Fisheries of the Northeastern United States; Atlantic Herring Fishery; Framework Adjustment 4, 52005-52014 [2015-21146]
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Federal Register / Vol. 80, No. 166 / Thursday, August 27, 2015 / Proposed Rules
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revisions to the New Mexico State
regulations for the City of AlbuquerqueBernalillo County as described in the
Proposed Action section above. We have
made, and will continue to make, these
documents generally available
electronically through
www.regulations.gov and/or in hard
copy at the EPA Region 6 office.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
See, 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 12, 2015.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2015–20898 Filed 8–26–15; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 150304214–5660–01]
RIN 0648–BE94
Fisheries of the Northeastern United
States; Atlantic Herring Fishery;
Framework Adjustment 4
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule, request for
comments.
AGENCY:
NMFS proposes management
measures recommended by the New
England Fishery Management Council
in Framework Adjustment 4 to the
Atlantic Herring Fishery Management
Plan to further enhance catch
monitoring and address discarding in
the herring fishery. NMFS proposes
measures that would clarify the slippage
definition (i.e., discarding catch before
it has been sampled by an observer),
require limited access herring vessels to
report slippage via the daily vessel
monitoring system catch report, and
require slippage consequence measures.
NMFS also proposes management
measures recommended by the Council
in Framework 4 that would require
volumetric estimates of total catch and
SUMMARY:
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fish holds to be empty of fish before
vessels depart on a herring trip and
seeks public comment on specific issues
with these measures identified by
NMFS. Lastly, NMFS proposes minor
corrections to existing regulations.
DATES: Public comments must be
received by September 28, 2015.
ADDRESSES: The New England Fishery
Management Council developed an
environmental assessment (EA) for this
action 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 the framework,
the EA, and the Regulatory Impact
Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA), are
available upon request from Thomas A.
Nies, Executive Director, New England
Fishery Management Council, 50 Water
Street, Newburyport, MA 01950. The
EA/RIR/IRFA is accessible via the
Internet at
www.greateratlantic.fisheries.noaa.gov.
You may submit comments on this
document, identified by NOAA–NMFS–
2015–0067, by any of the following
methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20150067, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: John K. Bullard, Regional
Administrator, NMFS, Northeast
Regional Office, 55 Great Republic
Drive, Gloucester, MA 01930. Mark the
outside of the envelope, ‘‘Comments on
the Herring Framework Adjustment 4
Proposed Rule.’’
• Fax: (978) 281–9135, Attn: Carrie
Nordeen.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this proposed
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rule may be submitted to NMFS, Greater
Atlantic Regional Fisheries Office, and
by email to OIRA_Submission@
omb.eop.gov or fax to (202) 395–5806.
FOR FURTHER INFORMATION CONTACT:
Carrie Nordeen, Fishery Policy Analyst,
phone 978–281–9272, fax 978–281–
9135.
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SUPPLEMENTARY INFORMATION:
Background
The Council adopted Framework
Adjustment 4 to the Atlantic Herring
Fishery Management Plan at its April
22, 2014, meeting. The Council
submitted Framework 4 to NMFS for
review on July 18, 2014, and
resubmitted to NMFS on February 27,
2015, and April 30, 2015.
This proposed rule includes
management measures recommended by
the Council in Framework 4 intended to
further enhance catch monitoring and
address discarding in the herring
fishery. If implemented, Framework 4
would clarify the slippage definition,
require limited access herring vessels to
report slippage events on the daily
vessel monitoring system (VMS) catch
report, and establish slippage
consequences. Slippage consequence
measures would require vessels with All
Areas (Category A) or Areas 2/3
(Category B) Limited Access Herring
Permits to move 15 nautical miles
(27.78 km) following an allowable
slippage event, slippage due to safety,
mechanical failure, or excess catch of
spiny dogfish, and to terminate a fishing
trip and return to port following a nonallowable slippage event, slippage for
any other reason.
This proposed rule includes two
additional management measures also
recommended by the Council in
Framework 4. These measures include
requiring volumetric catch estimates to
be collected aboard vessels with limited
access herring permits and requiring
vessels with Category A or B herring
permits to have fish holds empty of fish
when departing on a herring trip. NMFS
specifically seeks public comment on
the consistency of these measures with
the Magnuson-Stevens Fisheries
Conservation and Management Act
(MSA) and other applicable law.
Additionally, this proposed rule
contains minor corrections to existing
regulations. NMFS proposes these
adjustments under the authority of
section 305(d) to the MSA, which
provides that the Secretary of Commerce
may promulgate regulations necessary
to ensure that adjustments to a fishery
management plan (FMP) are carried out
in accordance with the FMP and the
MSA. These adjustments, which are
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identified and described below, are
necessary to clarify current regulations
or the intent of the Herring FMP, and
would not change the intent of any
regulations.
Proposed Measures
The proposed regulations are based
on the measures in Framework 4. The
Council developed Framework 4 to
build on catch monitoring
improvements implemented in
Amendment 5 to the Herring FMP (79
FR 8786, February 13, 2014) and to
address dealer reporting requirements
and slippage caps that NMFS
disapproved as part of Amendment 5.
NMFS supports improvements to
fishery dependent data collections and
shares the Council’s concern for
reducing unnecessary discarding.
During the development of Framework
4, NMFS expressed concern with the
lack of rationale supporting two of the
measures in Framework 4, specifically
the measures requiring volumetric
estimates of total catch and empty fish
holds at the beginning of a trip. The
Council did not provide evidence of
specific problems with catch monitoring
or discarding that these measures would
address, nor did it demonstrate how
these measures would rectify any such
problems. Therefore, NMFS urged the
Council to ensure Framework 4
provided adequate justification to
support these measures. At this time,
NMFS does not consider Framework 4
to contain sufficient justification for
these measures and NMFS remains
concerned that the utility of these
measures does not outweigh the
compliance, administration, and
enforcement costs.
This proposed rule describes concerns
about these measures’ consistency with
the MSA and other applicable law.
Following public comment, NMFS will
determine if these two measures can be
approved or if they must be
disapproved. NMFS seeks public
comment on all proposed measures in
Framework 4, and, in particular, NMFS
seeks public comment on the proposed
requirements for volumetric estimates of
total catch and empty fish holds at the
beginning of a trip and whether these
measures should be approved or
disapproved.
Volumetric Catch Estimates
Framework 4 would require vessels
with limited access herring permits to
have their fish holds certified and
Northeast Fisheries Science Center
(NEFOP) observers to collect volumetric
estimates of total catch by measuring the
volume of fish in the hold prior to
offloading. Observers would convert the
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volumetric estimate to a weight and
submit the estimated weight to the
Greater Atlantic Regional Fisheries
Office (GARFO) for a cross-check of
vessel trip reports (VTRs) and dealer
reports.
Vessels with limited access herring
permits that store herring catch in fish
holds would be required to certify the
capacity of their fish holds and mark
their holds at regular intervals to
facilitate collection of volumetric catch
estimates. The fish hold capacity
measurement would need to be certified
by one of the following entities: (1) A
Certified Marine Surveyor with a fishing
specialty by the National Association of
Marine Surveyors (NAMS); (2) an
Accredited Marine Surveyor with a
fishing specialty by the Society of
Accredited Marine Surveyors (SAMS);
(3) employees or agents of a
classification society approved by the
U.S. Coast Guard pursuant to 46 U.S.C.
3316(c); (4) the Maine State Sealer of
Weights and Measures; (5) a
professionally-licensed and/or
registered Marine Engineer; or (6) a
Naval Architect with a professional
engineer license. This proposed list of
entities is consistent with the list of
entities approved to certify fish hold
capacities in the Atlantic Mackerel,
Squid, and Butterfish FMP. As part of
the limited access herring permit
renewal process in 2016, vessel owners
would be required to submit a certified
fish hold capacity measurement to
NMFS with a signed certification by the
individual or entity that completed the
measurement specifying how they met
the definition of a qualified individual
or entity.
Regulations in the State of Maine
already require that herring vessels have
their fish holds measured and ‘‘sealed’’
by the State Sealer of Weights and
Measures. Additionally, regulations at
50 CFR 648.4(a)(5)(iii)(H)(1) specifying
vessel upgrade restrictions require that
Tier 1 and Tier 2 limited access Atlantic
mackerel vessels certify the capacity of
their fish holds and submit this
information to NMFS. Therefore, many
vessels that participate in the herring
fishery may already have the
information necessary to determine the
capacity of their fish holds.
Vessels with limited access herring
permits would be required to obtain and
retain on board a NMFS-approved
measuring stick that would be available
to the observer to measure the amount
of fish in the fish hold. At the
completion of a fishing trip, but prior to
offloading, the observer would lower the
NMFS-approved measuring stick into
the fish hold(s) to measure the amount
of fish and then estimate the total
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volume of fish on board. Once the
observer estimates the total volume of
fish in the fish hold, the observer would
calculate the total weight of fish on
board based on NMFS-approved volume
to weight conversions. Framework 4
proposes the following conversions: (1)
1 cubic foot (0.28 cubic m) = 56.2
pounds (25.49 kg); (2) 1.244 cubic feet
(0.035 cubic m) = 1 bushel herring
(0.035 cubic m) = 70 pounds (31.75 kg);
(3) 1 hogshead (0.62 cubic m) = 17.5
bushels (0.62 cubic m) = 1,225 pounds
(555.65 kg). Additionally, Framework 4
proposes that 5 percent of the total
weight would be deducted to account
for water in the fish hold. Once the final
estimate of total weight of fish is
determined by the observer, that
estimate would be recorded along with
other sampling data collected on that
fishing trip. After the observer’s data are
checked and finalized by NEFOP, the
observer’s estimate of total catch would
be made available to GARFO for the
purpose of cross-checking VTRs and
dealer data.
Currently, observers do not estimate
total catch in the herring fishery.
Estimating the volume of fish in fish
holds is an accepted practice elsewhere
in the world, particularly Europe, to
estimate the weight of total catch.
However, requiring observers in the
herring fishery to collect volumetric
estimates of total catch would
necessitate significant development of
this measure prior to implementation,
including developing a sampling
protocol, approving volume to weight
conversions and deductions to account
for water in the fish hold, training
observers, and evaluating how to use the
data. Additionally, observers in the
herring fishery are not currently
required to stay with the vessel after
landing and contracts for observers do
not include sampling responsibilities
when the vessel is in port. Requiring
observers to sample vessels in port
would require modifications to the
description of observer duties and
contracts with observer service
providers.
The requirement for observers to
estimate the amount of catch in the fish
hold is intended to enhance catch
monitoring in the herring fishery by
providing an independent estimate of
total catch. This measure was developed
to address stakeholder concerns with
NMFS’s reliance on industry-reported
catch data to monitor the herring
fishery. Specifically, some stakeholders,
including environmental organizations,
the groundfish industry, and
recreational fishing groups, believe that
herring catch is not accurately reported
by the industry and that large
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discrepancies exist between vessel and
dealer reports. The herring industry, in
general, does not believe that herring
catch is being misreported but, in an
effort to address stakeholder concerns,
supports the requirement for observers
to collect an estimate of total catch.
Vessels and dealers report catch by
species. VTRs, in combination with
observer data, are used by NMFS in
herring stock assessments and to track
catch against catch caps in the herring
fishery, while dealer data are used to
track catch against herring annual catch
limits. The proposed measure would
provide an estimate of total catch, but
not catch by species. Therefore, the
volumetric estimate could not be used
to replace either VTRs or dealer data
and it could not be used for catch
monitoring or stock assessments. While
the data generated under this proposed
measure would not replace industryreported data used for quota monitoring
and stock assessments, it is intended to
help measure the utility of industryreported catch data, identify, catch
reporting issues, and alleviate concerns
that vessel operators and dealers collude
to misreport catch.
Framework 4 does not provide
evidence of misreporting by the herring
industry, but it does highlight past
differences between the amount of
herring reported by vessels and dealers.
Prior to 2008, discrepancies between
VTRs and dealer data ranged from 4
percent to 54 percent. The vessel hail
estimate (reported on the VTR) is
different than amount of fish purchased
(reported by dealers) so differences
between these data sets are expected.
However, discrepancies between VTR
and dealer data greater than 10 percent
are considered substantial.
In recent years, discrepancies between
VTRs and dealer data have been
minimal. VTRs were higher than dealer
reports in 2009 (2 percent), 2010 (1.3
percent), 2011 (1.2 percent), and 2013
(0.1 percent) and less than dealer
reports in 2012 (0.1 percent). As
described in NMFS’s April 17, 2014,
letter to the Council, GARFO has
improved the process for cross-checking
and resolving differences between VTR
and dealer data. Staff use advanced
programming to match VTR and dealer
data for each trip and identify records
that do not match. They then investigate
each unmatched record to determine the
cause of the discrepancy and make the
correction to the appropriate data set.
This investigation process includes
interviews with dealers, vessel
operators, and owners to obtain
supporting documentation for the
correction and to ensure industry
concurs with the data corrections. Given
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that discrepancies between VTR and
dealer data are investigated and
resolved, NMFS does not consider as
necessary the proposed measure for
observers to collect a volumetric
estimate of total catch to help identify
or resolve discrepancies between VTR
and dealer data.
Framework 4 discusses the concern
that catch is not being accurately
reported, but cautions whether the
proposed measure would be more
accurate than methods currently used
by vessel operators or dealers to
estimate catch. The volumetric
conversions proposed in Framework 4
are based on herring harvested in other
parts of the world. Using a volumetric
conversion assumes consistency in the
size, weight, and density of the catch,
but there can be substantial variability
in the catch composition of the herring
fishery, depending on the area and
season. The proposed 5 percent
deduction from total weight to account
for water in the tanks is based on best
known practices among the industry,
but the Council did not rigorously
evaluate the amount of the deduction.
