Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 46, 56985-57000 [2011-23682]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 179 (Thursday, September 15, 2011)]
[Rules and Regulations]
[Pages 56985-57000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23682]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110627355-1539-02]
RIN 0648-BB08


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 46

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

ACTION: Final rule.

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

SUMMARY: This final rule partially approves Framework Adjustment (FW) 
46 to the NE Multispecies Fishery Management Plan (FMP), which 
increases the haddock incidental catch cap allocated to the Atlantic 
midwater trawl herring fishery to 1 percent of the Georges Bank (GB) 
haddock Acceptable Biological Catch (ABC) and to 1 percent of the Gulf 
of Maine (GOM) haddock ABC, thereby, adjusting final fishing year (FY) 
2011 specifications for the other fishery components of these ABCs. In 
addition, this action modifies the method for estimating haddock catch 
in the herring fishery and the relevant accountability measures (AMs) 
such that, upon attainment of the cap, the midwater trawl herring fleet 
may not catch or land herring in excess of the incidental catch limit 
(2,000 lb (907.2 kg)) in or from the appropriate haddock stock area. In 
addition, in this action NMFS disapproves measures in FW 46 that would 
have required open access herring vessels using midwater trawl gear to 
report total kept catch, and notify the Office of Law Enforcement, 
prior to landing. NMFS also disapproves a measure to require all 
midwater trawl vessels to report gear used on each trip into the Gulf 
of Maine or Georges Bank. FW 46 was developed by the New England 
Fishery Management Council (Council) to address the haddock incidental 
catch cap in the Atlantic herring fishery to allow the herring fishery 
to achieve optimum yield, by establishing a better opportunity to fully 
harvest the available herring quota, while providing incentives for the 
midwater trawl fishery to minimize haddock catch and, ensuring that 
haddock catch is adequately controlled and monitored.

DATES: This rule is effective September 14, 2011, except for Sec.  
648.10(l), which will become effective September 28, 2011.

ADDRESSES: Copies of FW 46, its Regulatory Impact Review (RIR), the 
final environmental assessment (EA) prepared for this action, and the 
Initial Regulatory Flexibility Analysis (IRFA) prepared by the Council 
are available from Paul J. Howard, Executive Director, New England 
Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 
01950. A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this final rule and is comprised of the EA, the preamble, and the 
Classification sections of the final rule. The FW 46 EA/RIR/IRFA are 
also accessible via the Internet at https://www.nefmc.org/nemulti/ or https://www.nero.noaa.gov. Written comments regarding the 
burden-hour estimates or other aspects of the collection-of-information 
requirements contained in this rule should be submitted to the Regional 
Administrator at the address above and to the Office of Management and 
Budget (OMB) by e-mail at OIRA_Submission@omb.eop.gov, or fax to (202) 
395-7285.

FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Policy 
Analyst, phone: 978-281-9166, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION: A proposed rule to implement measures in FW 
46 was published on July 19, 2011 (76 FR 42663), soliciting public 
comment through August 3, 2011. After review of all public comments, 
NMFS has approved several of the proposed measures in FW 46, 
determining that approved measures, as listed below, are consistent 
with the goals of the FMP as described in Amendment 16 to the FMP, the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), and other applicable laws. These final measures are 
unchanged from those that were proposed.

Background

    The Atlantic herring fishery is currently allocated a sub-Annual 
Catch Limit (ACL) of haddock that is equal to 0.2 percent of the 
combined GOM and GB haddock ABCs, to account for haddock that is 
incidentally caught in the herring fishery. When this cap is reached, 
herring vessels are restricted to an incidental possession limit of 
2,000 lb (907.2 kg) of herring per trip in specific portions of the GOM 
and GB, which effectively closes these areas to directed herring 
fishing. The Council initiated FW 46 in January 2011 to address 
industry concerns that the haddock incidental catch cap was becoming 
too constraining on the herring fishery, particularly given the 
increased, healthy biomass of haddock on GB and the fact that the 
commercial groundfish fishery is not likely able to harvest its own 
sub-ACL for these stocks. An early effective closure of the directed 
herring fishery as a result of catching the incidental catch cap could 
result in thwarting fishery participants from potentially achieving 
optimum yield and limiting the supply of herring bait to the lobster 
fishery. For example, in FY 2010, the herring fishery was constrained 
by the cap and had to modify its behavior, which may have resulted in 
up to $5.5 million in foregone herring from Herring Management Area 3. 
Thus, the Council developed FW 46 to revise the haddock incidental 
catch cap for the Atlantic herring fishery to allow for the achievement 
of optimum yield through establishing a better opportunity to fully 
harvest the available herring quota, while providing incentives for the 
midwater trawl herring fishery to minimize haddock catch, and ensuring 
that haddock catch is adequately controlled and monitored. A complete 
discussion of the development of FW 46 and the pre-FW 46 haddock 
incidental catch cap measures and their rationale appears in the 
preamble to the proposed rule and is not repeated here.

[[Page 56986]]

Disapproved Measures

Requirement for Open Access Vessels To Report Total Kept Catch

    FW 46, as submitted by the Council, required all midwater trawl 
vessels (including any vessel issued an open access incidental herring 
permit (Category D)) to report total catch kept. NMFS has partially 
disapproved this measure as it applies to a Category D vessel, because 
it determined that additional reporting by Category D vessels is not 
necessary at this time and would be an unnecessary reporting burden 
contrary to National Standard 7 of the Magnuson-Stevens Act, given that 
weekly VTR submissions (as implemented by a recent regulatory amendment 
to the Atlantic Herring FMP, 76 FR 54385; September 1, 2011) is 
sufficient to monitor this small component of the herring fishery.

Requirement for Midwater Trawl Vessels To Report Gear

    In addition, although FW 46, as submitted by the Council, also 
required a midwater trawl vessel to report gear when reporting total 
kept catch prior to landing, in this rule, NMFS disapproves that 
measure because NMFS has determined that it would not be necessary for 
the timely monitoring of the proposed haddock incidental catch caps 
and, therefore, would be an unnecessary reporting burden contrary to 
National Standard 7 of the Magnuson-Stevens Act.

Requirement for Open Access Vessels To Submit a Pre-Landing Hail

    Although FW 46, as submitted by the Council, proposed to expand the 
current pre-landing hail requirements to all vessels using midwater 
trawl gear, NMFS disapproves that measure as it applied to an open 
access herring permit holder (Category D). Because Category D permits 
represent a small portion of the herring fishery, accounting for very 
little of the Atlantic herring landings (0.5 percent in FY 2010), and 
rarely using midwater trawl gear in applicable Areas (Category A 
vessels accounted for all landings by midwater trawl gear in FY 2008-
2010), NMFS believes that requiring pre-landing hails of Category D 
vessels is an unnecessary reporting burden at this time, and is 
contrary to National Standard 7 of the Magnuson-Stevens Act.

