Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specifications, 48874-48879 [2010-19870]

Download as PDF 48874 Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Rules and Regulations (FMP), and also provide the necessary elements for a transition to the new annual catch limit (ACL) and accountability measure (AM) requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The ACL and AM process was developed by the Council in Amendment 4 to the Herring FMP, which was submitted to NMFS by the Council on April 23, 2010. Amendment 4 will be implemented for the 2011 fishing year, if approved by NMFS. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 0907301205–0289–02] RIN 0648–AY14 Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specifications National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS announces final specifications for the 2010–2012 fishing years for the Atlantic herring (herring) fishery. The intent of this final rule is to conserve and manage the herring resource and provide for a sustainable fishery. This final rule also makes minor corrections to existing regulations. DATES: Effective August 12, 2010. ADDRESSES: Copies of supporting documents used by the New England Fishery Management Council (Council), including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, telephone (978) 465–0492. The EA/RIR/ IRFA is also accessible via the Internet at http://www.nero.nmfs.gov. Copies of the Small Entity Compliance Guide are available via the Internet at http:// www.nero.nmfs.gov and from the Regional Administrator, Northeast Region, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01915–2298. FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy Analyst, (978) 281–9272, fax (978) 281–9135. SUPPLEMENTARY INFORMATION: WReier-Aviles on DSKGBLS3C1PROD with RULES SUMMARY: Background Proposed 2010–2012 specifications were published on April 20, 2010 (75 FR 20550), with public comment accepted through May 20, 2010. These final specifications are unchanged from those that were proposed. A complete discussion of the development of the specifications appears in the preamble to the proposed rule and is not repeated here. The 2010–2012 herring specifications are based on the provisions currently in the Herring Fishery Management Plan VerDate Mar<15>2010 15:11 Aug 11, 2010 Jkt 220001 2010–2012 Final Specifications The following specifications are established by this action: Allowable biological catch (ABC), optimum yield (OY), domestic annual harvest (DAH), domestic annual processing (DAP), total foreign processing (JVPt), joint venture processing (JVP), internal water processing (IWP), U.S. at-sea processing (USAP), border transfer (BT), total allowable level of foreign fishing (TALFF), and the total allowable catch (TAC) from each management area. TABLE 1.—SPECIFICATIONS AND AREA TACS FOR THE 2010–2012 ATLANTIC HERRING FISHERY Atlantic Herring Specifications (mt) for 2010–2012 MSY Fishing Level 2010–145,000 2011–134,000 2012–127,000 Allowable Biological Catch 106,000 Optimum Yield 91,200 Domestic Annual Harvest 91,200 Border Transfer 4,000 Domestic Annual Processing 87,200 Joint Venture Processing Total 0 Joint Venture Processing 0 Internal Waters Processing 0 U.S. At-Sea Processing 0 Total Allowable Foreign Fishing 0 Reserve 0 Area 1A Total Allowable Catch (TAC) 26,546* PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 TABLE 1.—SPECIFICATIONS AND AREA TACS FOR THE 2010–2012 ATLANTIC HERRING FISHERY—Continued Atlantic Herring Specifications (mt) for 2010–2012 Area 1B TAC 4,362 Area 2 TAC 22,146 Area 3 TAC 38,146 Fixed Gear Set-Aside 295 Research Set-Aside 0 * If New Brunswick weir fishery landings through October 15 are less than 9,000 mt, then 3,000 mt will be added to the Area 1A TAC in November. Comments and Responses There were seven comments received from Congresswoman Chellie Pingree; the Herring Alliance; four industry entities (Northern Pelagic Group, LLC; Cape Seafoods Inc.; Lunds Fisheries Inc.; the Small Pelagic Group); and one individual. Comment 1: Congresswoman Pingree noted the negative impacts on Maine communities, but supported the proposed specifications because they are consistent with the best available scientific advice, and are better than alternative proposals that would have reduced the quota even more. Response: There are no changes from the proposed specifications. Comment 2: The Herring Alliance noted their view that caution is warranted in management because of the ecosystem role of herring as a forage species, past declines in the New England herring stock, and concern that in other regions, stocks with spawning subcomponents have had some of those subcomponents extirpated. The group ultimately commented in support of the proposed action, but noted that though the proposed specifications are consistent with the scientific and statistical committee’s (SSC) advice, the SSC also suggested that the Council should consider a conservative catch limit of 90,000 mt, given the substantial uncertainty in the stock assessment. The commenters said this emphasized their opinion that the final specifications should be set no higher than those that were proposed. In addition, they pointed out that the proposed management area TACs pose a relatively high risk for the inshore stock component. Response: This action established the specifications at the level that was proposed. The SSC’s final advice to the Council was that, in the face of several sources of uncertainty, it would be E:\FR\FM\12AUR1.SGM 12AUR1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Rules and Regulations inappropriate to allow catches to increase above recent catch until a new benchmark assessment can be completed. The sources of uncertainty cited were the retrospective pattern in the assessment (that overestimates stock biomass) and the uncertain mixing ratios of stock subcomponents. Despite this uncertainty in the recent stock assessment, the analysis does suggest that recent catch levels have maintained a relatively abundant stock size and low fishing mortality. The SSC noted that there could be a range of values that represent recent catch: 90,000 mt (2008); 106,000 mt (2006–08 average); or 108,000 mt (2004–08 average). While the commenter is correct in stating that the SSC suggested that the Council should consider a conservative catch limit (e.g., 90,000 mt), the SSC also noted that the choice of the time period used to derive ABC depended upon the Council’s tolerance for risk. NMFS concludes that these final specifications, which set the ABC at 106,000 mt for all three years, are consistent with the SSC’s technical advice. In the specifications documents submitted by the Council, it noted the need to consider its concerns about the risk of depleting spawning components of the stock and the need to consider the role of herring in the ecosystem as a forage species. The specifications documents include a risk assessment that was prepared to evaluate the impacts of the various TAC allocation alternatives on the individual spawning components of the herring stock complex. While the Atlantic herring stock is assessed as one stock, it is comprised of an inshore Gulf of Maine stock component, and an offshore Nantucket Shoals/Georges Bank stock component. These two stock components are segregated during spawning season, but mix at other times of the year; thus each component is vulnerable to fishing mortality independent of the other component. The best scientific information available indicates that the inshore stock component comprises approximately 18 percent of the total stock. The inshore stock component is present in Areas 1A, 1B and 2 at various times of the year; it does not range into Area 3. Most herring is harvested in the inshore herring management areas; thus, while the inshore stock component is a relatively small portion of the stock, it is also the subject to more fishing effort than the offshore component because of its proximity to shore. As a result, the need to minimize the risk of overfishing the inshore stock component is a major VerDate Mar<15>2010 15:11 Aug 11, 2010 Jkt 220001 factor in determining the area TAC allocations. The Council’s plan development team (PDT) conducted a risk assessment to examine the removal rates from the inshore and offshore stock components of the various TAC alternatives considered by the Council, in order to evaluate the risk of overfishing to the inshore stock of various TAC allocation alternatives. The analysis generates a relative exploitation rate, which is then compared to the target exploitation rate for the entire stock complex. Risk is defined in the analysis as it relates to the potential for fishing a stock component at a level that may be higher than the target exploitation rate. The PDT determined, given the current fishing mortality at maximum sustainable yield (Fmsy)for the herring stock (F=0.27, or an exploitation rate of 0.24), that an exploitation rate on the inshore stock component that ranged from 0.24 to 0.28 could be