For these reasons, Framework 4
explains that converting a volume of
total fish to pounds based on a herringbased conversion could produce less
accurate catch estimates than current
vessel or dealer estimates. Because of
the potential variability and
uncertainties associated with volumetric
estimates and volumetric conversions,
catch estimates derived under this
proposed measure would not be used to
replace any current estimates of herring
catch. Therefore, the impact of this
proposed measure on the herring
resource is likely to be negligible.
Framework 4 suggests that portside
samplers, in addition to observers,
could provide independent catch
verification in the herring fishery.
Currently, the portside sampling
program that samples the herring fishery
is a voluntary program administered by
the states of Massachusetts and Maine.
It is not possible to implement a
mandatory Federal data collection
through a voluntary state sampling
program. It may be possible to collect
catch data in a future Federal portside
sampling program, such as the portside
sampling alternative for the midwater
trawl fleet being considered in the
Council’s Industry-Funded Monitoring
Omnibus Amendment, provided that
the data collected would improve
monitoring in the herring fishery.
During the development of
Framework 4, NMFS expressed concern
regarding the utility of the proposed
measure and the reliability of a
volumetric estimate of total catch. When
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the Council adopted Framework 4 at its
April 2014 meeting, NMFS commented
that it was unclear how GARFO would
use the volumetric estimate of total
catch and whether a volumetric estimate
collected by an observer would be any
more accurate than either the vessel or
dealer reported data. Framework 4
describes that the proposed measure is
intended to enhance catch monitoring,
but it does not describe the specifics of
how the volumetric catch estimate will
be used to cross-check vessel and dealer
data. In recent years, discrepancies
between VTR and dealer reports have
averaged approximately 1 percent;
therefore, using the volumetric estimate
to resolve those discrepancies does not
seem necessary. Additionally, because
of assumptions inherent in the
calculation to convert volume to weight,
Framework 4 cautions that the proposed
measure could result in the catch
estimate less accurate than either the
vessel or dealer data.
In summary, NMFS seeks public
comment on whether and how the
proposed measure has practical utility
that outweighs its additional
compliance and administrative costs.
Specifically, NMFS seeks comment on
whether and how the benefit of the
information provided from this measure
compares to the additional burden on
vessel owner/operators to certify their
fish holds and make available a
measuring stick for observers, consistent
with the requirements of MSA National
Standards 5 and 7 and the Paperwork
Reduction Act (PRA). NMFS seeks
comment on the quality of the
information produced and whether and
how it is relevant to and sufficient for
the purposes of monitoring the fishery,
facilitating inseason management, or
judging the performance of the
management regime, consistent with the
requirements of MSA National Standard
2. NMFS also seeks comment on
whether and how this measure allows
the fishery to operate at the lowest
possible administrative and
enforcement costs relative to any
additional monitoring benefit provided
by this measure, consistent with the
requirements of MSA National Standard
5. Lastly, NMFS seeks comment on the
accuracy of the burden estimate, ways to
enhance the quality or utility of the
information collected, and ways to
minimize the burden of the information
collection. After evaluating public
comment, NMFS will determine if the
proposed volumetric catch estimate
requirement can be approved or if it
must be disapproved.
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Empty Fish Holds
Framework 4 would require fish holds
of vessels with Category A or B limited
access herring permits to be empty of
fish before leaving the dock on any trip
declared into the herring fishery. A
waiver may be issued by an authorized
law enforcement officer when fish have
been reported as caught and cannot be
sold due to the condition of fish.
The Council proposed this measure to
enhance catch monitoring and
discourage wasteful fishing practices in
the herring fishery. The practice of
discarding unmarketable fish on a
subsequent trip is not known to be
prevalent in the herring fishery, but
some stakeholders are concerned that
fish not purchased by a dealer, and
discarded on a subsequent trip, may not
be reported on the VTR. The Council
intended this measure to discourage the
discarding of unreported fish, provide a
mechanism to document when
harvested fish become unmarketable,
and prevent vessel operators from
mixing fish from multiple trips in the
hold, potentially biasing catch data.
Initially, this measure consisted of
only the requirement that vessel fish
holds be empty of fish at the beginning
of a herring trip. But recognizing that
there may be unforeseen events that
make it difficult to sell fish (e.g.,
refrigeration failure, poor condition,
lack of market), the Council proposed
the waiver provision to mitigate the
potential costs associated with
disposing of unmarketable catch on
land. The Council intended the waiver
to provide a mechanism to verify that
fish had been reported and document
the nature and extent to which vessels
are departing on trips with fish in their
holds. Additionally, some vessels in the
herring fishery land their catch in
multiple ports, and the Council
intended that the waiver provision
would allow that practice to continue.
NMFS is concerned with the lack of
justification for this measure and how
the compliance and enforcement costs
associated with this measure seem to
outweigh the benefits. NMFS would still
need to significantly develop this
measure prior to implementation,
including developing a protocol for
checking if fish holds are empty of fish,
developing guidance for when/how
waivers would be issued, specifying
what a vessel must do if it cannot obtain
a waiver, and developing a process to
use/track waivers. At the April 2014
Council meeting, NMFS commented
that it was unclear how this requirement
would improve catch data and urged the
Council to ensure that Framework 4
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provided clear rationale for this
measure.
While prohibiting the disposal of
unmarketable catch at sea, unless a
waiver is issued, may discourage
wasteful fishing practices, there is
insufficient support in the record to
determine whether this practice is
frequently occurring in the herring
fishery. The costs associated with a
herring trip, such as fuel, crew wages,
and insurance, are substantial, so it is
unlikely that vessel owners/operators
are harvesting fish with the intention to
discard rather than sell the fish.
Additionally, Framework 4
acknowledges that disposing of
unmarketable catch at sea on a
subsequent fishing trip is not known to
occur regularly in the herring fishery.
Framework 4 explains that it is
unclear whether unmarketable catch
discarded at sea on a subsequent trip is
reported. Part of the justification for the
waiver provision is to provide a way to
verify that fish have been reported and
document the extent to which vessels
are departing on trips with fish in their
holds. However, the Council’s proposed
waiver provides no way of verifying the
amount of fish reported relative to the
amount of fish left in the hold.
Therefore, NMFS does not consider this
measure to contain a viable mechanism
to verify whether harvested fish that are
left in the hold were reported by the
vessel.
Because the proposed measure lacks a
mechanism to verify or correct the
amount of fish reported on the VTR, the
proposed measure is unlikely to
improve catch monitoring in the herring
fishery. In contrast, the compliance and
enforcement costs associated with the
proposed measure may be high. For
example, vessel operators needing to
dispose of fish at sea may lose time and
money waiting for an authorized law
enforcement officer to travel to their
vessel, inspect it, and issue a waiver.
Additionally, it would likely be time
consuming for authorized officers to
issue waivers and would divert
resources from other law enforcement
duties.
This proposed measure is also
intended to enhance catch monitoring
in the herring fishery by preventing
vessel operators from mixing fish from
multiple trips in the hold and biasing
catch data. NEFOP observers sample the
catch while it is on the deck, before it
is placed in the fish hold, so there is no
chance that observers would be
sampling fish from multiple trips that
were mixed in the hold. The herring
fishery is also sampled portside by the
Massachusetts’ Department of Marine
Fisheries (MA DMF) and Maine’s
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Department of Marine Resources.
Mixing of catch from multiple fishing
trips, although unlikely, may have the
potential to bias landings data used to
inform herring stock assessments, state
management spawning closures, and the
river herring avoidance program
operated by the University of
Massachusetts’ School of Marine
Fisheries and MA DMF.
The Atlantic States Marine Fisheries
Commission is also considering a
requirement that vessel fish holds be
empty of fish before vessels depart on a
herring fishing trip in Amendment 3 to
its Interstate FMP for Atlantic Herring.
Establishing a similar provision in this
action may promote coordination
between Federal and state management
of the herring fishery, but for the
reasons described above, it is unlikely to
improve catch monitoring in the herring
fishery.
In summary, NMFS seeks public
comment on whether and how the
proposed measure has practical utility
that outweighs its additional
compliance and enforcement costs.
Specifically, NMFS seeks comment on
whether and how requiring empty fish
holds improves catch monitoring and
how any benefit of catch monitoring
provided by requiring empty fish holds
compares to the additional burden on
vessel owner/operators to obtain a
waiver from an authorized officer,
consistent with the requirements of
MSA National Standard 7 and the PRA.
NMFS also seeks comment on whether
and how the measure minimizes costs,
avoids unnecessary duplication, and
provides fishermen with the greatest
possible freedom of action in
conducting business or imposes an
unnecessary enforcement burden
relative to the requirements of MSA
National Standard 7. Further, NMFS
seeks comment on the proposed
measure’s efficient use of fishery
resources, specifically whether and how
this measure allows the fishery to
operate at the lowest possible
enforcement costs relative to the
requirements of MSA National Standard
5. Lastly, NMFS seeks comment on the
accuracy of the burden estimate, ways to
enhance the quality or utility of the
information collected, and ways to
minimize the burden of the information
collection. After evaluating public
comment, NMFS will determine if the
proposed empty fish hold requirement
can be approved or if it must be
disapproved.
Clarification of Existing Slippage
Measures
Framework 4 proposes clarifications
to slippage measures implemented in
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Amendment 5 (79 FR 8786, February 13,
2014). Currently, slippage requirements
exist for vessels with limited access
herring permits and midwater trawl
vessels fishing in Groundfish Closed
Areas.
Slippage is currently defined at 50
CFR 648.2 as catch that is discarded
prior to it being brought aboard a vessel
issued a herring permit and/or prior to
making it available for sampling and
inspection by a NMFS-approved
observer. Slippage includes releasing
catch from a codend or seine prior to the
completion of pumping the catch aboard
and the release of catch from a codend
or seine while the codend or seine is in
the water. Fish that cannot be pumped
and remain in the codend or seine at the
end of pumping operations are
characterized as operational discards,
not slippage. Discards that occur after
the catch is brought on board and sorted
are also not considered slippage.
Measures at § 648.11(m)(4) prohibit
slippage aboard any vessel issued a
limited access herring permit and
carrying a NMFS-approved observer,
except when safety or mechanical
failure necessitate slipping catch or
when excess catch of spiny dogfish
prevents fish from being pumped aboard
the vessel. Vessel may also make test
tows without pumping catch on board
for sampling, provided the gear is re-set
without releasing its contents and all
catch from test tows would be available
to the observer to sample when the next
tow is brought on board. If catch is
slipped for any the reasons described
previously, the vessel operator must
complete and sign a Released Catch
Affidavit detailing where, when, and
why catch was slipped and the
estimated weight of each species either
retained or slipped on that tow. A
completed affidavit must be submitted
to NMFS within 48 hr of the end of the
trip.
When midwater trawl vessels are
fishing in the Groundfish Closed Areas,
measures at § 648.202(b) require those
vessels to carry an observer and prohibit
slippage, except when slippage is due to
safety, mechanical failure, or excess
catch of spiny dogfish, and operational
discards. Operational discards are the
relatively small amounts of fish that
remain in the codend or seine after
catch is pumped aboard the vessel. The
Groundfish Closed Areas include Closed
Area I, Closed Area II, Nantucket
Lightship Closed Area, Cashes Ledge
Closure Area, and the Western Gulf of
Maine Closure Area. Midwater trawl
vessels fishing in the Groundfish Closed
Areas may make test tows, but if catch
is slipped or operationally discarded,
the vessel must immediately exit the
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Groundfish Closed Areas for the
remainder of that trip and complete a
Released Catch Affidavit within 48 hr of
the end of the trip.
When sampling catch at-sea,
observers document all catch not
brought on board and categorize the
catch based on disposition code. Those
codes are later evaluated to determine if
they were discard, slippage, or
operational discard events. Consistent
with the recommendations of the
Herring Plan Development Team, the
Council believes that clarifying the
treatment of catch not brought on board
should enhance the effectiveness and
enforceability of existing and proposed
management measures to address
slippage.
Framework 4 proposes to maintain
the existing requirements that prohibit
operational discards aboard midwater
trawl vessels fishing in the Groundfish
Closed Areas but allow operational
discards to occur on board herring
vessels fishing outside the Groundfish
Closed Areas. Current observer
protocols include documenting
operational discards and existing
regulations require vessel operators to
assist the observer with this process.
Because it can be time and labor
intensive to bring these small amounts
of fish on board the vessel, the
compliance costs associated with
prohibiting operational discards outside
the Groundfish Closed Areas would
likely outweigh any benefits to the catch
monitoring program and the herring
resource. Especially considering that
hauls containing operational discards
are considered to be ‘‘observed’’ hauls
as the amount and composition of
operational discards can be estimated by
observers. For these reasons, the
Council decided to maintain the
existing requirements that prohibit
operational discards aboard midwater
trawl vessels fishing in the Groundfish
Closed Areas but allow operational
discards to occur on herring vessels
fishing outside the Groundfish Closed
Areas.
Framework 4 proposes clarifying
slippage, such that a slippage event due
to safety, mechanical failure, or excess
catch of spiny dogfish would be
categorized as an ‘‘allowable’’ slippage
event and slippage for any other reason
would be categorized as a ‘‘nonallowable’’ slippage event. These
proposed categorizations are intended to
help clarify the type of slippage event
and would then be used to determine
whether a vessel would be subject to
any slippage consequences proposed in
Framework 4.
Framework 4 proposes that catch not
brought on board due to gear damage
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would be categorized as mechanical
failure and, therefore, as an allowable
slippage event. Although a gear failure
that results in the release of catch from
a codend is often beyond the control of
the captain and crew, instances of catch
released due to gear damage are similar
to instances of catch released due to
mechanical failure. Therefore, the
Council believes that catch released due
to gear damage should be categorized as
mechanical failure and an allowable
slippage event. As an allowable slippage
event, catch not brought on board due
to gear damage would be subject to
existing slippage requirements and a
slippage consequence proposed in
Framework 4.
