[Federal Register Volume 75, Number 200 (Monday, October 18, 2010)]
[Proposed Rules]
[Pages 63791-63797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26195]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 080513659-0476-01]
RIN 0648-AW75
Fisheries of the Northeastern United States; Atlantic Herring
Fishery; Amendment 4
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement measures in Amendment 4
to the Atlantic Herring (Herring) Fishery Management Plan (FMP).
Amendment 4 was developed by the New England Fishery Management Council
(Council) to bring the FMP into compliance with new Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act)
requirements by: Revising definitions and the specifications-setting
process, consistent with annual catch limit (ACL) requirements; and
establishing fishery closure thresholds, a haddock incidental catch
cap, and overage paybacks as
[[Page 63792]]
accountability measures (AMs). In addition, the amendment designates
herring as a ``stock in the fishery''; establishes an interim
acceptable biological catch (ABC) control rule; and makes adjustments
to the specification process by eliminating consideration of total
foreign processing (JVPt), including joint venture processing (JVP) and
internal waters processing (IWP), and reserve from the specification
process, and eliminates the Council's consideration of total allowable
level of foreign fishing (TALFF).
DATES: Public comments must be received no later than 5 p.m., eastern
standard time, on December 2, 2010.
ADDRESSES: An environmental assessment (EA) was prepared for Amendment
4 that describes the proposed action and other considered alternatives
and provides a thorough analysis of the impacts of the proposed
measures and alternatives. Copies of Amendment 4, including the EA, the
Regulatory Impact Review (RIR), and the 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, telephone (978) 465-0492. The EA/RIR/IRFA is
also accessible via the Internet at http://www.nero.nmfs.gov.
You may submit comments, identified by 0648-AW75, by any one of the
following methods:
(A) Electronic Submissions: Submit all electronic public comments
via the Federal e-Rulemaking portal http://www.regulations.gov;
(B) Fax: (978) 281-9135, Attn: Carrie Nordeen;
(C) Mail to NMFS, Northeast Regional Office, 55 Great Republic
Drive, Gloucester, MA 01930. Mark the outside of the envelope
``Comments on Herring Amendment 4.''
Instructions: No comments will be posted for public viewing until
after the comment period has closed. All comments received are a part
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying
Information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
formats only.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The Magnuson-Stevens Act, which was re-authorized in January 2007,
now requires the establishment of ACLs and AMs to end and/or prevent
overfishing in all FMPs. A notice of intent (NOI) was published in the
Federal Register (73 FR 26082, May 8, 2008) announcing the Council's
intent to develop Amendment 4 and prepare an environmental impact
statement (EIS) analyzing the impacts of the proposed management
measures. As stated in the NOI, the purpose of Amendment 4 is to bring
the Herring FMP into compliance with ACL and AM requirements. Because
herring is not subject to overfishing, the Herring FMP is required to
be in compliance with ACL and AM requirements by 2011. In addition, the
NOI also identified the following issues to be addressed: Catch
monitoring and reporting, interactions with river herring, access by
midwater trawl vessels to groundfish closed areas, and interactions
with the Atlantic mackerel fishery. In June 2009, the Council
determined there was not sufficient time to develop and implement all
of the measures contemplated in the NOI by 2011, so it decided to split
Amendment 4 into two separate actions. The Council determined that
Amendment 4 would continue to address ACL and AM requirements and other
specification issues, but that all other issues (e.g., catch monitoring
and reporting, interactions with river herring and Atlantic mackerel,
access to groundfish closed areas) would be considered in Amendment 5
to the Herring FMP. A supplemental NOI, announcing this change and
notifying the public that an EA, rather than an EIS, was being prepared
to analyze the impacts of Amendment 4, was published in the Federal
Register on December 28, 2009 (74 FR 68577).
The Council held three public meetings on Amendment 4 during
January 2010. Following the public comment period that ended on January
12, 2010, the Council adopted Amendment 4 on January 26, 2010.
