[Federal Register Volume 70, Number 19 (Monday, January 31, 2005)]
[Proposed Rules]
[Pages 4808-4811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1744]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 050112008-5008-01; I.D. 010605E]
RIN 0648-AS23
Fisheries of the Northeastern United States; Atlantic Herring
Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed 2005 specifications for the Atlantic herring fishery;
request for comments.
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SUMMARY: NMFS proposes specifications for the 2005 Atlantic herring
fishery, which would be maintained through 2006 unless stock and
fishery conditions change substantially. The regulations for the
Atlantic herring fishery require NMFS to publish specifications for the
upcoming year and to provide an opportunity for public comment. The
intent of the specifications is to conserve and manage the Atlantic
herring resource and provide for a sustainable fishery. NMFS also
proposes one clarification to the Atlantic herring regulations, which
would remove references to the dates on which the proposed and final
rules for the annual specifications must be published.
DATES: Comments must be received no later than 5 p.m., Eastern Standard
Time, on March 2, 2005.
ADDRESSES: Copies of supporting documents, including the Environmental
Assessment, Regulatory Impact Review, Initial Regulatory Flexibility
Analysis (EA/RIR/IRFA), and Essential Fish Habitat Assessment 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.nero.gov.
Written comments on the proposed specifications should be sent to
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 1 Blackburn Drive, Gloucester, MA 01930. Mark on the outside
of the envelope: ``Comments-2005 Herring Specifications.'' Comments may
also be sent via facsimile (fax) to 978-281-9135. Comments on the
specifications may be submitted by e-mail as well. The mailbox address
for providing e-mail comments is [email protected]. Include in the
subject line of the e-mail comment the following document identifier:
``Comments-2005 Herring Specifications.'' Comments may also be
submitted electronically through the Federal e-Rulemaking portal:
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy
Analyst, 978-281-9259, e-mail at [email protected], fax at 978-281-
9135.
SUPPLEMENTARY INFORMATION:
Background
Regulations implementing the Atlantic Herring Fishery Management
Plan (FMP) require the New England Fishery Management Council's
(Council) Atlantic Herring Plan Development Team (PDT) to meet at least
annually, no later than July each year, with the Atlantic States Marine
Fisheries Commission's (Commission) Atlantic Herring Plan Review Team
(PRT) to develop and recommend the following specifications for
consideration by the Council's Atlantic Herring Oversight Committee:
Allowable biological catch (ABC), optimum yield (OY), domestic annual
harvest (DAH), domestic annual processing (DAP), total foreign
processing (JVPt), joint venture processing (JVP), internal waters
processing (IWP), U.S. at-sea processing (USAP), border transfer (BT),
total allowable level of foreign fishing (TALFF), and reserve (if any).
The PDT and PRT also recommend the total allowable catch (TAC) for each
management area and subarea identified in the FMP. As the basis for its
recommendations, the PDT reviews available data pertaining to:
Commercial and recreational catch; current estimates of fishing
mortality; stock status; recent estimates of recruitment; virtual
population analysis results and other estimates of stock size; sea
sampling and trawl survey data or, if sea sampling data are
unavailable, length frequency information from trawl surveys; impact of
other fisheries on herring mortality; and any other relevant
information. Recommended specifications are presented to the Council
for adoption and recommendation to NMFS. NMFS reviews the Council
recommendation, and may modify it if necessary to insure
[[Page 4809]]
that it is consistent with the criteria in the FMP and other applicable
laws. After the review of the Council submission, NMFS has modified the
following Council recommendations, for reasons detailed below: The
Council recommended setting OY at 180,000 mt, DAH at 180,000 mt, DAP at
176,000 mt, USAP at 0, the TAC for Area 2 at 50,000 mt, and the TAC for
Area 3 at 60,000 mt.
Proposed 2005 Specifications
NMFS proposes the specifications and Area TACs contained in the
following table.
