Fisheries of the Northeastern United States; Atlantic Herring Fishery; Framework Adjustment 4, 19044-19054 [2016-07583]
Download as PDF
19044
§ 75.2
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
[Amended]
2. In § 75.2:
a. In the definition of ‘‘Federal Audit
Clearinghouse (FAC)’’, remove ‘‘(FAC)’’
in the second and third sentences and
add ‘‘FAC’’ in its place; and
■ b. In the introductory text of the
definition of ‘‘Federal financial
assistance’’, add the word ‘‘means’’
before the colon.
■
■
§ 75.205
[Amended]
3. Amend § 75.205 paragraph (a)(2) by
removing ‘‘publicly available
information in’’ and adding, in its place
‘‘non-public segment of’’.
■
Appendix II to Part 75—[Amended]
4. Amend Appendix II to Part 75
Section C by adding ’’ ‘‘Equal
Employment Opportunity (30 FR 12319,
12935, 3 CFR 1964–1965 Comp., p.
339)’’ after ‘‘Executive Order 11246,’’;
and adding ‘‘amending Executive Order
11246 Relating to Equal Employment
Opportunity,’’ after ‘‘Executive Order
11375’’:
■
Dated: March 24, 2016.
Ellen Murray,
Assistant Secretary for Financial Resources,
Department of Health and Human Services.
[FR Doc. 2016–07401 Filed 4–1–16; 8:45 am]
BILLING CODE 4150–24–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No.: 150304214–6231–02]
RIN 0648–BE94
Fisheries of the Northeastern United
States; Atlantic Herring Fishery;
Framework Adjustment 4
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS implements approved
measures in Framework 4 to the
Atlantic Herring Fishery Management
Plan. The New England Fishery
Management Council developed
Framework 4 to further enhance catch
monitoring and address discarding in
the herring fishery. The approved
measures include: A requirement that
vessels report slippage (i.e., catch
discarded prior to sampling by an
observer) via the vessel monitoring
system; slippage consequences
mstockstill on DSK4VPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
measures (i.e., requirement to move 15
nautical miles (27.78 km) or return to
port following a slippage event); and
clarifications to existing slippage
measures and definitions. NMFS
disapproved two measures in
Framework 4. These measures would
have required: Fish holds to be certified
and observers to collect volumetric
catch estimates of total catch; and fish
holds to be empty of fish before leaving
port, unless a waiver is issued by an
authorized law enforcement officer.
NMFS disapproved these measures
because it determined that they are
inconsistent with the Magnuson-Stevens
Fishery Conservation and Management
Act, the Administrative Procedure Act,
and the Paperwork Reduction Act.
Therefore, those two measures are not
implemented in this action. Lastly,
NMFS implements minor corrections to
regulations to clarify their intent and
ensure they are consistent with the
Atlantic Herring Fishery Management
Plan.
DATES: Effective May 4, 2016.
ADDRESSES: The New England Fishery
Management Council (Council)
developed an environmental assessment
(EA) for this action that describes the
proposed action and other considered
alternatives and provides a thorough
analysis of the impacts of the proposed
measures and alternatives. Copies of the
framework, the EA, and the Regulatory
Impact Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA), are
available upon request from Thomas A.
Nies, Executive Director, New England
Fishery Management Council, 50 Water
Street, Newburyport, MA 01950. The
EA/RIR/IRFA is accessible via the
Internet at
www.greateratlantic.fisheries.noaa.gov.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this final rule
may be submitted to NMFS, Greater
Atlantic Regional Fisheries Office and
by email to OIRA_Submission@
omb.eop.gov, or fax to (202) 395–7285.
FOR FURTHER INFORMATION CONTACT:
Carrie Nordeen, Fishery Policy Analyst,
phone 978–281–9272, fax 978–281–
9135.
SUPPLEMENTARY INFORMATION:
Background
The Council adopted Framework
Adjustment 4 to the Atlantic Herring
Fishery Management Plan at its April
22, 2014, meeting. The Council
submitted Framework 4 to NMFS for
review on July 18, 2014, and
resubmitted it to NMFS on February 27,
2015, and April 30, 2015. The proposed
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
rule for Framework 4 published in the
Federal Register on August 27, 2015 (80
FR 52005), with a 30-day public
comment period that ended September
28, 2015. NMFS received four comment
letters on the proposed rule.