This action proposes management measures that were recommended by
the Council as part of Amendment 4. If implemented, these management
measures would:
Revise current definitions and the specification-setting
process to include ACLs and AMs;
Designate herring as a ``stock in the fishery;''
Establish an interim ABC control rule;
Eliminate JVPt, including JVP and IWP, and reserve from
the specifications process; and
Eliminate the Council's consideration of TALFF.
A Notice of Availability (NOA) for Amendment 4 was published on
August 12, 2010 (75 FR 48920). The comment period on the NOA ends on
October 12, 2010.
Proposed Measures
The proposed measures are based on the description of the measures
in Amendment 4; NMFS seeks comments on all proposed measures.
ACL Specification Process
The Magnuson-Stevens Act requires each Regional Fishery Management
Council to establish a mechanism for specifying ACLs that do not exceed
fishing-level recommendations made by its Scientific and Statistical
Committee (SSC) and prevent overfishing. While the current Herring FMP
contains a specification-setting process and measures to prevent
overfishing, several modifications to the specification process are
necessary to bring the FMP into compliance with new Magnuson-Stevens
Act requirements. These modifications include: The addition of new FMP
definitions; changes to the existing FMP definition for optimum yield
(OY); incorporation of SSC recommendations into the specification of
ABC; and explicit consideration of scientific and management
uncertainty when setting specifications.
Amendment 4 proposes that the herring specifications set an
overfishing limit (OFL), which corresponds to a maximum sustainable
yield (MSY). ABC would be recommended by the Council's SSC. During the
setting of ABC, scientific uncertainty would be considered, and ABC may
be reduced from the OFL to account for scientific uncertainty.
Scientific uncertainty includes, but is not limited to, uncertainty
related to stock size estimates, variability around estimates of
recruitment, and consideration of ecosystem issues.
Amendment 4 also proposes to set a stock-wide ACL that would be
equal to or less than ABC. During the setting of the stock-wide ACL,
management uncertainty would be considered. The stock-wide ACL may
reduced from the ABC to account for management uncertainty, which
includes, but is not limited to, uncertainty related to expected catch
of herring in the New Brunswick weir fishery and discard
[[Page 63793]]
estimates of herring caught in Federal and state waters.
The stock-wide ACL is specified to account for all herring catch.
Estimates of discards are reported by harvesters, and provided by NMFS
observers. The available information suggests that discards in the
herring fishery are low, relative to the amount of landed herring.
Therefore, the Council determined no specific deduction is required,
between the ABC and stock-wide ACL, to account for management
uncertainty related to discards at this time. If new information on
discards becomes available, Amendment 4 proposes to provide the Council
with flexibility to incorporate that information into the stock-wide
ACL-setting process as appropriate.
The Herring FMP authorizes specifications for JVPt, JVP, IWP,
reserve, and TALFF to be set for the herring fishery. Historically,
JVPt (including JVP and IWP) was allocated to enable foreign processing
operations to accept catch from U.S. vessels; TALFF was allocated to
ensure fish were available to foreign processing vessels when U.S.
vessels could not supply it. The U.S. herring fishery has experienced
growth in both harvesting and processing capacity, accordingly neither
JVPt or TALFF have been allocated since 2005. Because the U.S. herring
industry is capable of harvesting and processing the entire available
yield in the foreseeable future, and to maximize U.S. economic
benefits, Amendment 4 proposes to eliminate the annual specifications
of JVPt, JVP, and IWP from the Herring FMP. Additionally, while TALFF
could still be awarded consistent with the Magnuson-Stevens Act, if the
Secretary of Commerce determines there is inadequate domestic
harvesting capacity and other requirements of the Magnuson-Stevens Act
Section 201 are satisfied, Amendment 4 proposes that the Council would
not consider TALFF during development of the specifications.
