Atlantic 
herring fishery (165 ft (50.2 m), 750 GRT (680.3 mt), and 3,000 HP), or 
existing regulations that exempt U.S. at-sea processing (USAP) vessels 
from these size limits.

Establishing Vessel Baselines

    A limited access vessel's baseline refers to those specifications 
(length overall, GRT, NT, and HP) from which any future vessel size 
change is measured. The vessel baseline specifications for an Atlantic 
herring vessel issued a limited access permit are the specifications of 
the vessel that is initially issued a limited access permit, as of the 
date that the vessel owner initially applied for such a permit for that 
vessel. If a vessel owner is initially issued a CPH instead of a 
permit, the vessel that provided the CPH eligibility establishes the 
size baseline against which future vessel size limitations will be 
evaluated.

Vessel Replacements

    The term vessel replacement refers to replacing an existing limited 
access vessel with another vessel. In addition to addressing increases 
in vessel size and HP, this final rule requires that the same entity 
must own both the limited access vessel (or fishing history) that is 
being replaced, and the replacement vessel.

Voluntary Relinquishment of Eligibility

    A vessel owner may voluntarily exit a limited access fishery by 
permanently relinquishing a vessel's limited access fishing 
eligibility. In some circumstances, this may allow vessel owners to 
choose between different permits with different restrictions without 
being bound by the more restrictive requirement (e.g., lobster permit 
holders may choose to relinquish their other NE Region limited access 
permits to avoid being subject to the reporting requirements associated 
with those other permits). If a vessel's limited access permit history 
for the herring fishery is voluntarily relinquished to the Regional 
Administrator, no limited access permit for that fishery can ever be 
reissued or renewed based on that vessel's history.

Permit Renewals and CPH

    Once a vessel has qualified for and been issued a limited access 
herring permit, a vessel owner must maintain the limited access permit 
status by renewing the permits on an annual basis or applying for 
issuance of a CPH. A CPH may be issued to a person who does not 
currently own a particular fishing vessel, but who has legally retained 
the fishing and limited access permit history of the vessel for the 
purpose of transferring it to a replacement vessel at a future date. 
The CPH provides a benefit to a vessel owner by securing limited access 
eligibility through a registration system

[[Page 11256]]

when the individual does not currently own a vessel.
    A vessel's limited access permit history will be cancelled due to 
the failure to renew, in which case no limited access permit can ever 
be reissued or renewed based on that vessel's history or to any other 
vessel relying on that vessel's history.
    All limited access permits must be issued on an annual basis by the 
last day of the permit year for which the permit is required, unless a 
CPH has been issued. Atlantic herring permits are issued annually for 
the period May 1-April 30; this is referred to as the permit year. A 
complete application for a limited access herring permit must be 
received no later than 30 days before the last day of each permit year: 
that is, no later than March 31.

5. Open Access Vessel Permit and Possession Limit

    Any vessel is eligible to be issued an open access incidental catch 
permit authorizing the possession and landing of up to 6,600 lb (3 mt) 
of herring per trip, with a limit of one landing per calendar day. When 
the TAC in a management area is projected to be reached and the limited 
access fishery closes, the possession limit for these vessels will be 
reduced to 2,000 lb (907.2 kg) per trip, with a limit of one landing 
per calendar day, when fishing in the area. Open access vessels that 
land more than 2,000 lb (907.2 kg) of herring in any week are required 
to report their catches on a weekly basis through the IVR reporting 
program described in Section 6 of this preamble.
    To transport herring caught by another fishing vessel, an Atlantic 
herring carrier vessel must be issued an Atlantic herring permit, not 
have any gear on board capable of catching or processing herring, and 
have on board a letter of authorization (LOA) from the Regional 
Administrator. Carrier vessels are not required to qualify for a 
limited access permit to possess/transport herring, but must be issued 
either an open access or a limited access herring permit. While 
operating as a carrier vessel under an LOA, a carrier vessel is not 
limited by the possession limits associated with the herring permit 
issued to the vessel because the vessel is functioning solely as a 
carrier, with no gear on board capable of catching herring.