NMFS implements approved
measures in Framework 4 to the
Atlantic Herring Fishery Management
Plan (Herring FMP) and minor
corrections to existing regulations in
this final rule. The Council developed
Framework 4 to build on catch
monitoring improvements implemented
in Amendment 5 to the Herring FMP (79
FR 8786, February 13, 2014) by further
enhancing catch monitoring and
addressing discarding in the herring
fishery. The approved measures in
Framework 4 clarify the slippage
definition, require limited access
herring vessels to report slippage events
on the daily vessel monitoring system
(VMS) catch report, and establish
slippage consequences. Slippage
consequence measures require vessels
with All Areas (Category A) or Areas 2/
3 (Category B) Limited Access Herring
Permits to move 15 nautical miles
(27.78 km) following an allowable
slippage event (i.e., slippage due to
safety, mechanical failure, or excess
catch of spiny dogfish) and to terminate
a fishing trip and return to port
following a non-allowable slippage
event (i.e., slippage for any other
reason). NMFS also makes minor
corrections to new and existing
regulations. These revisions, identified
and described below, are necessary to
clarify current regulations or the intent
of the Herring FMP, and do not change
the intent of any regulations.
NMFS disapproved two measures
recommended by the Council in
Framework 4. Those measures would
have required: Herring vessel fish holds
to be certified and observers to collect
volumetric catch estimates on herring
trips as a cross-check of vessel and
dealer data; and herring vessel fish
holds to be empty of fish before leaving
port, unless a waiver is issued by an
authorized law enforcement officer.
During the development of Framework
4, NMFS expressed its concern with the
lack of support for these two measures
in Framework 4. Specifically, NMFS
commented that these measures are not
likely to improve catch monitoring, but
they would result in compliance and
enforcement costs. Despite NMFS
urging, the Council did not include
sufficient support for these two
measures in Framework 4. Framework 4
does not provide evidence of specific
problems with catch monitoring or
discarding that need to be addressed,
nor does it demonstrate how these
E:\FR\FM\04APR1.SGM
04APR1
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
recommended measures would rectify
problems with monitoring or discarding.
NMFS described its concern with these
measures in the proposed rule, and
explained that that they appear
inconsistent with the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act) and other
applicable law. Some public comments
on the proposed rule expressed support
for the approval and implementation of
both measures, but the commenters did
not provide evidence that the utility of
these measures would outweigh costs.
Therefore, NMFS determined that these
two measures must be disapproved
because they are inconsistent with the
Magnuson-Stevens Act, the
Administrative Procedure Act (APA),
and the Paperwork Reduction Act
(PRA).
mstockstill on DSK4VPTVN1PROD with RULES
Approved Measures
NMFS approves the following
measures because it believes they will
further enhance catch monitoring and
address discarding in the herring
fishery.
Clarification of Existing Slippage
Measures
Framework 4 maintains the existing
requirements that prohibit operational
discards (i.e., small amounts of fish that
cannot be pumped on board and remain
in the codend or seine at the end of
pumping operations) aboard midwater
trawl vessels fishing in the Groundfish
Closed Areas and allow operational
discards to occur on board herring
vessels fishing outside the Groundfish
Closed Areas. Current observer
protocols include documenting
operational discards and existing
regulations require vessel operators to
assist the observer with this process.
Because it can be time and labor
intensive to bring these small amounts
of fish on board the vessel, the Council
and NMFS believe that compliance
costs associated with prohibiting
operational discards outside the
Groundfish Closed Areas would likely
outweigh any benefits to the catch
monitoring program and the herring
resource.
Framework 4 clarifies that a slippage
event due to safety, mechanical failure,
or excess catch of spiny dogfish is
categorized as an ‘‘allowable’’ slippage
event and clarifies that slippage for any
other reason is categorized as a ‘‘nonallowable’’ slippage event. The Council
recommended these categories to help
distinguish between slippage types and
the triggers for slippage consequence
measures.