Historically, the reserve was specified to buffer against such
things as uncertainty in stock size estimates, uncertainty in Canadian
catch, excess U.S. capacity entering the herring fishery, and
fluctuations in import/export demand. With the implementation of
limited access in 2008 and Amendment 4's proposed consideration of
sources of scientific and management uncertainty in the setting of OFL,
ABC, and ACL, the Council concluded that specifying a reserve is no
longer necessary. Therefore, Amendment 4 proposes to eliminate the
specification of reserve from the Herring FMP.
With the implementation of Amendment 1 to the Herring FMP (72 FR
11252, March 12, 2007), the Council has the authority to set herring
specifications for a period of 3 years. Amendment 4 proposes to
maintain the current schedule of setting herring specifications for a
period of 3 years.
The herring stock complex is considered to be a single stock, but
it is comprised of inshore (Gulf of Maine (GOM)) and offshore (Georges
Bank (GB)) stock components. These stock components segregate during
spawning and mix during feeding and migration. Herring management areas
were developed in recognition of these different stock components; each
management area has a total allowable catch (TAC) to allow the fishing
mortality of the stock components to be managed independently. Area 1
is located in the GOM and is divided into an inshore section (Area 1A)
and an offshore section (Area 1B). Area 2 is located in the coastal
waters between Massachusetts and North Carolina, and Area 3 is on GB.
Because the inshore stock component has substantially less biomass than
the offshore stock component, it is likely more vulnerable to
overfishing. Amendment 4 proposes maintaining the function of the
herring management area TACs, but re-defining each area TAC as an area
sub-ACL. The Area 1A TAC is currently allocated to two seasonal
periods. The first season extends from January 1 through May 31, and
the second season extends from June 1 through December 31. Amendment 4
proposes to maintain these periods and allocate the Area 1A sub-ACL
into two seasonal periods, January 1 through May 31, and June 1 through
December 31.
The specification of OY is required by the Magnuson-Stevens Act and
authorized in the current Herring FMP. OY is derived from MSY, as
reduced by relevant economic, social, or ecological factors. Amendment
4 proposes that OY remain part of the specification-setting process,
and that it would be equal to or less than ABC and used to address
uncertainty related to economic, social, or ecological factors. For
example, the Council may choose to allocate an OY that is reduced from
ABC to address the role of herring as forage or the fishing mortality
rate on the inshore stock component. If the Council allocates a reduced
OY, it would be in addition to any consideration of scientific or
management uncertainty and would be a specific reduction to address a
specific issue.
Stocks in a Fishery
The Magnuson-Stevens Act requires that an FMP contain a description
of the fish species in a fishery, and National Standard 1 guidelines
task the Council with determining which specific target stocks and/or
non-target stocks to include in the fishery. Target stocks are defined
as stocks that fishers seek to catch for sale or personal use, and non-
target stocks are fish caught incidentally during the pursuit of target
stocks. In general, any stock managed through an FMP is considered to
be in that fishery. While other species are caught incidentally when
fishing for herring, herring is the target stock, and the only stock
directly managed by the Herring FMP. For these reasons, Amendment 4
proposes that herring be the stock in the fishery. The Council retains
the authority to designate additional stocks in the fishery in a future
action. Bycatch in the herring fishery will continue to be addressed
and minimized to the extent possible, consistent with other
requirements of the Magnuson-Stevens Act.
Interim ABC Control Rule
The ABC control rule is the specified method of setting the ABC,
giving full consideration to scientific uncertainty. The ABC control
rule is based on scientific advice from a Council's SSC and, when
possible, considers the probability of overfishing. The ABC control
rule should consider the scientific uncertainty associated with stock
assessment results, including time lags in updating assessments, the
degree of retrospective revision of assessment results, and the
uncertainty of stock projections.
During development of the 2010-2012 herring specifications, the SSC
identified two sources of scientific uncertainty in the 2009 herring
assessment: (1) The assessment model has a strong retrospective pattern
that reduces estimates of stock size when updated with new (2001-2007)
data; and (2) biomass projections suggest the herring stock can not
rebuild to BMSY (biomass that would support MSY) using long-
term projections at FMSY (fishing mortality rate for MSY).