viewed as risk neutral, assuming that productivity of this subcomponent is higher than most other herring stocks in the NW Atlantic. This action is estimated to result in an exploitation rate on the inshore stock component of 0.42 in 2010, 0.45 in 2011, and 0.50 in 2012. While these rates present a higher risk to the inshore stock component than some of the other TAC allocation alternatives, the lower risk alternatives reduced the inshore area TAC allocations to levels that would have had greater negative impacts on the herring fishery than this action. This action, while not risk neutral for the inshore stock component, is predicted to result in exploitation rates on the inshore stock component similar to those that occurred from 2000–2007, when exploitation fluctuated around 0.47. Maintaining this exploitation rate is consistent with the SSC advice to maintain catch at recent levels. Comment 3: All four industry groups opposed the Council’s recommended specifications for 2010–2012. They gave a number of reasons for their views, which are similar in many ways. Therefore, these comments are summarized together, without attributing each point to a group. The industry groups argued that the specifications are unnecessarily restrictive given the conclusion of the 2009 Transboundary Resource Assessment Committee stock assessment that the fishery is not overfished or subject to overfishing. They also contended that the TRAC stock assessment is flawed, and that the SSC should have rejected it and instead recommended that the 2009 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 48875 specifications be maintained until a new benchmark stock assessment can be conducted. They cited concern about the high level of precaution the SSC used in recommending a buffer between the maximum sustainable yield (MSY) fishing level and the ABC. They argue that the SSC’s initial recommendation to reduce the MSY fishing level by 40 percent to account for scientific uncertainty was a matter of guesswork, and therefore entirely arbitrary. They contended that the ABC recommendation, and the resultant TACs, represent multiple layers of precaution, and represent an overly conservative reaction to the uncertainty in the stock assessment. They noted that there are three layers of scientific uncertainty that affect TAC levels: (1) the severe retrospective pattern in the updated stock assessment; (2) the SSC recommendation for a 40% reduction in ABC to account for scientific uncertainty; and (3) the additional 41% reductions in the Gulf of Maine that they contend result from the PDT’s risk assessment. They requested a peer review to determine if what they characterize as cumulative, multiple reductions in catch levels, are necessary and scientifically valid. They questioned the scientific validity of the PDT’s risk assessment, which resulted in the area TAC allocations. They requested that the PDT’s risk assessment analysis be peerreviewed. In addition, they noted that the additional layer of precaution used in establishing area TACs, which is based on what they characterize as a two-stock component theory, is contrary to the TRAC’s historical approach to assessing the Atlantic herring resource as a single stock component. They noted that the proposed reduction in the Area 1A TAC will be particularly damaging to herring vessels and coastal communities in Maine and Massachusetts, and to the New England lobster fishery which depends on herring for bait. They contended that neither the proposed rule nor the economic analysis in the EA adequately consider the economic consequences of the proposed Area 1A TAC. They noted that, in their view, the recent closure of the last sardine factory in the U.S. was a direct result of the proposed TAC reduction. They argued that the proposed reduction in the Area 2 TAC threatens the success of the Atlantic mackerel fishery during the winter months due to the catch of herring in the mackerel fishery; they contended that the proposed rule did not examine the economic impacts of the TAC on the Atlantic mackerel fishery. E:\FR\FM\12AUR1.SGM 12AUR1 WReier-Aviles on DSKGBLS3C1PROD with RULES 48876 Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Rules and Regulations They objected to the fact that this action sets the specifications for three years, though it is not entirely clear what they are suggesting should occur to address this concern. They noted that NMFS should collect additional data to assess the resource as it prepares for the next benchmark stock assessment in 2012. They noted that the statement in the proposed rule that suggests that the fishery may land the same amount of herring as it has in recent years is outrageous, though they do not fully explain their reasoning. NMFS assumes that they do not agree that the TAC reductions in the Gulf of Maine could be compensated for by fishing in Area 3. Response: For the most part, these comments reflect differing opinions about the stock assessment for herring and the validity of the SSC’s advice. The commenters offered no alternative scientific analyses to support their opinions, nor did they cite any specific legal requirements that would be violated if the proposed specifications were implemented. As more specifically discussed below, NMFS has determined that the precautionary approach reflected in the specifications is consistent with the best scientific information available, and other applicable Magnuson-Stevens Act requirements. While the TRAC concluded that recent catches have maintained a relatively abundant stock size and low fishing mortality, and that the stock is not overfished or subject to overfishing, it also noted concerns about the stock assessment results, primarily a retrospective pattern that results in an overestimation of stock biomass. While the SSC reviewed the TRAC results and initially recommended a 40 percent buffer between the MSY fishing level and ABC, that initial advice was not arbitrary, as characterized by the commenter. The initially proposed 40 percent buffer corresponded to the average retrospective inconsistency in the estimate of exploitable biomass presented in the TRAC assessment; the SSC believed that the magnitude of this inconsistency was sufficient to account for all sources of uncertainty in the assessment. In addition, that initial advice was revisited at the request of the Council, and these specifications are being set consistent with the SSC’s revised advice that ABC should not exceed recent catch. The Council responded to the advice by recommending an ABC of 106,000 mt, which corresponds to average total US and Canadian catch from 2006–2008. The SSC also noted that exploitable biomass is projected to decline during VerDate Mar<15>2010 15:11 Aug 11, 2010 Jkt 220001 2010–2012 due to the recruitment of poorer than average year-classes. The ABC of 106,000 mt provides a 27 percent buffer from the Fmsy based catch level of 145,000 mt in 2010, in order to ensure that Fmsy is not exceeded for the stock complex, given the uncertainties in the assessment. To consider the risk of depleting individual spawning components, the PDT conducted a risk assessment (see Response #2) to evaluate the risk of overfishing the inshore stock component. Such analyses are frequently conducted by Council PDTs, and are not formally peer-reviewed. PDTs are comprised of technical experts identified by the Council specifically to offer technical advice that will assist in making sound fishery management decisions. NMFS disagrees with the contention that such advice must be formally peer-reviewed before it is considered in management. The risk assessment prepared by the PDT provides a useful tool for considering the risk of overfishing the stock components by estimating exploitation rates. NMFS disagrees that the PDT’s risk assessment, which estimates mortality rates on both the inshore and offshore stock components under the proposed management area TAC options, is contrary to the TRAC’s approach to assessing the Atlantic herring resources as a single stock complex. The commenters offer no scientific analyses that refute the risk assessment method of estimating the exploitation risk to each individual stock component in establishing management area TACs. Though the herring stock is assessed as a single unit, there is ample evidence that there are inshore and offshore stock components that can be affected by fishing mortality independent of each other. The most compelling evidence supporting the existence of separate inshore and offshore components was the collapse of the offshore component in the early 1970s after years of heavy exploitation by foreign fishing fleets. During the decade that the offshore stock component was in a depressed state, the smaller inshore stock component supported the coastal fishery. As noted in the Response to Comment ι2, the concern that is addressed in this action is the fact that in recent years, most of the harvest has come from the inshore stock component, which is vulnerable to overfishing because of