6. Reporting Requirements

    All limited access herring permit holders are required to report 
herring catches weekly through the IVR call-in system, and to file a 
negative report if there are no catches in a specific week. All open 
access herring vessels that land more than 2,000 lb (907.2 kg) of 
herring in any week must also report their landings through IVR. All 
vessels issued a limited access herring permit (with the exception of 
fixed gear (weirs and stop seines) fishermen) must also install and 
maintain operable VMS units, and comply with all VMS notification and 
reporting requirements. Such vessels may power down the VMS unit when 
in port, but must re-power the VMS unit and enter an appropriate trip 
designation prior to leaving port. All VTR requirements for permitted 
herring vessels in the existing regulations remain in effect.

7. Adjustments to Management Area Boundaries

    Herring management measures, including TACs, are specified for four 
management areas (Areas 1A, 1B, 2, and 3). The area boundaries have 
been revised consistent with recommendations from the Transboundary 
Resource Assessment Committee (TRAC), a group comprised of both U.S. 
and Canadian scientists. The boundary between Areas 1B and 3 is revised 
through this final rule to assure that fish caught in Franklin Swell 
are attributed to the Georges Bank (GB) spawning component of the 
stock. The Area 2 and 3 boundary is moved west from 69[deg]00' W. long. 
to 70[deg]00' W. long. through this final rule to better relate catch 
to the TRAC conclusion that there are two spawning components of the 
stock: The Gulf of Maine (GOM) and GB/Nantucket Shoals components.

8. Maximum Sustainable Yield

    In February 2003, during the development of Amendment 1, the TRAC 
met to try to come to consensus regarding the status of the stock and 
the most appropriate values for biological reference points. The two 
herring assessments presented at the TRAC meeting produced different 
results, and no overall consensus was reached regarding which 
assessment is more accurate. Consequently, no specific biological 
reference points were provided by the joint peer review group. In the 
face of this scientific uncertainty, the Council decided that it was 
appropriate to set a relatively conservative proxy for MSY in Amendment 
1, until a stock assessment can be completed that specifies an 
analytical MSY value. Based on input from the Council's Scientific and 
Statistical Committee (SSC), the proxy reference points specified in 
the overfishing definition for Atlantic herring were as follows: MSY = 
220,000 mt; BMSY (BTarget) = 1,100,000 mt; and 
Bthreshold = 550,000 mt. The reference points in the FMP 
were: MSY = 317,000 mt; BMSY (BTarget) = 
1,100,000 mt; and Bthreshold = 550,000 mt (the 
Bthreshold established in the FMP is \1/2\ BMSY). 
The Amendment 1 document explained that the proposed proxy reference 
points would be revised if a new, peer-reviewed stock assessment 
recommends different reference points. In May 2006, the TRAC reconvened 
and completed another herring assessment. The TRAC recommended the 
following reference points: MSY = 194,000 mt, and Bmsy = 
629,000 mt. Based on this and the FMP's guidance, BTarget is 
629,000 mt, and Bthreshold is 314,500 mt (\1/2\ 
BMSY). These values are now the new reference points for the 
Atlantic herring fishery.

9. Specification of Management Measures Including TACs

    The Amendment 1 management program establishes a 3-year 
specification process. If the Council determines that the 
specifications should be adjusted during the 3-year time period, it may 
recommend an adjustment through the specification process for one or 
both of the interim years. No action is required by the Council to 
maintain the same specifications for all 3 fishing years.