Given this magnitude of scientific uncertainty, the SSC determined that
a herring ABC control rule cannot be derived until a new benchmark
assessment is conducted to address these issues. In the meantime, the
Council recommended that Amendment 4 contain an interim ABC control
rule based on the SSC's 2010-2012 herring ABC recommendation. The
interim control rule proposes that ABC be set
[[Page 63794]]
based on recent catch in the herring fishery, and that the Council
determine the desired risk tolerance in setting the ABC. For example,
recent catch could be the most recent catch data (single year) or an
average of recent data (3-year or 5-year average). This interim ABC
control rule will remain in effect until a new ABC control rule is
developed following the next herring assessment.
Accountability Measures
The Magnuson-Stevens Act requires AMs to be developed in
association with ACLs. AMs should minimize the frequency and magnitude
of catch in excess of the ACLs (overages) and provide for subsequent
harvest adjustments if ACLs are exceeded. Amendment 4 proposes
designating two existing management measures as AMs, as well as
establishing an additional AM that would require an overage deduction,
if catch exceeds the stock-wide ACL or a sub-ACL. Amendment 4 also
proposes that these AMs can be modified, as necessary, through a
framework adjustment to the Herring FMP or through the herring fishery
specifications process.
Current herring regulations at Sec. 648.201(a) state that, if NMFS
determines catch will reach 95 percent of the TAC allocated to a
management area or seasonal period, then NMFS shall prohibit vessels
from fishing for, possessing, catching, transferring, or landing more
than 2,000 lb (907.2 kg) of herring per trip from that area or period.
The remaining 5 percent of the TAC for that management area or period
provides for the incidental catch of herring in other fisheries. In
recognition that this measure functions as an AM, by slowing catch to
prevent or minimize catch in excess of a management area or seasonal
period TAC/sub-ACL, Amendment 4 proposes that this management area
closure measure be designated as an AM.
Similarly, current Northeast multispecies regulations at Sec.
648.86(a)(3)(ii) specify a haddock incidental catch cap to control
haddock catch by herring vessels in the GOM/GB Herring Exemption Area.
When the Regional Administrator has determined that the haddock
incidental catch cap has been caught, all vessels issued a herring
permit are prohibited from fishing for, possessing, or landing herring
in excess of 2,000 lb (907.2 kg) per trip in the GOM/GB Herring
Exemption Area. Additionally, the haddock possession limit for all
vessels issued All Areas or Areas \2/3\ Limited Access permits is
reduced to 0 lb (0 kg) in all of the herring management areas.
Amendment 16 to the Northeast Multispecies FMP (Amendment 16)
designated haddock catch in the herring fishery as a sub-ACL for the
Multispecies FMP (75 FR 18262, April 9, 2010). Consistent with
Multispecies Amendment 16, Herring Amendment 4 proposes that the
current haddock incidental catch cap be designated as an AM in the
Herring FMP, with the clarification that the 0-lb (0-kg) haddock
possession limit does not apply to herring vessels that also possess a
Northeast multispecies permit and are operating on a declared
groundfish trip.
As a way to account for ACL overages in the herring fishery,
Amendment 4 proposes an AM that would provide for overage deductions.