Framework 4 proposes that catch that
falls out of or off of gear and is not
brought on board would not be
categorized as a slippage event. In
general, only small amounts of catch fall
out or off of gear during fishing and/or
when catch is being brought aboard the
vessel, unlike the potential for catch
loss due to mechanical failure.
Therefore, the Council believes that fish
that fall out of the gear should be
categorized as discarded catch, but not
slippage. For these reasons, instances of
catch falling out or off of gear during
fishing and/or when catch is being
brought aboard the vessel would not be
subject to existing slippage
requirements or any proposed slippage
consequences in Framework 4.
Slippage Consequences
Building on the slippage restrictions
established in Amendment 5,
Framework 4 proposes requiring vessels
to move away from the slippage location
following an allowable slippage event
before resuming fishing. Specifically,
vessels with Category A or B herring
permits slipping catch, due to safety,
mechanical failure, or excess catch of
spiny dogfish, would be required to
move at least 15 nautical miles (27.78
km) away from the slippage event
location. The vessel would be allowed
to move 15 nautical miles (27.78 km)
away in any direction, but it would be
prohibited from resuming fishing until
it was at least 15 nautical miles (27.78
km) from the location of the allowable
slippage event. Additionally, the vessel
would be required to remain at least 15
nautical miles (27.78 km) from the
slippage event location for the duration
of that fishing trip.
Framework 4 also proposes a trip
termination consequence for nonallowable slippage events. Specifically,
vessels with Category A or B herring
permits slipping catch, for any reason
other than safety, mechanical failure, or
excess catch of spiny dogfish, would be
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required to immediately stop fishing
and return to port. After having returned
to port and terminated the fishing trip,
vessels would be allowed to initiate
another fishing trip, consistent with the
existing pre-trip notification
requirements (e.g., contact NEFOP to
request an observer, VMS trip/gear
declaration) for limited access vessels
participating in the herring fishery.
Vessels with Category A or B limited
access herring permits fishing with
midwater trawl gear in the Groundfish
Closed Areas would also be subject to
these proposed slippage consequences.
Midwater trawl vessels are currently
required to exit the Groundfish Closed
Areas following an allowable slippage
event and remain outside the
Groundfish Closed Areas for the
duration of that trip. Under these
proposed slippage consequences,
vessels with Category A or B limited
access herring permits fishing with
midwater trawl gear in the Groundfish
Closed Area would also be required to
move at least 15 nautical miles (27.78
km) away from the slippage location
following an allowable slippage event.
Therefore, following an allowable
slippage event, a midwater trawl vessel
would need to exit the Groundfish
Closed Areas and remain outside of the
Groundfish Closed Areas for the
remainder of the fishing trip. If the
vessel has been issued a Category A or
B limited access herring permit, the
vessel would also be required to move
at least 15 nautical miles (27.78 km)
away from the slippage event and
remain at least 15 nautical miles (27.78
km) away from the slippage event for
the remainder of the fishing trip.
Additionally, vessels with Category A or
B limited access herring permits fishing
with midwater trawl gear in the
Groundfish Closed Areas would be
required to terminate the fishing trip
and return to port following a nonallowable slippage event.
The Council believes that additional
consequences for both allowable and
non-allowable slippage events will
enhance the catch monitoring program
established through Amendment 5 by
further discouraging slippage in the
herring fishery. The herring fishery is a
relatively high-volume fishery capable
of catching large quantities of fish in a
single tow. Therefore, even a few
slippage events have the potential to
substantially affect species composition
data, especially extrapolations of
incidental catch. The Council
recommended the requirement that
vessels move at least 15 nautical miles
(27.78 km) following an allowable
slippage event for two reasons. First, the
15-nautical mile (27.78-km) move
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requirement would apply uniformly to
all vessels that slipped catch, unlike
other considered alternatives (e.g.,
leaving a management area, leaving a
statistical area) where the magnitude of
the move would have depended upon
the location of the allowable slippage
event. Second, the Council believes the
15-nautical mile (27.78-km) move
requirement would likely provide
sufficient incentive (i.e., costing time
and fuel) for herring vessels to minimize
slippage while still maximizing
opportunities for participating in the
herring fishery and fully utilizing the
available yield. Additionally, the
Council recommended the requirement
that vessels terminate their fishing trip
following a non-allowable slippage
event to reiterate the importance of
minimizing slippage. The Mid-Atlantic
Fishery Management Council
recommended these same slippage
consequences for allowable and nonallowable slippage events in the
mackerel fishery as part of Framework
9 to the Atlantic Mackerel, Squid, and
Butterfish FMP. Many vessels
participate in both the herring and
mackerel fisheries, and implementing
consistent slippage consequences across
these fisheries is expected to improve
compliance and enforcement of these
measures.
Slippage is a significant concern for
many stakeholders because they believe
it undermines the ability to collect
unbiased estimates of herring catch, as
well as other species, in the herring
fishery. Stakeholders expressed support
for proposed measures to address
slippage in Framework 4, suggesting
that implementing these measures
would further ensure that there is
accountability for all catch in the
herring fishery. Framework 4 explains
that when the benefits of slipping catch
outweigh the costs of slipping catch,
vessel operators are likely to slip catch.
Additionally, Framework 4 describes
the impact of the slippage consequence
measures as low positive for the herring
resource and low negative for the
herring industry. Minimizing slippage
events and better documentation of
slipped catch may improve estimates of
bycatch in the fishery. To the extent that
the amount and species composition of
slipped catch can be sampled and/or
estimated, catch monitoring will be
enhanced. To the extent that slippage
events can continue to be reduced,
bycatch can be further minimized.
Reporting Slippage Events
Framework 4 proposes requiring
vessels with limited access herring
permits to report slippage events,
including the reason for the slippage
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event, via the herring daily VMS catch
report. This report, in combination with
observer data, would help enhance the
enforceability of existing slippage
requirements, such as completing a
released catch affidavit, as well as the
slippage consequences proposed in
Framework 4.
Clarifications and Corrections
This proposed rule also contains
minor clarifications and corrections to
existing regulations. NMFS proposes
these adjustments under the authority of
section 305(d) to the MSA, which
provides that the Secretary of Commerce
may promulgate regulations necessary
to ensure that framework adjustments to
FMPs are carried out in accordance with
the FMP and the MSA. These
adjustments, which are identified and
described below, are necessary to clarify
current regulations and would not
change the intent of any regulations.
NMFS proposes to add a transiting
provision for herring management areas
with seasonal sub-ACLs. This provision
would allow vessels to transit herring
management areas during periods when
zero percent of the sub-ACL for those
areas was available for harvest with
herring harvested from other herring
management areas aboard, provided
gear was stowed and not available for
use. This provision was overlooked
during rulemaking for Framework
Adjustment 2 to the Herring FMP and is
consistent with the intent of that action.
NMFS proposes to remove regulations at
§ 648.80(d)(7) describing requirements
for midwater trawl vessels fishing in
Groundfish Closed Area I because they
are redundant with regulations at
§ 648.202(b) describing requirements for
midwater trawl vessels fishing in any of
the Groundfish Closed Areas. NMFS
proposes adding the definition of
operational discards at § 648.2 and
clarifying that operational discards are
not permitted aboard midwater trawl
vessels fishing in Groundfish Closed
Areas, unless those fish have first been
made available to an observer for
sampling. NMFS proposes revising
references to individual years in
regulations for carryover at § 648.201 to
more correctly describe the timing of
carryover. Lastly, NMFS proposes to
correct coordinates for Herring
Management Area 2 at § 648.200(f)(2) to
more accurately define the area.
Classification
Except for the proposed measures
requiring volumetric estimates of catch
and empty fish holds at the beginning
of a trip and pursuant to section
304(b)(1)(A) of the MSA, the NMFS
Assistant Administrator has
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preliminarily determined that this
proposed rule is consistent with the
Atlantic Herring FMP; other provisions
of the MSA; 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.
The Council prepared an IRFA, as
required by section 603 of the
Regulatory Flexibility Act (RFA). The
IRFA describes the economic impact
this proposed rule, if adopted, would
have on small entities. A summary of
the analysis follows. A copy of this
analysis is available from the Council or
NMFS (see ADDRESSES) or via the
Internet at
www.greateratlantic.fisheries.noaa.gov.
Description of the Reasons Why Action
by the Agency Is Being Considered
This action proposes measures
intended to further enhance catch
monitoring and address discarding in
the herring fishery. The preamble to this
rule includes a complete description of
the reasons why this action is being
considered; therefore, those reasons are
not repeated here.
Statement of the Objectives of, and
Legal Basis for, This Proposed Rule
This action proposes measures
intended to further enhance catch
monitoring and address discarding in
the herring fishery. The preamble to this
proposed rule includes a complete
description of the objectives of and legal
basis for this action; therefore, that
description is not repeated here.
Description and Estimate of Number of
Small Entities to Which This Proposed
Rule Would Apply
This action proposes measures to
regulate the activity of vessels with
limited access herring permits and
vessels with Category A or B limited
access herring permits. Therefore, the
regulated entity is the business that
owns at least one limited access herring
permit.
In 2013, the most recent full year of
fishery permit data, 93 fishing vessels
were issued a limited access herring
permit. Vessels and/or permits may be
owned by entities affiliated by stock
ownership, common management,
identity of interest, contractual
relationships, or economic dependency.
For the purposes of this analysis,
ownership entities are defined by those
entities with common ownership
personnel as listed on permit
application documentation. Only
permits with identical ownership
personnel are categorized as an
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affiliated entity. For example, if five
permits have the same seven personnel
listed as co-owners on their application
paperwork, those seven personnel form
one ownership entity, covering those
five permits. If one or several of the
seven owners also own additional
vessels, with sub-sets of the original
seven personnel or with new co-owners,
those ownership arrangements are
deemed to be separate entities for the
purpose of this analysis.
Based on this ownership criterion,
NMFS dealer data for recent years
(2010–2013), and the size standards for
finfish and shellfish firms, there are 68
regulated fishing firms with a limited
access herring permit. Of those 68 firms,
there are 61 small entities and 7 large
entities. Not all of these permitted firms
are active: Only 32 small entities and 5
large entities were actively fishing for
herring during the last 3 years.
Additionally, there are 32 regulated
fishing firms that hold Category A or B
herring permits. Of those 32 firms, there
are 27 small entities and 5 large entities.
Not all of these permitted firms are
active: Only 19 small entities and 5
large entities were actively fishing for
herring during the last 3 years.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements of This Proposed Rule
This action proposes collection-ofinformation requirements subject to
review and approval by the Office of
Management and Budget (OMB) under
the PRA. This requirement will be
submitted to OMB for approval under
Control Numbers 0648–0202 and 0648–
0674.
This action proposes that limited
access vessels report slippage events via
the daily VMS herring catch report. All
limited access herring vessels are
currently required to submit daily VMS
catch reports, therefore, reporting
slippage via VMS is not expected to
cause any additional time or cost
burden above that which was previously
approved under OMB Control Number
0648–0202.
This action proposes that vessels with
limited access herring permits that store
herring catch in fish holds would be
required to certify the capacity of their
fish holds and mark their holds at
regular intervals to facilitate collection
of volumetric catch estimates. The fish
hold capacity measurement would need
to be certified by one of the following
entities: (1) A Certified Marine Surveyor
with a fishing specialty by the National
Association of Marine Surveyors
(NAMS); (2) an Accredited Marine
Surveyor with a fishing specialty by the
Society of Accredited Marine Surveyors
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(SAMS); (3) employees or agents of a
classification society approved by the
U.S. Coast Guard pursuant to 46 U.S.C.
3316(c); (4) the Maine State Sealer of
Weights and Measures; (5) a
professionally-licensed and/or
registered Marine Engineer; or (6) a
Naval Architect with a professional
engineer license. Additionally, vessels
would be required to obtain and carry
on board a NMFS-approved measuring
stick that would be available to
observers to place into the fish hold(s)
to measure the amount of fish. Each
hold volume measurement done by a
certified marine surveyor is estimated to
cost $300-$400. The cost of the NMFSapproved measuring stick is unknown at
this time, but expected to be minimal.
Ninety-three vessels were issued a
limited access herring permit in 2013.
Therefore, an estimated 93 vessels
would be required to submit a fish hold
volume measurement at the time of
permit issuance in 2016 and obtain and
carry on board a NMFS-approved
measuring stick.
This action also proposes that vessels
with Category A or B limited access
herring permits would be required to
have empty holds prior to departing on
a herring trip. A waiver may be issued
by an authorized law enforcement
officer when fish have been reported as
caught and cannot be sold due to the
condition of fish. Forty-three vessels
were issued a Category A or B limited
access herring permit in 2013.
Therefore, an estimated 43 vessels
would be required to obtain a waiver
from an authorized officer prior to
leaving the dock on a herring trip with
fish in the hold. The burden to the
vessel operator/owner associated with
obtaining a waiver would be any loss of
time and/or money waiting for an
authorized officer to travel to their
vessel, inspect it, and issue a waiver.
Public comment is sought regarding:
Whether this proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information shall have practical utility;
the accuracy of the burden estimate;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information,
including through the use of automated
collection techniques or other forms of
information technology. Send comments
on these or any other aspects of the
collection of information to the Regional
Administrator (see ADDRESSES), and
email to OIRA_Submission@
omb.eop.gov, or fax to (202) 395–5806.
Notwithstanding any other provisions
of the law, no person is required to, nor
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shall any person be subject to a penalty
for failure to comply with, a collection
of information subject to the
requirements of the PRA, unless that
collection of information displays a
currently valid OMB Control Number.
All currently approved NOAA
collections of information may be
viewed at: https://www.cio.noaa.gov/
services_programs/prasubs.html.
Federal Rules Which May Duplicate,
Overlap, or Conflict With This Proposed
Rule
This action does not duplicate,
overlap, or conflict with any other
Federal law.
