[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11373-11381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4726]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 080513659-1114-03]
RIN 0648-AW75
Fisheries of the Northeastern United States; Atlantic Herring;
Amendment 4
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This rule implements approved 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 (MSA) 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
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: Effective April 1, 2011.
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.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
This amendment brings the Herring FMP into compliance with
requirements of the reauthorization of the MSA in 2006, specifically
ACLs and AMs. Because herring is not subject to overfishing, the MSA
requires the Herring FMP to be in compliance with ACL and AM
requirements by 2011. In addition to the public meetings at which
Amendment 4 was developed, the Council held three public meetings on
the draft Amendment 4 and its EA during January 2010. Following the
public comment period that ended on January 12, 2010, the Council
adopted Amendment 4 on January 26, 2010, and submitted the amendment to
NMFS on April 22, 2010. The Notice of Availability (NOA) for Amendment
4 was published on August 12, 2010, with a comment period ending
October 12, 2010. A proposed rule for Amendment 4 was published on
October 18, 2010, with a comment period ending December 2, 2010. On
November 9, 2010, NMFS approved Amendment 4 on behalf of the Secretary
of Commerce.
Initially, the Council intended for Amendment 4 to also consider
the issues of 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 the measures originally contemplated in Amendment 4 by
2011, so it decided that Amendment 4 would only address ACL and AM
requirements and specification issues. The other issues (e.g., catch
monitoring and reporting, interactions with river herring and Atlantic
mackerel, access to groundfish closed areas) are currently being
considered in Amendment 5 to the Herring FMP (Amendment 5). NMFS has
the independent authority to revise reporting requirements, and has
informed the Council that it will be developing a rulemaking to
establish
[[Page 11374]]
daily catch reporting for limited access herring vessels in 2011.
This rule implements management measures that: 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. The proposed rule includes detailed information
about the Council's development of these measures, and that discussion
is not repeated here.
ACL Specification Process
Amendment 4 revises the specification-setting process for the
herring fishery. This action establishes a process whereby an
overfishing limit (OFL) may be set, which corresponds to a maximum
sustainable yield (MSY). This action specifies that ABC is to be
recommended by the Council's Scientific and Statistical Committee
(SSC). During the setting of ABC, scientific uncertainty is to 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.
This action establishes a process whereby a stock-wide ACL may be set
that is to be equal to or less than ABC. During the setting of the
stock-wide ACL, management uncertainty is to be considered. The stock-
wide ACL may be 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 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, this action does not establish a specific deduction between
the ABC and stock-wide ACL, to account for management uncertainty
related to discards at this time. However, if new information on
discards becomes available, Amendment 4 provides the Council with
flexibility to incorporate that information into the stock-wide ACL-
setting process as appropriate.
This action revises the specifications authorized by the Herring
FMP. The original 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 nor 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, this action eliminates the annual specifications of JVPt,
JVP, and IWP from the Herring FMP. Additionally, while TALFF could
still be awarded consistent with the MSA, if the Secretary of Commerce
determines there is inadequate domestic harvesting capacity and other
requirements of section 201 of the MSA are satisfied, this action
eliminates Council consideration of TALFF during development of the
specifications.
Historically, the FMP included the reserve 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 2007 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, this action eliminates 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 maintains 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. This action maintains the function of the herring
management area TACs, but re-defines each area TAC as an area sub-ACL
(i.e., each management area has its own 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. This action maintains these seasons and
allocates the Area 1A sub-ACL into the same two seasonal periods.
The specification of OY is required by the MSA and authorized in
the current Herring FMP. OY is derived from MSY, as reduced by relevant
economic, social, or ecological factors. This action specifies that OY
remain part of the specification-setting process, that it is to be
equal to or less than ABC, and that it 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 MSA 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. This action establishes herring as
a 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 MSA.
Additionally,
[[Page 11375]]
incidental catch in the herring fishery counts against the ACLs for
incidental catch species if ACLs have been established in their
respective Federal FMPs.
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 cannot
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 permanent 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. This action establishes an interim control rule
specifying that ABC be based on recent catch in the herring fishery,
and that the Council determines 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. If a new ABC control rule can be developed
following the 2012 benchmark stock assessment, it will be developed in
the 2013-2015 herring specifications.