Framework 4 clarifies that catch not
brought on board due to gear damage
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
would be categorized as mechanical
failure and, therefore, as an allowable
slippage event. Although a gear failure
that results in the release of catch from
a codend is often beyond the control of
the vessel operator, instances of catch
released due to gear damage are similar
to instances of catch released due to
mechanical failure. Therefore, the
Council and NMFS believe that catch
released due to gear damage should be
categorized as mechanical failure and an
allowable slippage event. As an
allowable slippage event, catch not
brought on board due to gear damage
would be subject to a slippage
consequence measure.
Framework 4 clarifies that when catch
that falls out of or off of gear and is not
brought on board, the event would not
be categorized as a slippage event. In
general, only small amounts of catch fall
out or off of gear during fishing and/or
when catch is being brought aboard the
vessel, unlike the potential for catch
loss due to mechanical failure.
Therefore, the Council and NMFS
believe that fish that fall out of the gear
should be categorized as discarded
catch, but not slippage. For these
reasons, instances of catch falling out or
off of gear during fishing and/or when
catch is being brought aboard the vessel
would not be subject to existing
slippage requirements or any slippage
consequence measures.
Slippage Consequences
Building on the slippage restrictions
established in Amendment 5,
Framework 4 requires vessels to move
following an allowable slippage event
before resuming fishing. Specifically,
vessels with Category A or B herring
permits slipping catch due to safety,
mechanical failure, or excess catch of
spiny dogfish, are required to move at
least 15 nautical miles (27.78 km) away
from the slippage event location. The
vessel is allowed to move 15 nautical
miles (27.78 km) away in any direction,
but it is prohibited from resuming
fishing until it is at least 15 nautical
miles (27.78 km) from the location of
the allowable slippage event.
Additionally, the vessel is required to
remain at least 15 nautical miles (27.78
km) from the slippage event location for
the duration of that fishing trip. In
addition to moving and remaining at
least 15 nautical miles (27.78 km) away
from an allowable slippage event,
vessels with Category A or B herring
permits fishing with midwater trawl
gear in the Groundfish Closed Areas
must leave the Groundfish Closed Areas
and remain outside of the Groundfish
Closed Areas for the remainder of the
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
19045
fishing trip following an allowable
slippage event.
Framework 4 also requires trip
termination for non-allowable slippage
events. Specifically, vessels with
Category A or B herring permits,
including those fishing with midwater
trawl gear in the Groundfish Closed
Areas, that slip catch for any reason
other than safety, mechanical failure, or
excess catch of spiny dogfish, are
required to immediately stop fishing
and return to port. After having returned
to port and terminated the fishing trip,
vessels are allowed to initiate another
fishing trip, consistent with the existing
pre-trip notification requirements (e.g.,
contact the Northeast Fisheries Observer
Program (NEFOP) to request an
observer, vessel monitoring system
(VMS) trip/gear declaration) for limited
access vessels participating in the
herring fishery.
NMFS is implementing slippage
consequences for both allowable and
non-allowable slippage events to further
discourage slippage in the herring
fishery and enhance the catch
monitoring program established through
Amendment 5. The herring fishery is a
relatively high-volume fishery capable
of catching large quantities of fish in a
single tow. Therefore, even a few
slippage events have the potential to
substantially affect species composition
data, especially extrapolations of
incidental catch. Additionally, slippage
is a significant concern for many
stakeholders because they believe it
undermines the ability to collect
unbiased estimates of herring catch, as
well as other species, in the herring
fishery. Stakeholders expressed support
for the slippage consequence measures
in Framework 4 to further ensure
accountability for all catch in the
herring fishery.