Description of Significant Alternatives
to the Proposed Action Which
Accomplish the Stated Objectives of the
Applicable Statues and Which Minimize
Any Significant Economic Impact on
Small Entities
This action considered alternatives to
the proposed action, but, according to
the analysis in Framework 4, the nonselected alternatives would not have
met the stated goal of the action,
minimized any significant economic
impact on small entities compared to
the proposed action, or been consistent
with applicable law.
To help minimize slippage,
Framework 4 considered slippage
consequence measures that would have
required vessels to leave either a herring
management or statistical area following
an allowed slippage event and remain
out of that area for the remainder of the
trip. The economic cost of complying
with these requirements and their
effectiveness at deterring slippage
would have arbitrarily depended upon
the location of the slippage event and
the magnitude of the required move.
Therefore, the impact of the nonselected alternatives would not have
applied uniformly to all vessels that
slipped catch, unlike the impact of
complying with the proposed action
requiring vessels to move 15 nautical
miles (27.78 km), and the non-selected
alternatives may not minimize bycatch
to the extent practicable. Framework 4
also considered only requiring trip
termination following non-allowable
slippage events, rather than the
proposed action of requiring both a 15nautical mile (27.78-km) move
following allowable slippage events and
trip termination following nonallowable slippage events. The proposed
action was selected rather than just a
trip termination requirement because
the proposed action likely provides a
greater incentive to not slip catch,
thereby helping to minimize bycatch to
the extent practicable.
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To help identify errors with catch
information in the herring fishery,
Framework 4 considered requiring
dealers to have vessel representatives
corroborate dealer landings data and
requiring VTRs and dealers reports to be
submitted daily rather than weekly. The
analysis in Framework 4 indicated that
both these non-selected alternatives
would have only had a negligible
impact on improving the quality of
catch information in the herring fishery.
Additionally, the reporting burden
associated with these non-selected
alternatives would have likely been
greater than the reporting burden
associated with the proposed action
requiring vessel fish holds to be empty
of fish at the beginning of a herring trip.
Lastly, to improve the quality of
herring catch information, Framework 4
considered requiring dealers to estimate
herring landings based on standardized
weight conversions for specific volumes
of herring (e.g., box, storage tote, or
truck). The economic cost of complying
with these non-selected alternatives
would have likely been similar to the
costs associated with the proposed
action requiring volumetric catch
estimates to be collected aboard limited
access herring vessels. However, the
Framework 4 analysis suggests that the
benefit of these non-selected
alternatives would likely have been
variable, depending on the accuracy of
the weight conversions, and may have
been more uncertain than any benefit
resulting from the proposed action.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
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 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 § 648.2, the definition for
‘‘Slippage in the Atlantic herring
fishery’’ is removed and the definitions
for ‘‘Operational discards in the Atlantic
herring fishery’’ and ‘‘Slip, slips, or
slipping catch in the Atlantic herring
fishery’’ are added in alphabetical order
to read as follows:
■
§ 648.2
*
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Operational discards in the Atlantic
herring fishery means small amounts of
fish that cannot be pumped on board
and remain in the codend or seine at the
end of pumping operations. Leaving
small amounts of fish in the codend or
seine at the end of pumping operations
is operationally discarding catch.
*
*
*
*
*
Slip, slips, or slipping catch in the
Atlantic herring fishery means catch
that is discarded by a vessel issued an
Atlantic herring permit prior to it being
brought on board and made available for
sampling and inspection by a NMFSapproved observer. Slip or slipping
catch includes releasing fish from a
codend or seine prior to the completion
of pumping the fish on board and the
release of fish from a codend or seine
while the codend or seine is in the
water. Slippage or slipped catch refers
to fish that are slipped. Slippage or
slipped catch does not include
operational discards, discards that occur
after the catch is brought on board, or
fish that inadvertently fall out of or off
fishing gear as gear is being brought on
board the vessel.
*
*
*
*
*
■ 3. In § 648.4, paragraph (a)(10)(iv)(P)
is added to read as follows:
§ 648.4
Vessel permits.
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(a) * * *
(10) * * *
(iv) * * *
(P) Volumetric hold certification. All
vessels with limited access herring
permits that store catch in fish holds
must certify the capacity of the vessel
fish hold. The fish hold capacity
measurement must be certified by one of
the following qualified individuals or
entities: Certified Marine Surveyor with
a fishing specialty by the National
Association of Marine Surveyors;
Accredited Marine Surveyor with a
fishing specialty by the Society of
Accredited Marine Surveyors;
employees or agents of a classification
society approved by the Coast Guard
pursuant to 46 U.S.C. 3316(c); the Maine
State Sealer of Weights and Measures; a
professionally-licensed and/or
registered Marine Engineer; or a Naval
Architect with a professional engineer
license. Vessel owners must submit a
certified fish hold capacity
measurement to NMFS with a signed
certification by the individual or entity
that completed the measurement.
*
*
*
*
*
■ 4. In § 648.11, paragraphs (m)(3)(ii)
and (m)(4) are revised and paragraph
(m)(5) is added to read as follows:
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14:07 Aug 26, 2015
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§ 648.11 At-sea sea sampler/observer
coverage.
*
*
*
*
*
(m) * * *
(3) * * *
(ii) Reasonable assistance to enable
observers to carry out their duties,
including but not limited to assistance
with: Obtaining and sorting samples;
measuring decks, codends, and holding
bins; providing an observer a NMFSapproved measuring stick when
requested; estimating the volume of fish
in fish hold(s) before offloading;
collecting bycatch when requested by
the observers; and collecting and
carrying baskets of fish when requested
by the observers.
*
*
*
*
*
(4) Measures to address slippage. (i)
No vessel issued a limited access
herring permit may slip catch, as
defined at § 648.2, except in the
following circumstances:
(A) The vessel operator has
determined, and the preponderance of
available evidence indicates that, there
is a compelling safety reason; or
(B) A mechanical failure, including
gear damage, precludes bringing some
or all of the catch on board the vessel
for inspection; or,
(C) The vessel operator determines
that pumping becomes impossible as a
result of spiny dogfish clogging the
pump intake. The vessel operator shall
take reasonable measures, such as
strapping and splitting the net, to
remove all fish which can be pumped
from the net prior to release.
(ii) Vessels may make test tows
without pumping catch on board if the
net is re-set without releasing its
contents provided that all catch from
test tows is available to the observer to
sample when the next tow is brought on
board for sampling.
(iii) If a vessel issued any limited
access herring permit slips catch, the
vessel operator must report the slippage
event on the Atlantic herring daily VMS
catch report and indicate the reason for
slipping catch. Additionally, the vessel
operator must complete and sign a
Released Catch Affidavit detailing: The
vessel name and permit number; the
VTR serial number; where, when, and
the reason for slipping catch; the
estimated weight of each species
brought on board or slipped on that tow.
A completed affidavit must be
submitted to NMFS within 48 hr of the
end of the trip.
(iv) If a vessel issued an All Areas or
Areas 2/3 Limited Access Herring
permit slips catch for any of the reasons
described in paragraph (m)(4)(i) of this
section, the vessel operator must move
PO 00000
Frm 00051
Fmt 4702
Sfmt 4702
52013
at least 15 nm (27.78 km) from the
location of release before deploying any
gear again, and must stay at least 15 nm
(27.78 km) away from the slippage event
location for the remainder of the fishing
trip.
(v) If catch is slipped by a vessel
issued an All Areas or Areas 2/3
Limited Access Herring permit for any
reason not described in paragraph
(m)(4)(i) of this section, the vessel
operator must immediately terminate
the trip and return to port. No fishing
activity may occur during the return to
port.
(5) Vessels must carry on board a
NMFS-approved measuring stick which
must be made available to the observer
upon request.
*
*
*
*
*
■ 5. In § 648.14, paragraphs (r)(1)(ii)(D),
(r)(1)(vii)(F), and (r)(2)(xiii) are added
and paragraphs (r)(2)(v) through (xii) are
revised to read as follows:
§ 648.14
Prohibitions.
*
*
*
*
*
(r) * * *
(1) * * *
(ii) * * *
(D) For vessels issued an All Areas or
Areas 2/3 Limited Access Herring
Permit to begin a declared herring trip
to fish for, possess, transfer, or receive
herring without fish holds empty of fish
as specified at § 648.204(c), unless the
vessel has received a waiver to begin a
trip with fish in the fish hold.
*
*
*
*
*
(vii) * * *
(F) Transit or be in an area that has
zero percent sub-ACL available for
harvest specified at § 648.201(d) with
herring on board, unless such herring
were caught in an area or areas with an
available sub-ACL specified at
§ 648.201(d), all fishing gear is stowed
and not available for immediate use as
defined in § 648.2, and the vessel is
issued a vessel permit that authorizes
the amount of herring on board for the
area where the herring was harvested.
*
*
*
*
*
(r) * * *
(2) * * *
(v) Fish with midwater trawl gear in
any Northeast Multispecies Closed Area,
as defined in § 648.81(a) through (e),
without a NMFS-approved observer on
board, if the vessel has been issued an
Atlantic herring permit.
(vi) Slip or operationally discard
catch, as defined at § 648.2, unless for
one of the reasons specified at
§ 648.202(b)(2), if fishing any part of a
tow inside the Northeast Multispecies
Closed Areas, as defined at § 648.81(a)
through (e).
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Federal Register / Vol. 80, No. 166 / Thursday, August 27, 2015 / Proposed Rules
(vii) Fail to immediately leave the
Northeast Multispecies Closed Areas
and comply with reporting requirements
after slipping or operationally
discarding catch, as required by
§ 648.202(b)(4).
(viii) Slip catch, as defined at § 648.2,
unless for one of the reasons specified
at § 648.11(m)(4)(i).
(ix) For vessels with All Areas or
Areas 2/3 Limited Access Herring
Permits, fail to move 15 nm (27.78 km),
as required by § 648.11(m)(4)(iv) and
§ 648.202(b)(4)(iv).
(x) For vessels with All Areas or Areas
2/3 Limited Access Herring Permits, fail
to immediately return to port, as
required by § 648.11(m)(4)(v) and
§ 648.202(b)(4)(iv).
(xi) Fail to complete, sign, and submit
a Released Catch Affidavit if fish are
released pursuant to the requirements at
§ 648.11(m)(4)(iii).
(xii) Fail to report a slippage event on
the Atlantic herring daily VMS catch
report, as required by § 648.11(m)(4)(iii).
(xiii) Fail to carry on board, or make
available to an observer upon request, a
NMFS-approved measuring stick, as
required by § 648.11(m)(5).
*
*
*
*
*
§ 648.80
[Amended]
6. In § 648.80, paragraph (d)(7) is
removed.
■ 7. In § 648.200, paragraph (f)(2) is
revised to read as follows:
■
§ 648.200
Specifications.
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*
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(f) * * *
(2) Management Area 2 (South
Coastal Area): All state and Federal
waters inclusive of sounds and bays,
bounded on the east by 70°00′ W. long.
and the outer limit of the U.S. Exclusive
Economic Zone; bounded on the north
and west by the southern coastline of
Cape Cod, Massachusetts, and the
coastlines of Rhode Island, Connecticut,
New York, New Jersey, Delaware,
Maryland, Virginia, and North Carolina;
and bounded on the south by a line
following the lateral seaward boundary
between North Carolina and South
Carolina from the coast to the
Submerged Lands Act line,
approximately 33°48′46.37″ N. lat,
78°29′46.46″ W. long., and then heading
due east along 33°48′46.37″ N. lat. to the
outer limit of the US Exclusive
Economic Zone.
*
*
*
*
*
■ 8. In § 648.201, paragraphs (e) and (f)
are revised and paragraph (g) is added
to read as follows:
§ 648.201
AMs and harvest controls.
*
*
*
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*
14:07 Aug 26, 2015
Jkt 235001
(e) A vessel may transit an area that
has zero percent sub-ACL available for
harvest specified in paragraph (d) of this
section with herring on board, provided
such herring were caught in an area or
areas with sub-ACL available specified
in paragraph (d) of this section, that all
fishing gear is stowed and not available
for immediate use as defined in § 648.2,
and the vessel is issued a permit that
authorizes the amount of herring on
board for the area where the herring was
harvested.
(f) Up to 500 mt of the Area 1A subACL shall be allocated for the fixed gear
fisheries in Area 1A (weirs and stop
seines) that occur west of 67°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.
(g) Carryover. Subject to the
conditions described in this paragraph
(g), unharvested catch in a herring
management area in a fishing year (up
to 10 percent of that area’s sub-ACL)
shall be carried over and added to the
sub-ACL for that herring management
area for the fishing year following the
year when total catch is determined. For
example, NMFS will determine total
catch from Year 1 during Year 2, and
will add carryover to the applicable subACL(s) in Year 3. All such carryover
shall be based on the herring
management area’s initial sub-ACL
allocation for the fishing year, not the
sub-ACL as increased by carryover or
decreased by an overage deduction, as
specified in paragraph (a)(3) of this
section. All herring landed from a
herring management area shall count
against that area’s sub-ACL, as increased
by carryover. For example, if 500 mt of
herring is added as carryover to a 5,000
mt sub-ACL, catch in that management
area would be tracked against a total
sub-ACL of 5,500 mt. NMFS shall add
sub-ACL carryover only if the ACL,
specified consistent with
§ 648.200(b)(3), for the fishing year in
which there is unharvested herring, is
not exceeded. The ACL, consistent with
§ 648.200(b)(3), shall not be increased
by carryover specified in this paragraph
(g).
■ 9. In § 648.202, paragraphs (b)(2)
introductory text, (b)(4) introductory
text, and (b)(4)(ii) are revised, and
paragraphs (b)(4)(iii) and (iv) are added
to read as follows:
§ 648.202
*
§ 648.204
Possession restrictions.