Accountability Measures
The MSA 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. This action designates two existing herring management
measures as AMs, and establishes an additional AM that would require an
overage deduction, if catch exceeds the stock-wide ACL or a sub-ACL.
This action also specifies 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 original FMP established the management area closure threshold
(i.e., 95 percent of the management area TAC) to slow the herring
fishery as catch approached the TAC for a management area, and intended
the 5-percent buffer to account 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 designates this
management area closure measure as an AM. Because the incidental catch
of herring in other fisheries is typically low, if some herring
discards were not accounted for in the vessel catch reports, the 5-
percent buffer could also function to account for these discards.
Therefore, the function of the 5-percent buffer is to account for the
incidental catch of herring in other fisheries and, when appropriate,
to buffer against the uncertainty associated with discard estimates.
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 herring 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, this action designates the haddock
incidental catch cap 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, this
action establishes 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 2010 total herring catch in Area
1A, which is generally available in the spring of 2011, indicated that
the Area 1A sub-ACL was exceeded by 5 mt, then, in 2012, the sub-ACL
for Area 1A would be reduced by 5 mt to account for the overage that
occurred during 2010. All overage deductions will be announced by NMFS
in the Federal Register prior to the start of the fishing year. NMFS
understands that the size of an overage and the frequency of overages
have the potential to affect the herring stock. In the event of
multiple overages, Amendment 4 provides the flexibility to re-evaluate
and modify, if necessary, the ACLs/sub-ACLs and AMs consistent with
National Standard 1 guidelines, during the specifications process.
Comments and Responses
NMFS received five letters during the comment period relating to
the NOA for Amendment 4; one letter was from a member of the public;
two letters were from non-herring, fishing industry organizations
(Coalition for the Atlantic Herring Fishery's Orderly, Informed, and
Responsible Long-Term Development (CHOIR), Cape Cod Commercial Hook
Fisherman's Association (CCCHFA)); and two letters were from
environmental advocacy groups (Oceana, Herring Alliance). An additional
four letters were received on the proposed rule for Amendment 4; one
letter was from the Atlantic States Marine Fisheries Commission
(ASMFC), two letters were from non-herring, fishing industry
organizations (CHOIR, CCCHFA), and one letter was from an environmental
advocacy group (Herring Alliance). Only the comments relevant to
Amendment 4 are addressed below.
Comment 1: The Herring Alliance, CCCHFA, and CHOIR expressed
concern about the sufficiency of the ACLs/sub-ACLs and AMs in the
amendment. They believe that existing reporting and monitoring is not
adequate to track catch against ACLs/
[[Page 11376]]
sub-ACLs and that AMs are not adequate to prevent ACLs/sub-ACLs from
being exceeded. The commenters cited recent quota overages,
specifically the quota overage in Area 1B, where 138 percent of the
Area 1B quota was harvested (6,014 mt) in 2010, as evidence that,
absent improvements to monitoring, measures in Amendment 4 are not
sufficient to track catch against ACLs and prevent ACLs from being
exceeded.
Response: While alternatives for modifications to the reporting and
monitoring program for herring are being developed in Amendment 5, NMFS
concludes that current reporting and monitoring is sufficient to
monitor catch against ACLs/sub-ACLs. Herring vessels are required to
report herring catch (landings and discards) weekly. These catch
reports are verified by comparing them to herring landings reported by
dealers. Herring is a high-volume fishery. When there is a pulse of
fishing effort on a relatively small amount of unharvested quota, as
occurred in Area 1B during September 2010, the chance of a quota
overage exists, regardless of reporting or monitoring tools. Amendment
4 recognizes an existing measure as a preventative AM; the measure
limits herring catch (2,000 lb (907.2 kg) per trip) when a specified
percentage (95 percent) of an ACL/sub-ACL is projected to be harvested.
The specified percentage is adjustable and, when it is set correctly,
this AM is an appropriate measure to prevent ACLs/sub-ACLs from being
exceeded.