Specifications and Area TACs for the 2005 (and 2006) Atlantic Herring
Fishery
------------------------------------------------------------------------
Specification Proposed Allocation (mt)
------------------------------------------------------------------------
ABC 220,000
OY 150,000
DAH 150,000
DAP 146,000
JVPt 0
JVP 0
IWP 0
USAP 20,000 (Area 2 and 3
only)
BT 4,000
TALFF 0
Reserve 0
TAC - Area 1A 60,000 (January 1 - May
31, landings cannot
exceed 6,000)
TAC - Area 1B 10,000
TAC - Area 2 30,000 (No Reserve)
TAC - Area 3 50,000
------------------------------------------------------------------------
In addition, the Council recommended, and NMFS proposes, to
maintain the 2005 specifications for 2006, unless stock and fishery
conditions change substantially. The Herring PDT will update and
evaluate stock and fishery information during 2005, and the Council and
NMFS may determine, based on the review by the Herring PDT, that no
adjustments to the specifications are necessary for the 2006 fishing
year. Maintaining the specifications for 2 years would provide the
Council with an opportunity to complete the development of Amendment 1
to the FMP, which may implement a limited access program for the
herring fishery in addition to other management measures, including
possible adjustments to the specification process.
NMFS also proposes one change to the Atlantic herring regulations,
which would remove references to the dates on which the proposed and
final rules for the annual specifications must be published, because it
is not necessary to specify these dates in regulatory text. This
regulatory language change is a matter of agency procedure and is
consistent with previously approved measures.
An ABC of 220,000 mt is proposed, consistent with the MSY proxy
recommended in Amendment 1 to the FMP, which is currently being
developed. The 220,000 mt proxy recommended in Amendment 1 is intended
to be a temporary and precautionary placeholder for MSY until the next
stock assessment for the Atlantic herring stock complex is completed.
Because of the importance of ABC as a means of determining the other
values in the specifications, it is discussed in the specifications,
even though it is not a value that is set by the specification process.
The FMP specifies that OY will be less than or equal to ABC minus
the expected Canadian catch (C) from the stock complex. The estimate of
the Canadian catch that is deducted from ABC will be no more than
20,000 mt for the New Brunswick weir fishery and no more than 10,000 mt
for the Georges Bank fishery. With ABC set at 220,000, OY could be less
than or equal to 190,000 mt if the maximum catch is assumed for the
Canadian herring fishery. The FMP also states that the establishment of
OY will include consideration of relevant economic, social, and
ecological factors and that, for this reason, OY may be less than ABC
C. In addition, the Herring PDT recommended that OY be specified at a
level lower than ABC for biological and ecological reasons.
The Council recommended that the OY and the DAH for the 2005
Atlantic herring fishery be set at 180,000 mt. The determination of OY
was based, in part, on meeting the FMP objectives of increasing
economic benefits to the U.S. fishing industry through the expansion of
U.S. herring into the world market. If OY were set at a higher level,
it could result in TALFF, which is that portion of the OY of a fishery
that will not be harvested by vessels of the United States. While NMFS
agrees that there are legitimate and legally defensible reasons to set
the OY at a level that can be harvested by the domestic fleet and that
would thereby preclude the specification of a TALFF, NMFS does not find
that the Council's analysis justifies the levels of OY and DAH that it
recommended.
The allocation of TALFF would allow foreign vessels to harvest U.S.
fish and sell their product on the world market, in direct competition
with the U.S. industry. The Council expressed its concern, supported by
industry testimony, that an allocation of TALFF would threaten the
expansion of the domestic industry. The economic benefits to the Nation
from TALFF activity are limited to the payment of poundage fees.
However, the Council's analysis also makes it clear that, despite the
loss of poundage fees resulting from zero TALFF, the expansion of the
U.S. industry would generate potential long-term economic benefits for
U.S. Atlantic herring harvesters and processors that would outweigh
that loss. For these reasons, the Council concluded, and NMFS agrees,
that the specification of an OY at a level that can be fully harvested
by the domestic fleet, thereby precluding the specification of a TALFF,
will assist the U.S. Atlantic herring industry to expand and will yield
positive social and economic benefits to U.S. harvesters and
processors. NMFS, therefore, proposes that OY be specified at 150,000
mt.