Once the total catch of herring for a fishing year is determined, using
all available information, any ACL or sub-ACL overage would result in a
reduction of the corresponding ACL/sub-ACL the following year. For
example, if final accounting of the 2011 total herring catch in Area
1A, which is generally available in the spring of 2012, indicated that
the Area 1A sub-ACL was exceeded by 5 mt, then, in 2013, the sub-ACL
for Area 1A would be reduced by 5 mt to account for the overage that
occurred during 2011. Additionally, if Amendment 4 is effective prior
to final catch accounting for 2010, then any overage in 2010 would be
deducted in 2012. All overage deductions would be announced by NMFS in
the Federal Register prior to the start of the fishing year.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined preliminarily that this
proposed rule is consistent with Amendment 4 to the Herring FMP, other
provisions of the Magnuson-Stevens Act, and other applicable law,
subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). The IRFA, which includes this section of the
preamble to this rule and analyses contained in Amendment 4 and its
accompanying EA/RIR/IRFA, describes the economic impact this proposed
rule, if adopted, would have on small entities. A description of the
action, why it is being considered, and the legal basis for this action
are contained at the beginning of this section in the preamble and in
the SUMMARY section of the preamble.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
All participants in the herring fishery are small entities, as none
grossed more than $4 million annually; therefore, there are no
disproportionate economic impacts on small entities. The proposed
measures in Amendment 4 will affect all participants in the herring
fishery, as they revise current definitions and the specifications-
setting process in the Herring FMP, but these measures are not
anticipated to have direct economic impacts. In 2009, there were 41
vessels issued All Areas Limited Access Permits, 4 vessels issued Areas
2 and 3 Limited Access Permits, 54 vessels issued Limited Access
Incidental Catch Permits, and 2,272 vessels issued Open Access Permits.
Section 6.2 in Amendment 4 describes the vessels, key ports, and
revenue information for the herring fishery in more detail.
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.
Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives
The proposed measures Amendment 4 are not anticipated to have
direct economic effects on herring fishery participants. A detailed
economic analysis of the proposed measures, as well as the non-selected
alternatives, is in Section 7.2 of Amendment 4. The proposed measures
are designed to bring the Herring FMP into compliance with new
Magnuson-Stevens Act requirements by revising current definitions and
the specification-setting process to include ACLs and AMs. In addition,
the amendment designates herring as a ``stock in the fishery;''
establishes an interim ABC control rule; and makes adjustments to the
specification process by eliminating JVPt, including JVP and IWP, and
reserve from the specifications process, and eliminating the Council's
consideration of TALFF. Alternative to the proposed measures is the
status quo, which would retain all current definitions and the current
specification process.
The current Herring FMP contains a specification-setting process
and measures to prevent overfishing. The proposed action would re-
define: The
[[Page 63795]]
specification-setting process to include OFL, ABC, and ACL; the
allocating of OY; the management area TACs as sub-ACLs; and the
management area closure measure and haddock incidental catch cap as
AMs. Additionally, the proposed action includes an AM that would
provide for an overage deduction if total catch exceeded an ACL.
Because Amendment 4 proposes only minor adjustments to the existing
specification-setting process and measures that prevent overfishing,
the proposed action has no direct economic effects beyond those
associated with the non-selected, status quo alternative. However, by
revising the specifications-setting process to make the process, and
the SSC's involvement in the process, more explicit and providing for
overage deductions, the proposed action has the potential to better
prevent overfishing, possibly creating a more sustainable fishery and
better ensuring the longevity of the herring fishery as an economic
resource, as compared to the non-selected, status quo alternative.
Designating herring as the stock in the fishery is administrative.
While other species are caught incidentally when fishing for herring,
herring is the only stock directly managed by the Herring FMP. Because
there may be non-target stocks that warrant consideration in the
future, the Council retains authority to designate additional stocks in
the fishery in a future action. Designating herring as the stock in the
fishery will not change how the current FMP operates; therefore, there
are no economic differences between the proposed action and the non-
selected, status quo alternative.
As described previously, the current Herring FMP contains a
specifications-setting process and measures to prevent overfishing.
Therefore, establishing an ABC control rule in Amendment 4 is similar
to the non-selected, status quo, alternative. However, making the ABC-
setting process, and the SSC's involvement in that process, explict has
the potential to better prevent overfishing, possibly creating a more
sustainable fishery and better ensuring the longevity of the herring
fishery as an economic resource, as compared to the non-selected,
status quo alternative.
Amendment 4 proposes to eliminate JVPt, including JVP and internal
waters processing IWP, and reserve from the specifications process.