NMFS expects the requirement for
vessels to move following slippage
events will provide sufficient incentive
for herring vessels to minimize slippage,
while still promoting safety at sea and
providing opportunities to utilize the
herring optimum yield (OY). The
requirement for vessels to move 15
nautical miles (27.78 km) following an
allowable slippage event applies
uniformly to all vessels that slip catch,
unlike other considered alternatives
(e.g., leaving a management area,
leaving a statistical area) where the
magnitude of the move would have
depended upon the location of the
allowable slippage event. NMFS expects
that the requirement for vessels to move
15 nautical miles (27.78 km) following
an allowable slippage event provides
sufficient incentive (i.e., cost in time
and fuel) for herring vessels to minimize
E:\FR\FM\04APR1.SGM
04APR1
19046
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
slippage, and the requirement that
vessels terminate their fishing trip and
return to port following a non-allowable
slippage event will further minimize
slippage. NMFS believes that
minimizing slippage events and better
documentation of slipped catch may
improve estimates of bycatch in the
fishery. To the extent that the amount
and species composition of slipped
catch can be sampled and/or estimated,
catch monitoring will be enhanced. To
the extent that slippage events can
continue to be reduced, bycatch can be
further minimized.
The Mid-Atlantic Fishery
Management Council recommended
these same slippage consequences for
allowable and non-allowable slippage
events in the Atlantic mackerel fishery
as part of Framework 9 to the Atlantic
Mackerel, Squid, and Butterfish FMP.
Many vessels participate in both the
herring and mackerel fisheries, and
NMFS expects that implementing
consistent slippage consequences across
these fisheries will improve compliance
and enforcement of slippage
requirements.
mstockstill on DSK4VPTVN1PROD with RULES
Reporting Slippage Events
Framework 4 requires vessels with
limited access herring permits to report
slippage events, including the reason for
the slippage event, via the herring daily
VMS catch report. NMFS expects that
this VMS report, in combination with
observer data, will help enhance the
enforceability of existing slippage
requirements, such as completing a
released catch affidavit, as well as the
slippage consequences.
Clarifications and Corrections
This final rule also contains minor
clarifications and corrections to existing
regulations. NMFS implements these
adjustments under the authority of
section 305(d) to the Magnuson-Stevens
Act, which provides that the Secretary
of Commerce may promulgate
regulations necessary to ensure that
framework adjustments to a FMPs are
carried out in accordance with the FMP
and the Magnuson-Stevens Act. These
adjustments, identified and described
below, are necessary to clarify current
regulations and do not change the intent
of any regulations.
NMFS is implementing a transiting
provision for herring management areas
with seasonal sub-ACLs. This provision
allows vessels to transit herring
management areas during periods when
zero percent of the sub-ACL for those
areas is available for harvest, with
herring harvested from other herring
management areas aboard, provided
gear is stowed and not available for use.
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
NMFS overlooked this provision during
rulemaking for Framework Adjustment
2 to the Herring FMP and the provision
is consistent with the intent of that
action and the Herring FMP. NMFS is
removing regulations at § 648.80(d)(7)
describing requirements for midwater
trawl vessels fishing in Groundfish
Closed Area I because they are
redundant with regulations at
§ 648.202(b) describing requirements for
midwater trawl vessels fishing in any of
the Groundfish Closed Areas. NMFS is
adding the definition of operational
discards at § 648.2 and clarifying that
operational discards are not permitted
aboard midwater trawl vessels fishing in
Groundfish Closed Areas, unless those
fish have first been made available to an
observer for sampling. NMFS is revising
references to individual years in
regulations for carryover at § 648.201 to
more correctly describe the timing of
carryover. Lastly, NMFS is correcting
coordinates for Herring Management
Area 2 at § 648.200(f)(2).
Disapproved Measures
NMFS disapproved the following
measures because it determined they are
inconsistent with the Magnuson-Stevens
Act, APA, and PRA.
Volumetric Catch Estimates
Framework 4 would have required
vessels with limited access herring
permits to have their fish holds certified
and NEFOP observers to collect
volumetric estimates of total catch by
measuring the volume of the fish in
hold prior to offloading. Observers
would have converted the volumetric
estimate to a weight and submitted the
estimated weight to the Greater Atlantic
Region Fisheries Office (GARFO) for a
cross-check of vessel trip reports (VTRs)
and dealer reports. The requirement for
observers to estimate the amount of
catch in the fish hold was intended to
enhance catch monitoring in the herring
fishery by providing an independent
estimate of total catch.