10. TAC Set-Asides to Support Herring-Related Research

    Amendment 1 authorizes the Council, in consultation with the 
Atlantic States Marine Fisheries Commission (Commission), to recommend 
setting aside 0-3 percent of the TAC from any management area(s) as a 
research set aside (RSA) to support herring-related research. The RSA 
can be used to support herring-related research in any management 
area(s), consistent with the research priorities identified by the 
Council. Projects funded under an RSA allocation have to enhance 
understanding of the fishery resource and/or contribute to the body of 
information upon which management decisions are made.
    The Council recommends the specific percentages for the RSA and the 
management area(s) to which it is applied during the fishery 
specification process. If there is no RSA allocated, the directed 
herring fishery will close in each management area when it is projected 
that 95 percent of the area TAC would be caught. The remaining 5 
percent of the TAC will be set aside for catch under a 2,000-lb (907.2-
kg) trip limit. If the RSA is specified for a management area, it comes 
out of the allocation for the directed fishery. For example, if there 
is a 3 percent set-aside of the Area 1A TAC to support research,

[[Page 11257]]

then the Area 1A directed fishery would close when 92 percent of the 
overall Area TAC was projected to be reached.
    The RSA will be administered through a process similar to that 
specified by the Mid-Atlantic Fishery Management Council in several of 
its fishery management plans. That mechanism includes the following 
elements: Individual research projects may apply for the use of more 
than one herring RSA allocation; researchers may request to harvest the 
RSA separately from the research trip or as part of the research trip; 
and research compensation trips need not be conducted by the same 
vessel, but all trips must be conducted in the management area from 
which the RSA is allocated.
    Multi-year projects can be funded, since the RSA process is 
intended to be consistent with the 3-year specification process. The 
RSA must be utilized in the same fishing year in which it is allocated 
(i.e., RSA and compensation trips cannot be rolled over into future 
years). However, the money generated from the RSA may be rolled over 
into, or used to fund research in future years, consistent with the 
multi-year proposal.
    Specification of RSA amounts (percentages) for the upcoming fishing 
years will be incorporated into the Council's fishery specification 
package every 3 years, and submitted to NMFS with additional analysis 
required, as part of the specification package. For each proposal 
cycle, NMFS must publish a Request for Proposals (RFP) that specifies 
research priorities identified by the Council and application 
procedures for funding through the RSA. Since specifications will be 
set for 3 fishing years, the proposal cycle will also cover 3 fishing 
years, unless the Council identifies new/different research priorities 
during the interim years and decides to publish a second RFP.
    Research proposals, whenever possible, will be reviewed and 
approved prior to the publication of final specifications for the 
upcoming fishing years. In the event that the approved proposals do not 
make use of any or all of the set-asides, NMFS is authorized to release 
the unutilized portion of the RSA back to its respective management 
area(s) when the final specifications are published. If there is 
unutilized RSA available, NMFS, at the request of the Council, could 
publish another RFP for either the second or third years of the three-
year specifications. In such case, NMFS shall release the unutilized 
portion of the RSA back to its respective management area(s) for the 
first year of the specifications and any other year that yields 
unutilized RSA after an additional RFP is published. The Council also 
may decide not to publish another RFP, in which case NMFS shall release 
the unutilized portion of the RSA back to its respective management 
area(s) for all 3 fishing years covered by the specifications.

11. Purse Seine/Fixed Gear Only Area

    This action prohibits the use of midwater trawling vessels from 
fishing for Atlantic herring in Area 1A from June 1 September 30 of 
each year. There are no restrictions on the use of midwater trawl gear 
in Area 1A from October 1 May 31.

12. Measures to Address Fixed Gear Fisheries

    One measure in the proposed rule would have set aside 500 mt of the 
Area 1A TAC for the fixed gear fisheries in Area 1A (weirs and stop 
seines) that occur west of Cutler, Maine. In its comments, the Council 
pointed out that it had not meant to establish this set aside at the 
500 mt level, but rather to allow the set aside to be set at any value 
up to 500 mt. As a result of this comment, NMFS has modified the final 
rule to clarify that this set aside is up to 500 mt, and not invariably 
500 mt. This set-aside is available for harvest using fixed gear west 
of Cutler in Area 1A until November 1 each year. If the set-aside is 
not utilized by the fixed gear fisheries west of Cutler in Area 1A by 
November 1, then it becomes part of the overall allocation for Area 1A. 
If 95 percent of the Area 1A TAC has already been reached by November 1 
(and the directed fishery in Area 1A is therefore closed), the 
reallocation of the set-aside would not result in re-opening the 
directed fishery, but would be available for landings under the 2,000-
lb (907.2-kg) possession limit.
    This measure requires weekly monitoring of fixed gear catches in 
Area 1A. To ensure that this set-aside is effectively monitored and 
enforced, fixed gear (weirs and stop seines) fishermen in Area 1A are 
required to report their herring catches through the IVR reporting 
system. Because fixed gear fishermen fish exclusively in state waters 
and are not required to obtain a Federal limited access permit, this 
IVR reporting requirement has been implemented in state waters by the 
Commission in Amendment 2 to the Interstate FMP for Atlantic Herring.