its proximity to shore and because it has substantially less biomass than the offshore component. These management areas are of particular economic importance to the industry, and the PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 collapse of the inshore stock component would eliminate the opportunity to participate in the nearshore fishery for herring. This action is intended to prevent such a situation from occurring. The analysis of the economic impacts of the TAC allocations shows clearly that the reductions in the Area 1A TAC are likely to adversely impact fishery participants from ports in Maine and New Hampshire, and to a lesser extent ports in Massachusetts and Rhode Island. These impacts were carefully considered in selecting TAC allocations intended to balance the biological concerns against the economic concerns. NMFS notes that preventing overfishing of the inshore stock component is critical for the long-term health of the inshore fishery. The discussion of economic impacts in the proposed rule summarizes the impacts on the regulated participants in the herring fishery; the Regulatory Flexibility Act only requires a discussion of impacts on regulated entities in the IRFA. While not addressed in the proposed rule, the Council’s analysis of economic impacts does address the possible negative impacts that may be felt by participants in the lobster and mackerel fisheries. The analysis notes that herring is an important bait for the lobster fishery. The reductions in the TAC in Area 1A are likely to result in increased bait prices, especially considering the expected demand for bait related to recent high levels of lobster landings. The analysis also discusses the impacts of this action on the mackerel fishery, and notes that the reduction in the Area 2 TAC may require mackerel vessels to take steps to avoid catching herring, which could potentially increase their operating costs. The analysis acknowledges the possibility that mackerel fishing may cease because mackerel fishermen will not want to risk catching herring in excess of allowed levels. NMFS cannot comment on the cause of the recent sardine plant closure. The commenters expressed concern that this action establishes specifications for three years. NMFS notes that the fishery management plan specifies that the Council will conduct an annual review of the status of the fishery, and may adjust the specifications at any time through the specifications process, if the review indicates an adjustment is warranted. NMFS recognizes that, while this action does not reduce the total potential harvest of herring below the 2008 harvest level, it does reduce specific area allocations to levels lower than recent harvest. While the impact of E:\FR\FM\12AUR1.SGM 12AUR1 Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Rules and Regulations WReier-Aviles on DSKGBLS3C1PROD with RULES these reductions may be mitigated if the industry can increase harvest above recent levels in Area 3, NMFS recognizes the fact that fishing in this offshore area increases operating costs. Therefore, it may not be possible for the herring industry to mitigate the negative economic impacts of the inshore TAC reductions. Comment 4: One individual commented that all herring quotas should be cut in half. Response: The proposed ABC and area TACs were reduced from the 2009 levels, for reasons noted in Responses 2 and 3. Classification The Assistant Administrator for Fisheries has determined that the need to implement these measures in an expedited manner in order to help achieve conservation objectives for Atlantic herring constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness. If there is a delay in implementing the TACs in this action, the herring fleet will continue to fish in federal waters under the TACs that are currently in effect. The 2009 allocations are higher than the measures specified in this action for 2010 and also higher than those that have been implemented for the 2010 fishing year by the states under the Atlantic States Marine Fisheries Commission (ASMFC) FMP. The allocations in this action were developed to reflect an updated estimate of the annual catch that can be harvested in light of the scientific uncertainty about the results of the TRAC’s stock assessment. Herring is a highly mobile, pelagic species, and herring populations have shown variable aggregation patterns in recent years. Analysis of this year’s fishing activity indicates that the herring fleet has been successfully targeting aggregations in an area of Georges Bank (in management Area 3) where herring do not typically migrate until October. Due to the seasonal and annual variability in its distribution, the herring fleet is quick to target herring aggregations as they become available in each management area; the fleet is capable of landing over 2,000 mt in a single week. If the effective date for this action is delayed, increased fishing activity in response to fish availability could lead to an unanticipated pulse of landings. Given that the specifications reduce the total available TAC by 37 percent from the 2009 level, and reduce individual management area TACs by as much as 56 percent from the 2009 levels, it is necessary to waive the 30day delay in effective date and VerDate Mar<15>2010 15:11 Aug 11, 2010 Jkt 220001 implement the provisions in this rule immediately to ensure that the 2010 individual area TACs are not exceeded before the implementation of this action. This action is authorized by 50 CFR part 648 and has been determined to be not significant for the purposes of Executive Order 12866. A Final Regulatory Flexibility Analysis (FRFA) was prepared, which consists of and incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, the analyses contained in the Council document and the accompanying EA, and the discussion and summary of the analyses contained in the preamble to this action. A copy of the analyses is available from the Council (see ADDRESSES). Statement of Objective and Need This final rule announces final 2010– 2012 specifications for the herring fishery. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to the proposed rule and are not repeated here. A Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA, a Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments NMFS received seven comments on the proposed specifications. Three of the comments were specific to the IRFA. Comment 3 outlines concerns by three industry groups that the analysis in the proposed rule understated the economic impacts of the specified area TACs on the herring, mackerel, and lobster fisheries. NMFS’ assessment of the issues raised by these comments is contained in the response to these comments and is not repeated here. The comments did not result in any changes to the area TACs, which were reduced to meet biological objectives specified in the FMP. Description and Estimate of Number of Small Entities to Which the Rule Will Apply Based on 2009 permit data, the number of fishing vessels eligible to fish in each permit category in the herring fishery are as follows: 41 for Category A (limited access, All Areas), 4 for Category B (limited access, Areas 2 and 3), 54 for Category C (limited access, incidental), and 2,272 for Category D (open access). There are no large entities PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 48877 participating in this fishery, as defined in section 601 of the RFA. Therefore, there are no disproportionate economic impacts on small entities. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. Description of the Steps the Agency Has Taken to Minimize the Significant Economic Impact on Small Entities Consistent with the Stated Objective of the Applicable Statutes, including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each of the Other Significant Alternatives to the Rule Considered by the Agency which Affect the Impact on Small Entities was Rejected This action will not reduce the stockwide TAC below the level of landings in 2008 (83,580 mt), the last year for which data was complete at the time the impacts analyses were conducted. On a stock-wide level, no loss of revenue is projected because the herring fishery would have an opportunity to harvest the same amount of herring as in recent years. The impacts of the reductions to the area TAC allocations may vary, however. This action reduces the Area 1A TAC by 41 percent, from 45,000 mt to 26,546 mt. In 2008, landings from Area 1A were 40,390 mt. The reduction from 2008 landings levels of 13,844 mt would result in a loss of revenue of $3.6 million, at the average 2008 price of $260/mt. This may be offset by the provision that would allocate an additional 3,000 mt of herring to Area 1A in November, if the catch in the New Brunswick weir fishery is lower than estimated. The value of this additional allocation is $780,000, which could reduce the revenue loss to $2.8 million. The TACs in Areas 2 and 3 established by this action are higher than historical landings from those areas (2008 