Approved Measures

Incidental Catch Cap for Midwater Trawl Vessels

    To achieve the stated purposes of this action to maximize 
opportunities to fish for herring on GB, provide incentives to minimize 
the bycatch of haddock in the herring fishery, and reduce unnecessary 
economic impacts on the herring fishery, FW 46 replaces the current 
combined GOM and GB haddock incidental catch cap with separate stock-
specific caps for the GOM and GB haddock stocks, equal to 1 percent of 
the GOM haddock ABC and 1 percent of the GB haddock ABC, respectively. 
These caps apply to all vessels with a Federal Atlantic herring permit 
of any category using midwater trawl gear (both single and paired 
midwater trawl vessels) in Herring Management Areas 1A, 1B, and/or 3. 
The stock-specific caps better account for differences between these 
two stocks and eliminate the possibility that catches of one stock 
could trigger the closure of both stock areas. The amount of the cap is 
calculated according to the procedures established by Amendment 16 for 
the setting of ACLs and sub-ACLs for various components of the fishery 
for each stock, and the cap calculation method revised by FW 44 to the 
FMP (see Appendix III to FW 44, available on the Council's Web site at 
https://www.nefmc.org/nemulti/). The net result is that the 
GOM haddock catch cap is calculated based on one percent of the GOM 
haddock ABC (deducted from the sub-ABC allocated to commercial 
fisheries, which includes the Federal commercial groundfish fishery, 
state waters fishery, the Atlantic herring fishery, and the other 
commercial sub-component) with a subsequent reduction for management 
uncertainty. Similarly, the GB haddock incidental catch cap is based on 
one percent of the GB haddock ABC, and a reduction for management 
uncertainty (deducted from the ABC available to U.S. fishermen). 
Because FW 46 increases the percentage shares of the GOM and GB haddock 
sub-ABCs that are allocated to the herring midwater trawl fishery, the 
ACE available to sectors declines slightly, as does the amount of the 
ACL available to common pool groundfish fishing vessels.
    As noted in FW 46, these final measures are being implemented in-
season, after the beginning of the 2011 Northeast multispecies (May 1, 
2011-April 30, 2012) and herring (January 1, 2011-December 31, 2011) 
fishing years (FY). Therefore, this final rule revises the FY 2011 and 
FY 2012 sub-ACLs specified for the GOM haddock and GB haddock stocks in 
the FW 44 and FW 45 final rules, respectively (75 FR 18356; April 9, 
2010 and 76 FR 23042; April 25, 2011) (see Table 1). The sub-ACLs 
published here supersede all other sub-ACLs specified for GOM and GB 
haddock in previous rules. Given that the haddock cap for the midwater 
trawl herring fishery is monitored based on the groundfish FY, upon 
publication of this final rule, NMFS will use observer data and other 
available data and information from applicable herring trips to 
estimate haddock catches by the herring fishery since the start of FY 
2011 (beginning May 1, 2011). The catch estimate will then be counted 
against the increased stock-specific haddock caps.

                   Table 1--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011 and FY 2012
                                               [Mt, live weight] *
----------------------------------------------------------------------------------------------------------------
                                                 Total ACL          Groundfish sub-ACL        Mid-water trawl
                                         ------------------------------------------------     herring fishery
                  Stock                                                                  -----------------------
                                            FY 2011     FY 2012     FY 2011     FY 2012     FY 2011     FY 2012
----------------------------------------------------------------------------------------------------------------
GOM haddock.............................         833         699       1,086         912          11           9
GB haddock **...........................      32,611      27,632      30,580      25,911         318         270
----------------------------------------------------------------------------------------------------------------
* The GOM haddock allocations to the recreational groundfish fishery for FY 2011 and FY 2012 remain unchanged
  from the FW 44 final rule. FY 2011 and FY 2012 ACL-subcomponents not listed here also remain unchanged from
  the FW 44 and FW 45 final rules.
** Due to the need to re-specify the U.S. ABCs for GB haddock for FY 2012, consistent with the U.S./Canada
  Resource Sharing Understanding, all sub-components of the ABCs for GB haddock for FY 2012 will be re-specified
  when information on the Canadian TACs is available.


[[Page 56987]]


   Table 2--Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels for FY 2011 and FY 2012
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                            Groundfish sub-ACL      Common pool sub-ACL       Sector sub-ACL
                  Stock                  -----------------------------------------------------------------------
                                            FY 2011     FY 2012     FY 2011    FY 2012 *    FY 2011    FY 2012 *
----------------------------------------------------------------------------------------------------------------
GOM haddock.............................       1,086         912           8           6         770         647
GB haddock **...........................      30,580      25,911         187         158      30,393      25,753
----------------------------------------------------------------------------------------------------------------
* The FY 2012 common pool and sector sub-ACLs are based on final FY 2011 sector rosters submitted to NMFS May 1,
  2011. It is almost certain that the FY 2012 sub-ACLs for the common pool and sectors will change and be re-
  specified prior to FY 2012 due to annual changes in sector rosters.
** Due to the need to re-specify the U.S. ABCs for GB haddock for FY 2012, consistent with the U.S./Canada
  Resource Sharing Understanding, all sub-components of the ABCs for GB haddock for FY 2012 will be re-specified
  when information on the Canadian TACs is available.


                        Table 3--Final ACE Each Sector Would Receive by Stock for FY 2011
                                        [1,000 lb and mt, live weight] *
----------------------------------------------------------------------------------------------------------------
                                                                        GOM Haddock           GB Haddock west
                   Sector name (defined below)                   -----------------------------------------------
                                                                   1,000 lb       mt       1,000 lb       mt
----------------------------------------------------------------------------------------------------------------
FGS.............................................................       22.43       10.17     2932.44     1330.13
MPBS............................................................        1.31        0.60        3.89        1.77
NCCS............................................................        5.83        2.64       55.98       25.39
NEFS 2..........................................................      314.38      142.60     5303.39     2405.58
NEFS 3..........................................................      211.05       95.73       74.26       33.68
NEFS 4..........................................................      103.17       46.80     2466.58     1118.82
NEFS 5..........................................................        5.56        2.52     1810.76      821.35
NEFS 6..........................................................       65.35       29.64     1348.52      611.68
NEFS 7..........................................................        9.64        4.37     1749.59      793.60
NEFS 8..........................................................        3.68        1.67     2696.94     1223.31
NEFS 9..........................................................       80.58       36.55     5524.58     2505.91
NEFS 10.........................................................       44.32       20.10      144.18       65.40
NEFS 11.........................................................       42.94       19.48       16.57        7.52
NEFS 12.........................................................       14.73        6.68        1.22        0.55
NEFS 13.........................................................       14.70        6.67     6869.34     3115.88
PCCGS...........................................................       36.78       16.68       14.58        6.62
SHS 1...........................................................      688.04      312.09    13301.48     6033.45
SHS 3...........................................................       26.04       11.81      899.84      408.16
TSS.............................................................        7.95        3.60      668.28      303.13
All Sectors Combined............................................     1698.46      770.41    45882.44    20811.93
Common Pool.....................................................       16.74        7.59      282.35      128.07
----------------------------------------------------------------------------------------------------------------
--Georges Bank Cod Fixed Gear Sector (FGS), Maine Permit Banking Sector (MPBS), Northeast Coastal Communities
  Sector (NCCS), Northeast Fishery Sector (NEFS), Port Clyde Community Groundfish Sector (PCCGS), Sustainable
  Harvest Sector (SHS), and Tri-State Sector.
* All ACE values for sectors outlined in Table 3 assume that each sector Moratorium Right Identifier has a valid
  permit for FY 2011. ACE values are based on final FY 2011 sector rosters submitted May 1, 2011.