13. Measures to Address Bycatch

    Measures to address bycatch in the herring fishery were developed 
in conjunction with Amendment 1, but submitted separately as Framework 
43 to the NE Multispecies FMP. Framework 43 was approved and 
implemented through a final rule that was effective August 15, 2006 (71 
FR 46871). Framework 43's regulatory requirements apply to Category 1 
herring vessels. Amendment 1 establishes new vessel permit 
designations. The proposed rule for Amendment 1 stated that the 
regulatory requirements in Framework 43 would be applicable to all 
vessels issued limited access permits. The Council comment noted that 
NMFS should revise the final regulation because it was inconsistent 
with Amendment 1, which specifies that the measures established by 
Framework 43 will apply only to vessels issued an All Areas Limited 
Access Herring Permit or the Areas 2 and 3 Limited Access Herring 
Permit, not limited access incidental catch permits. NMFS reviewed 
Amendment 1 and Framework 43 and has revised this final rule 
accordingly, because it is explicit in the Amendment and the Framework 
that the measures should apply only to All Areas Limited Access Herring 
and the Areas 2 and 3 Limited Access fishing permits. This means 
vessels issued limited access incidental catch permits are prohibited 
from possessing any NE multispecies.

14. Regulatory Definition of Midwater Trawl Gear

    This action modifies the regulatory definition of midwater trawl 
gear to reflect the recommendations made by the Council's Enforcement 
Committee to improve the enforceability of the definition and clarify 
the public's understanding of how the gear should be fished. The 
restrictions included in the new definition better ensure that the gear 
cannot be fished on the ocean bottom.

15. Framework Measures

    This action expands the framework adjustment process in the FMP by 
adding the following measures to the list of measures that could be 
implemented through a framework adjustment to the FMP in the future: 
In-season adjustments to TACs; measures to address bycatch and bycatch 
monitoring; and TAC set-aside amounts, provisions, and adjustments.

Comments and Responses

General Comments on Amendment 1

    Comment 1: A total of 988 commenters expressed general support for 
Amendment 1. One commenter opposed the entire amendment.
    Response: NMFS has approved the Amendment, with the exception of 
the

[[Page 11258]]

measure concerning the harvest of herring by fixed gear fishermen in 
Downeast Maine (east of Cutler-the Downeast Maine Fixed Gear Fishery).