*
*
*
*
*
(c) Vessels issued an All Areas or
Areas 2/3 Limited Access Herring
Permit must have fish holds empty of
fish before leaving the dock on any trip
declared into the Atlantic herring
fishery. After inspection by an
authorized officer, a waiver for the
requirement to have fish holds empty of
fish may be issued to vessels for
instances when there are fish in the
hold due to a lack of marketability or
refrigeration malfunction, provided
those fish have been reported by the
vessel.
[FR Doc. 2015–21146 Filed 8–26–15; 8:45 am]
BILLING CODE 3510–22–P
Season and area restrictions.
*
*
(b) * * *
PO 00000
(2) No vessel issued an Atlantic
herring permit and fishing with
midwater trawl gear, when fishing any
part of a midwater trawl tow in the
Closed Areas, may slip or operationally
discard catch, as defined at § 648.2,
except in the following circumstances:
*
*
*
*
*
(4) If catch is slipped or operational
discarded by a vessel, the vessel
operator must:
*
*
*
*
*
(ii) Complete and sign a Released
Catch Affidavit detailing: The vessel
name and permit number; the VTR
serial number; where, when, and for
what reason the catch was released; the
estimated weight of each species
brought on board or released on that
tow. A completed affidavit must be
submitted to NMFS within 48 hr of the
end of the trip.
(iii) Report slippage events on the
Atlantic herring daily VMS catch report
and indicate the reason for slipping
catch if the vessel was issued a limited
access herring permit.
(iv) Comply with the measures to
address slippage specified in
§ 648.11(m)(4)(iv) and (v) if the vessel
was issued an All Areas or Areas 2/3
Limited Access Herring Permit.
■ 10. In § 648.204, paragraph (c) is
added to read as follows:
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Agencies
[Federal Register Volume 80, Number 166 (Thursday, August 27, 2015)]
[Proposed Rules]
[Pages 52005-52014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21146]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 150304214-5660-01]
RIN 0648-BE94
Fisheries of the Northeastern United States; Atlantic Herring
Fishery; Framework Adjustment 4
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes management measures recommended by the New
England Fishery Management Council in Framework Adjustment 4 to the
Atlantic Herring Fishery Management Plan to further enhance catch
monitoring and address discarding in the herring fishery. NMFS proposes
measures that would clarify the slippage definition (i.e., discarding
catch before it has been sampled by an observer), require limited
access herring vessels to report slippage via the daily vessel
monitoring system catch report, and require slippage consequence
measures. NMFS also proposes management measures recommended by the
Council in Framework 4 that would require volumetric estimates of total
catch and fish holds to be empty of fish before vessels depart on a
herring trip and seeks public comment on specific issues with these
measures identified by NMFS. Lastly, NMFS proposes minor corrections to
existing regulations.
DATES: Public comments must be received by September 28, 2015.
ADDRESSES: The New England Fishery Management Council developed an
environmental assessment (EA) for this action 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 the framework, the EA, and the Regulatory
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are
available upon request from Thomas A. Nies, Executive Director, New
England Fishery Management Council, 50 Water Street, Newburyport, MA
01950. The EA/RIR/IRFA is accessible via the Internet at
www.greateratlantic.fisheries.noaa.gov.
You may submit comments on this document, identified by NOAA-NMFS-
2015-0067, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0067, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: John K. Bullard, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA
01930. Mark the outside of the envelope, ``Comments on the Herring
Framework Adjustment 4 Proposed Rule.''
Fax: (978) 281-9135, Attn: Carrie Nordeen.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed
[[Page 52006]]
rule may be submitted to NMFS, Greater Atlantic Regional Fisheries
Office, and by email to OIRA_Submission@omb.eop.gov or fax to (202)
395-5806.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, phone 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The Council adopted Framework Adjustment 4 to the Atlantic Herring
Fishery Management Plan at its April 22, 2014, meeting. The Council
submitted Framework 4 to NMFS for review on July 18, 2014, and
resubmitted to NMFS on February 27, 2015, and April 30, 2015.
This proposed rule includes management measures recommended by the
Council in Framework 4 intended to further enhance catch monitoring and
address discarding in the herring fishery. If implemented, Framework 4
would clarify the slippage definition, require limited access herring
vessels to report slippage events on the daily vessel monitoring system
(VMS) catch report, and establish slippage consequences. Slippage
consequence measures would require vessels with All Areas (Category A)
or Areas 2/3 (Category B) Limited Access Herring Permits to move 15
nautical miles (27.78 km) following an allowable slippage event,
slippage due to safety, mechanical failure, or excess catch of spiny
dogfish, and to terminate a fishing trip and return to port following a
non-allowable slippage event, slippage for any other reason.
This proposed rule includes two additional management measures also
recommended by the Council in Framework 4. These measures include
requiring volumetric catch estimates to be collected aboard vessels
with limited access herring permits and requiring vessels with Category
A or B herring permits to have fish holds empty of fish when departing
on a herring trip. NMFS specifically seeks public comment on the
consistency of these measures with the Magnuson-Stevens Fisheries
Conservation and Management Act (MSA) and other applicable law.
Additionally, this proposed rule contains minor corrections to
existing regulations. NMFS proposes these adjustments under the
authority of section 305(d) to the MSA, which provides that the
Secretary of Commerce may promulgate regulations necessary to ensure
that adjustments to a fishery management plan (FMP) are carried out in
accordance with the FMP and the MSA. These adjustments, which are
identified and described below, are necessary to clarify current
regulations or the intent of the Herring FMP, and would not change the
intent of any regulations.
Proposed Measures
The proposed regulations are based on the measures in Framework 4.
The Council developed Framework 4 to build on catch monitoring
improvements implemented in Amendment 5 to the Herring FMP (79 FR 8786,
February 13, 2014) and to address dealer reporting requirements and
slippage caps that NMFS disapproved as part of Amendment 5.
NMFS supports improvements to fishery dependent data collections
and shares the Council's concern for reducing unnecessary discarding.
During the development of Framework 4, NMFS expressed concern with the
lack of rationale supporting two of the measures in Framework 4,
specifically the measures requiring volumetric estimates of total catch
and empty fish holds at the beginning of a trip. The Council did not
provide evidence of specific problems with catch monitoring or
discarding that these measures would address, nor did it demonstrate
how these measures would rectify any such problems. Therefore, NMFS
urged the Council to ensure Framework 4 provided adequate justification
to support these measures. At this time, NMFS does not consider
Framework 4 to contain sufficient justification for these measures and
NMFS remains concerned that the utility of these measures does not
outweigh the compliance, administration, and enforcement costs.
This proposed rule describes concerns about these measures'
consistency with the MSA and other applicable law. Following public
comment, NMFS will determine if these two measures can be approved or
if they must be disapproved. NMFS seeks public comment on all proposed
measures in Framework 4, and, in particular, NMFS seeks public comment
on the proposed requirements for volumetric estimates of total catch
and empty fish holds at the beginning of a trip and whether these
measures should be approved or disapproved.
Volumetric Catch Estimates
Framework 4 would require vessels with limited access herring
permits to have their fish holds certified and Northeast Fisheries
Science Center (NEFOP) observers to collect volumetric estimates of
total catch by measuring the volume of fish in the hold prior to
offloading. Observers would convert the volumetric estimate to a weight
and submit the estimated weight to the Greater Atlantic Regional
Fisheries Office (GARFO) for a cross-check of vessel trip reports
(VTRs) and dealer reports.
Vessels with limited access herring permits that store herring
catch in fish holds would be required to certify the capacity of their
fish holds and mark their holds at regular intervals to facilitate
collection of volumetric catch estimates. The fish hold capacity
measurement would need to be certified by one of the following
entities: (1) A Certified Marine Surveyor with a fishing specialty by
the National Association of Marine Surveyors (NAMS); (2) an Accredited
Marine Surveyor with a fishing specialty by the Society of Accredited
Marine Surveyors (SAMS); (3) employees or agents of a classification
society approved by the U.S. Coast Guard pursuant to 46 U.S.C. 3316(c);
(4) the Maine State Sealer of Weights and Measures; (5) a
professionally-licensed and/or registered Marine Engineer; or (6) a
Naval Architect with a professional engineer license. This proposed
list of entities is consistent with the list of entities approved to
certify fish hold capacities in the Atlantic Mackerel, Squid, and
Butterfish FMP. As part of the limited access herring permit renewal
process in 2016, vessel owners would be required to submit a certified
fish hold capacity measurement to NMFS with a signed certification by
the individual or entity that completed the measurement specifying how
they met the definition of a qualified individual or entity.
Regulations in the State of Maine already require that herring
vessels have their fish holds measured and ``sealed'' by the State
Sealer of Weights and Measures. Additionally, regulations at 50 CFR
648.4(a)(5)(iii)(H)(1) specifying vessel upgrade restrictions require
that Tier 1 and Tier 2 limited access Atlantic mackerel vessels certify
the capacity of their fish holds and submit this information to NMFS.
Therefore, many vessels that participate in the herring fishery may
already have the information necessary to determine the capacity of
their fish holds.
Vessels with limited access herring permits would be required to
obtain and retain on board a NMFS-approved measuring stick that would
be available to the observer to measure the amount of fish in the fish
hold. At the completion of a fishing trip, but prior to offloading, the
observer would lower the NMFS-approved measuring stick into the fish
hold(s) to measure the amount of fish and then estimate the total
[[Page 52007]]
volume of fish on board. Once the observer estimates the total volume
of fish in the fish hold, the observer would calculate the total weight
of fish on board based on NMFS-approved volume to weight conversions.
Framework 4 proposes the following conversions: (1) 1 cubic foot (0.28
cubic m) = 56.2 pounds (25.49 kg); (2) 1.244 cubic feet (0.035 cubic m)
= 1 bushel herring (0.035 cubic m) = 70 pounds (31.75 kg); (3) 1
hogshead (0.62 cubic m) = 17.5 bushels (0.62 cubic m) = 1,225 pounds
(555.65 kg). Additionally, Framework 4 proposes that 5 percent of the
total weight would be deducted to account for water in the fish hold.
Once the final estimate of total weight of fish is determined by the
observer, that estimate would be recorded along with other sampling
data collected on that fishing trip. After the observer's data are
checked and finalized by NEFOP, the observer's estimate of total catch
would be made available to GARFO for the purpose of cross-checking VTRs
and dealer data.
Currently, observers do not estimate total catch in the herring
fishery. Estimating the volume of fish in fish holds is an accepted
practice elsewhere in the world, particularly Europe, to estimate the
weight of total catch. However, requiring observers in the herring
fishery to collect volumetric estimates of total catch would
necessitate significant development of this measure prior to
implementation, including developing a sampling protocol, approving
volume to weight conversions and deductions to account for water in the
fish hold, training observers, and evaluating how to use the data.
Additionally, observers in the herring fishery are not currently
required to stay with the vessel after landing and contracts for
observers do not include sampling responsibilities when the vessel is
in port. Requiring observers to sample vessels in port would require
modifications to the description of observer duties and contracts with
observer service providers.
The requirement for observers to estimate the amount of catch in
the fish hold is intended to enhance catch monitoring in the herring
fishery by providing an independent estimate of total catch. This
measure was developed to address stakeholder concerns with NMFS's
reliance on industry-reported catch data to monitor the herring
fishery. Specifically, some stakeholders, including environmental
organizations, the groundfish industry, and recreational fishing
groups, believe that herring catch is not accurately reported by the
industry and that large discrepancies exist between vessel and dealer
reports. The herring industry, in general, does not believe that
herring catch is being misreported but, in an effort to address
stakeholder concerns, supports the requirement for observers to collect
an estimate of total catch.
Vessels and dealers report catch by species. VTRs, in combination
with observer data, are used by NMFS in herring stock assessments and
to track catch against catch caps in the herring fishery, while dealer
data are used to track catch against herring annual catch limits. The
proposed measure would provide an estimate of total catch, but not
catch by species. Therefore, the volumetric estimate could not be used
to replace either VTRs or dealer data and it could not be used for
catch monitoring or stock assessments. While the data generated under
this proposed measure would not replace industry-reported data used for
quota monitoring and stock assessments, it is intended to help measure
the utility of industry-reported catch data, identify, catch reporting
issues, and alleviate concerns that vessel operators and dealers
collude to misreport catch.
Framework 4 does not provide evidence of misreporting by the
herring industry, but it does highlight past differences between the
amount of herring reported by vessels and dealers. Prior to 2008,
discrepancies between VTRs and dealer data ranged from 4 percent to 54
percent. The vessel hail estimate (reported on the VTR) is different
than amount of fish purchased (reported by dealers) so differences
between these data sets are expected. However, discrepancies between
VTR and dealer data greater than 10 percent are considered substantial.
In recent years, discrepancies between VTRs and dealer data have
been minimal. VTRs were higher than dealer reports in 2009 (2 percent),
2010 (1.3 percent), 2011 (1.2 percent), and 2013 (0.1 percent) and less
than dealer reports in 2012 (0.1 percent). As described in NMFS's April
17, 2014, letter to the Council, GARFO has improved the process for
cross-checking and resolving differences between VTR and dealer data.
Staff use advanced programming to match VTR and dealer data for each
trip and identify records that do not match. They then investigate each
unmatched record to determine the cause of the discrepancy and make the
correction to the appropriate data set. This investigation process
includes interviews with dealers, vessel operators, and owners to
obtain supporting documentation for the correction and to ensure
industry concurs with the data corrections. Given that discrepancies
between VTR and dealer data are investigated and resolved, NMFS does
not consider as necessary the proposed measure for observers to collect
a volumetric estimate of total catch to help identify or resolve
discrepancies between VTR and dealer data.
Framework 4 discusses the concern that catch is not being
accurately reported, but cautions whether the proposed measure would be
more accurate than methods currently used by vessel operators or
dealers to estimate catch. The volumetric conversions proposed in
Framework 4 are based on herring harvested in other parts of the world.