    This final rule revises the current haddock catch cap monitoring 
requirements such that only the haddock catches from vessels issued a 
Federal Atlantic herring permit and fishing with midwater trawl gear in 
Atlantic Herring Management Areas 1A, 1B, and/or 3 (GOM and GB) will be 
counted against the incidental haddock catch caps. Haddock catch 
reported by observers on observed herring trips using midwater trawl 
gear in Herring Management Areas 1A, 1B, and/or 3 will be extrapolated 
to estimate total haddock catch by the herring midwater trawl fleet in 
these herring management areas, for purposes of monitoring the 
attainment of each stock-specific cap. This extrapolation method 
contrasts to monitoring methods used prior to this rule, in which 
haddock caught was derived only from summing the reports of observers, 
dealers, vessels, and law enforcement officials.
    FW 46 states that NMFS will develop the extrapolation methodology 
and post it on the Northeast Regional Office Web site (See ADDRESSES), 
and that NMFS will monitor and post catches of haddock by the herring 
fishery at least monthly on its Web site. NMFS intends to use the 
cumulative methodology it currently uses to extrapolate catches of 
butterfish in the Loligo squid fishery and to estimate discards by 
sector vessels in the groundfish fishery, to extrapolate haddock 
catches by the herring midwater trawl fishery. This method is described 
in detail on the Northeast Regional Office Web site (https://www.nero.noaa.gov/ro/fso/reports/reports_frame.htm) and is summarized 
briefly here. This method derives a ratio of the kept catch (or 
discards) of the species in question to the total weight of all species 
kept on observed trips (total kept), based on all observed trips as of 
a certain date (cumulative sums of landings or discards and total kept 
of all species). The ratio is then expanded to a total catch estimate 
by applying the ratio to the total kept of all species from all trips 
by the applicable component of the fishery. For example, an observed 
haddock catch rate would be derived from the ratio of the sum of all 
haddock catch to the sum of all species kept on observed herring 
midwater trawl trips in Herring Management Areas 1A, 1B, and 3 to date. 
This rate would then be applied to the total weight of all species kept 
from all midwater trawl trips in

[[Page 56988]]

these same areas to date, to estimate total haddock catch by the 
herring midwater trawl fleet in each of the GOM and GB haddock stock 
areas.
    A vessel with a Category A and/or B Atlantic herring permit is 
still required to land all haddock brought on deck or pumped into the 
hold, and may land up to 100 lb (45 kg) total of other regulated NE 
multispecies (Sec.  648.86(k)) per trip, but is prohibited from selling 
any groundfish for human consumption. In addition, these groundfish 
possession restrictions are revised to allow a Category C or D vessel 
and fishing any part of a trip with midwater trawl gear in Herring 
Management Areas 1A, 1B, or 3, to possess and land haddock and up to 
100 lb (45 kg) of other groundfish, consistent with the revised scope 
of the cap. Consistent with the current requirements for a Category A 
or B vessel, such a Category C or D vessel is required to land all 
haddock, but is prohibited from selling it for human consumption. 
Additionally, NMFS has revised the regulations at Sec.  648.86(k) to 
clarify that the 100 lb (45 kg) NE multispecies possession limit is 
meant to apply to NE. multispecies other than haddock.
    FW 46 eliminates the current AM where all vessels issued an 
Atlantic herring permit are prohibited from possessing or landing 
herring in excess of the incidental herring limit in the entire GOM/GB 
Herring Exemption Area, once the combined GOM/GB haddock cap is 
reached. FW 46 instead establishes smaller, stock-specific AM areas 
(the ``Herring GOM Haddock AM Area'' and the ``Herring GB Haddock AM 
Area''), which would only apply to a herring vessel using midwater 
trawl gear in the GOM and GB, upon attainment of the cap. The intent of 
this measure is to make the haddock catch caps less constraining on the 
herring fishery by accounting for differences between the haddock 
stocks, and by limiting the AMs to the herring midwater trawl fleet, 
which has been primarily responsible for haddock catches in the herring 
fishery. If the Regional Administrator determines that the haddock 
incidental catch cap for a specific haddock stock has been caught, any 
vessel issued a herring permit and using midwater trawl gear would be 
prohibited from fishing for, possessing, or landing herring in excess 
of 2,000 lb (907.2 kg) per trip in or from the applicable AM Area (see 
Tables 2 and 3). Additionally, the haddock possession/landing limit for 
the applicable AM Area would be reduced to 0 lb (0 kg) for herring 
midwater trawl vessels and all Category A and B vessels. For example, 
if the GOM haddock catch cap were reached, the herring possession limit 
would be reduced to the incidental catch level (2,000 lb (907 kg)) in 
the Herring GOM Haddock AM Area (see Table 2) for any vessel issued a 
herring permit and fishing any part of a trip with midwater trawl gear. 
Upon reaching the fishery haddock cap, a Category A or B vessel 
(regardless of gear used) or a Category C or D vessel fishing with 
midwater trawl gear would not be able to possess/land any haddock, but 
would still be able to land up to 100 lb (45 kg) of other NE. 
multispecies from the applicable AM area. In addition, in this example, 
a midwater trawl vessel would still be able to retain herring in or 
from areas of 1A, 1B, or 3 that do not overlap with the Herring GOM 
Haddock AM Area. A herring vessel that fishes both inside and outside 
of an AM Area for which the haddock cap has been triggered on a given 
trip would be required to comply with the most restrictive measures, 
meaning the vessel is restricted to the 2,000 lb (907 kg) herring 
possession limit for that trip. The reduced haddock possession/landing 
limit would not apply to a herring vessel that also holds a NE 
multispecies permit when it is on a declared NE. multispecies trip.