The Council recommended that DAH be set at 180,000 mt. NMFS
believes that this is too high for a number of reasons. First, the
Council proposal presumes a dramatic increase in landings that is not
justified in the Council's submission. From 1996-2003, herring landings
averaged 102,000 mt. The highest level of landings in recent years was
in 2001, when they reached 121,332 mt. To justify a DAH of 180,000, one
would have to assume a roughly 80-percent increase in DAH as compared
to average landings in recent years, and a 50-percent increase in DAH
as compared to the highest year in the series. NMFS proposes setting
DAH at 150,000 mt. This would allow a 23-percent increase in landings
as compared to 2001, and would, therefore, better reflect fishery
performance in recent years, while at the same time giving the fishery
an opportunity to expand. Given the trends in landings, and the
industry's testimony that the fishery is poised for significant growth,
NMFS concludes that it is reasonable to assume that in 2005 the
commercial fishery will harvest 150,000 mt of herring.
The Council's recommendation for TACs assumed an OY of 180,000 mt.
With the OY being set at 150,000 mt, the proposed TACs, too, have to be
modified. While the proposed Area 1A and 1B TACs would remain the same
as they were in 2004, NMFS proposes reducing the Area 2 TAC from 50,000
mt to 30,000 mt, and the Area 3 TAC from 60,000 mt to 50,000 mt. These
area allocations are intended to permit the fishery to increase
landings above the highest levels achieved in recent years. The highest
recent landings in Area 2 were 27,198 mt in 2000; thus, the allocation
would allow the fishery to slightly exceed that level. The highest
recent landings in Area 3 were 35,079 mt in 2001; thus, the allocation
would
[[Page 4810]]
allow the fishery to exceed that level by a considerable amount because
this is the area most likely to see expanded harvests.
The regulations, at Sec. 648.200(e), allow for inseason
adjustments of the herring specifications. Thus, if the herring fishery
during the 2005 or the 2006 fishing year expands more than anticipated,
the OY, the DAH, the DAP, and the area TACs could be increased to
enable the fishery to perform to its fullest potential. Such increases
would be constrained by the analysis that the Council included in this
year's specification recommendations. That means that DAH and OY could
be increased to a maximum of 180,000 mt, the DAP could be increased to
a maximum of 176,000 mt, and the Area 2 TAC and the Area 3 TAC could be
increased to 50,000 mt and 60,000 mt, respectively, which are the
highest levels that the Council originally recommended and analyzed for
each of these measures. NMFS invites the public to comment on the
potential use of the inseason adjustment mechanism to set new levels
for DAH, DAP, OY, and area TACs during the 2005 fishing year, should
such changes be warranted based on the performance of the fishery. More
specifically, NMFS invites the public to comment on the appropriateness
of potentially increasing DAH and OY up to the maximum level of 180,000
mt, and the Area 2 TAC and the Area 3 TAC to 50,000 mt and 60,000 mt,
respectively, through the inseason adjustment mechanism.
The Council argued that DAP equals 176,000 mt, and NMFS found its
argument that current processing capacity is capable of handling that
volume of fish persuasive. However, for the purposes of these
specifications, DAP is determined not only by capability to process but
also by whether domestic processors will utilize such capacity. Since
DAH is proposed to be set at 150,000 mt (of which 4,000 mt would be
allocated for BT), DAP would be limited to 146,000 mt. It is certainly
possible, given the capacity of the current harvesting fleet, the
potential for market expansion to occur, and the expressed intent (made
clear through public testimony) of the U.S. industry to increase its
participation in the Atlantic herring fishery, that processors will
utilize the recommended DAP. Because the Council's recommended DAP is
sufficient to process the entire DAH (minus the BT), the Council and
NMFS proposes setting JVP at zero. Future JV operations would likely
compete with U.S. processors for product, which could have a
substantial negative impact on domestic facilities in a market-driven
fishery. This is consistent with the following relationship, which is
specified in the FMP: DAH = DAP + JVPt + BT.
The Council recommended setting USAP at zero, arguing that current
shoreside capacity is sufficient to process U.S. landings, therefore
eliminating the need for alternative processing capacity (USAP). The
Council also argued that the FMP provides discretion to favor certain
segments of the processing industry, and that to allow USAP would
economically hurt shoreside processors/communities. The Council
expressed concern that, once utilized, USAP allocations would become
permanent. Finally, the Council argued that the fact that there was
USAP allocated from 2000-2004 that was not used demonstrates that there
is no interest in USAP.