Because the U.S. herring fishery has experienced growth in both
harvesting and processing capacity, and has sufficient capacity to
harvest the available yield, JVPt, including JVP and IWP, has been
allocated at zero since 2005. Accordingly, there are no economic
differences between the proposed action and the non-selected, status
quo alternative. Historically, the reserve was specified to buffer
against such things as uncertainty in stock size estimates, uncertainty
in Canadian catch, excess U.S. capacity entering the herring fishery,
and fluctuations in import/export demand. With Amendment 4's proposed
consideration of OFL, ABC, and ACL to account for sources of scientific
and management uncertainty, specifying a reserve is redundant;
therefore, there are no economic differences between the proposed
action and the non-selected, status quo alternative. Additionally,
while TALFF could still be awarded, consistent with the Magnuson-
Stevens Act, by the Secretary of Commerce, Amendment 4 proposes that
the Council would not consider TALFF during development of the
specifications. Like JVPt, TALFF has been specified at zero since 2005.
Because there is no functional difference between not considering TALFF
and setting TALFF at zero, there are no economic differences between
the proposed action and the non-selected, status quo alternative.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: October 12, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.200, paragraphs (a) introductory text, (b)(1),
(b)(2), (b)(3), (b)(4), (e), and (f) introductory text are revised, and
paragraphs (b)(5) and (g) are added to read as follows:
Sec. 648.200 Specifications.
(a) The Atlantic Herring Plan Development Team (PDT) shall meet at
least every 3 years, but no later than July of the year before new
specifications are implemented, with the Atlantic States Marine
Fisheries Commission's (Commission) Atlantic Herring Plan Review Team
(PRT) to develop and recommend the following specifications for a
period of 3 years for consideration by the New England Fishery
Management Council's Atlantic Herring Oversight Committee: Overfishing
Limit (OFL), Acceptable Biological Catch (ABC), Annual Catch Limit
(ACL), Optimum yield (OY), domestic annual harvest (DAH), domestic
annual processing (DAP), U.S. at-sea processing (USAP), border transfer
(BT), the sub-ACL for each management area, including seasonal periods
as specified at Sec. 648.201(d) and modifications to sub-ACLs as
specified at Sec. 648.201(f), and the amount to be set aside for the
RSA (from 0 to 3 percent of the sub-ACL from any management area).
Recommended specifications shall be presented to the New England
Fishery Management Council (Council).
* * * * *
(b) * * *
(1) OFL must be equal to catch resulting from applying the maximum
fishing mortality threshold to a current or projected estimate of stock
size. When the stock is not overfished and overfishing is not
occurring, this is usually the fishing rate supporting maximum
sustainable yield (FMSY). Catch that exceeds this amount
would result in overfishing.
(2) ABC must be equal to or less than the OFL. The Council's
Scientific and Statistical Committee (SSC) shall recommend ABC to the
Council. Scientific uncertainty, including, but not limited to,
uncertainty around stock size estimates, variability around estimates
of recruitment, and consideration of ecosystem issues, shall be
considered when setting ABC. If the stock is not overfished and
overfishing is not occurring, then ABC may be based on FMSY
or its proxy, recent catch, or any other factor the SSC determines
appropriate. If the stock is overfished, then ABC may be based on the
rebuilding fishing mortality rate for the stock (FREB), or
any other factor the SSC determines appropriate.
(3) ACL must be equal to or less than the ABC. Management
uncertainty, which includes, but is not limited to, expected catch of
herring in the New Brunswick weir fishery and the uncertainty around
discard estimates of herring caught in Federal and state waters, shall
be considered when setting the ACL. Catch in excess of the ACL shall
trigger accountability measures (AMs), as described at Sec.
648.201(a).
(4) OY may not exceed OFL (i.e., MSY) and must take into account
the need to prevent overfishing while allowing the fishery to achieve
OY on a continuing basis. OY is prescribed on the basis of MSY, as
reduced by social, economic, and ecological factors. OY may equal DAH.
[[Page 63796]]
(5) DAH is comprised of DAP and BT.