landings from Area 2 were 22,495 mt; from Area 3, 13,144 mt). It is possible that the impacts associated with the Area 1A TAC reduction will be offset by increases in the harvest from other management areas. However, conditions associated with harvesting herring from Areas 2 and 3 may not be ideal. If the Area 1A TAC is attained during the summer, fish may only be available in Areas 1B and 3, since Area 2 is primarily a winter fishing ground. E:\FR\FM\12AUR1.SGM 12AUR1 WReier-Aviles on DSKGBLS3C1PROD with RULES 48878 Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Rules and Regulations Area 3 is a large, offshore area, and it is never certain that fish will aggregate in such a way that they are available to fishing operations. Smaller vessels may not be able to fish safely offshore. For larger vessels that can safely fish in Area 3, increasing the amount of offshore fishing will increase operating costs. Sea time is likely to increase and the length of each trip will increase, resulting in higher trips costs, particularly for fuel. The degree to which fishing costs will change is difficult to predict, so an overall estimate of increased costs can not be made. However, observer data shows that each additional day at sea for a midwater trawl vessel increases the trip cost by an average of $2,800. Alternatives to this action included options for setting the ABC, OY, and management area TACs. The first of 2 non-preferred alternatives for ABC and OY was based on the SSC’s initial advice to the Council that ABC equal 90,000 mt for the 2010–2012 fishing years (Alternative 2). Because the herring resource is not overfished, and the MSA-mandated ACL provisions do not need to be established until 2011, the Herring Committee developed a second non-preferred alternative for ABC that would set ABC at the FMSYbased catch level (145,000 mt) for 2010 and at 90,000 mt for 2011 and 2012 (Alternative 1). In all alternatives, OY is a reduction of ABC by 14,800 mt to account for potential catch in the New Brunswick weir fishery. For the 2 nonpreferred ABC alternatives, the resulting OY was 130,200 mt in 2010 and 75,200 mt in 2011 and 2012 under Alternative 1, and 75,200 mt in all 3 years under Alternative 2. As described in the response to Comment #2, the SSC revised its advice, and the Council recommended an ABC of 106,000 mt for the 2010–2012 fishing years; the corresponding OY for all years is 91,200 mt. Unless there is scientific information to the contrary, the Council is required to set the ABC consistent with the SSC’s recommendation. Alternative 1 was not selected because the ABC recommended for 2010 exceeds the SSC’s recommendation. Under Alternative 2, the ABC recommended is 16,000 mt less than the selected ABC. This alternative was not selected because the selected ABC has higher potential to economically impact fishery participants than the preferred alternative. There were 8 management area TAC allocation schemes presented in the EA that, when applied to the ABC and OY values under Alternatives 1 and 2, resulted in 32 sets of potential management area TAC allocations. The VerDate Mar<15>2010 15:11 Aug 11, 2010 Jkt 220001 8 management area TAC allocations schemes included the following: 1) allocation based on distribution of herring catch in the four management areas from 1999–2008; 2) allocation based on distribution of TACs in the 2001 fishing year with an Area 2 reserve; 3) allocation based on distribution of TACs in the 2001 fishing year without an Area 2 reserve; 4) allocation based on distribution of TACs in the 2009 fishing year; 5) allocation that maximizes catch in Area 1A, and allows 1A landings in July, August, and September; 6) allocation that maximizes catch in Area 1A, and allows 1A landings in May, June and July; 7) allocation that maximizes catch in Area 2; 8) allocation that reduces the quota in a relatively balanced manner across areas. The specification of management area TACs has the greatest potential to economically impact fishery participants, especially the specification of the TAC in Area 1A, therefore this section focuses on the Area 1A TAC alternatives. Of the 32 management area TAC allocations considered, only two alternatives specified Area 1A TACs that are higher than status quo (i.e., 45,000 mt). Alternative 1/Option 1 had an Area 1A TAC that was 31,000 mt higher than status quo and Alternative 1/Option 2A had an Area 1A TAC that was 400 mt higher than status quo. At a $260 per mt (average price in 2008), these alternatives would have resulted in fleet-wide revenue increases of approximately $8 million (Alternative 1/Option 1) or $104,000 (Alternative 1/ Option 2). These alternatives were not selected because they would not have reduced the relative exploitation rate on the inshore stock component. The other alternatives have Area 1A TACs that are lower than status quo (10–90 percent less). As discussed in the response to Comment ι2, the selected alternative reduces the relative exploitation rate on the inshore stock component compared to the status quo, while maintaining harvest opportunities in inshore areas. Similar to alternatives with Area 1A TACs higher than status quo, alternatives that feature smaller reductions to the Area 1A TAC (10–20 percent less), which would have less economic impact on the industry than the selected alternative, were not chosen because they did not sufficiently reduce the relative exploitation rate on the inshore stock component. Alternatives with substantially lower Area 1A TACs (80–90 percent less) were not selected because they had too great a potential to negatively impact the herring industry through loss of revenue and fishing PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 opportunities. The economic impacts of reducing the Area 1A TAC and displacing effort into other management areas are discussed earlier in the preamble. Similarly, for all other management areas (Area 1B, Area 2 and Area 3), the selected alternative was determined to best balance the exploitation rate on the inshore stock component against providing adequate harvest opportunities. The TAC alternatives for Area 1B ranged from 2,538 mt to 8,854 mt; all 32 alternatives were below the status quo (10,000 mt). The TAC alternatives for Area 2 ranged from 3,817 mt to 67,700 mt; 6 of the 32 alternatives were above the status quo (30,000 mt). Finally the TAC alternatives for Area 3 ranged from 15,100 mt to 85,949 mt; 3 of the 32 alternatives were above the status quo (60,000 mt). The alternatives considered for Areas 1B, Area 2 and Area 3 where the TACs were lower than the status were not selected because they had too great a potential to negatively impact the herring industry through loss of revenue and fishing opportunities. The alternatives considered for these management areas where the TACs were higher than the status quo were not selected because they would not have reduced the relative exploitation rate on the inshore stock component. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule, or group of related rules, for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to make to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of permits issued for the herring fishery. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see ADDRESSES) and may be found at the following web site: http://www.nero.noaa.gov. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. E:\FR\FM\12AUR1.SGM 12AUR1 Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Rules and Regulations Dated: August 6, 2010. Eric C. Schwaab, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: ■ PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. 2. In § 648.14, paragraphs (r)(1)(vi)(A) and (r)(1)(viii)(B) are revised to read as follows: ■ § 648.14 Prohibitions. WReier-Aviles on DSKGBLS3C1PROD with RULES (r) * * * VerDate Mar<15>2010 15:11 Aug 11, 2010 Jkt 220001 (1) * * * (vi) * * * (A) For the purposes of observer deployment, fail to notify NMFS at least 72 hr prior to departing on a trip aboard a vessel with an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit fishing with either midwater trawl or purse seine gear on a declared herring trip. * * * * * (viii) * * * (B) Fail to notify the NMFS Office of Law Enforcement of the time and date of landing via VMS, if a vessel with an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit fishing with either midwater trawl or purse seine PO 00000 Frm 00023 Fmt 4700 Sfmt 9990 48879 gear, at least 6 hr prior to landing herring at the end of a declared herring trip. * * * * * 3. In § 648.201, paragraph (h) is added to read as follows: ■ § 648.201 Closures and TAC controls. * * * * * (h) If NMFS determines that the New Brunswick weir fishery landed less than 9,000 mt through October 15, NMFS will allocate an additional 3,000 mt to the Area 1A TAC in November. NMFS will notify the Council of this adjustment and publish the adjustment in the Federal Register. [FR Doc. 2010–19870 Filed 8–11–10; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\12AUR1.SGM 12AUR1