Using a volumetric conversion assumes consistency in the size, weight,
and density of the catch, but there can be substantial variability in
the catch composition of the herring fishery, depending on the area and
season. The proposed 5 percent deduction from total weight to account
for water in the tanks is based on best known practices among the
industry, but the Council did not rigorously evaluate the amount of the
deduction. For these reasons, Framework 4 explains that converting a
volume of total fish to pounds based on a herring-based conversion
could produce less accurate catch estimates than current vessel or
dealer estimates. Because of the potential variability and
uncertainties associated with volumetric estimates and volumetric
conversions, catch estimates derived under this proposed measure would
not be used to replace any current estimates of herring catch.
Therefore, the impact of this proposed measure on the herring resource
is likely to be negligible.
Framework 4 suggests that portside samplers, in addition to
observers, could provide independent catch verification in the herring
fishery. Currently, the portside sampling program that samples the
herring fishery is a voluntary program administered by the states of
Massachusetts and Maine. It is not possible to implement a mandatory
Federal data collection through a voluntary state sampling program. It
may be possible to collect catch data in a future Federal portside
sampling program, such as the portside sampling alternative for the
midwater trawl fleet being considered in the Council's Industry-Funded
Monitoring Omnibus Amendment, provided that the data collected would
improve monitoring in the herring fishery.
During the development of Framework 4, NMFS expressed concern
regarding the utility of the proposed measure and the reliability of a
volumetric estimate of total catch. When
[[Page 52008]]
the Council adopted Framework 4 at its April 2014 meeting, NMFS
commented that it was unclear how GARFO would use the volumetric
estimate of total catch and whether a volumetric estimate collected by
an observer would be any more accurate than either the vessel or dealer
reported data. Framework 4 describes that the proposed measure is
intended to enhance catch monitoring, but it does not describe the
specifics of how the volumetric catch estimate will be used to cross-
check vessel and dealer data. In recent years, discrepancies between
VTR and dealer reports have averaged approximately 1 percent;
therefore, using the volumetric estimate to resolve those discrepancies
does not seem necessary. Additionally, because of assumptions inherent
in the calculation to convert volume to weight, Framework 4 cautions
that the proposed measure could result in the catch estimate less
accurate than either the vessel or dealer data.
In summary, NMFS seeks public comment on whether and how the
proposed measure has practical utility that outweighs its additional
compliance and administrative costs. Specifically, NMFS seeks comment
on whether and how the benefit of the information provided from this
measure compares to the additional burden on vessel owner/operators to
certify their fish holds and make available a measuring stick for
observers, consistent with the requirements of MSA National Standards 5
and 7 and the Paperwork Reduction Act (PRA). NMFS seeks comment on the
quality of the information produced and whether and how it is relevant
to and sufficient for the purposes of monitoring the fishery,
facilitating inseason management, or judging the performance of the
management regime, consistent with the requirements of MSA National
Standard 2. NMFS also seeks comment on whether and how this measure
allows the fishery to operate at the lowest possible administrative and
enforcement costs relative to any additional monitoring benefit
provided by this measure, consistent with the requirements of MSA
National Standard 5. Lastly, NMFS seeks comment on the accuracy of the
burden estimate, ways to enhance the quality or utility of the
information collected, and ways to minimize the burden of the
information collection. After evaluating public comment, NMFS will
determine if the proposed volumetric catch estimate requirement can be
approved or if it must be disapproved.
Empty Fish Holds
Framework 4 would require fish holds of vessels with Category A or
B limited access herring permits to be empty of fish before leaving the
dock on any trip declared into the herring fishery. A waiver may be
issued by an authorized law enforcement officer when fish have been
reported as caught and cannot be sold due to the condition of fish.
The Council proposed this measure to enhance catch monitoring and
discourage wasteful fishing practices in the herring fishery. The
practice of discarding unmarketable fish on a subsequent trip is not
known to be prevalent in the herring fishery, but some stakeholders are
concerned that fish not purchased by a dealer, and discarded on a
subsequent trip, may not be reported on the VTR. The Council intended
this measure to discourage the discarding of unreported fish, provide a
mechanism to document when harvested fish become unmarketable, and
prevent vessel operators from mixing fish from multiple trips in the
hold, potentially biasing catch data.
Initially, this measure consisted of only the requirement that
vessel fish holds be empty of fish at the beginning of a herring trip.
But recognizing that there may be unforeseen events that make it
difficult to sell fish (e.g., refrigeration failure, poor condition,
lack of market), the Council proposed the waiver provision to mitigate
the potential costs associated with disposing of unmarketable catch on
land. The Council intended the waiver to provide a mechanism to verify
that fish had been reported and document the nature and extent to which
vessels are departing on trips with fish in their holds. Additionally,
some vessels in the herring fishery land their catch in multiple ports,
and the Council intended that the waiver provision would allow that
practice to continue.
NMFS is concerned with the lack of justification for this measure
and how the compliance and enforcement costs associated with this
measure seem to outweigh the benefits. NMFS would still need to
significantly develop this measure prior to implementation, including
developing a protocol for checking if fish holds are empty of fish,
developing guidance for when/how waivers would be issued, specifying
what a vessel must do if it cannot obtain a waiver, and developing a
process to use/track waivers. At the April 2014 Council meeting, NMFS
commented that it was unclear how this requirement would improve catch
data and urged the Council to ensure that Framework 4 provided clear
rationale for this measure.
While prohibiting the disposal of unmarketable catch at sea, unless
a waiver is issued, may discourage wasteful fishing practices, there is
insufficient support in the record to determine whether this practice
is frequently occurring in the herring fishery. The costs associated
with a herring trip, such as fuel, crew wages, and insurance, are
substantial, so it is unlikely that vessel owners/operators are
harvesting fish with the intention to discard rather than sell the
fish. Additionally, Framework 4 acknowledges that disposing of
unmarketable catch at sea on a subsequent fishing trip is not known to
occur regularly in the herring fishery.
Framework 4 explains that it is unclear whether unmarketable catch
discarded at sea on a subsequent trip is reported. Part of the
justification for the waiver provision is to provide a way to verify
that fish have been reported and document the extent to which vessels
are departing on trips with fish in their holds. However, the Council's
proposed waiver provides no way of verifying the amount of fish
reported relative to the amount of fish left in the hold. Therefore,
NMFS does not consider this measure to contain a viable mechanism to
verify whether harvested fish that are left in the hold were reported
by the vessel.
Because the proposed measure lacks a mechanism to verify or correct
the amount of fish reported on the VTR, the proposed measure is
unlikely to improve catch monitoring in the herring fishery. In
contrast, the compliance and enforcement costs associated with the
proposed measure may be high. For example, vessel operators needing to
dispose of fish at sea may lose time and money waiting for an
authorized law enforcement officer to travel to their vessel, inspect
it, and issue a waiver. Additionally, it would likely be time consuming
for authorized officers to issue waivers and would divert resources
from other law enforcement duties.
This proposed measure is also intended to enhance catch monitoring
in the herring fishery by preventing vessel operators from mixing fish
from multiple trips in the hold and biasing catch data. NEFOP observers
sample the catch while it is on the deck, before it is placed in the
fish hold, so there is no chance that observers would be sampling fish
from multiple trips that were mixed in the hold. The herring fishery is
also sampled portside by the Massachusetts' Department of Marine
Fisheries (MA DMF) and Maine's
[[Page 52009]]
Department of Marine Resources. Mixing of catch from multiple fishing
trips, although unlikely, may have the potential to bias landings data
used to inform herring stock assessments, state management spawning
closures, and the river herring avoidance program operated by the
University of Massachusetts' School of Marine Fisheries and MA DMF.
The Atlantic States Marine Fisheries Commission is also considering
a requirement that vessel fish holds be empty of fish before vessels
depart on a herring fishing trip in Amendment 3 to its Interstate FMP
for Atlantic Herring. Establishing a similar provision in this action
may promote coordination between Federal and state management of the
herring fishery, but for the reasons described above, it is unlikely to
improve catch monitoring in the herring fishery.
In summary, NMFS seeks public comment on whether and how the
proposed measure has practical utility that outweighs its additional
compliance and enforcement costs. Specifically, NMFS seeks comment on
whether and how requiring empty fish holds improves catch monitoring
and how any benefit of catch monitoring provided by requiring empty
fish holds compares to the additional burden on vessel owner/operators
to obtain a waiver from an authorized officer, consistent with the
requirements of MSA National Standard 7 and the PRA. NMFS also seeks
comment on whether and how the measure minimizes costs, avoids
unnecessary duplication, and provides fishermen with the greatest
possible freedom of action in conducting business or imposes an
unnecessary enforcement burden relative to the requirements of MSA
National Standard 7. Further, NMFS seeks comment on the proposed
measure's efficient use of fishery resources, specifically whether and
how this measure allows the fishery to operate at the lowest possible
enforcement costs relative to the requirements of MSA National Standard
5. Lastly, NMFS seeks comment on the accuracy of the burden estimate,
ways to enhance the quality or utility of the information collected,
and ways to minimize the burden of the information collection. After
evaluating public comment, NMFS will determine if the proposed empty
fish hold requirement can be approved or if it must be disapproved.
Clarification of Existing Slippage Measures
Framework 4 proposes clarifications to slippage measures
implemented in Amendment 5 (79 FR 8786, February 13, 2014). Currently,
slippage requirements exist for vessels with limited access herring
permits and midwater trawl vessels fishing in Groundfish Closed Areas.
Slippage is currently defined at 50 CFR 648.2 as catch that is
discarded prior to it being brought aboard a vessel issued a herring
permit and/or prior to making it available for sampling and inspection
by a NMFS-approved observer. Slippage includes releasing catch from a
codend or seine prior to the completion of pumping the catch aboard and
the release of catch from a codend or seine while the codend or seine
is in the water. Fish that cannot be pumped and remain in the codend or
seine at the end of pumping operations are characterized as operational
discards, not slippage. Discards that occur after the catch is brought
on board and sorted are also not considered slippage.
Measures at Sec. 648.11(m)(4) prohibit slippage aboard any vessel
issued a limited access herring permit and carrying a NMFS-approved
observer, except when safety or mechanical failure necessitate slipping
catch or when excess catch of spiny dogfish prevents fish from being
pumped aboard the vessel. Vessel may also make test tows without
pumping catch on board for sampling, provided the gear is re-set
without releasing its contents and all catch from test tows would be
available to the observer to sample when the next tow is brought on
board. If catch is slipped for any the reasons described previously,
the vessel operator must complete and sign a Released Catch Affidavit
detailing where, when, and why catch was slipped and the estimated
weight of each species either retained or slipped on that tow. A
completed affidavit must be submitted to NMFS within 48 hr of the end
of the trip.
When midwater trawl vessels are fishing in the Groundfish Closed
Areas, measures at Sec. 648.202(b) require those vessels to carry an
observer and prohibit slippage, except when slippage is due to safety,
mechanical failure, or excess catch of spiny dogfish, and operational
discards. Operational discards are the relatively small amounts of fish
that remain in the codend or seine after catch is pumped aboard the
vessel. The Groundfish Closed Areas include Closed Area I, Closed Area
II, Nantucket Lightship Closed Area, Cashes Ledge Closure Area, and the
Western Gulf of Maine Closure Area. Midwater trawl vessels fishing in
the Groundfish Closed Areas may make test tows, but if catch is slipped
or operationally discarded, the vessel must immediately exit the
Groundfish Closed Areas for the remainder of that trip and complete a
Released Catch Affidavit within 48 hr of the end of the trip.
When sampling catch at-sea, observers document all catch not
brought on board and categorize the catch based on disposition code.
Those codes are later evaluated to determine if they were discard,
slippage, or operational discard events. Consistent with the
recommendations of the Herring Plan Development Team, the Council
believes that clarifying the treatment of catch not brought on board
should enhance the effectiveness and enforceability of existing and
proposed management measures to address slippage.
Framework 4 proposes to maintain the existing requirements that
prohibit operational discards aboard midwater trawl vessels fishing in
the Groundfish Closed Areas but allow operational discards to occur on
board herring vessels fishing outside the Groundfish Closed Areas.
Current observer protocols include documenting operational discards and
existing regulations require vessel operators to assist the observer
with this process. Because it can be time and labor intensive to bring
these small amounts of fish on board the vessel, the compliance costs
associated with prohibiting operational discards outside the Groundfish
Closed Areas would likely outweigh any benefits to the catch monitoring
program and the herring resource. Especially considering that hauls
containing operational discards are considered to be ``observed'' hauls
as the amount and composition of operational discards can be estimated
by observers. For these reasons, the Council decided to maintain the
existing requirements that prohibit operational discards aboard
midwater trawl vessels fishing in the Groundfish Closed Areas but allow
operational discards to occur on herring vessels fishing outside the
Groundfish Closed Areas.
Framework 4 proposes clarifying slippage, such that a slippage
event due to safety, mechanical failure, or excess catch of spiny
dogfish would be categorized as an ``allowable'' slippage event and
slippage for any other reason would be categorized as a ``non-
allowable'' slippage event. These proposed categorizations are intended
to help clarify the type of slippage event and would then be used to
determine whether a vessel would be subject to any slippage
consequences proposed in Framework 4.
Framework 4 proposes that catch not brought on board due to gear
damage
[[Page 52010]]
would be categorized as mechanical failure and, therefore, as an
allowable slippage event. Although a gear failure that results in the
release of catch from a codend is often beyond the control of the
captain and crew, instances of catch released due to gear damage are
similar to instances of catch released due to mechanical failure.
Therefore, the Council believes that catch released due to gear damage
should be categorized as mechanical failure and an allowable slippage
event. As an allowable slippage event, catch not brought on board due
to gear damage would be subject to existing slippage requirements and a
slippage consequence proposed in Framework 4.