Comments on the PS/FG Only Area

    Comment 2: A total of 970 commenters supported the measure that 
would establish a seasonal (June-September) purse seine/fixed gear (PS/
FG) only area. These commenters included U.S. Congressman Tom Allen; 
Bumble Bee/Stinson Seafoods; the Coalition for the Atlantic Herring 
Fishery's Orderly, Informed, and Responsible Long-Term Development 
(CHOIR); Conservation Law Foundation (CLF); Environment Maine; the 
Lobster Conservancy; the Maine Department of Marine Resource (MEDMR); 
the National Coalition for Marine Conservation; the National 
Environmental Trust; the Northeast Hook Fisherman's Association; 
Oceana; the Ocean Conservancy; the Stellwagen Bank Charter Boat 
Association; and 957 individuals.
    These commenters provided the following reasons for supporting the 
measure: (1) Midwater trawlers have a negative impact on sustainability 
of the herring resource because they cause localized depletion of 
herring in the areas where they fish, while such localized depletion is 
not caused by other herring gears, such as purse seines and weirs; (2) 
herring are a keystone species in the GOM, and maintaining a healthy 
inshore herring stock is critically important to lobster fisherman who 
use herring for bait, and to a wide range of predators that rely on 
herring as forage, including groundfish, tuna, seabirds, striped bass, 
and whales; (3) the measure will minimize bycatch of marine mammals and 
groundfish, which are put at risk due to bycatch by midwater trawls; 
(4) the measure is an appropriate precautionary measure; and (5) the 
social and economic impacts of the PS/FG area are more than offset by 
the biological benefits that will accrue, and the trawlers that are 
kept out of this area will still have the option of redirecting their 
efforts to Areas 1B, 2, and 3, which would support one the FMP's goal 
of encouraging the development of the offshore herring fishery.
    Fifty-three commenters argued that the PS/FG only area should be 
disapproved, including the American Pelagic Association, the Associated 
Fisheries of Maine (AFM), Cape Seafoods, Inc.; Cold Spring Fish &Supply 
Company; Garden State Seafood Association (GSSA); Lunds Fisheries, 
Inc.; Norpel; and 46 individuals. The reasons cited by these commenters 
for their opposition are that the PS/FG only area violates several of 
the Magnuson-Stevens Act national standards and other legal 
requirements, including: (1) National Standard 2 and the Administrative 
Procedure Act (APA) because the rationale for the proposal does not 
have an adequate scientific basis; (2) National Standard 4 and the APA 
because it is an unfair and inequitable allocation of fishing 
privileges and the Amendment 1 analyses do not demonstrate a rational 
connection between that allocation and the actual furtherance of 
optimum yield (OY) or any legitimate goal of the FMP; (3) National 
Standard 4 because it discriminates between residents of different 
states; (4) National Standard 7 because the measure fails to, where 
practicable, minimize costs by imposing costs of a new gear amounting 
to several hundred thousands of dollars; (5) National Standard 8 and 
Magnuson-Stevens Act section 303(b)(6), because the Council has not 
adequately analyzed or given due weight to the present participation of 
midwater trawls in the fishery, the historical fishing practices and 
dependence on the fishery, the economics involved, and the impact upon 
fishing communities adversely affected by this discriminatory 
provision; and (6) National Standard 9, which requires that 
conservation and management measures shall, to the extent practicable, 
minimize bycatch and bycatch mortality. Commenters also claimed that, 
although Amendment 1 argues that the measure will prevent overfishing, 
it presents no reasoned argument for that conclusion. Excluding 
midwater trawlers, the commenters continue, will not reduce the number 
of herring caught; rather, it will simply mean purse seiners will catch 
more, and midwater trawlers less. Finally, some commenters claimed that 
although Amendment 1 argues that it will protect discrete spawning 
components, it presents no facts or logical connection to support this 
and, furthermore, it presents no evidence of localized depletion, a 
term that is not even defined.
    Response: The Magnuson-Stevens Act gives considerable latitude to 
the Councils to develop management measures if, in the judgment of the 
Council, they conserve and manage a fishery resource. While the 
comments in opposition to this measure note several legal and statutory 
requirements that the commenters believe would be violated by the 
proposed measure, NMFS does not agree with their assertions.
    NMFS determined that the measure does not violate National Standard 
2 or the APA. National Standard 2 does not limit the Council or NMFS to 
taking action only in those cases where scientific data support a 
measure, but rather requires the use of the best scientific information 
available concerning the issue under review. This action is justified 
under the APA because it is based on rational decision making and not 
arbitrary and capricious. With respect to the PS/FG, the Council did 
take into account the best available scientific information on 
localized depletion, and adequately weighed that information, along 
with other factors, in supporting this measure in the Amendment and its 
supporting analyses. NMFS agrees with the Council that, in the face of 
scientific uncertainty or in the absence of hard data, as is the case 
in this situation, the Council can choose to be precautionary and 
implement measures intended to address or avoid a resource problem. 
Given the importance of herring as a forage species and its role in the 
GOM ecosystem, NMFS concludes that it is appropriate to enact this 
measure now to maintain the health of this resource in the inshore 
area, as well as the resources that depend on herring as prey, and the 
businesses that are sustained by a healthy GOM ecosystem. Such weighing 
and balancing of factors clearly satisfies the APA's requirement that a 
federal action not be arbitrary and capricious.
    This measure does not violate National Standard 4. While National 
Standard 4 does not allow NMFS to approve measures that were 
specifically designed to discriminate between the residents of 
different states, it does not limit NMFS's ability to approve measures 
that have a different impact on fishermen from different states. The 
proposed PS/FG measure is not designed to differentiate between fishers 
based on their state of residence. The measure was designed to regulate 
the use of a specific gear type in herring Management Area 1A. The fact 
that vessels fishing from ports in states that are closer to Area 1A 
may be more impacted than vessels in states that are more distant is an 
unavoidable geographic fact, not discrimination. In addition, impacted 
fishers may continue to fish within the area during the PS/FG only 
season if they use a gear other than midwater trawl gear.
    Amendment 1 notes that the PS/FG only measure contributes, 
``directly and indirectly,'' to several FMP objectives, including 
Objective 1 (prevent overfishing) and Objective 5 
(full utilization of OY). A more specific linkage to these particular 
FMP objectives is not provided in the amendment. The measure 
contributes to