                  Table 2--Herring GOM Haddock AM Area
------------------------------------------------------------------------
             Point                   N. latitude         W. longitude
------------------------------------------------------------------------
HGA1...........................  (\1\)                69[deg]20'
HGA............................  43[deg]40'           69[deg]20'
HGA3...........................  43[deg]40'           69[deg]00'
HGA4...........................  43[deg]20'           69[deg]00'
HGA5...........................  43[deg]20'           (\2\)
HGA6...........................  42[deg]20'           (\3\)
HGA7...........................  42[deg]20'           70[deg]00'
HGA8...........................  (\4\)                70[deg]00'
------------------------------------------------------------------------
\1\ The intersection of the Maine coastline and 69[deg]20' W. long.
\2\ The intersection of the U.S./Canada maritime boundary and 43[deg]20'
  N. lat.
\3\ The intersection of the U.S./Canada maritime boundary and 42[deg]20'
  N. lat.
\4\ The intersection of the north-facing shoreline of Cape Cod, MA, and
  70[deg]00' W. long.


                   Table 3--Herring GB Haddock AM Area
------------------------------------------------------------------------
             Point                   N. latitude         W. longitude
------------------------------------------------------------------------
HBA1...........................  42[deg]20'           70[deg]00'
HBA2...........................  42[deg]20'           (\1\)
HBA3...........................  40[deg]30'           (\1\)
HBA4...........................  40[deg]30'           66[deg]40'
HBA5...........................  39[deg]50'           66[deg]40'
HBA6...........................  39[deg]50'           68[deg]50'
HBA7...........................  (\2\)                68[deg]50'
HBA8...........................  41[deg]00'           (\3\)
HBA9...........................  41[deg]00'           69[deg]30'
HBA10..........................  41[deg]10'           69[deg]30'
HBA11..........................  41[deg]10'           69[deg]50'
HBA12..........................  41[deg]20'           69[deg]50'
HBA13..........................  41[deg]20'           (\4\)
HBA14..........................  (\5\)                70[deg]00'
HBA15..........................  (\6\)                70[deg]00'
HBA16..........................  (\7\)                70[deg]00'
------------------------------------------------------------------------
\1\ The intersection of the U.S./Canada maritime boundary.
\2\ The intersection of the boundary of Closed Area I and 68[deg]50' W.
  long.
\3\ The intersection of the boundary of Closed Area I and 41[deg]00' N.
  lat.
\4\ The intersection of the east-facing shoreline of Nantucket, MA, and
  41[deg]20' N. lat.
\5\ The intersection of the north-facing shoreline of Nantucket, MA, and
  70[deg]00' W. long.
\6\ The intersection of the south-facing shoreline of Cape Cod, MA, and
  70[deg]00' W. long.
\7\ The intersection of the north-facing shoreline of Cape Cod, MA, and
  70[deg]00' W. long.

    FW 46 implements an automatic haddock sub-ACL reduction as an 
additional AM, if the herring midwater trawl fishery haddock catch 
exceeds the incidental catch cap for the AM area in a given FY. If it 
is determined that the total catch of haddock by herring midwater trawl 
vessels exceeds either of the herring midwater trawl fishery GOM or GB 
haddock sub-ACLs for a FY, that sub-ACL would be reduced by the amount 
of the overage in the following FY. For example, if final accounting of 
the FY 2011 total haddock midwater trawl catch in the GOM haddock stock 
area indicates that the GOM haddock incidental catch cap had been 
exceeded by 5 mt, the FY 2012 GOM haddock sub-ACL for the herring 
midwater trawl fishery would be reduced by 5 mt to account for the 
overage that occurred during FY 2011. Any reductions to the midwater 
trawl haddock sub-ACLs would be announced by NMFS, consistent with the 
Administrative Procedure Act (APA), in the Federal Register, prior to 
the start of the next groundfish FY (May 1). Although not addressed by 
FW 46, NMFS has added language to Sec.  648.90(a)(5)(iii), under the 
authority provided to the Secretary under Section 305(d) of the 
Magnuson-Stevens Act to promulgate regulations necessary to carry out 
an FMP, to clarify that if final catch accounting indicating an overage 
were not completed until after the end of a groundfish FY, the overage 
would still be applied to the final specifications for the next 
groundfish fishing year after which the overage occurred. This would be 
consistent with the process and timing NMFS has developed for applying 
and announcing overage paybacks for sectors in the NE multispecies 
fishery.
    Any vessel with a limited access herring permit (Category A, B, and 
C

[[Page 56989]]

permits) using midwater trawl gear is required to report total kept 
catch by modified haddock stock area through daily Vessel Monitoring 
System (VMS) catch reports. A final rule published on September 1, 2011 
(76 FR 54385), implemented requirements in the Atlantic Herring FMP for 
a limited access herring vessel (including any vessel with a herring 
limited access incidental permit) to submit daily catch reports through 
VMS to report herring catch by herring management area. Upon the 
effective date of this final rule, a limited access herring vessel 
fishing with midwater trawl gear in Herring Management Areas 1A, 1B, or 
3 is now also required to report total weight kept of all species 
(including herring, mackerel, groundfish, and any other fish kept) by 
modified haddock stock area in these daily reports.
    The Council has initiated development of Amendment 5 to the 
Atlantic Herring FMP, which considers several alternatives that address 
interactions between the herring fishery and the groundfish fishery, 
and measures designed to improve catch monitoring. If approved, 
Amendment 5 would likely modify monitoring and reporting requirements 
for the herring fishery, including those that NMFS will use to monitor 
the proposed haddock incidental catch caps. Therefore, this rule 
provides the authority to the Regional Administrator to revise the 
reporting requirements implemented through this final rule, if the RA 
determines that revisions to such requirements are necessary to allow 
for the effective monitoring of the haddock incidental catch caps.
    Any Category A and B vessel intending to use midwater trawl or 
purse seine gear on a declared herring trip, and any vessel issued a 
Category C and/or D herring permit and intending to fish or fishing any 
part of a trip with midwater trawl gear in Herring Management Areas 1A, 
1B, or 3, is now required to notify the NMFS Northeast Fisheries 
Observer Program (NEFOP) at least 72 hrs prior to beginning a trip, and 
declare whether or not it intends to fish any part of a trip in Closed 
Area I (CAI).
    A vessel issued a Category A or B permit, and on a declared herring 
trip fishing with midwater trawl or purse seine gear, and a vessel 
issued a Category C permit that fishes any part of a trip with midwater 
trawl gear in Herring Management Areas 1A, 1B, and/or 3, is now 
required to notify the NMFS Office of Law Enforcement through VMS of 
the time and place of offloading at least 6 hrs prior to crossing the 
VMS demarcation line, or at least 6 hrs prior to landing, if fishing 
inside the VMS demarcation line.
    Any federally permitted herring dealer or processor (including at-
sea processors) that culls or separates out non-herring catch in the 
course of normal operations is now required to separate out all haddock 
offloaded from any vessel issued any Federal herring permit that fished 
in Herring Areas 1A, 1B, and/or 3 with midwater trawl gear, and any 
vessel issued a Category A and/or B permit, regardless of gear used or 
area fished. In addition, such haddock may not be sold for any purpose 
and must be retained for at least 12 hrs on land to allow inspection by 
enforcement officials.
    This final rule also revises the CA I restrictions regarding 
observers and net slippage for midwater trawl vessels, which are 
currently applicable to only Category A and B herring permit holders, 
by expanding these restrictions to any vessel issued a herring permit 
that fishes with midwater trawl gear in CA I. Thus, any vessel issued a 
herring permit is prohibited from fishing in CA I with midwater trawl 
gear without an observer. In addition, no vessel issued a herring 
permit and fishing with midwater trawl gear in CA I may release fish 
from the codend of the net, transfer fish to another vessel that is not 
carrying a NMFS-approved observer, or otherwise discard fish at sea, 
unless the fish has first been brought aboard the vessel and made 
available for sampling and inspection by the observer. All exemptions 
from the current requirements continue to apply to any vessel now 
subject to these restrictions.