NMFS believes that the Council's rationale for setting USAP at zero
is insufficient because it would favor one segment of the U.S.
processing sector over another, without any justifiable reasons based
on conservation objectives. On average, large amounts of the TAC in
Areas 2 and 3 (where USAP was authorized in previous years) have not
been taken each year. During the development of the specifications, at
least one industry member expressed interest in pursuing USAP
operations in 2005. When the Council discussed the possibility of
allocating 10,000 mt to USAP, this individual stated that USAP
operations would not be feasible at that level. For these reasons, NMFS
proposes setting USAP at 20,000 mt in Areas 2 and 3 only. USAP could
provide an additional outlet for harvesters and, therefore, increase
the benefits to the U.S. industry. As for the Council's concern that
USAPs will become permanent, there is no basis for this concern. The
specification process allows the Council to modify its recommendations
in the future, provided there is justification.
Classification
This action is authorized by 50 CFR part 648 and has been
determined to be not significant for purposes of Executive Order 12866.
The Council prepared an IRFA, as required by section 603 of the
Regulatory Flexibility Act, which describes the economic impacts this
proposed rule, if adopted, would have on small entities. A copy of the
IRFA can be obtained from the Council or NMFS (see ADDRESSES) or via
the Internet at http:/www.nero.noaa.gov. A summary of the analysis
follows:
Statement of Objective and Need
A description of the reasons why this action is being considered,
and the objectives of and legal basis for this action, is contained in
the preamble to this proposed rule and is not repeated here.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
During the 2003 fishing year, 154 vessels landed herring, 38 of
which averaged more than 2,000 lb (907 kg) of herring per trip. There
are no large entities, as defined in section 601 of the RFA,
participating in this fishery. Therefore, there are no disproportionate
economic impacts between large and small entities.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action does not contain any new collection-of-information,
reporting, recordkeeping, or other compliance requirements. It does not
duplicate, overlap, or conflict with any other Federal rules.
Minimizing Significant Economic Impacts on Small Entities
Impacts were assessed by the Council and NMFS by comparing the
proposed measures to the Atlantic herring landings made in 2003. The
proposed specifications are not expected to produce a negative economic
impact to vessels prosecuting the fishery because, while it reduces the
current (2003/2004) TACs for herring in Areas 2 and 3 (while keeping
Areas 1A and 1B the same), it still allows for landings levels that are
significantly higher than the average landings achieved by the fishery
in recent years. The proposed 2005 specifications should allow for
incremental growth in the industry, while taking into consideration
biological uncertainty.
The specification of 150,000 mt for OY and DAH is proposed for the
2005 fishery, and for the 2006 fishery if stock and/or fishery
conditions do not change significantly during 2005. At this level,
there could be an increase of up to 50,000 mt in herring landings, or
$7,150,000 in revenues, based on a market price of $143/mt. This could
allow individual vessels to increase their profitability under the
proposed 2005 specifications, depending on whether or not new vessels
enter the fishery (the herring fishery will remain an open-access
fishery for the 2005
[[Page 4811]]
fishing year). The magnitude of economic impacts related to the
146,000-mt specification of DAP will depend on the shoreside processing
sector's ability to expand markets and increase capacity to handle
larger amounts of herring during 2005 and 2006.
The potential loss associated with eliminating the JVPt allocation
(20,000 mt for 2003 and 2004) could approximate $2.9 million (based on
an average price of $143/mt) if all of the 20,000-mt allocation would
have been utilized (10,000 mt for JVP and 10,000 mt for IWP). However,
very little of the 10,000-mt JVP allocation was utilized in 2002 and
2003 and, as of August 2004, no JVP activity for herring had occurred
during the 2004 fishing year. The Council received no indication that
demand for the JVP allocation will increase in 2005 and 2006. As a
result, no substantial economic impacts are expected from reducing the
JVP allocation to 0 mt in 2005 and possibly 2006, as vessels that sold
fish in the past to JV processor vessels could sell to U.S. processors.
The Area 1A and 1B TACs of 60,000 and 10,000 mt, respectively, have
been unchanged since the 2000 fishery. In 2002 and 2003, the Area 1A
TAC for the directed herring fishery was fully utilized and is expected
to be fully utilized for the 2005 fishery. Therefore, no change is
expected in profitability of vessels from the 2005 Area 1A
specification. Since only 4,917 mt of herring were harvested in Area 1B
in 2003, the proposed 2005 specification of 10,000 mt should allow for
increased economic benefits to individual vessels prosecuting the
fishery in this management area. The potential economic gains
associated with allocating 20,000 mt for USAP could approximate $2.9
million (based on an average price of $143/mt) if all of the 20,000-mt
allocation were utilized in 2005.