[[Page 11259]]

the overall management program, however, thus NMFS concludes it is 
appropriate to characterize the measure as indirectly supporting the 
objectives of preventing overfishing and achieving OY. NMFS notes that 
the achievement of OY does not depend solely on the attainment of the 
TAC in Area 1A. In fact, in most years, the Area 1A TAC has been fully 
attained. Achieving OY would require that the TACs allocated to Area 2 
and Area 3 be attained, which is unrelated to the PS/FG only measure.
    Amendment 1 also notes that the PS/FG only measure contributes, 
``directly and indirectly,'' to FMP Objective 2 (prevent 
overfishing of discrete spawning components), and that the measure is 
intended to prevent the inshore stock component from becoming depleted 
or overfished. NMFS agrees with the commenters who note that there is 
no formal definition of the term ``localized depletion.'' However, such 
a definition is not required in order for the Council to design a 
measure to conserve and manage the stock in Area 1A. The Council has 
now established a seasonal gear restriction in the area to address 
concerns about the impact of midwater trawling on schools of herring. 
This gear restriction is an expansion of the area management program 
that has been in effect for the fishery for a number of years.
    Some commenters similarly noted their view that the proposed 
provision would violate the Magnuson-Stevens Act provision at 303(b), 
which specifies conditions for the allocation of fishing privileges. 
However, this measure does not make an allocation of fishing 
privileges, because any fisher who is eligible for the required herring 
permit may fish under the specified gear restrictions.
    This measure does not violate National Standard 7. The key phrase 
in this standard is ``where practicable.'' This standard does not 
require that conservation and management measures minimize costs 
whenever costs are involved. The PS/FG measure is projected to entail 
costs to those vessel owners who can no longer fish in the area during 
the seasonal restriction and who choose to either re-rig so that they 
can fish in the PS/FG or fish in other areas. These costs were fully 
considered by the Council and balanced against the potential benefits 
of the PS/FG area, and in the Council's estimation, with which NMFS 
concurs, those costs are justified. Furthermore, to the extent that 
fishermen excluded from the PS/FG have the option to either fish in 
other areas or re-rig to become purse seiners, the economic impacts of 
the PS/FG can be partially ameliorated as compared to being completely 
banned seasonally from this area.
    National Standard 8 requires that fishing measures take into 
account a range of factors, including the importance of fishery 
resource to ensure the sustained participation of fishing communities 
and, to the extent practicable, minimize the economic impact on such 
communities. National Standard 8 does not dictate what measures shall 
be adopted once those factors are considered. Amendment 1 provides a 
huge amount of information on the potential impacts of the PS/FG on 
virtually every stakeholder, including the fishing communities that 
rely on herring. Those data were fully considered and evaluated by the 
Council in deciding to support this measure. Similar to the discussion 
of National Standard 7, above, one of the key phrases in Standard 8 is 
``to the extent practicable.'' While various fishing communities are 
projected to have costs to bear as a result of the implementation of 
PS/FG, those costs were balanced and minimized in development of the 
measure to the extent that fishermen excluded from the PS/FG have the 
options to either fish in other areas or re-rig to become purse 
seiners, thereby ameliorating the economic impacts of being completely 
banned seasonally from this area. As noted previously, the requirements 
at Section 303 (b) of the Magnuson-Stevens Act are specific to the 
allocation of fishing privileges, not the gear restriction established 
by the PS/FG measure. Any fisher who is eligible for the required 
herring permit may fish under the specified gear restrictions.
    This measure does not violate National Standard 9. While the 
Council notes in Amendment 1 that there may be some indirect benefits 
to recovering groundfish stocks in Area 1A based on data suggesting 
differences in bycatch rates, species composition of bycatch, and 
bycatch mortality between purse seines and midwater trawls, the measure 
is not specifically designed to address bycatch. The commenters did not 
explain why they believe that the indirect benefits cited would violate 
the requirement to address bycatch.
    Comment 3: One commenter urged NMFS to develop a formal definition 
of a purse seine vessel. The commenter expressed concern that some 
midwater trawl vessels that might re-rig to use purse seine gear have 
holds that are much larger than traditional purse seine vessels. The 
commenter expressed concern that larger vessels could fish too hard in 
Area 1A, and requested a definition that would ``limit the ultra-
efficiency'' of trawlers that re-rig.
    Response: The restriction on the use of midwater trawl gear is not 
based on vessel size or capacity; it is a gear restriction. The Council 
specifically notes its intention that midwater trawl owners have the 
option of re-rigging to use the preferred purse seine gear in Area 1A 
when midwater trawl gear is prohibited. NMFS has no authority to 
establish a definition that would substantially modify the Council's 
intent.