Comments and Responses

    There were six comments received on the proposed measures from one 
member of the public, three fishing industry organizations, and two 
coalitions of fishing and marine industry and environmental. Four 
commenters generally or partially supported the proposed measures, and 
two commenters generally opposed the action.
    Comment 1: Lund's Fisheries, Inc., and the O'Hara Corporation 
supported the proposed action and the Cape Cod Commercial Hook 
Fishermen's Association (CCCHFA) and the Coalition for the Atlantic 
Herring Fishery's Orderly, Informed, and Responsible Long Term 
Development (CHOIR) offered partial support for the proposed action. 
Lund's Fisheries, Inc., and O'Hara Corporation supported the increase 
in the haddock incidental catch cap to 1 percent, because it would 
allow the herring fishery to more fully utilize the available GB 
herring quota, while encouraging the midwater trawl fishery to avoid 
haddock. They requested that NMFS move as quickly as possible to 
implement the measures in order to minimize adverse economic impacts to 
the herring fishery in FY 2011. CCCHFA supported maintaining a bycatch 
cap and extrapolating haddock catches across the fleet, but commented 
that increasing the incidental catch cap would reduce incentives for 
the midwater trawl fishery to avoid haddock. CHOIR also partially 
supported the increase in the cap, but only over other less restrictive 
measures considered by the Council, and noted concern that FW 46 would 
establish a precedent for allowing increasing bycatch in the herring 
fishery.
    Response: NMFS agrees that the proposed action will allow the 
herring fishery to achieve optimum yield through establishing a better 
opportunity to fully harvest the available herring quota. Contrary to 
comments made by CCCHFA, NMFS believes that the measures implemented by 
this final rule maintain incentives for herring midwater trawl vessels 
to avoid haddock catches and ensure that haddock catch is adequately 
controlled and monitored, as outlined further in the response to 
Comment 2 below. In addition, concerns expressed by CHOIR about the 
potential for this action to establish a precedent for future bycatch 
increases by the herring fishery are addressed in the response to 
Comment 2 below. Thus, NMFS has approved FW 46 as proposed, and is 
implementing these measures as soon as possible in order to minimize 
impacts to the fishery.
    Comment 2: The Herring Alliance, CCCHFA, and one member of the 
public opposed increasing the haddock incidental catch cap. The Herring 
Alliance and CCCHFA commented that the current cap is an effective 
measure to reduce bycatch in the herring fishery, but commented that 
increasing the cap reduces incentives to avoid haddock, and is 
inconsistent with National Standard 9, and other related provisions of 
the Magnuson-Stevens Act. They request NMFS disapprove the increase in 
the cap and instead work with the Council to develop measures to reduce 
bycatch in the herring fishery. They also asserted that FW 46 does not 
create meaningful incentives for herring vessels to avoid haddock, and 
therefore does not meet the objectives of FW 46. The Herring Alliance 
also questioned the need for the haddock cap increase, when FY 2010 was 
the first year the herring fishery had caught more than half the cap 
amount. CHOIR also suggested that FW 46 would establish a

[[Page 56990]]