NMFS has the authority to revise reporting requirements or make
inseason adjustments to ACLs/sub-ACLs as necessary. Recognizing the
importance of timely catch information, NMFS will be developing a
rulemaking to establish daily catch reporting for limited access
herring vessels for implementation in 2011.
Comment 2: The amendment contains a reactive AM that deducts any
ACL/sub-ACL overages in the fishing year following total catch
determinations, but the Herring Alliance, CCCHFA, and CHOIR believe
that any overages should be paid back in the year immediately following
the overage.
Response: The herring fishing year extends from January to
December. The herring fishery can be active in December and, as
explained in the amendment, information on the bycatch of herring in
other fisheries is not finalized until the spring of the following
year. For these reasons, and to provide sufficient notice to the
industry when an ACL/sub-ACL is reduced due to an overage, NMFS
concludes that it is appropriate that the amendment establishes a
payback measure for the fishing year following the total catch
determination (e.g., overages in 2010 would be determined in 2011 and
paid back in 2012). (See also the response to Comment 3.)
Comment 3: The Herring Alliance commented that delaying overage
deductions may transfer accountability for overages to those not
responsible for causing overages, because active participation in the
fishery can change over time, and that ecological harm could result
from unnecessary ``balloon payments'' due to overage rollovers. The
CCCHFA commented that delaying overage deductions may cause harm to the
stock.
Response: Since the implementation of limited access in 2007,
active participation in the herring fishery has been relatively stable.
Market conditions and the availability of herring to the fishery drive
participation in the herring fishery, but it is unlikely that, in a
given year, these factors would prevent a portion of the fleet from
participating in the fishery. Generally, there is no danger to the
stock associated with ``balloon payments'' resulting from overage
rollovers, because overages, if there are any, would be consistently
deducted from ACLs/sub-ACLs for the fishing year following total catch
determination. Herring is a relatively long-lived species (over 10
years) and multiple year classes are harvested by the fishery
(typically ages two through six). These characteristics suggest that
the herring stock may be robust to a single year delay in overage
deductions (i.e., overage deduction in 2012 versus 2011). There is no
evidence that a single year delay is more likely to affect the
reproductive potential of the stock than an overage deduction in the
year immediately following the overage, particularly since the herring
stock is not overfished at this time. However, NMFS understands that
the health of a stock, size of an overage, and the frequency of
overages could combine to affect the stock in the future. In the event
that these factors combine to create a negative impact on the stock,
Amendment 4 provides the flexibility to re-evaluate and modify ACLs/
sub-ACLs and AMs, consistent with National Standard 1 guidelines,
during the specifications-setting process.
Comment 4: The Herring Alliance and CCCHFA expressed concern about
the adequacy of the interim ABC control rule in the amendment. The
Herring Alliance also believes the Council should have stated its
policy on the risk of overfishing in the control rule, and that it is
inappropriate to establish an updated control rule via the
specifications process. Additionally, the Herring Alliance commented
that, in the absence of a permanent ABC control rule, the final rule
must specify a time frame and mechanism for replacing the interim
control rule with a permanent control rule.
Response: Due to the scientific uncertainty associated with the
2009 herring stock assessment, the SSC determined that a permanent ABC
control rule cannot be determined at this time. Therefore, Amendment 4
contains an interim ABC control rule (based on SSC recommendations)
until the next herring benchmark assessment (currently scheduled for
June 2012) determines if it can address the concerns with the last
assessment. If a new ABC control rule can be developed following the
2012 benchmark stock assessment, it will be developed in the 2013-2015
herring specifications. The amendment does contain a default risk
policy; the Council's default policy on the risk of overfishing is the
amount of buffer between the Council's OFL and ABC recommendations for
2010-2012. This risk policy will be updated when the control rule is
updated. Regarding the mechanism to update the control rule, the SSC
makes ABC recommendations as part of the specifications process, and it
is appropriate that this amendment provides the flexibility to update
the control rule through that process.
Comment 5: The Herring Alliance, CHOIR, and CCCHFA all expressed
concern about the accounting of herring discarded at sea. The
commenters believe that the final rule must include protocols for
quantifying herring discards as part of management uncertainty and a
mechanism to offset the ACL from the ABC accordingly. Additionally,
absent improved monitoring, the commenters doubt the credibility of the
discard data and conclusions that herring discards are low.