Comments on Limited Access Program

    Comment 4: Nine commenters, including CLF, the Ocean Conservancy 
and seven individuals, argued against approving the limited access 
program presented in Amendment 1 because it fails to address the issue 
of overcapacity. These commenters argued, among other things, that the 
Council should not have allowed vessels to qualify for limited access 
permits on the basis of landings made after the control date of 
September 16, 1999. They believe that the Council should reconsider the 
alternatives that relied on the 1999 control date, and are, therefore, 
presumably arguing for disapproval of the limited access program in 
Amendment 1. On the other hand, 22 commenters supported the limited 
access program for Area 1A in general, but did not support the 
eligibility criteria, arguing that they would significantly increase 
effort in this area. Bumble Bee/Stinson Seafoods commented in support 
of the implementation of the All Areas Limited Access Permit in 
Amendment 1. Six vessel owners commented in favor of the implementation 
of the limited access program for Areas 2 and 3.
    Response: Control dates are set to alert the fishing community to 
the possibility, not the certainty, that vessels that enter the fishery 
after that date might be treated differently than vessels that were in 
the fishery prior to that date, in the event that a limited access 
program is implemented. However, a Council is under no obligation to 
use the control date in establishing criteria for a limited access 
program. If a Council decides to develop a limited access program, the 
program must comply with the requirements of the Magnuson-Stevens Act 
outlined in section 303(b)(6). These requirements include the need to 
take into account the present and historical participation. With regard 
to herring, the Council was aware that new vessels had entered the 
herring fishery since the September 1999 control date and were fishing 
for herring in various management areas. One of the goals and 
objectives of

[[Page 11260]]