The Council analyzed four alternatives for OY and the distribution
of TACs. One alternative would have retained the specifications
implemented during the 2003 and 2004 fishing years, which would have
maintained the OY at 180,000 mt. This OY is still roughly 80 percent
greater than the average historical landings for this fishery, and
therefore that level of OY would not pose a constraint on the fishery.
The three other alternatives considered by the Council would set the OY
at 150,000 mt. Although the OY of 150,000 mt is lower than that
proposed by the Council, it is still roughly 50 percent greater than
the average historical landings for this fishery, and therefore that
level of OY would not pose a constraint on the fishery. Each of the
alternatives that would set the OY at 150,000 mt would establish
varying levels for the area TACs.
One alternative would have established the following TACs: Area 1A,
60,000 mt; Area 1B, 10,000 mt; Area 2, 20,000 mt; and Area 3, 60,000
mt. The only area TAC that would be lower than 2003/2004 under this
option is the Area 2 TAC. The most recent year in which the landings
from this area were greater than 20,000 mt (the proposed TAC) was 2000
(27,198 mt). The average landings from 2001 2003 were 14,300 mt with
2003 landings at 16,079 mt. Under current market conditions, the new
TAC may become constraining if the fishery in 2005 (and possibly 2006)
is similar to that in 2000. If this is the case, then the Area 2 TAC
fishing season could end before the end of the year, creating a
potential economic constraint on the fishery, especially if vessels are
forced to travel farther (increased steaming time) to harvest in Area
3.
Another alternative considered would have established the following
TACs: Area 1A, 45,000 mt; Area 1B, 10,000 mt; Area 2, 35,000 mt; and
Area 3, 60,000 mt. With a 15,000-mt decrease in the combined Area 1
TACs, the economic impact of this option could be relatively large on
vessels in the fishery that depend on herring in Area 1A, especially if
those vessels are not able to move to other areas to obtain fish. Even
if vessels could fish in other areas, their operating costs would be
increased because of increased steaming time. An Area 2 TAC of 35,000
mt proposed under this alternative should not be constraining given
recent landings history.
The final alternative considered would have established the
following TACs: Area 1A, 55,000 mt; Area 1B, 5,000 mt; Area 2, 30,000
mt; and Area 3, 60,000 mt. With a 10,000-mt decrease in the combined
Area 1 TACs, the impact of this alternative would very similar to the
impact of the prior alternative, although not as severe. An Area 2 TAC
of 30,000 mt proposed under this alternative should not be constraining
given recent landings history.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: January 25, 2005.
Rebecca Lent,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out above, 50 CFR part 648 is proposed to be
amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.200, paragraphs (c) and (d) are revised to read as
follows:
Sec. 648.200 Specifications.
* * * * *
(c) The Atlantic Herring Oversight Committee shall review the
recommendations of the PDT and shall consult with the Commission's
Herring Section. Based on these recommendations and any public comment
received, the Herring Oversight Committee shall recommend to the
Council appropriate specifications. The Council shall review these
recommendations and, after considering public comment, shall recommend
appropriate specifications to NMFS. NMFS shall review the
recommendations, consider any comments received from the Commission and
shall publish notification in the Federal Register proposing
specifications and providing a 30-day public comment period. If the
proposed specifications differ from those recommended by the Council,
the reasons for any differences shall be clearly stated and the revised
specifications must satisfy the criteria set forth in this section.
(d) NMFS shall make a final determination concerning the
specifications for Atlantic herring. Notification of the final
specifications and responses to public comments shall be published in
the Federal Register. If the final specification amounts differ from
those recommended by the Council, the reason(s) for the difference(s)
must be clearly stated and the revised specifications must be
consistent with the criteria set forth in paragraph (b) of this
section. The previous year's specifications shall remain effective
unless revised through the specification process. NMFS shall issue
notification in the Federal Register if the previous year's
specifications will not be changed.
* * * * *
[FR Doc. 05-1744 Filed 1-28-05; 8:45 am]
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