Response: As described in the proposed rule, estimates of discards
are reported by harvesters, and also provided by NMFS observers, on
trips when observers are present. The available information suggests
that discards in the herring fishery are low, relative to the amount of
landed herring. Therefore, based on the best available information,
Amendment 4 does not establish a specific deduction between the ABC and
stock-wide ACL to account for management uncertainty related to
discards at this time. However, if new information on discards becomes
available, Amendment 4 provides the Council with flexibility to
incorporate
[[Page 11377]]
that information into the stock-wide ACL-setting process, as
appropriate. Additionally, as described previously, the Council is in
the process of developing Amendment 5, which considers revisions to
catch monitoring and reporting requirements for the herring fishery.
Comment 6: Following up on their concern with the accounting of
discards, CHOIR and CCCHFA commented on a perceived discrepancy between
the amendment and the proposed rule. They commented that the amendment
describes the buffer (i.e., 5 percent of a management area sub-ACL)
associated with the management area closure measure as a measure to
buffer against the uncertainty associated with discard estimates while
the proposed rule describes the buffer as a measure intended to address
incidental catch. The commenters then questioned how the 5-percent
buffer was intended to function.
Response: Proposed regulations state that, 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, 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 more than 2,000 lb (907.2 kg) of herring per trip per day
for that area. The original FMP established the management area closure
threshold (i.e., 95 percent of the management area sub-ACL) to slow the
herring fishery as catch approached the TAC for a management area, and
intended the 5-percent buffer to account for the incidental catch of
herring in other fisheries. Amendment 4 maintains this function of the
buffer, as described in both the proposed rule and the amendment.
Additionally, because the incidental catch of herring in other
fisheries is typically low, if some discards were not accounted for in
the vessel catch reports, the 5-percent buffer could also function to
account for these discards, as described in the amendment. Because the
amendment describes that the intent of the 5-percent buffer is to
account for the incidental catch of herring in other fisheries and to
buffer against the uncertainty associated with discard estimates, this
final rule clarifies that the buffer associated with the management
area closure measure has both functions.
Comment 7: The Herring Alliance commented that Amendment 4 should
establish ACLs and AMs for river herring and shad, and suggested a
Federal FMP is necessary for these species.
Response: In June 2009, the Council focused Amendment 4 on bringing
the Herring FMP into compliance the ACL and AM requirements by 2011.
When considering the development of a Federal FMP for river herring and
shad, the analysis would have to take into account the benefits of the
FMP versus the costs and the need for a Federal plan, given that ASMFC
has an Interstate FMP for river herring and shad. Because there was not
time to conduct these types of analyses and implement Amendment 4 by
2011, creating a Federal FMP for river herring and shad was outside the
scope of this amendment. Additionally, an ASMFC river herring stock
assessment is currently scheduled for 2011. In advance of stock status
information, it would be difficult for a Federal FMP to detail how it
would prevent overfishing on river herring. In the absence of Federal
management for river herring and shad, the MSA does not require ACLs
and AMs for these species.
Comment 8: One member of the public and the Herring Alliance
commented on the National Environmental Policy Act (NEPA) requirements
and questioned the Council's decision to conduct an EA for Amendment 4.
The Herring Alliance believes that ABCs, ACLs, and AMs need to be
analyzed in an environmental impact statement (EIS), and that it is
unlawful to separate Amendment 4 from Amendment 5 because single
actions must be analyzed together so as to not obscure the true
environmental impacts.
Response: The scope and effect of Amendment 4 is primarily
administrative in nature, as it modifies the process for setting
specifications, but does not implement the actual specifications (e.g.,
ABC, ACL). Therefore, for this reason and the analyses contained in the
EA, the Finding of No Significant Impact was justified in determining
that an EIS was not necessary or appropriate. Amendment 4 and Amendment
5 are separate actions; therefore, it is both appropriate and lawful to
analyze them as separate actions, recognizing that Amendment 5 is
considered in Amendment 4's cumulative effects analysis as a future
action, and Amendment 4 will be considered in the cumulative effects
analysis of Amendment 5 as a past action.