precedent for allowing increasing bycatch in the herring fishery. 
Finally, one member of the public proposed a 75-percent decrease in 
haddock bycatch from previous years.
    Response: In evaluating the approvability of FW 46 measures, in 
light of this comment the other comments received, NMFS considered 
several competing mandates and considerations set forth in the 
Magnuson-Stevens Act. With respect to this particular comment, NMFS 
considered the requirements of National Standard 1, which requires that 
FMPs prevent overfishing while achieving optimum yield; National 
Standard 8, which requires the consideration of the importance of the 
herring fishery to communities in order to achieve sustained 
participation of such communities and, to the extent practicable 
minimize adverse impacts on such communities; and National Standard 9, 
which requires an FMP to reduce bycatch, to the extent practicable. FW 
46 represents an acceptable balance of these standards. As more fully 
described below, the framework increases the opportunity for the 
herring fishery to achieve optimum yield, while still preventing 
overfishing and with no adverse impact on the health of the herring or 
groundfish stocks, most notably haddock. Because of the greater 
opportunity for the herring fishery to achieve optimum yield, fishing 
communities involved in the herring fishery are more likely to be 
positively impacted without any perceivable detriment to other 
fisheries or communities, such as those more dependent on the 
groundfish fishery. Concerns about minimizing haddock bycatch, to the 
extent that haddock incidental catch is considered bycatch as defined 
by the Magnuson-Stevens Act, are more than adequately accounted for and 
allayed in the balancing of the practicability standard of National 
Standard 9. As described in Framework 46 and below, the opportunity 
provided by these measures for ensuring the achievement of optimum 
yield of Atlantic herring presents little or no possibility of 
undermining conservation objectives for haddock stocks in light of the 
healthy, abundant status of those stocks, and the wide gap between the 
ACL and actual catch of haddock by the groundfish fishery.
    NMFS agrees with the Council that the haddock catch cap is an 
effective measure to create incentives to avoid haddock and, thus, has 
approved the catch cap for the herring fishery. NMFS believes, in light 
of Magnuson-Stevens Act provisions as discussed above, that the revised 
cap represents a better balance of controlling incidental catch and 
bycatch of haddock and other stocks, reducing uncertainty in the 
fishery, and providing the herring fishery a better opportunity to 
achieve optimum yield. Although maintaining the current cap at 0.2 
percent of the combined GOM and GB haddock ABCs may have created a 
greater incentive for the midwater trawl fleet to avoid haddock, due to 
the lower relative current amount, this alternative was not practicable 
because it failed to meet other stated objectives of FW 46 and 
competing National Standards discussed above. Moreover, the approved 
measures increase the haddock catch cap, and revise the cap and 
associated AMs to be specific to those areas and gears that are 
primarily responsible for haddock catches, thereby substantially 
reducing the risk of negative economic impacts to the entire herring 
fleet, while still maintaining an incentive for that component of the 
fishery to avoid haddock. While the haddock catch cap is increased from 
0.2 to 1 percent, a separate cap is established for each haddock stock, 
eliminating the possibility that the entire cap could be caught in one 
haddock stock area and threaten mortality targets for that haddock 
stock. Furthermore, FW 46 introduces a more comprehensive and effective 
method for more accurately estimating haddock catches across the fleet 
that will provide more direct control on total haddock catches by the 
midwater trawl fishery and reduce uncertainty for the herring fishery. 
Because this new method significantly differs from the current method 
of merely summing actual observed catches, it is not possible to 
conclude that the 1-percent haddock cap will result in a five-fold 
increase in the amount of haddock that may be caught by the herring 
fishery, as alleged by the commenters. For example, extrapolating 
haddock catches observed in 2006 under the current method showed that 
the estimated total catch of haddock was potentially nearly four times 
the 0.2-percent cap. Since the existing cap only counted observed 
catches of haddock, it did not monitor the overall catches of haddock 
by the entire fleet. In fact, when all of these changes are considered 
together, Framework 46 should result in more direct control on the 
total haddock catch by the fleet than the current 0.2-percent cap.
    Furthermore, as described in the EA, the magnitude of catches from 
one stock area, as a proportion of biomass of these stocks, is not 
likely to have negative biological impacts on the status of the haddock 
stocks, or any effect on the populations of marine mammals or seabirds. 
In contrast, the revised haddock cap measures are likely to provide 
substantial economic benefits to the herring fishery, when compared to 
the no action alternative, without any negative biological impacts. 
Given these social and economic benefits, and that there is almost no 
likelihood of negative biological impacts, FW 46 achieves its stated 
objectives while minimizing bycatch to the extent practicable, 
consistent with the Magnuson-Stevens Act National Standards.
    The herring fishery may be expected to be constrained under the 
current system more in future years than in the past. Although the 
herring fishery has not previously come close to achieving the cap, 
except for FY 2010, the herring fishery effort may be expected to 
increase in Area 3 as a result of area TAC allocations specified for 
the herring fishery in recent years. The Council reduced Area 1A TAC 
allocations through the FY 2010-2012 herring fishery specifications (75 
FR 48874; August 12, 2010) to address concerns about the 
disproportionate amount of effort that exists on this inshore component 
of the herring stock, despite the fact that its constitutes only 
approximately 18 percent of the available biomass. The EA for the 2010-
2012 herring specifications noted that higher Area 3 TACs (compared to 
Area 1A) might provide an opportunity for the herring fleet to regain 
yield lost from the Area 1A TAC reductions, but raised concerns that 
this effort might be inhibited by haddock bycatch measures. Given these 
steps by the Council to shift herring fishery effort to the offshore 
stock component, and continued declines in both herring and haddock 
stock biomasses and, subsequently, sub-ACLs, the herring fishery may be 
expected to bump up against the cap more frequently in future years 
under the no action alternative.
    NMFS cannot prevent the Council from considering or proposing 
future changes to the haddock catch cap for the herring fishery. 
However, as noted above, any such change must be consistent with 
applicable law, including the competing mandates and considerations set 
forth in the Magnuson-Stevens Act under National Standards 1, 8, and 9. 
If any future changes to the haddock catch cap for the herring fishery 
are proposed, NMFS will evaluate that action on its own merit, 
independent from any previous management action, based on these and 
other national standards and applicable law, and consider further 
public

[[Page 56991]]