Amendment 1 is to, ``provide, to the extent practicable, controlled 
opportunities for fishermen and vessels in other Mid-Atlantic and New 
England fisheries.'' Due to the nature of this fishery and recent 
developments in shoreside processing, the Council determined that 
active participants up through 2003 with significant landings should be 
accommodated in at least some management areas. NMFS concludes that the 
Council selected eligibility criteria consistent with the requirements 
of the Magnuson-Stevens Act.
    In a similar vein, a Council is under no obligation to select the 
most restrictive eligibility criteria. The Council properly considered 
a range of factors in determining the eligibility criteria, and, in 
particular, the dates during which landings would be used to qualify 
for limited access permits, paying special attention to the need to 
balance historic and current participation. Although the Council could 
have chosen eligibility criteria that would have greatly reduced the 
number of qualifying vessels and hence the potential effort in Area 1A, 
the eligibility criteria that the Council chose are reasonable and 
defensible.
    Comment 5: Forty-six commenters, including AFM; APA; Cape Seafoods, 
Inc.; Cold Spring Fish & Supply Company; GSSA; Lunds Fisheries, Inc.; 
Montauk Inlet Seafood, Inc.; Norpel, and 38 individuals argued that 
NMFS should disapprove the establishment of the limited access program 
for Areas 2 and 3. The reasons cited for this position include the 
following: (1) The TACs allocated to these areas have never been fully 
utilized, and landings have actually decreased in recent years, 
therefore establishing limited access in these areas would violate 
National Standard 1, which requires measures to, ``prevent overfishing 
while achieving on a continuing basis, the optimum yield from each 
fishery;'' (2) limiting access to these areas now will impede the 
achievement of OY; (3) the capacity analysis in Amendment 1 is flawed 
because it did not analyze recent and anticipated future growth in 
capacity or fishing effort in Areas 2 and 3, it over-estimated 
harvesting capacity, and it does not take into account net capacity 
growth that may have taken place in the past few years; (4) the 
amendment simply assumes rather than proves that, absent the imposition 
of limited access, there would be significant growth in capacity in 
Areas 2 and 3; (5) it will unfairly eliminate a large percentage of the 
fleet from access to significant amounts of herring; and (6) the 
possibility of overcapitalization, in the absence of any serious threat 
of overfishing or other near-term conservation impact, is not a 
sufficient basis for the imposition of a limited access system, with 
all its attendant adverse effects upon competition and free market 
activity.
    Response: Many of the concerns noted by these commenters are the 
result of the fact that they inappropriately equate historic landings 
with fleet capacity. The fact that the open access herring fleet has 
not taken the TACs in Areas 2 and 3 is not a reflection of the capacity 
of the vessels. Indeed, during the Council debate about annual 
specifications, members of the herring industry strenuously argued that 
the existing fleet has the capacity to take the entire OY (including 
all the TACs for the various areas), thereby precluding any foreign 
fishing allocation. Many of the same industry members now argue that, 
because they have not in fact taken the TACs in Areas 2 and 3, those 
areas should remain open access in order to land OY. However, the 
capacity to take the TACs in Areas 2 and 3 already exists, as 
demonstrated in the capacity analysis for the No Action alternative. 
The reason that the fleet has not done so to date has more to do with 
the availability of fish and external market factors that it has to do 
with capacity. In Section 6.1 of Amendment 1, the Council adequately 
lays out its rationale for limited access and the Council notes that it 
seeks to avoid the problems experienced in other fisheries as a result 
of excess capacity. The Council also notes that it seeks to develop a 
limited access program to address the existing capacity problems in 
Area 1A and avoid such problems in other areas.
    The Magnuson-Stevens Act requires the Council to consider past and 
present participation when establishing a limited access program, and 
the Amendment 1 eligibility criteria are predicted to result in a fleet 
that has the capacity to harvest expected TACs. The analysis of 
potential harvesting capacity in this Council document is based on the 
best available information and provides some perspective on what the 
potential catch of the limited access fleet may be under the Amendment 
1 eligibility criteria. The range of potential catch under each of the 
limited access criteria provided in the analysis was not intended to be 
an absolute estimate or a direct measure of capacity, but rather a tool 
for the Council to use to eva