Comment 9: The CCCHFA commented that the analysis in the EA
prepared for Amendment 4 was flawed because it concluded that exceeding
95 percent of a sub-ACL is unlikely, and it did not analyze the effects
of not designating river herring as non-target stock in the fishery.
Response: Between 2001 and 2009, herring catch (reported by
vessels) exceeded management area closure thresholds (i.e., 95 percent
of the TAC for a management area) on eight occasions (less than 25
percent of the time). To explain, the 4 herring management areas were
monitored over 9 years, for a total of 36 management area thresholds,
and those thresholds were exceed 8 times. NMFS believes it is
appropriate to consider an event that occurs less than 25 percent of
the time unlikely. National Standard 1 guidelines specify that Councils
are to reconsider their ACLs, if those ACLs are consistently exceeded.
Amendment 4 provides the flexibility to re-evaluate and modify, if
necessary, ACLs/sub-ACLs and AMs during the specification process.
Additionally, as described previously, the amendment contains an AM
that requires any ACL/sub-ACL overages to be deducted in the year
following total catch accounting. Designating river herring as a stock
in the fishery was not considered by the Council in Amendment 4 nor was
it representative of status quo; therefore, it is not required to be
analyzed in the EA.
Comment 10: Language in the proposed rule states that, if the
amendment is effective prior to final catch accounting for 2010, any
overage in 2010 would be deducted in 2012. The CCCHFA questioned
whether or not 2010 overages would be deducted in 2012 if the amendment
was not effective prior to final catch accounting for 2010.
Response: Catch accounting for 2010 will be finalized in 2011;
therefore, any 2010 ACL/sub-ACL overages will be deducted from the
corresponding ACL/sub-ACL in 2012.
Comment 11: CCCHFA commented that it is concerned with how the role
of herring as forage is considered in Amendment 4. CHOIR commented that
it was pleased that the proposed rule provides for the consideration of
the role of herring as forage during the specifications-setting
process, but that it is disappointed that this consideration is not
required.
Response: This action provides for consideration of the role of
herring as forage, as appropriate. NMFS believes it is sufficient that
herring as forage can be considered by the SSC when it recommends ABC,
and the Council has the ability to establish an additional buffer
between ABC and OY to address herring as forage, and that a regulatory
requirement is not necessary.
Comment 12: The Herring Alliance, CCCHFA, and Oceana all commented
that Amendment 4 should have
[[Page 11378]]
considered additional species to be designated as ``non-target stocks
in the fishery,'' including river herring, shad, haddock, mackerel, and
spiny dogfish. Oceana also commented that the bycatch analysis in
Amendment 4 is insufficient.
Response: NMFS disagrees with these comments. National Standard 1
guidelines state that designations for non-target stocks in the fishery
are at the Council's discretion, and the Council chose not to designate
any species as ``non-target stocks in the fishery'' in this amendment.
Amendment 4 includes NMFS observer information on all species caught
and discarded on observer trips and considers the effects of this
action on non-herring species. Incidental catch in the herring fishery
counts against the ACLs established for these incidental catch species
if they are managed under another Federal FMP. Additionally, as
described previously, Amendment 5 is further considering interactions
between the herring fishery and river herring.
Comment 13: The Herring Alliance, CCCHFA, and CHOIR commented that
they support the proposed rule requirements to set sub-ACLs and AMs for
the herring management areas.
Response: NMFS concurs.
Comment 14: The ASMFC commented that it supports measures in the
proposed rule. ASMFC developed Addendum II to Amendment 2 to the
Interstate FMP for Atlantic Herring to complement Amendment 4. ASMFC
commented that any changes to the proposed rule may create inconsistent
management between state and Federal management programs.
Response: NMFS concurs.
Changes From the Proposed Rule
There are no substantive changes from the proposed rule, only
clarifications to the possession limits associated with the management
area closure AM (2,000 lb (907.2 kg)), limited access incidental catch
permit (55,000 lb (25 mt)), and open access permit (6,600 lb (3 mt)).
Classification
The Administrator, Northeast Region, NMFS, determined that
Amendment 4 is necessary for the conservation and management of the
herring fishery and that it is consistent with the MSA and other
applicable law.