Framework 4 proposes that catch that falls out of or off of gear
and is not brought on board would not be categorized as a slippage
event. In general, only small amounts of catch fall out or off of gear
during fishing and/or when catch is being brought aboard the vessel,
unlike the potential for catch loss due to mechanical failure.
Therefore, the Council believes that fish that fall out of the gear
should be categorized as discarded catch, but not slippage. For these
reasons, instances of catch falling out or off of gear during fishing
and/or when catch is being brought aboard the vessel would not be
subject to existing slippage requirements or any proposed slippage
consequences in Framework 4.
Slippage Consequences
Building on the slippage restrictions established in Amendment 5,
Framework 4 proposes requiring vessels to move away from the slippage
location following an allowable slippage event before resuming fishing.
Specifically, vessels with Category A or B herring permits slipping
catch, due to safety, mechanical failure, or excess catch of spiny
dogfish, would be required to move at least 15 nautical miles (27.78
km) away from the slippage event location. The vessel would be allowed
to move 15 nautical miles (27.78 km) away in any direction, but it
would be prohibited from resuming fishing until it was at least 15
nautical miles (27.78 km) from the location of the allowable slippage
event. Additionally, the vessel would be required to remain at least 15
nautical miles (27.78 km) from the slippage event location for the
duration of that fishing trip.
Framework 4 also proposes a trip termination consequence for non-
allowable slippage events. Specifically, vessels with Category A or B
herring permits slipping catch, for any reason other than safety,
mechanical failure, or excess catch of spiny dogfish, would be required
to immediately stop fishing and return to port. After having returned
to port and terminated the fishing trip, vessels would be allowed to
initiate another fishing trip, consistent with the existing pre-trip
notification requirements (e.g., contact NEFOP to request an observer,
VMS trip/gear declaration) for limited access vessels participating in
the herring fishery.
Vessels with Category A or B limited access herring permits fishing
with midwater trawl gear in the Groundfish Closed Areas would also be
subject to these proposed slippage consequences. Midwater trawl vessels
are currently required to exit the Groundfish Closed Areas following an
allowable slippage event and remain outside the Groundfish Closed Areas
for the duration of that trip. Under these proposed slippage
consequences, vessels with Category A or B limited access herring
permits fishing with midwater trawl gear in the Groundfish Closed Area
would also be required to move at least 15 nautical miles (27.78 km)
away from the slippage location following an allowable slippage event.
Therefore, following an allowable slippage event, a midwater trawl
vessel would need to exit the Groundfish Closed Areas and remain
outside of the Groundfish Closed Areas for the remainder of the fishing
trip. If the vessel has been issued a Category A or B limited access
herring permit, the vessel would also be required to move at least 15
nautical miles (27.78 km) away from the slippage event and remain at
least 15 nautical miles (27.78 km) away from the slippage event for the
remainder of the fishing trip. Additionally, vessels with Category A or
B limited access herring permits fishing with midwater trawl gear in
the Groundfish Closed Areas would be required to terminate the fishing
trip and return to port following a non-allowable slippage event.
The Council believes that additional consequences for both
allowable and non-allowable slippage events will enhance the catch
monitoring program established through Amendment 5 by further
discouraging slippage in the herring fishery. The herring fishery is a
relatively high-volume fishery capable of catching large quantities of
fish in a single tow. Therefore, even a few slippage events have the
potential to substantially affect species composition data, especially
extrapolations of incidental catch. The Council recommended the
requirement that vessels move at least 15 nautical miles (27.78 km)
following an allowable slippage event for two reasons. First, the 15-
nautical mile (27.78-km) move requirement would apply uniformly to all
vessels that slipped catch, unlike other considered alternatives (e.g.,
leaving a management area, leaving a statistical area) where the
magnitude of the move would have depended upon the location of the
allowable slippage event. Second, the Council believes the 15-nautical
mile (27.78-km) move requirement would likely provide sufficient
incentive (i.e., costing time and fuel) for herring vessels to minimize
slippage while still maximizing opportunities for participating in the
herring fishery and fully utilizing the available yield. Additionally,
the Council recommended the requirement that vessels terminate their
fishing trip following a non-allowable slippage event to reiterate the
importance of minimizing slippage. The Mid-Atlantic Fishery Management
Council recommended these same slippage consequences for allowable and
non-allowable slippage events in the mackerel fishery as part of
Framework 9 to the Atlantic Mackerel, Squid, and Butterfish FMP. Many
vessels participate in both the herring and mackerel fisheries, and
implementing consistent slippage consequences across these fisheries is
expected to improve compliance and enforcement of these measures.
Slippage is a significant concern for many stakeholders because
they believe it undermines the ability to collect unbiased estimates of
herring catch, as well as other species, in the herring fishery.
Stakeholders expressed support for proposed measures to address
slippage in Framework 4, suggesting that implementing these measures
would further ensure that there is accountability for all catch in the
herring fishery. Framework 4 explains that when the benefits of
slipping catch outweigh the costs of slipping catch, vessel operators
are likely to slip catch. Additionally, Framework 4 describes the
impact of the slippage consequence measures as low positive for the
herring resource and low negative for the herring industry. Minimizing
slippage events and better documentation of slipped catch may improve
estimates of bycatch in the fishery. To the extent that the amount and
species composition of slipped catch can be sampled and/or estimated,
catch monitoring will be enhanced. To the extent that slippage events
can continue to be reduced, bycatch can be further minimized.
Reporting Slippage Events
Framework 4 proposes requiring vessels with limited access herring
permits to report slippage events, including the reason for the
slippage
[[Page 52011]]
event, via the herring daily VMS catch report. This report, in
combination with observer data, would help enhance the enforceability
of existing slippage requirements, such as completing a released catch
affidavit, as well as the slippage consequences proposed in Framework
4.
Clarifications and Corrections
This proposed rule also contains minor clarifications and
corrections to existing regulations. NMFS proposes these adjustments
under the authority of section 305(d) to the MSA, which provides that
the Secretary of Commerce may promulgate regulations necessary to
ensure that framework adjustments to FMPs are carried out in accordance
with the FMP and the MSA. These adjustments, which are identified and
described below, are necessary to clarify current regulations and would
not change the intent of any regulations.
NMFS proposes to add a transiting provision for herring management
areas with seasonal sub-ACLs. This provision would allow vessels to
transit herring management areas during periods when zero percent of
the sub-ACL for those areas was available for harvest with herring
harvested from other herring management areas aboard, provided gear was
stowed and not available for use. This provision was overlooked during
rulemaking for Framework Adjustment 2 to the Herring FMP and is
consistent with the intent of that action. NMFS proposes to remove
regulations at Sec. 648.80(d)(7) describing requirements for midwater
trawl vessels fishing in Groundfish Closed Area I because they are
redundant with regulations at Sec. 648.202(b) describing requirements
for midwater trawl vessels fishing in any of the Groundfish Closed
Areas. NMFS proposes adding the definition of operational discards at
Sec. 648.2 and clarifying that operational discards are not permitted
aboard midwater trawl vessels fishing in Groundfish Closed Areas,
unless those fish have first been made available to an observer for
sampling. NMFS proposes revising references to individual years in
regulations for carryover at Sec. 648.201 to more correctly describe
the timing of carryover. Lastly, NMFS proposes to correct coordinates
for Herring Management Area 2 at Sec. 648.200(f)(2) to more accurately
define the area.
Classification
Except for the proposed measures requiring volumetric estimates of
catch and empty fish holds at the beginning of a trip and pursuant to
section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has
preliminarily determined that this proposed rule is consistent with the
Atlantic Herring FMP; other provisions of the MSA; 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.
The Council prepared an IRFA, as required by section 603 of the
Regulatory Flexibility Act (RFA). The IRFA describes the economic
impact this proposed rule, if adopted, would have on small entities. A
summary of the analysis follows. A copy of this analysis is available
from the Council or NMFS (see ADDRESSES) or via the Internet at
www.greateratlantic.fisheries.noaa.gov.
Description of the Reasons Why Action by the Agency Is Being Considered
This action proposes measures intended to further enhance catch
monitoring and address discarding in the herring fishery. The preamble
to this rule includes a complete description of the reasons why this
action is being considered; therefore, those reasons are not repeated
here.
Statement of the Objectives of, and Legal Basis for, This Proposed Rule
This action proposes measures intended to further enhance catch
monitoring and address discarding in the herring fishery. The preamble
to this proposed rule includes a complete description of the objectives
of and legal basis for this action; therefore, that description is not
repeated here.
Description and Estimate of Number of Small Entities to Which This
Proposed Rule Would Apply
This action proposes measures to regulate the activity of vessels
with limited access herring permits and vessels with Category A or B
limited access herring permits. Therefore, the regulated entity is the
business that owns at least one limited access herring permit.
In 2013, the most recent full year of fishery permit data, 93
fishing vessels were issued a limited access herring permit. Vessels
and/or permits may be owned by entities affiliated by stock ownership,
common management, identity of interest, contractual relationships, or
economic dependency. For the purposes of this analysis, ownership
entities are defined by those entities with common ownership personnel
as listed on permit application documentation. Only permits with
identical ownership personnel are categorized as an affiliated entity.
For example, if five permits have the same seven personnel listed as
co-owners on their application paperwork, those seven personnel form
one ownership entity, covering those five permits. If one or several of
the seven owners also own additional vessels, with sub-sets of the
original seven personnel or with new co-owners, those ownership
arrangements are deemed to be separate entities for the purpose of this
analysis.
Based on this ownership criterion, NMFS dealer data for recent
years (2010-2013), and the size standards for finfish and shellfish
firms, there are 68 regulated fishing firms with a limited access
herring permit. Of those 68 firms, there are 61 small entities and 7
large entities. Not all of these permitted firms are active: Only 32
small entities and 5 large entities were actively fishing for herring
during the last 3 years. Additionally, there are 32 regulated fishing
firms that hold Category A or B herring permits. Of those 32 firms,
there are 27 small entities and 5 large entities. Not all of these
permitted firms are active: Only 19 small entities and 5 large entities
were actively fishing for herring during the last 3 years.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements of This Proposed Rule
This action proposes collection-of-information requirements subject
to review and approval by the Office of Management and Budget (OMB)
under the PRA. This requirement will be submitted to OMB for approval
under Control Numbers 0648-0202 and 0648-0674.
This action proposes that limited access vessels report slippage
events via the daily VMS herring catch report. All limited access
herring vessels are currently required to submit daily VMS catch
reports, therefore, reporting slippage via VMS is not expected to cause
any additional time or cost burden above that which was previously
approved under OMB Control Number 0648-0202.
This action proposes that vessels with limited access herring
permits that store herring catch in fish holds would be required to
certify the capacity of their fish holds and mark their holds at
regular intervals to facilitate collection of volumetric catch
estimates. The fish hold capacity measurement would need to be
certified by one of the following entities: (1) A Certified Marine
Surveyor with a fishing specialty by the National Association of Marine
Surveyors (NAMS); (2) an Accredited Marine Surveyor with a fishing
specialty by the Society of Accredited Marine Surveyors
[[Page 52012]]
(SAMS); (3) employees or agents of a classification society approved by
the U.S. Coast Guard pursuant to 46 U.S.C. 3316(c); (4) the Maine State
Sealer of Weights and Measures; (5) a professionally-licensed and/or
registered Marine Engineer; or (6) a Naval Architect with a
professional engineer license. Additionally, vessels would be required
to obtain and carry on board a NMFS-approved measuring stick that would
be available to observers to place into the fish hold(s) to measure the
amount of fish. Each hold volume measurement done by a certified marine
surveyor is estimated to cost $300-$400. The cost of the NMFS-approved
measuring stick is unknown at this time, but expected to be minimal.
Ninety-three vessels were issued a limited access herring permit in
2013. Therefore, an estimated 93 vessels would be required to submit a
fish hold volume measurement at the time of permit issuance in 2016 and
obtain and carry on board a NMFS-approved measuring stick.
This action also proposes that vessels with Category A or B limited
access herring permits would be required to have empty holds prior to
departing on a herring trip. A waiver may be issued by an authorized
law enforcement officer when fish have been reported as caught and
cannot be sold due to the condition of fish. Forty-three vessels were
issued a Category A or B limited access herring permit in 2013.
Therefore, an estimated 43 vessels would be required to obtain a waiver
from an authorized officer prior to leaving the dock on a herring trip
with fish in the hold. The burden to the vessel operator/owner
associated with obtaining a waiver would be any loss of time and/or
money waiting for an authorized officer to travel to their vessel,
inspect it, and issue a waiver.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to the
Regional Administrator (see ADDRESSES), and email to
OIRA_Submission@omb.eop.gov, or fax to (202) 395-5806.
Notwithstanding any other provisions of the law, no person is
required to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA, unless that collection of information displays a currently
valid OMB Control Number. All currently approved NOAA collections of
information may be viewed at: https://www.cio.noaa.gov/services_programs/prasubs.html.
Federal Rules Which May Duplicate, Overlap, or Conflict With This
Proposed Rule
This action does not duplicate, overlap, or conflict with any other
Federal law.
Description of Significant Alternatives to the Proposed Action Which
Accomplish the Stated Objectives of the Applicable Statues and Which
Minimize Any Significant Economic Impact on Small Entities
This action considered alternatives to the proposed action, but,
according to the analysis in Framework 4, the non-selected alternatives
would not have met the stated goal of the action, minimized any
significant economic impact on small entities compared to the proposed
action, or been consistent with applicable law.
To help minimize slippage, Framework 4 considered slippage
consequence measures that would have required vessels to leave either a
herring management or statistical area following an allowed slippage
event and remain out of that area for the remainder of the trip. The
economic cost of complying with these requirements and their
effectiveness at deterring slippage would have arbitrarily depended
upon the location of the slippage event and the magnitude of the
required move. Therefore, the impact of the non-selected alternatives
would not have applied uniformly to all vessels that slipped catch,
unlike the impact of complying with the proposed action requiring
vessels to move 15 nautical miles (27.78 km), and the non-selected
alternatives may not minimize bycatch to the extent practicable.