comment before making a final decision to approve or disapprove any 
such future action.
    Regarding the suggestions to disapprove the measure or require a 
75-percent reduction in haddock bycatch from previous years, NMFS can 
only approve, disapprove, or partially approve a Council action, but 
cannot modify the measures proposed in FW 46. Reducing the haddock cap 
by 75 percent from previous years represents a new management proposal 
and, as such, would require consideration and action by the Council as 
well as an opportunity for public comment on the measure. NMFS approved 
the measures proposed in FW 46 because they are consistent with the 
objectives of FW 46 and the NE Multispecies FMP, and other applicable 
laws, and will allow the prosecution of the herring fishery, while 
minimizing haddock catches by the herring fishery to the extent 
practicable.
    Comment 3: The Herring Alliance commented that FW 46 does not meet 
its objective to encourage midwater trawl vessels to fish offshore 
simply by facilitating herring fishing in Herring Management Area 3, 
because Herring Management Area 3 also contains inshore fishing grounds 
where the herring fleet may encounter the inshore component of the 
herring stock.
    Response: NMFS believes that, based upon the biology and ecology of 
the herring stock, and the definition of the herring management areas, 
FW 46 achieves its objective to encourage vessels to fish offshore. The 
herring stock complex is assessed as a unit stock, but is comprised of 
inshore (GOM) and offshore (GB) stock components. The stock components 
segregate during spawning and mix during feeding and migration. The 
herring management areas were developed in recognition of these 
different stock components and, despite mixing of components, provide a 
method to manage the fishing mortality of each stock component somewhat 
independently. According to the EA that accompanied the 2010-2012 
herring fishery specifications, while some mixing may occur, most 
fishing mortality on the inshore stock component occurs in Areas 1A, 
1B, and 2, and fishing mortality on the offshore component occurs in 
Area 3. The purpose of FW 46 is to address the haddock catch cap, while 
achieving the four stated objectives, including providing incentives 
for midwater trawl vessels to fish offshore. FW 46 was not initiated to 
address or redefine Herring Management Areas established by the 
Atlantic Herring FMP. To the extent that Area 3 represents the 
``offshore'' component of the herring fishery effort and the area where 
the majority of fishing effort on the offshore component of the herring 
stock occurs, FW 46 reduces the risk of an early closure of this area, 
thereby facilitating further development of the offshore fishery in 
this area.
    Comment 4: Three commenters commented on the scope of the proposed 
measures. The Herring Alliance supported focusing the scope of the cap 
on midwater trawl vessels and establishing a separate cap for each 
haddock stock, but commented that Category C and D herring vessels 
should be excluded from the proposed measures, because they do not have 
documented catches of haddock or herring with midwater trawl gear in 
the areas of concern. Lund's Fisheries, Inc. supported excluding Area 2 
from the cap and AMs, because this area is critical to the winter 
mackerel fishery.
    Response: NMFS agrees that having separate caps for each haddock 
stock will provide more direct control on fishing mortality for each 
haddock stock resulting from herring midwater trawl fishery operations 
and more direct accountability for those vessels actually responsible 
for haddock catches. NMFS also agrees that revising the cap to focus on 
those areas and gears where haddock catches have been observed achieves 
FW 46's objectives, and is necessary to reduce the impact of the cap on 
the herring fishery as a whole by eliminating unnecessary restrictions 
on those segments of the fishery that have historically not had much 
interaction with haddock.
    The Council intended that the cap measures apply to all midwater 
trawl vessels, regardless of herring permit category, because this is 
the gear with documented catches of haddock. Although only Category A 
and B vessels have documented landings with midwater trawl gear, there 
is no prohibition on Category C or D vessels using midwater trawl gear, 
which is the gear most likely to catch haddock incidentally. The 
application of the measures to a Category C or D vessel imposes no 
burden unless such vessel chooses to use midwater trawl gear, in which 
case the relevance of the regulations are justified. Furthermore, 
future modifications to the Atlantic Herring FMP may change incentives 
and result in changes in fishing practices, such that Category C and/or 
D vessels begin to target herring using midwater trawl gear. If 
Category C and D midwater trawl vessels were excluded from these 
measures at this time, such changes in fishing behavior might undermine 
the FW 46 measures in the future. Thus, NMFS has approved FW 46 
measures regarding Category C and D vessels, as proposed, because they 
are preventative in nature and consistent with the stated objectives of 
the action. However, the FW 46 requirements (including reporting 
requirements) only apply to vessels with Category C and D permits when 
fishing with midwater trawl gear in Areas 1A, 1B and/or 3. Category C 
or D vessels fishing with purse seine or otter trawl gear, or midwater 
trawl gear in Area 2, will be unaffected by this action.
    Comment 5: Three commenters supported extrapolating haddock catches 
to the entire herring midwater trawl fleet, because this increases 
accountability and provides more accurate monitoring. The Herring 
Alliance further supported extrapolating the haddock catches back to 
the start of FY 2011, if these measures are implemented mid-season. The 
Herring Alliance and CCCHFA commented that the proposed rule should 
have provided more detail on the extrapolation methodology NMFS intends 
to use to monitor the cap, so the public could have an opportunity to 
comment on it. The Herring Alliance requested that NMFS clarify how 
observed trips that encounter haddock, but do not retain any catch, and 
observed trips that have slipped tows, will be handled in the 
extrapolation. The Herring Alliance suggested that these fishing 
practices would undermine the extrapolation methodology and that NMFS 
should conduct an analysis of the observer effect in the herring fleet, 
and extend the CAI no-slippage provisions currently in place to all 
trips by Category A and B vessels, to facilitate more accurate 
observations. The Herring Alliance and CCCHFA both requested that NMFS 
post haddock catch cap monitoring updates on its Web site weekly, 
instead of monthly, consistent with how the cap is currently monitored.
    Response: NMFS agrees that the extrapolation of haddock catches to 
the entire midwater trawl fleet will increase accountability for total 
haddock catches by the herring fishery and provide more accurate catch 
estimates that are less sensitive to changes in observer coverage 
rates, and has approved that measure. As stated in the proposed rule, 
NMFS intends to use the same methodology that it uses to monitor 
butterfish catch in the Loligo fishery and groundfish discards by 
sector vessels in the NE multispecies fishery. These methodologies are 
described in detail on NERO's Web site (https://www.nero.noaa.gov/ro/fso/reports/reports_frame.htm), and were

[[Page 56992]]

summarized in the preamble to the proposed rule. According to this 
methodology, only discards and kept fish from observed tows to date are 
used in the calculation of an observed haddock catch rate for the 
applicable stock area. The numerator for the catch rate on a given date 
is generated by summing the observed haddock catch from all observed 
tows in the applicable stock area as of that date. Similarly, the 
denominator is the cumulative sum of all kept catch on all observed 
tows in the applicable stock area to date. Thus, haddock catches in a 
tow that was sampled by the observer would be added to the numerator, 
and if this haddock was the only catch retained (because it must be 
landed if brought on board), then this amount would be added to the 
denominator to generate a cumulative discard rate for all observed tows 
up to that date. Thus, the haddock catch rate is a cumulative rate made 
up of all observed tows across the fleet, not an individual catch rate 
for each observed trip or vessel. Tows that are slipped, or partially 
slipped, on an observed trip will not be incorporated into the 
extrapolation, because such tows are not considered to be ``observed'' 
by the observer. Although such slippage is of concern, and is a source 
of uncertainty, the NE Multispecies FMP takes into account such 
uncertainty in the method of calculating ABCs. Specifically, the sub-
ABCs of GOM and GB haddock allocated to the midwater trawl fishery are 
reduced by 7 percent, as prescribed by FW 44, before arriving at the 
actual sub-ACLs that are monitored, in order to account for such 
management uncertainty in this component of the fishery.
    Currently, the herring trips applied to the haddock catch cap are 
updated on a weekly basis, depending on the availability of data. NMFS 
intends to continue to update the haddock catch cap monitoring pages on 
its Web site on a weekly basis, provided the necessary data are 
available. Midwater trawl vessels will be reporting the ``kept all'' 
amount daily through their VMS catch reports, which will be used to 
extrapolate observed haddock catches. However, preliminary trip-summary 
information from observed midwater trawl trips catching groundfish is 
available within approximately 72 hrs of landing. Thus, while the total 
weight to which the haddock catch rates are applied to derive an 
estimate of the total catch of haddock may be updated almost daily, the 
frequency of updates to the haddock catch rates that are extrapolated 
will be limited by the availability of observer data.
    Comment 6: The Herring Alliance supported the proposal to require 
midwater trawl vessels fishing both inside and outside an AM area on 
the same trip when an AM is in place to comply with the most 
restrictive possession limits. However, the Herring Alliance suggested 
that NMFS prohibit herring vessels from towing midwater trawls across 
the boundaries between different haddock AM areas, since this inhibits 
the observer's ability to accurately assign catch from such tows to the 
proper area.
    Response: NMFS has approved the requirement that vessels comply 
with the most restrictive measures when fishing both inside and outside 
an effective AM area on the same trip. With respect to the suggestion 
that NMFS prohibit midwater trawl vessels from towing across haddock 
stock areas, this would further complicate the regulations and be 
overly restrictive for herring midwater trawl vessels. The regulation 
as approved represents a balance between the need to implement and 
enforce possession limits and monitor catch and the industry's need for 
flexibility to fish and target herring.
    Comment 7: The Herring Alliance commented that NMFS should clarify 
the description of the overage payback provision to clarify that any 
overage reduction to the haddock sub-ACL in response to an overage 
would apply in the year immediately following the year in which the 
overage occurred, even if final accounting of haddock catch by the 
herring fleet occurs after the end of the year in which the overage 
occurred.
    Response: The Herring Alliance is correct, the overage reduction 
would apply in the year immediately following the year in which the 
overage occurred, even if final catch accounting is not completed until 
after the end of the FY. Although not directly addressed by FW 46, NMFS 
has added language to Sec.  648.90(a)(5)(iii), under the authority 
provided to the Secretary by Section 305(d) of the Magnuson-Stevens Act 
to promulgate regulations necessary to carry out an FMP, to clarify 
that if final catch accounting indicating an overage were not completed 
until after the end of a groundfish FY, the overage would still be 
applied to the final specifications for the next groundfish fishing 
year after which the overage occurred.
    Comment 8: The Herring Alliance commented that NMFS should revise 
the method of calculating the GOM haddock catch cap such that the 
herring midwater trawl fishery is allocated 1 percent of the commercial 
sub-ABC and not 1 percent of the overall ABC, because this would be 
consistent with how shares are specified for the other commercial 
components of the commercial sub-ABC.
    Response: The method of specifying the herring midwater trawl 
fishery haddock sub-ACL was implemented through FW 44 to the NE 
Multispecies FMP. FW 46 only revises the percentage that is applied to 
determine the herring fishery's share of the commercial sub-ABC, but 
does not revise the method of dividing the ABC into its various 
components. Revising the method of calculation would be outside the 
scope of FW 46 and NMFS's authority to approve, disapprove, or 
partially approve this action. FW 44 incorporated the haddock catch cap 
into the ACL and AM system implemented by Amendment 16, but endeavored 
to be consistent with the method of identifying the 0.2-percent share 
allocated to the herring fishery that was implemented by FW 43, which 
was based upon the Target TAC. Thus, the 1 percent is applied to the 
ABC, but deducted from the commercial sub-ABC, because the ABC is 
analogous to the Target TACs that were the basis for the original 0.2-
percent haddock catch cap allocated to the herring fishery through FW 
43. Secondly, because management uncertainty is considered separately 
for each component of the ABC, the first step in the calculation 
procedure must be the dividing of the ABC into components, prior to 
making the deduction for management uncertainty. In other words, 
although the haddock ABC is the initial basis for the calculation of 
the haddock sub-ACL for the herring fishery, the net amount allocated 
to the herring fishery reflects a deduction for management uncertainty. 
Any modifications to this distribution of the GOM haddock ABC would 
require further Council action.
    Comment 9: The Herring Alliance commented that NMFS should require 
all Category A and B midwater trawl vessels to report all groundfish 
catch through their daily VMS catch reports, in order to facilitate the 
monitoring of groundfish bycatch thresholds in the groundfish closed 
areas.
    Response: FW 46 was developed to address the haddock catch cap for 
the herring fishery, and was not intended to address groundfish bycatch 
in the closed areas. Requiring midwater trawl vessels to report all 
groundfish catch through daily VMS catch reports would be outside the 
scope of this action and NMFS's authority to promulgate the measures of 
FW 46 through the regulations. Groundfish bycatch in closed areas is 
monitored based on