Agencies

[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Rules and Regulations]
[Pages 48874-48879]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19870]



[[Page 48874]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907301205-0289-02]
RIN 0648-AY14


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Specifications

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS announces final specifications for the 2010-2012 fishing 
years for the Atlantic herring (herring) fishery. The intent of this 
final rule is to conserve and manage the herring resource and provide 
for a sustainable fishery. This final rule also makes minor corrections 
to existing regulations.

DATES: Effective August 12, 2010.

ADDRESSES: Copies of supporting documents used by the New England 
Fishery Management Council (Council), including the Environmental 
Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory 
Flexibility Analysis (IRFA), are available from: Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, Mill 2, Newburyport, MA 01950, telephone (978) 465-0492. The 
EA/RIR/IRFA is also accessible via the Internet at http://www.nero.nmfs.gov. Copies of the Small Entity Compliance Guide are 
available via the Internet at http://www.nero.nmfs.gov and from the 
Regional Administrator, Northeast Region, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01915-2298.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, (978) 281-9272, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Proposed 2010-2012 specifications were published on April 20, 2010 
(75 FR 20550), with public comment accepted through May 20, 2010. These 
final specifications are unchanged from those that were proposed. A 
complete discussion of the development of the specifications appears in 
the preamble to the proposed rule and is not repeated here.
    The 2010-2012 herring specifications are based on the provisions 
currently in the Herring Fishery Management Plan (FMP), and also 
provide the necessary elements for a transition to the new annual catch 
limit (ACL) and accountability measure (AM) requirements of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA). The ACL 
and AM process was developed by the Council in Amendment 4 to the 
Herring FMP, which was submitted to NMFS by the Council on April 23, 
2010. Amendment 4 will be implemented for the 2011 fishing year, if 
approved by NMFS.

2010-2012 Final Specifications

    The following specifications are established by this action: 
Allowable biological catch (ABC), optimum yield (OY), domestic annual 
harvest (DAH), domestic annual processing (DAP), total foreign 
processing (JVPt), joint venture processing (JVP), internal water 
processing (IWP), U.S. at-sea processing (USAP), border transfer (BT), 
total allowable level of foreign fishing (TALFF), and the total 
allowable catch (TAC) from each management area.

    Table 1.--Specifications and Area TACs for the 2010-2012 Atlantic
                             Herring Fishery
Atlantic Herring Specifications (mt) for 2010-2012
MSY Fishing Level                                          2010-145,000
                                                           2011-134,000
                                                           2012-127,000
------------------------------------------------------------------------
Allowable Biological Catch                                      106,000
------------------------------------------------------------------------
Optimum Yield                                                    91,200
------------------------------------------------------------------------
Domestic Annual Harvest                                          91,200
------------------------------------------------------------------------
Border Transfer                                                   4,000
------------------------------------------------------------------------
Domestic Annual Processing                                       87,200
------------------------------------------------------------------------
Joint Venture Processing Total                                        0
------------------------------------------------------------------------
Joint Venture Processing                                              0
------------------------------------------------------------------------
Internal Waters Processing                                            0
------------------------------------------------------------------------
U.S. At-Sea Processing                                                0
------------------------------------------------------------------------
Total Allowable Foreign Fishing                                       0
------------------------------------------------------------------------
Reserve                                                               0
------------------------------------------------------------------------
Area 1A Total Allowable Catch (TAC)                             26,546*
------------------------------------------------------------------------
Area 1B TAC                                                       4,362
------------------------------------------------------------------------
Area 2 TAC                                                       22,146
------------------------------------------------------------------------
Area 3 TAC                                                       38,146
------------------------------------------------------------------------
Fixed Gear Set-Aside                                                295
------------------------------------------------------------------------
Research Set-Aside                                                    0
------------------------------------------------------------------------
\*\ If New Brunswick weir fishery landings through October 15 are less
  than 9,000 mt, then 3,000 mt will be added to the Area 1A TAC in
  November.

Comments and Responses

    There were seven comments received from Congresswoman Chellie 
Pingree; the Herring Alliance; four industry entities (Northern Pelagic 
Group, LLC; Cape Seafoods Inc.; Lunds Fisheries Inc.; the Small Pelagic 
Group); and one individual.
    Comment 1: Congresswoman Pingree noted the negative impacts on 
Maine communities, but supported the proposed specifications because 
they are consistent with the best available scientific advice, and are 
better than alternative proposals that would have reduced the quota 
even more.
    Response: There are no changes from the proposed specifications.
    Comment 2: The Herring Alliance noted their view that caution is 
warranted in management because of the ecosystem role of herring as a 
forage species, past declines in the New England herring stock, and 
concern that in other regions, stocks with spawning subcomponents have 
had some of those subcomponents extirpated. The group ultimately 
commented in support of the proposed action, but noted that though the 
proposed specifications are consistent with the scientific and 
statistical committee's (SSC) advice, the SSC also suggested that the 
Council should consider a conservative catch limit of 90,000 mt, given 
the substantial uncertainty in the stock assessment. The commenters 
said this emphasized their opinion that the final specifications should 
be set no higher than those that were proposed. In addition, they 
pointed out that the proposed management area TACs pose a relatively 
high risk for the inshore stock component.
    Response: This action established the specifications at the level 
that was proposed. The SSC's final advice to the Council was that, in 
the face of several sources of uncertainty, it would be

[[Page 48875]]