This measure was developed to
address stakeholder concerns with
NMFS’s reliance on industry-reported
catch data to monitor the herring
fishery. Specifically, some stakeholders,
including environmental organizations,
the groundfish industry, and
recreational fishing groups, believe that
herring catch is not accurately reported
by the industry and that large
discrepancies exist between vessel and
dealer reports. The herring industry, in
general, does not believe that herring
catch is being misreported but, in an
effort to address stakeholder concerns,
supports the requirement for observers
to collect an estimate of total catch.
PO 00000
Frm 00026
Fmt 4700
Sfmt 4700
Framework 4 does not provide
evidence of misreporting by the herring
industry, but it does highlight past
differences, that have since been
minimized, between the amount of
herring reported by vessels and dealers.
In past years, discrepancies between
VTRs and dealer data have been as large
as 54 percent. But recently, GARFO staff
has improved the process for crosschecking and resolving differences
between VTRs and dealer data. Now
discrepancies between VTRs and dealer
data are minimal, with differences
averaging 1 percent. Because
discrepancies between VTRs and dealer
data are now minimal, NMFS does not
believe that the proposed measure
requiring volumetric estimates of total
catch is necessary to help resolve
discrepancies between VTR and dealer
data.
Vessels and dealers report catch by
species. VTRs, in combination with
observer data, are used in herring stock
assessments, while a combination of
dealer data, VTR, and VMS, and
observer data are used to track catch
against herring annual catch limits and
catch caps in the herring fishery. The
measure requiring volumetric catch
estimates would have provided an
estimate of total catch, but would not
have differentiated catch by species.
Because the volumetric estimate would
not have provided catch by species, it
could not have been used to replace
VTRs or dealer data nor could it have
been used for catch monitoring or stock
assessments.
Additionally, Framework 4 cautions
whether the proposed measure would
be more accurate than methods
currently used by vessel operators or
dealers to estimate catch. The
volumetric conversion proposed in
Framework 4 is based on herring
harvested in other parts of the world.
Using a volumetric conversion assumes
consistency in the size, weight, and
density of the catch, but there can be
substantial variability in the catch
composition of the herring fishery,
depending on the area and season.
Additionally, the proposed 5 percent
deduction from total weight to account
for water in the tanks is based on
industry practices, but the Council did
not rigorously evaluate the amount of
the deduction. For these reasons,
Framework 4 explains that converting a
volume of total fish to pounds based on
the proposed conversion could produce
less accurate catch estimates than
current vessel or dealer estimates.
The measure requiring a volumetric
catch estimate is unlikely to improve
catch monitoring in the herring fishery
because that estimate cannot be used to
E:\FR\FM\04APR1.SGM
04APR1
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
mstockstill on DSK4VPTVN1PROD with RULES
replace VTR or dealer report to monitor
catch and it is not necessary to resolve
minimal discrepancies between VTR
and dealer data. In contrast, the
compliance costs associated with the
measure may be high. If a vessel’s fish
holds are not already certified, the
vessel owner would need to pay to have
the fish holds certified. NMFS would
need to significantly develop the
measure prior to implementation,
including generating a sampling
protocol, approving volume to weight
conversions and deductions to account
for water in the fish hold, training
observers, and evaluating how to use the
data. Additionally, requiring observers
to sample vessels in port would require
modifications to the description of
observer duties and contracts with
observer service providers.
For these reasons, NMFS concluded
that the measure requiring fish holds to
be certified and observers to collect
volumetric catch estimates is
inconsistent with the requirements of
the Magnuson-Stevens Act, APA, and
PRA. The measure is inconsistent with
the APA because there is insufficient
support in Framework 4 documenting
the need for this measure and how this
measure would address the purported
need. The measure is inconsistent with
the requirements of Magnuson-Stevens
Act National Standard 7 and the PRA
because the benefit of the volumetric
catch estimate is dubious and does not
outweigh the additional burden on
vessel owners of certifying their fish
holds and making available a measuring
stick for observers. The measure is
inconsistent with Magnuson-Stevens
Act National Standard 2 because the
quality of the volumetric catch estimate
is not sufficient for monitoring the
fishery, facilitating inseason
management, or judging the
performance of the management regime.