[[Page 56993]]

complete, audited observer data, which contain latitudinal and 
longitudinal data that can be used assign to catch to the closed areas. 
Such data are not available until approximately 90 days after 
completion of the observed trip. Requiring midwater trawl vessels to 
report groundfish catch in daily VMS catch reports would not assist in 
obtaining more timely observer data, and would be an unnecessary 
reporting burden. Furthermore, Amendment 5 to the Atlantic Herring FMP, 
currently under development by the Council, is focusing on other issues 
related to the monitoring of the herring fishery, including catch of 
groundfish by the herring fishery in closed areas.
    Comment 10: The Herring Alliance took issue with the descriptions 
of the need and objectives for FW 46 in the EA, alleging they did not 
reflect the original purpose of the action.
    Response: The National Environmental Policy Act requires that an EA 
briefly specify the underlying purpose and need to which the agency is 
responding in proposing alternatives, including the proposed action (40 
CFR 1502.13). The need is the underlying purpose of the action, while 
the stated objectives of the action are its intended goals. Thus, 
Section 3.2 of the EA separately describes the underlying need of FW 
46--the need to take action to modify the provisions adopted in FW 43 
to reflect current conditions in the fishery and to prevent the catch 
cap from unnecessarily constraining the herring fishery on GB, in 
addition to several other reasons--and the stated objectives of the 
action, which are those adopted by the Council at its January 2011 
meeting. Furthermore, the Council approved FW 46 and the EA as 
consistent with their intent and goals at its April 2011 meeting.
    Comment 11: The Herring Alliance made several suggestions to 
improve analyses in the EA, commenting that the EA relied only on 
dealer reports to analyze the occurrence of haddock being sold as bait. 
The Herring Alliance alleges the dealer reports are not accurate 
because dealers are not compliant with the requirement to report by 
species. They also commented that the EA did not analyze the presence 
of other evidence (other than catch of bottom-dwelling species), such 
as the presence of mud or rocks in the gear, when analyzing the degree 
of bottom contact by midwater trawl gear, and did not adequately 
address the possibility of localized haddock depletion due to 
concentrated midwater trawl fishing. They further commented that the 
analysis used to determine the ``practicability'' of the proposed 
action with respect to National Standard 9 should have been described 
in more detail and should have incorporated the cost of bycatch 
reduction and mitigation strategies.
    Response: Although additional or different information may have 
been used in the analysis of dealer reports for haddock bait sales or 
observer reports for the degree of midwater trawl contact with the sea 
floor, the analysis contained in FW 46 was based on the best available 
information and sufficient to assess the impacts of the proposed action 
relative to the no action alternative and alternative to the proposed 
action. In the absence of data other than dealer reports, there is no 
other firm basis to assume or estimate the amount of haddock that might 
be sold as bait when mixed with herring. The dealer data is compiled 
according to a transparent process that is relevant, timely, and 
inclusive of the herring fishery. NMFS utilizes validation and 
verification techniques as part of its standard procedures. In 
addition, haddock reported as bait would not be expected to be a common 
occurrence in the dealer reports, because the selling of culled haddock 
by dealers for any purpose is prohibited by the regulations. 
Regardless, the presence or absence of haddock in the bait supply would 
not affect the precision of haddock catch estimates under the approved 
measures, because dealer reports will no longer be used to monitor the 
haddock catch cap (only observer reports will be used in the 
calculation of total haddock catch). Furthermore, Amendment 5 to the 
Herring FMP, which is under the development by the Council to address 
monitoring and reporting requirements in the herring fishery, is 
considering weighmaster systems, among other alternatives, to improve 
catch reporting by vessels and dealers.
    The EA addressed the issue of localized haddock and other 
groundfish depletion by examining the presence and absence of 
groundfish fishing effort in an area before and after midwater trawl 
fishing effort in Section 8.4.2. The EA concluded that a strong 
relationship could not be determined, but the analysis did not support 
the idea that groundfish effort is displaced by midwater trawl 
activity, suggesting that gro