inappropriate to allow catches to increase above recent catch until a 
new benchmark assessment can be completed. The sources of uncertainty 
cited were the retrospective pattern in the assessment (that 
overestimates stock biomass) and the uncertain mixing ratios of stock 
subcomponents. Despite this uncertainty in the recent stock assessment, 
the analysis does suggest that recent catch levels have maintained a 
relatively abundant stock size and low fishing mortality. The SSC noted 
that there could be a range of values that represent recent catch: 
90,000 mt (2008); 106,000 mt (2006-08 average); or 108,000 mt (2004-08 
average). While the commenter is correct in stating that the SSC 
suggested that the Council should consider a conservative catch limit 
(e.g., 90,000 mt), the SSC also noted that the choice of the time 
period used to derive ABC depended upon the Council's tolerance for 
risk. NMFS concludes that these final specifications, which set the ABC 
at 106,000 mt for all three years, are consistent with the SSC's 
technical advice.
    In the specifications documents submitted by the Council, it noted 
the need to consider its concerns about the risk of depleting spawning 
components of the stock and the need to consider the role of herring in 
the ecosystem as a forage species. The specifications documents include 
a risk assessment that was prepared to evaluate the impacts of the 
various TAC allocation alternatives on the individual spawning 
components of the herring stock complex. While the Atlantic herring 
stock is assessed as one stock, it is comprised of an inshore Gulf of 
Maine stock component, and an offshore Nantucket Shoals/Georges Bank 
stock component. These two stock components are segregated during 
spawning season, but mix at other times of the year; thus each 
component is vulnerable to fishing mortality independent of the other 
component. The best scientific information available indicates that the 
inshore stock component comprises approximately 18 percent of the total 
stock. The inshore stock component is present in Areas 1A, 1B and 2 at 
various times of the year; it does not range into Area 3. Most herring 
is harvested in the inshore herring management areas; thus, while the 
inshore stock component is a relatively small portion of the stock, it 
is also the subject to more fishing effort than the offshore component 
because of its proximity to shore. As a result, the need to minimize 
the risk of overfishing the inshore stock component is a major factor 
in determining the area TAC allocations.
    The Council's plan development team (PDT) conducted a risk 
assessment to examine the removal rates from the inshore and offshore 
stock components of the various TAC alternatives considered by the 
Council, in order to evaluate the risk of overfishing to the inshore 
stock of various TAC allocation alternatives. The analysis generates a 
relative exploitation rate, which is then compared to the target 
exploitation rate for the entire stock complex. Risk is defined in the 
analysis as it relates to the potential for fishing a stock component 
at a level that may be higher than the target exploitation rate. The 
PDT determined, given the current fishing mortality at maximum 
sustainable yield (Fmsy)for the herring stock (F=0.27, or an 
exploitation rate of 0.24), that an exploitation rate on the inshore 
stock component that ranged from 0.24 to 0.28 could be viewed as risk 
neutral, assuming that productivity of this subcomponent is higher than 
most other herring stocks in the NW Atlantic.
    This action is estimated to result in an exploitation rate on the 
inshore stock component of 0.42 in 2010, 0.45 in 2011, and 0.50 in 
2012. While these rates present a higher risk to the inshore stock 
component than some of the other TAC allocation alternatives, the lower 
risk alternatives reduced the inshore area TAC allocations to levels 
that would have had greater negative impacts on the herring fishery 
than this action. This action, while not risk neutral for the inshore 
stock component, is predicted to result in exploitation rates on the 
inshore stock component similar to those that occurred from 2000-2007, 
when exploitation fluctuated around 0.47. Maintaining this exploitation 
rate is consistent with the SSC advice to maintain catch at recent 
levels.
    Comment 3: All four industry groups opposed the Council's 
recommended specifications for 2010-2012. They gave a number of reasons 
for their views, which are similar in many ways. Therefore, these 
comments are summarized together, without attributing each point to a 
group.
    The industry groups argued that the specifications are 
unnecessarily restrictive given the conclusion of the 2009 
Transboundary Resource Assessment Committee stock assessment that the 
fishery is not overfished or subject to overfishing. They also 
contended that the TRAC stock assessment is flawed, and that the SSC 
should have rejected it and instead recommended that the 2009 
specifications be maintained until a new benchmark stock assessment can 
be conducted. They cited concern about the high level of precaution the 
SSC used in recommending a buffer between the maximum sustainable yield 
(MSY) fishing level and the ABC. They argue that the SSC's initial 
recommendation to reduce the MSY fishing level by 40 percent to account 
for scientific uncertainty was a matter of guesswork, and therefore 
entirely arbitrary.
    They contended that the ABC recommendation, and the resultant TACs, 
represent multiple layers of precaution, and represent an overly 
conservative reaction to the uncertainty in the stock assessment. They 
noted that there are three layers of scientific uncertainty that affect 
TAC levels: (1) the severe retrospective pattern in the updated stock 
assessment; (2) the SSC recommendation for a 40% reduction in ABC to 
account for scientific uncertainty; and (3) the additional 41% 
reductions in the Gulf of Maine that they contend result from the PDT's 
risk assessment. They requested a peer review to determine if what they 
characterize as cumulative, multiple reductions in catch levels, are 
necessary and scientifically valid.
    They questioned the scientific validity of the PDT's risk 
assessment, which resulted in the area TAC allocations. They requested 
that the PDT's risk assessment analysis be peer-reviewed. In addition, 
they noted that the additional layer of precaution used in establishing 
area TACs, which is based on what they characterize as a two-stock 
component theory, is contrary to the TRAC's historical approach to 
assessing the Atlantic herring resource as a single stock component.
    They noted that the proposed reduction in the Area 1A TAC will be 
particularly damaging to herring vessels and coastal communities in 
Maine and Massachusetts, and to the New England lobster fishery which 
depends on herring for bait. They contended that neither the proposed 
rule nor the economic analysis in the EA adequately consider the 
economic consequences of the proposed Area 1A TAC. They noted that, in 
their view, the recent closure of the last sardine factory in the U.S. 
was a direct result of the proposed TAC reduction.
    They argued that the proposed reduction in the Area 2 TAC threatens 
the success of the Atlantic mackerel fishery during the winter months 
due to the catch of herring in the mackerel fishery; they contended 
that the proposed rule did not examine the economic impacts of the TAC 
on the Atlantic mackerel fishery.

[[Page 48876]]

    They objected to the fact that this action sets the specifications 
for three years, though it is not entirely clear what they are 
suggesting should occur to address this concern. They noted that NMFS 
should collect additional data to assess the resource as it prepares 
for the next benchmark stock assessment in 2012.
    They noted that the statement in the proposed rule that suggests 
that the fishery may land the same amount of herring as it has in 
recent years is outrageous, though they do not fully explain their 
reasoning. NMFS assumes that they do not agree that the TAC reductions 
in the Gulf of Maine could be compensated for by fishing in Area 3.
    Response: For the most part, these comments reflect differing 
opinions about the stock assessment for herring and the validity of the 
SSC's advice. The commenters offered no alternative scientific analyses 
to support their opinions, nor did they cite any specific legal 
requirements that would be violated if the proposed specifications were 
implemented. As more specifically discussed below, NMFS has determined 
that the precautionary approach reflected in the specifications is 
consistent with the best scientific information available, and other 
applicable Magnuson-Stevens Act requirements.
    While the TRAC concluded that recent catches have maintained a 
relatively abundant stock size and low fishing mortality, and that the 
stock is not overfished or subject to overfishing, it also noted 
concerns about the stock assessment results, primarily a retrospective 
pattern that results in an overestimation of stock biomass. While the 
SSC reviewed the TRAC results and initially recommended a 40 percent 
buffer between the MSY fishing level and ABC, that initial advice was 
not arbitrary, as characterized by the commenter. The initially 
proposed 40 percent buffer corresponded to the average retrospective 
inconsistency in the estimate of exploitable biomass presented in the 
TRAC assessment; the SSC believed that the magnitude of this 
inconsistency was sufficient to account for all sources of uncertainty 
in the assessment. In addition, that initial advice was revisited at 
the request of the Council, and these specifications are being set 
consistent with the SSC's revised advice that ABC should not exceed 
recent catch. The Council responded to the advice by recommending an 
ABC of 106,000 mt, which corresponds to average total US and Canadian 
catch from 2006-2008. The SSC also noted that exploitable biomass is 
projected to decline during 2010-2012 due to the recruitment of poorer 
than average year-classes. The ABC of 106,000 mt provides a 27 percent 
buffer from the Fmsy based catch level of 145,000 mt in 
2010, in order to ensure that Fmsy is not exceeded for the stock 
complex, given the uncertainties in the assessment.
    To consider the risk of depleting individual spawning components, 
the PDT conducted a risk assessment (see Response 2) to 
evaluate the risk of overfishing the inshore stock component. Such 
analyses are frequently conducted by Council PDTs, and are not formally 
peer-reviewed. PDTs are comprised of technical experts identified by 
the Council specifically to offer technical advice that will assist in 
making sound fishery management decisions. NMFS disagrees with the 
contention that such advice must be formally peer-reviewed before it is 
considered in management. The risk assessment prepared by the PDT 
provides a useful tool for considering the risk of overfishing the 
stock components by estimating exploitation rates.
    NMFS disagrees that the PDT's risk assessment, which estimates 
mortality rates on both the inshore and offshore stock components under 
the proposed management area TAC options, is contrary to the TRAC's 
approach to assessing the Atlantic herring resources as a single stock 
complex. The commenters offer no scientific analyses that refute the 
risk assessment method of estimating the exploitation risk to each 
individual stock component in establishing management area TACs. Though 
the herring stock is assessed as a single unit, there is ample evidence 
that there are inshore and offshore stock components that can be 
affected by fishing mortality independent of each other. The most 
compelling evidence supporting the existence of separate inshore and 
offshore components was the collapse of the offshore component in the 
early 1970s after years of heavy exploitation by foreign fishing 
fleets. During the decade that the offshore stock component was in a 
depressed state, the smaller inshore stock component supported the 
coastal fishery.
    As noted in the Response to Comment 2, the concern that is 
addressed in this action is the fact that in recent years, most of the 
harvest has come from the inshore stock component, which is vulnerable 
to overfishing because of its proximity to shore and because it has 
substantially less biomass than the offshore component. These 
management areas are of particular economic importance to the industry, 
and the collapse of the inshore stock component would eliminate the 
opportunity to participate in the nearshore fishery for herring. This 
action is intended to prevent such a situation from occurring.
    The analysis of the economic impacts of the TAC allocations shows 
clearly that the reductions in the Area 1A TAC are likely to adversely 
impact fishery participants from ports in Maine and New Hampshire, and 
to a lesser extent ports in Massachusetts and Rhode Island. These 
impacts were carefully considered in selecting TAC allocations intended 
to balance the biological concerns against the economic concerns. NMFS 
notes that preventing overfishing of the inshore stock component is 
critical for the long-term health of the inshore fishery.
    The discussion of economic impacts in the proposed rule summarizes 
the impacts on the regulated participants in the herring fishery; the 
Regulatory Flexibility Act only requires a discussion of impacts on 
regulated entities in the IRFA. While not addressed in the proposed 
rule, the Council's analysis of economic impacts does address the 
possible negative impacts that may be felt by participants in the 
lobster and mackerel fisheries. The analysis notes that herring is an 
important bait for the lobster fishery. The reductions in the TAC in 
Area 1A are likely to result in increased bait prices, especially 
considering the expected demand for bait related to recent high levels 
of lobster landings. The analysis also discusses the impacts of this 
action on the mackerel fishery, and notes that the reduction in the 
Area 2 TAC may require mackerel vessels to take steps to avoid catching 
herring, which could potentially increase their operating costs. The 
analysis acknowledges the possibility that mackerel fishing may cease 
because mackerel fishermen will not want to risk catching herring in 
excess of allowed levels. NMFS cannot comment on the cause of the 
recent sardine plant closure.
    The commenters expressed concern that this action establishes 
specifications for three years. NMFS notes that the fishery management 
plan specifies that the Council will conduct an annual review of the 
status of the fishery, and may adjust the specifications at any time 
through the specifications process, if the review indicates an 
adjustment is warranted.
    NMFS recognizes that, while this action does not reduce the total 
potential harvest of herring below the 2008 harvest level, it does 
reduce specific area allocations to levels lower than recent harvest. 
While the impact of

