Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specifications, 48874-48879 [2010-19870]
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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:
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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
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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*
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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) * * *
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(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
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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