* * * * *
(e) In-season adjustments. The specifications and sub-ACLs
established pursuant to this section may be adjusted by NMFS to achieve
conservation and management objectives, after consulting with the
Council, during the fishing year in accordance with the Administrative
Procedure Act (APA). Any adjustments must be consistent with the
Atlantic Herring FMP objectives and other FMP provisions.
(f) Management areas. The specifications process establishes sub-
ACLs and other management measures for the three management areas,
which may have different management measures. Management Area 1 is
subdivided into inshore and offshore sub-areas. The management areas
are defined as follows:
* * * * *
(g) All aspects of AMs, as described at Sec. 648.201(a), can be
modified through the specifications process.
3. Section 648.201 is revised to read as follows:
Sec. 648.201 AMs and harvest controls.
(a) AMs. (1) Management area closure. If NMFS projects that catch
will reach 95 percent of the annual sub-ACL allocated to a management
area before the end of the fishing year, or 95 percent of the Area 1A
sub-ACL allocated to the first seasonal period as set forth in
paragraph (d) of this section, NMFS shall prohibit vessels, beginning
the date the catch is projected to reach 95 percent of the sub-ACL,
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, except as provided in
paragraphs (b) and (c) of this section. These limits shall be enforced
based on a calendar day, without regard to the length of the trip. NMFS
shall implement these restrictions, in accordance with the APA, through
notification in the Federal Register.
(2) Haddock incidental catch cap. If NMFS determines that the
incidental catch allowance in Sec. 648.85(d) has been caught, all
vessels issued an Atlantic herring permit or fishing in the Federal
portion of the Gulf of Maine/Georges Bank (GOM/GB) Herring Exemption
Area, defined at Sec. 648.85(a)(3)(ii)(A)(1), shall be prohibited from
fishing for, possessing, or landing herring in excess of 2,000 lb
(907.2 kg) per trip in or from the GOM/GB Herring Exemption Area,
unless all herring possessed and landed by the vessel were caught
outside the GOM/GB Herring Exemption Area and the vessel complies with
the gear stowage provisions specified in Sec. 648.23(b) while
transiting the Exemption Area. Upon this determination, the haddock
possession limit shall be reduced to 0 lb (0 kg) for all vessels that
have an All Areas Limited Access Herring Permit and/or an Areas 2 and 3
Limited Access Herring Permit, regardless of where they were fishing,
unless the vessel also possesses a Northeast Multispecies permit and is
operating on a declared groundfish trip. NMFS shall implement the
described fishing restrictions in accordance with the APA.
(3) ACL overage deduction. If NMFS determines that total catch
exceeded any ACL or sub-ACL for a fishing year, then the amount of the
overage shall be subtracted from that ACL or sub-ACL for the fishing
year following total catch determination. NMFS shall make such
determinations and implement any changes to ACLs or sub-ACLs, in
accordance with the APA, through notification in the Federal Register,
prior to the start of the fishing year during which the reduction would
occur.
(b) A vessel may transit an area that is limited to the 2,000-lb
(907.2-kg) limit specified in paragraph (a) of this section with >2,000
lb (907.2 kg) of herring on board, provided such herring were caught in
an area or areas not subject to the 2,000-lb (907.2-kg) limit specified
in paragraph (a) of this section, and that all fishing gear is stowed
and not available for immediate use as required by Sec. 648.23(b), and
provided the vessel is issued a vessel permit appropriate to the amount
of herring on board and the area where the herring was harvested.
(c) A vessel may land in an area that is limited to the 2,000-lb
(907.2-kg) limit specified in paragraph (a) of this section with >2,000
lb (907.2 kg) of herring on board, provided such herring were caught in
an area or areas not subject to the 2,000-lb (907.2-kg) limit specified
in paragraph (a) of this section, and that all fishing gear is stowed
and not available for immediate use as required by Sec. 648.23(b), and
provided the vessel is issued a vessel permit appropriate to the amount
of herring on board and the area where the herring was harvested.
(d) The sub-ACL 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
sub-ACLs for Area 1A, including the specification of the seasonal
periods, shall be set through the annual specification process
described in Sec. 648.200.