[[Page 48877]]

these reductions may be mitigated if the industry can increase harvest 
above recent levels in Area 3, NMFS recognizes the fact that fishing in 
this offshore area increases operating costs. Therefore, it may not be 
possible for the herring industry to mitigate the negative economic 
impacts of the inshore TAC reductions.
    Comment 4: One individual commented that all herring quotas should 
be cut in half.
    Response: The proposed ABC and area TACs were reduced from the 2009 
levels, for reasons noted in Responses 2 and 3.

Classification

    The Assistant Administrator for Fisheries has determined that the 
need to implement these measures in an expedited manner in order to 
help achieve conservation objectives for Atlantic herring constitutes 
good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive 
the 30-day delay in effectiveness. If there is a delay in implementing 
the TACs in this action, the herring fleet will continue to fish in 
federal waters under the TACs that are currently in effect. The 2009 
allocations are higher than the measures specified in this action for 
2010 and also higher than those that have been implemented for the 2010 
fishing year by the states under the Atlantic States Marine Fisheries 
Commission (ASMFC) FMP. The allocations in this action were developed 
to reflect an updated estimate of the annual catch that can be 
harvested in light of the scientific uncertainty about the results of 
the TRAC's stock assessment. Herring is a highly mobile, pelagic 
species, and herring populations have shown variable aggregation 
patterns in recent years. Analysis of this year's fishing activity 
indicates that the herring fleet has been successfully targeting 
aggregations in an area of Georges Bank (in management Area 3) where 
herring do not typically migrate until October. Due to the seasonal and 
annual variability in its distribution, the herring fleet is quick to 
target herring aggregations as they become available in each management 
area; the fleet is capable of landing over 2,000 mt in a single week. 
If the effective date for this action is delayed, increased fishing 
activity in response to fish availability could lead to an 
unanticipated pulse of landings. Given that the specifications reduce 
the total available TAC by 37 percent from the 2009 level, and reduce 
individual management area TACs by as much as 56 percent from the 2009 
levels, it is necessary to waive the 30-day delay in effective date and 
implement the provisions in this rule immediately to ensure that the 
2010 individual area TACs are not exceeded before the implementation of 
this action.
    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for the purposes of Executive Order 
12866.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared, which 
consists of and incorporates the IRFA, a summary of the significant 
issues raised by the public comments in response to the IRFA, NMFS 
responses to those comments, the analyses contained in the Council 
document and the accompanying EA, and the discussion and summary of the 
analyses contained in the preamble to this action. A copy of the 
analyses is available from the Council (see ADDRESSES).

Statement of Objective and Need

    This final rule announces final 2010-2012 specifications for the 
herring fishery. A complete description of the reasons why this action 
is being considered, and the objectives of and legal basis for this 
action, are contained in the preamble to the proposed rule and are not 
repeated here.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS received seven comments on the proposed specifications. Three 
of the comments were specific to the IRFA. Comment 3 outlines concerns 
by three industry groups that the analysis in the proposed rule 
understated the economic impacts of the specified area TACs on the 
herring, mackerel, and lobster fisheries. NMFS' assessment of the 
issues raised by these comments is contained in the response to these 
comments and is not repeated here. The comments did not result in any 
changes to the area TACs, which were reduced to meet biological 
objectives specified in the FMP.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    Based on 2009 permit data, the number of fishing vessels eligible 
to fish in each permit category in the herring fishery are as follows: 
41 for Category A (limited access, All Areas), 4 for Category B 
(limited access, Areas 2 and 3), 54 for Category C (limited access, 
incidental), and 2,272 for Category D (open access). There are no large 
entities participating in this fishery, as defined in section 601 of 
the RFA. Therefore, there are no disproportionate economic impacts on 
small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements. It does not 
duplicate, overlap, or conflict with any other Federal rules.

Description of the Steps the Agency Has Taken to Minimize the 
Significant Economic Impact on Small Entities Consistent with the 
Stated Objective of the Applicable Statutes, including a Statement of 
the Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each of the Other Significant 
Alternatives to the Rule Considered by the Agency which Affect the 
Impact on Small Entities was Rejected

    This action will not reduce the stock-wide TAC below the level of 
landings in 2008 (83,580 mt), the last year for which data was complete 
at the time the impacts analyses were conducted. On a stock-wide level, 
no loss of revenue is projected because the herring fishery would have 
an opportunity to harvest the same amount of herring as in recent 
years. The impacts of the reductions to the area TAC allocations may 
vary, however.
    This action reduces the Area 1A TAC by 41 percent, from 45,000 mt 
to 26,546 mt. In 2008, landings from Area 1A were 40,390 mt. The 
reduction from 2008 landings levels of 13,844 mt would result in a loss 
of revenue of $3.6 million, at the average 2008 price of $260/mt. This 
may be offset by the provision that would allocate an additional 3,000 
mt of herring to Area 1A in November, if the catch in the New Brunswick 
weir fishery is lower than estimated. The value of this additional 
allocation is $780,000, which could reduce the revenue loss to $2.8 
million.
    The TACs in Areas 2 and 3 established by this action are higher 
than historical landings from those areas (2008 landings from Area 2 
were 22,495 mt; from Area 3, 13,144 mt). It is possible that the 
impacts associated with the Area 1A TAC reduction will be offset by 
increases in the harvest from other management areas. However, 
conditions associated with harvesting herring from Areas 2 and 3 may 
not be ideal. If the Area 1A TAC is attained during the summer, fish 
may only be available in Areas 1B and 3, since Area 2 is primarily a 
winter fishing ground.