This final rule has been determined to be not significant for
purposes of Executive Orders 12866 and 13563.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the IRFA, a summary of the significant issues raised
by the public comments in response to the IRFA and NMFS responses to
those comments, and analyses contained in Amendment 4 and its
accompanying EA/RIR/IRFA. Copies of these analyses are available from
the Council or NMFS (see ADDRESSES).
Statement of Need
This action brings the Herring FMP into compliance with MSA
requirements, specifically those requiring ACLs and AMs. A description
of action, why it was considered, and the legal authority for the
action is contained in the preamble and not repeated here.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
Nine comment letters were received during the comment periods on
the NOA and proposed rule, but none of the comments were specifically
directed to the IRFA.
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. This action will
affect all participants in the herring fishery, as it revises 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;
therefore, that information is not repeated here.
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.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
The measures in this action are not anticipated to have direct
economic effects on herring fishery participants. The scope and effect
of Amendment 4 is primarily administrative in nature, as it modifies
the process for setting specifications, but does not implement the
actual specifications (e.g., ABC, ACL). A detailed economic analysis of
the measures, as well as the non-selected alternatives, is in Section
7.2 of Amendment 4. These measures bring the Herring FMP into
compliance with new MSA requirements by revising current definitions
and the specification-setting process to include ACLs and AMs. In
addition, this action 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. The alternative to these 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. This action re-defines: The
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, this action establishes an AM that provides for an
overage deduction if total catch exceeded an ACL/sub-ACL. Because this
action only makes minor adjustments to the existing specification-
setting process and measures that prevent overfishing, this action has
no direct economic effects. However, when the actual specifications are
set, using the process implemented by this action, an economic analysis
will be conducted. 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, this action has the
potential
[[Page 11379]]
to better prevent overfishing, 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,
Atlantic herring is the only stock directly managed by the Herring FMP.
National Standard 1 guidelines state that designations for non-target
stocks in the fishery are at the Council's discretion, and the Council
chose not to designate any species as ``non-target stocks in the
fishery'' in this amendment. 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 this 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 this action is similar
to the non-selected, status quo, alternative. However, making the ABC-
setting process, and the SSC's involvement in that process, explicit
has the potential to better prevent overfishing, as compared to the
non-selected, status quo alternative.
This action eliminates 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
this 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 this action's consideration of OFL, ABC, and ACL to
account for sources of scientific and management uncertainty,
specifying a reserve is redundant; therefore, there is no economic
difference between this action and the non-selected, status quo
alternative. Additionally, while TALFF could still be awarded,
consistent with the MSA, by the Secretary of Commerce, this action
eliminates Council consideration of 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
this action and the non-selected, status quo alternative.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: February 25, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
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.
(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:
* * * * *
[[Page 11380]]
(g) All aspects of AMs, as described at Sec. 648.201(a), can be
modified through the specifications process.
0
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 in such an area, and from
landing herring more than once per calendar day, except as provided in
paragraphs (b) and (c) of this section. NMFS shall implement these
restrictions in accordance with the APA.
(2) Haddock incidental catch cap. If NMFS determines that the
incidental catch cap for haddock 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. This
prohibition shall not apply unless all herring possessed and landed by
a 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 (consistent with Sec. 648.10(g))
Northeast multispecies 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, if possible, 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 shall allocate an
additional 3,000 mt to the Area 1A sub-ACL in November, in accordance
with the APA.
0
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 and possess 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, and is limited to one landing of
herring per 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.
(4) A vessel issued an open access herring permit may fish for,
possess, or land up to 6,600 lb (3 mt) of Atlantic herring from any
herring management area per trip, and is limited to one landing of
herring 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.
* * * * *
0
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;
* * * * *
[[Page 11381]]
(30) AMs; and
(31) Any other measure currently included in the FMP.
* * * * *
0
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, in accordance with the APA, provided
that the RSA can be available for harvest before the end of the fishing
year for which the RSA is specified.
* * * * *
[FR Doc. 2011-4726 Filed 3-1-11; 8:45 am]
BILLING CODE 3510-22-P