(e) Up to 500 mt of the Area 1A sub-ACL shall be allocated for the
fixed gear fisheries in Area 1A (weirs and stop seines) that occur west
of 44[deg]36.2 N. Lat. and 67[deg]16.8 W. long (Cutler, Maine). This
set-aside shall be available for harvest by fixed gear within the
specified area until November 1 of each fishing year. Any portion of
this allocation that has not been utilized by November 1 shall be
restored to the sub-ACL allocation for Area 1A.
(f) If NMFS determines that the New Brunswick weir fishery landed
less than 9,000 mt through October 15, NMFS will allocate an additional
3,000 mt to the Area 1A sub-ACL in November. NMFS will notify the
Council of this adjustment and publish the adjustment in the Federal
Register.
4. In Sec. 648.204, paragraphs (a) introductory text, (a)(1),
(a)(2), (a)(3), and (a)(4) are revised to read as follows:
Sec. 648.204 Possession restrictions.
(a) A vessel must be issued a valid limited access herring permit
to fish for, possess, or land more than 6,600 lb (3 mt) of Atlantic
herring from any herring management area in the EEZ, provided that the
area has not been closed due to the attainment of 95 percent of the
sub-ACL allocated to the area, as specified in Sec. 648.201.
(1) A vessel issued an All Areas Limited Access Herring Permit may
fish for, possess, or land Atlantic herring with no possession
restriction from any of the herring management areas defined in Sec.
648.200(f), provided that the area has not been closed due to the
attainment of 95 percent of the sub-ACL allocated to the area, as
specified in Sec. 648.201.
(2) A vessel issued only an Areas 2 and 3 Limited Access Herring
Permit may fish for, possess, or land Atlantic herring with no
possession restriction only from Area 2 or Area 3 as defined in Sec.
648.200(f), provided that the area has not been closed due to the
attainment of 95 percent of the sub-ACL allocated to the area, as
specified in Sec. 648.201. Such a vessel may fish in Area 1 only if
issued an open access herring permit or a Limited Access Incidental
Catch Herring Permit, and only as authorized by the respective permit.
(3) A vessel issued a Limited Access Incidental Catch Herring
Permit may fish for, possess, or land up to 55,000 lb (25 mt) of
Atlantic herring in any calendar day, from any management area defined
in Sec. 648.200(f), provided that the area has not been closed due to
the attainment of 95 percent of the sub-ACL allocated to the area.
[[Page 63797]]
(4) A vessel issued an open access herring permit may not fish for,
possess, or land more than 6,600 lb (3 mt) of Atlantic herring from any
herring management area per trip and/or per calendar day, provided that
the area has not been closed due to the attainment of 95 percent of the
sub-ACL allocated to the area, as specified in Sec. 648.201.
* * * * *
5. In Sec. 648.206, paragraphs (b)(8), (b)(25), (b)(28), and
(b)(30) are revised, and paragraph (b)(31) is added to read as follows:
Sec. 648.206 Framework provisions.
* * * * *
(b) * * *
(8) Distribution of the ACL;
* * * * *
(25) In-season adjustments to ACLs;
* * * * *
(28) ACL set-aside amounts, provisions, adjustments;
* * * * *
(30) AMs; and
(31) Any other measure currently included in the FMP.
* * * * *
6. In Sec. 648.207, paragraph (g) is revised to read as follows:
Sec. 648.207 Herring Research Set-Aside (RSA).
* * * * *
(g) If a proposal is approved, but a final award is not made by
NMFS, or if NMFS determines that the allocated RSA cannot be utilized
by a project, NMFS shall reallocate the unallocated or unused amount of
the RSA to the respective sub-ACL by publication of a notice in the
Federal Register in compliance with the Administrative Procedure Act,
provided that the RSA can be available for harvest before the end of
the fishing year for which the RSA is specified.
* * * * *
[FR Doc. 2010-26195 Filed 10-15-10; 8:45 am]
BILLING CODE 3510-22-P