Framework 4 also considered only requiring trip termination following
non-allowable slippage events, rather than the proposed action of
requiring both a 15-nautical mile (27.78-km) move following allowable
slippage events and trip termination following non-allowable slippage
events. The proposed action was selected rather than just a trip
termination requirement because the proposed action likely provides a
greater incentive to not slip catch, thereby helping to minimize
bycatch to the extent practicable.
To help identify errors with catch information in the herring
fishery, Framework 4 considered requiring dealers to have vessel
representatives corroborate dealer landings data and requiring VTRs and
dealers reports to be submitted daily rather than weekly. The analysis
in Framework 4 indicated that both these non-selected alternatives
would have only had a negligible impact on improving the quality of
catch information in the herring fishery. Additionally, the reporting
burden associated with these non-selected alternatives would have
likely been greater than the reporting burden associated with the
proposed action requiring vessel fish holds to be empty of fish at the
beginning of a herring trip.
Lastly, to improve the quality of herring catch information,
Framework 4 considered requiring dealers to estimate herring landings
based on standardized weight conversions for specific volumes of
herring (e.g., box, storage tote, or truck). The economic cost of
complying with these non-selected alternatives would have likely been
similar to the costs associated with the proposed action requiring
volumetric catch estimates to be collected aboard limited access
herring vessels. However, the Framework 4 analysis suggests that the
benefit of these non-selected alternatives would likely have been
variable, depending on the accuracy of the weight conversions, and may
have been more uncertain than any benefit resulting from the proposed
action.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
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
proposed to be 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. 648.2, the definition for ``Slippage in the Atlantic
herring fishery'' is removed and the definitions for ``Operational
discards in the Atlantic herring fishery'' and ``Slip, slips, or
slipping catch in the Atlantic herring fishery'' are added in
alphabetical order to read as follows:
Sec. 648.2 Definitions.
* * * * *
[[Page 52013]]
Operational discards in the Atlantic herring fishery means small
amounts of fish that cannot be pumped on board and remain in the codend
or seine at the end of pumping operations. Leaving small amounts of
fish in the codend or seine at the end of pumping operations is
operationally discarding catch.
* * * * *
Slip, slips, or slipping catch in the Atlantic herring fishery
means catch that is discarded by a vessel issued an Atlantic herring
permit prior to it being brought on board and made available for
sampling and inspection by a NMFS-approved observer. Slip or slipping
catch includes releasing fish from a codend or seine prior to the
completion of pumping the fish on board and the release of fish from a
codend or seine while the codend or seine is in the water. Slippage or
slipped catch refers to fish that are slipped. Slippage or slipped
catch does not include operational discards, discards that occur after
the catch is brought on board, or fish that inadvertently fall out of
or off fishing gear as gear is being brought on board the vessel.
* * * * *
0
3. In Sec. 648.4, paragraph (a)(10)(iv)(P) is added to read as
follows:
Sec. 648.4 Vessel permits.
* * * * *
(a) * * *
(10) * * *
(iv) * * *
(P) Volumetric hold certification. All vessels with limited access
herring permits that store catch in fish holds must certify the
capacity of the vessel fish hold. The fish hold capacity measurement
must be certified by one of the following qualified individuals or
entities: Certified Marine Surveyor with a fishing specialty by the
National Association of Marine Surveyors; Accredited Marine Surveyor
with a fishing specialty by the Society of Accredited Marine Surveyors;
employees or agents of a classification society approved by the Coast
Guard pursuant to 46 U.S.C. 3316(c); the Maine State Sealer of Weights
and Measures; a professionally-licensed and/or registered Marine
Engineer; or a Naval Architect with a professional engineer license.
Vessel owners must submit a certified fish hold capacity measurement to
NMFS with a signed certification by the individual or entity that
completed the measurement.
* * * * *
0
4. In Sec. 648.11, paragraphs (m)(3)(ii) and (m)(4) are revised and
paragraph (m)(5) is added to read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(m) * * *
(3) * * *
(ii) Reasonable assistance to enable observers to carry out their
duties, including but not limited to assistance with: Obtaining and
sorting samples; measuring decks, codends, and holding bins; providing
an observer a NMFS-approved measuring stick when requested; estimating
the volume of fish in fish hold(s) before offloading; collecting
bycatch when requested by the observers; and collecting and carrying
baskets of fish when requested by the observers.
* * * * *
(4) Measures to address slippage. (i) No vessel issued a limited
access herring permit may slip catch, as defined at Sec. 648.2, except
in the following circumstances:
(A) The vessel operator has determined, and the preponderance of
available evidence indicates that, there is a compelling safety reason;
or
(B) A mechanical failure, including gear damage, precludes bringing
some or all of the catch on board the vessel for inspection; or,
(C) The vessel operator determines that pumping becomes impossible
as a result of spiny dogfish clogging the pump intake. The vessel
operator shall take reasonable measures, such as strapping and
splitting the net, to remove all fish which can be pumped from the net
prior to release.
(ii) Vessels may make test tows without pumping catch on board if
the net is re-set without releasing its contents provided that all
catch from test tows is available to the observer to sample when the
next tow is brought on board for sampling.
(iii) If a vessel issued any limited access herring permit slips
catch, the vessel operator must report the slippage event on the
Atlantic herring daily VMS catch report and indicate the reason for
slipping catch. Additionally, the vessel operator must complete and
sign a Released Catch Affidavit detailing: The vessel name and permit
number; the VTR serial number; where, when, and the reason for slipping
catch; the estimated weight of each species brought on board or slipped
on that tow. A completed affidavit must be submitted to NMFS within 48
hr of the end of the trip.
(iv) If a vessel issued an All Areas or Areas 2/3 Limited Access
Herring permit slips catch for any of the reasons described in
paragraph (m)(4)(i) of this section, the vessel operator must move at
least 15 nm (27.78 km) from the location of release before deploying
any gear again, and must stay at least 15 nm (27.78 km) away from the
slippage event location for the remainder of the fishing trip.
(v) If catch is slipped by a vessel issued an All Areas or Areas 2/
3 Limited Access Herring permit for any reason not described in
paragraph (m)(4)(i) of this section, the vessel operator must
immediately terminate the trip and return to port. No fishing activity
may occur during the return to port.
(5) Vessels must carry on board a NMFS-approved measuring stick
which must be made available to the observer upon request.
* * * * *
0
5. In Sec. 648.14, paragraphs (r)(1)(ii)(D), (r)(1)(vii)(F), and
(r)(2)(xiii) are added and paragraphs (r)(2)(v) through (xii) are
revised to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(r) * * *
(1) * * *
(ii) * * *
(D) For vessels issued an All Areas or Areas 2/3 Limited Access
Herring Permit to begin a declared herring trip to fish for, possess,
transfer, or receive herring without fish holds empty of fish as
specified at Sec. 648.204(c), unless the vessel has received a waiver
to begin a trip with fish in the fish hold.
* * * * *
(vii) * * *
(F) Transit or be in an area that has zero percent sub-ACL
available for harvest specified at Sec. 648.201(d) with herring on
board, unless such herring were caught in an area or areas with an
available sub-ACL specified at Sec. 648.201(d), all fishing gear is
stowed and not available for immediate use as defined in Sec. 648.2,
and the vessel is issued a vessel permit that authorizes the amount of
herring on board for the area where the herring was harvested.
* * * * *
(r) * * *
(2) * * *
(v) Fish with midwater trawl gear in any Northeast Multispecies
Closed Area, as defined in Sec. 648.81(a) through (e), without a NMFS-
approved observer on board, if the vessel has been issued an Atlantic
herring permit.
(vi) Slip or operationally discard catch, as defined at Sec.
648.2, unless for one of the reasons specified at Sec. 648.202(b)(2),
if fishing any part of a tow inside the Northeast Multispecies Closed
Areas, as defined at Sec. 648.81(a) through (e).
[[Page 52014]]
(vii) Fail to immediately leave the Northeast Multispecies Closed
Areas and comply with reporting requirements after slipping or
operationally discarding catch, as required by Sec. 648.202(b)(4).
(viii) Slip catch, as defined at Sec. 648.2, unless for one of the
reasons specified at Sec. 648.11(m)(4)(i).
(ix) For vessels with All Areas or Areas 2/3 Limited Access Herring
Permits, fail to move 15 nm (27.78 km), as required by Sec.
648.11(m)(4)(iv) and Sec. 648.202(b)(4)(iv).
(x) For vessels with All Areas or Areas 2/3 Limited Access Herring
Permits, fail to immediately return to port, as required by Sec.
648.11(m)(4)(v) and Sec. 648.202(b)(4)(iv).
(xi) Fail to complete, sign, and submit a Released Catch Affidavit
if fish are released pursuant to the requirements at Sec.
648.11(m)(4)(iii).
(xii) Fail to report a slippage event on the Atlantic herring daily
VMS catch report, as required by Sec. 648.11(m)(4)(iii).
(xiii) Fail to carry on board, or make available to an observer
upon request, a NMFS-approved measuring stick, as required by Sec.
648.11(m)(5).
* * * * *
Sec. 648.80 [Amended]
0
6. In Sec. 648.80, paragraph (d)(7) is removed.
0
7. In Sec. 648.200, paragraph (f)(2) is revised to read as follows:
Sec. 648.200 Specifications.
* * * * *
(f) * * *
(2) Management Area 2 (South Coastal Area): All state and Federal
waters inclusive of sounds and bays, bounded on the east by 70[deg]00'
W. long. and the outer limit of the U.S. Exclusive Economic Zone;
bounded on the north and west by the southern coastline of Cape Cod,
Massachusetts, and the coastlines of Rhode Island, Connecticut, New
York, New Jersey, Delaware, Maryland, Virginia, and North Carolina; and
bounded on the south by a line following the lateral seaward boundary
between North Carolina and South Carolina from the coast to the
Submerged Lands Act line, approximately 33[deg]48'46.37'' N. lat,
78[deg]29'46.46'' W. long., and then heading due east along
33[deg]48'46.37'' N. lat. to the outer limit of the US Exclusive
Economic Zone.
* * * * *
0
8. In Sec. 648.201, paragraphs (e) and (f) are revised and paragraph
(g) is added to read as follows:
Sec. 648.201 AMs and harvest controls.
* * * * *
(e) A vessel may transit an area that has zero percent sub-ACL
available for harvest specified in paragraph (d) of this section with
herring on board, provided such herring were caught in an area or areas
with sub-ACL available specified in paragraph (d) of this section, that
all fishing gear is stowed and not available for immediate use as
defined in Sec. 648.2, and the vessel is issued a permit that
authorizes the amount of herring on board for the area where the
herring was harvested.
(f) 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 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.
(g) Carryover. Subject to the conditions described in this
paragraph (g), unharvested catch in a herring management area in a
fishing year (up to 10 percent of that area's sub-ACL) shall be carried
over and added to the sub-ACL for that herring management area for the
fishing year following the year when total catch is determined. For
example, NMFS will determine total catch from Year 1 during Year 2, and
will add carryover to the applicable sub-ACL(s) in Year 3. All such
carryover shall be based on the herring management area's initial sub-
ACL allocation for the fishing year, not the sub-ACL as increased by
carryover or decreased by an overage deduction, as specified in
paragraph (a)(3) of this section. All herring landed from a herring
management area shall count against that area's sub-ACL, as increased
by carryover. For example, if 500 mt of herring is added as carryover
to a 5,000 mt sub-ACL, catch in that management area would be tracked
against a total sub-ACL of 5,500 mt. NMFS shall add sub-ACL carryover
only if the ACL, specified consistent with Sec. 648.200(b)(3), for the
fishing year in which there is unharvested herring, is not exceeded.
The ACL, consistent with Sec. 648.200(b)(3), shall not be increased by
carryover specified in this paragraph (g).
0
9. In Sec. 648.202, paragraphs (b)(2) introductory text, (b)(4)
introductory text, and (b)(4)(ii) are revised, and paragraphs
(b)(4)(iii) and (iv) are added to read as follows:
Sec. 648.202 Season and area restrictions.
* * * * *
(b) * * *
(2) No vessel issued an Atlantic herring permit and fishing with
midwater trawl gear, when fishing any part of a midwater trawl tow in
the Closed Areas, may slip or operationally discard catch, as defined
at Sec. 648.2, except in the following circumstances:
* * * * *
(4) If catch is slipped or operational discarded by a vessel, the
vessel operator must:
* * * * *
(ii) Complete and sign a Released Catch Affidavit detailing: The
vessel name and permit number; the VTR serial number; where, when, and
for what reason the catch was released; the estimated weight of each
species brought on board or released on that tow. A completed affidavit
must be submitted to NMFS within 48 hr of the end of the trip.
(iii) Report slippage events on the Atlantic herring daily VMS
catch report and indicate the reason for slipping catch if the vessel
was issued a limited access herring permit.
(iv) Comply with the measures to address slippage specified in
Sec. 648.11(m)(4)(iv) and (v) if the vessel was issued an All Areas or
Areas 2/3 Limited Access Herring Permit.
0
10. In Sec. 648.204, paragraph (c) is added to read as follows:
Sec. 648.204 Possession restrictions.
* * * * *
(c) Vessels issued an All Areas or Areas 2/3 Limited Access Herring
Permit must have fish holds empty of fish before leaving the dock on
any trip declared into the Atlantic herring fishery. After inspection
by an authorized officer, a waiver for the requirement to have fish
holds empty of fish may be issued to vessels for instances when there
are fish in the hold due to a lack of marketability or refrigeration
malfunction, provided those fish have been reported by the vessel.
[FR Doc. 2015-21146 Filed 8-26-15; 8:45 am]
BILLING CODE 3510-22-P