[[Page 48878]]

Area 3 is a large, offshore area, and it is never certain that fish 
will aggregate in such a way that they are available to fishing 
operations. Smaller vessels may not be able to fish safely offshore. 
For larger vessels that can safely fish in Area 3, increasing the 
amount of offshore fishing will increase operating costs. Sea time is 
likely to increase and the length of each trip will increase, resulting 
in higher trips costs, particularly for fuel. The degree to which 
fishing costs will change is difficult to predict, so an overall 
estimate of increased costs can not be made. However, observer data 
shows that each additional day at sea for a midwater trawl vessel 
increases the trip cost by an average of $2,800.
    Alternatives to this action included options for setting the ABC, 
OY, and management area TACs. The first of 2 non-preferred alternatives 
for ABC and OY was based on the SSC's initial advice to the Council 
that ABC equal 90,000 mt for the 2010-2012 fishing years (Alternative 
2). Because the herring resource is not overfished, and the MSA-
mandated ACL provisions do not need to be established until 2011, the 
Herring Committee developed a second non-preferred alternative for ABC 
that would set ABC at the FMSY-based catch level (145,000 mt) for 2010 
and at 90,000 mt for 2011 and 2012 (Alternative 1). In all 
alternatives, OY is a reduction of ABC by 14,800 mt to account for 
potential catch in the New Brunswick weir fishery. For the 2 non-
preferred ABC alternatives, the resulting OY was 130,200 mt in 2010 and 
75,200 mt in 2011 and 2012 under Alternative 1, and 75,200 mt in all 3 
years under Alternative 2.
    As described in the response to Comment 2, the SSC revised 
its advice, and the Council recommended an ABC of 106,000 mt for the 
2010-2012 fishing years; the corresponding OY for all years is 91,200 
mt. Unless there is scientific information to the contrary, the Council 
is required to set the ABC consistent with the SSC's recommendation. 
Alternative 1 was not selected because the ABC recommended for 2010 
exceeds the SSC's recommendation. Under Alternative 2, the ABC 
recommended is 16,000 mt less than the selected ABC. This alternative 
was not selected because the selected ABC has higher potential to 
economically impact fishery participants than the preferred 
alternative.
    There were 8 management area TAC allocation schemes presented in 
the EA that, when applied to the ABC and OY values under Alternatives 1 
and 2, resulted in 32 sets of potential management area TAC 
allocations. The 8 management area TAC allocations schemes included the 
following: 1) allocation based on distribution of herring catch in the 
four management areas from 1999-2008; 2) allocation based on 
distribution of TACs in the 2001 fishing year with an Area 2 reserve; 
3) allocation based on distribution of TACs in the 2001 fishing year 
without an Area 2 reserve; 4) allocation based on distribution of TACs 
in the 2009 fishing year; 5) allocation that maximizes catch in Area 
1A, and allows 1A landings in July, August, and September; 6) 
allocation that maximizes catch in Area 1A, and allows 1A landings in 
May, June and July; 7) allocation that maximizes catch in Area 2; 8) 
allocation that reduces the quota in a relatively balanced manner 
across areas.
    The specification of management area TACs has the greatest 
potential to economically impact fishery participants, especially the 
specification of the TAC in Area 1A, therefore this section focuses on 
the Area 1A TAC alternatives. Of the 32 management area TAC allocations 
considered, only two alternatives specified Area 1A TACs that are 
higher than status quo (i.e., 45,000 mt). Alternative 1/Option 1 had an 
Area 1A TAC that was 31,000 mt higher than status quo and Alternative 
1/Option 2A had an Area 1A TAC that was 400 mt higher than status quo. 
At a $260 per mt (average price in 2008), these alternatives would have 
resulted in fleet-wide revenue increases of approximately $8 million 
(Alternative 1/Option 1) or $104,000 (Alternative 1/Option 2). These 
alternatives were not selected because they would not have reduced the 
relative exploitation rate on the inshore stock component. The other 
alternatives have Area 1A TACs that are lower than status quo (10-90 
percent less). As discussed in the response to Comment 2, the 
selected alternative reduces the relative exploitation rate on the 
inshore stock component compared to the status quo, while maintaining 
harvest opportunities in inshore areas. Similar to alternatives with 
Area 1A TACs higher than status quo, alternatives that feature smaller 
reductions to the Area 1A TAC (10-20 percent less), which would have 
less economic impact on the industry than the selected alternative, 
were not chosen because they did not sufficiently reduce the relative 
exploitation rate on the inshore stock component. Alternatives with 
substantially lower Area 1A TACs (80-90 percent less) were not selected 
because they had too great a potential to negatively impact the herring 
industry through loss of revenue and fishing opportunities. The 
economic impacts of reducing the Area 1A TAC and displacing effort into 
other management areas are discussed earlier in the preamble.
    Similarly, for all other management areas (Area 1B, Area 2 and Area 
3), the selected alternative was determined to best balance the 
exploitation rate on the inshore stock component against providing 
adequate harvest opportunities. The TAC alternatives for Area 1B ranged 
from 2,538 mt to 8,854 mt; all 32 alternatives were below the status 
quo (10,000 mt). The TAC alternatives for Area 2 ranged from 3,817 mt 
to 67,700 mt; 6 of the 32 alternatives were above the status quo 
(30,000 mt). Finally the TAC alternatives for Area 3 ranged from 15,100 
mt to 85,949 mt; 3 of the 32 alternatives were above the status quo 
(60,000 mt). The alternatives considered for Areas 1B, Area 2 and Area 
3 where the TACs were lower than the status were not selected because 
they had too great a potential to negatively impact the herring 
industry through loss of revenue and fishing opportunities. The 
alternatives considered for these management areas where the TACs were 
higher than the status quo were not selected because they would not 
have reduced the relative exploitation rate on the inshore stock 
component.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules, for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to make to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued for the herring fishery. In addition, 
copies of this final rule and guide (i.e., permit holder letter) are 
available from the Regional Administrator (see ADDRESSES) and may be 
found at the following web site: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.


[[Page 48879]]


    Dated: August 6, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  648.14, paragraphs (r)(1)(vi)(A) and (r)(1)(viii)(B) are 
revised to read as follows:


Sec.  648.14  Prohibitions.

    (r) * * *
    (1) * * *
    (vi) * * *
    (A) For the purposes of observer deployment, fail to notify NMFS at 
least 72 hr prior to departing on a trip aboard a vessel with an All 
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit fishing with either midwater trawl or purse seine 
gear on a declared herring trip.
* * * * *
    (viii) * * *
    (B) Fail to notify the NMFS Office of Law Enforcement of the time 
and date of landing via VMS, if a vessel with an All Areas Limited 
Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring 
Permit fishing with either midwater trawl or purse seine gear, at least 
6 hr prior to landing herring at the end of a declared herring trip.
* * * * *

0
3. In Sec.  648.201, paragraph (h) is added to read as follows:


Sec.  648.201  Closures and TAC controls.

* * * * *
    (h) If NMFS determines that the New Brunswick weir fishery landed 
less than 9,000 mt through October 15, NMFS will allocate an additional 
3,000 mt to the Area 1A TAC in November. NMFS will notify the Council 
of this adjustment and publish the adjustment in the Federal Register.
[FR Doc. 2010-19870 Filed 8-11-10; 8:45 am]
BILLING CODE 3510-22-S