Finally, the measure is inconsistent
with Magnuson-Stevens Act National
Standard 5 because it does not allow the
fishery to operate at the lowest possible
administrative costs relative to any
additional monitoring benefit provided
by the measure.
Empty Fish Holds
Framework 4 would have required
fish holds of vessels with Category A or
B Limited Access Herring Permits to be
empty of fish before leaving the dock on
a herring trip. A waiver may have been
issued by an authorized law
enforcement officer when fish have been
reported as caught but cannot be sold
due to the condition of fish.
The Council recommended this
measure to enhance catch monitoring
and discourage wasteful fishing
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
practices in the herring fishery. Some
stakeholders are concerned that vessels
are harvesting more fish than they can
sell and then discarding the unsold fish
on subsequent fishing trips. These
stakeholders are also concerned that fish
not purchased by a dealer, and
discarded on subsequent trips, may not
be reported on the VTR. The Council
intended this measure to discourage the
discarding of unreported fish, provide a
mechanism to document when
harvested fish become unmarketable,
and prevent vessel operators from
mixing fish from multiple trips in the
hold, potentially biasing catch data.
While prohibiting the disposal of
unsold fish at sea may discourage
wasteful fishing practices, there is
insufficient support in the record to
conclude that herring vessels are
harvesting excess fish and discarding
unsold fish at sea. The costs associated
with a herring trip, including fuel, crew
wages, and insurance, are substantial, so
it is unlikely that vessel operators are
making herring trips to harvest fish that
will ultimately be discarded.
Additionally, if discarding of unsold
fish at sea is occurring, Framework 4
explains that it is unclear whether
unsold catch disposed of at sea on a
subsequent trip is reported.
Initially, this measure requiring
empty fish holds simply required that
fish holds be empty of fish at the
beginning of a herring trip. But
recognizing that there may be
unforeseen events making it difficult to
sell fish (e.g., refrigeration failure, poor
condition, lack of market), the Council
recommended the waiver provision to
mitigate the potential costs associated
with disposing of unmarketable catch
on land. The Council intended the
waiver to provide a mechanism to verify
that fish had been reported and
document the nature and extent to
which vessels are departing on trips
with fish in their fish holds.
Additionally, some vessels in the
herring fishery land their catch in
multiple ports, and the Council
intended that the waiver provision
would allow that practice to continue.
Part of the justification for the waiver
provision is to provide a way to verify
that fish have been reported and to
document the extent to which vessels
are departing on trips with fish in their
fish holds. However, Framework 4’s
proposed waiver provides no way of
verifying the amount of fish reported
relative to the amount of fish left in the
hold. Therefore, NMFS does not believe
that this measure contains a viable
mechanism to verify whether harvested
fish that are left in the hold were
reported by the vessel.
PO 00000
Frm 00027
Fmt 4700
Sfmt 4700
19047
Because the measure lacks a
mechanism to verify or correct the
amount of fish reported on the VTR, the
measure is unlikely to improve catch
monitoring in the herring fishery. In
contrast, the compliance and
enforcement costs associated with the
measure may be high. For example,
vessel operators needing to dispose of
fish at sea may lose time and money
waiting for an authorized law
enforcement officer to travel to their
vessel, inspect the fish in the fish hold,
and issue a waiver. Additionally, it
would likely be time consuming for
authorized officers to issue waivers and
would divert resources from other law
enforcement duties.
This measure is also intended to
prevent vessel operators from mixing
catch from multiple trips in the hold
and biasing catch data. NEFOP
observers sample the catch while it is on
the deck, before it is placed in the fish
hold, so there would be no chance that
observers would be sampling fish from
multiple trips that were mixed in the
hold. The herring fishery is also
sampled portside by the Massachusetts
Department of Marine Fisheries (MA
DMF) and Maine’s Department of
Marine Resources. Mixing of catch from
multiple fishing trips, although
unlikely, may have the potential to bias
landings data used to inform herring
stock assessments, state management
spawning closures, and the river herring
avoidance program operated by the
University of Massachusetts’ School of
Marine Fisheries and MA DMF.
The Atlantic States Marine Fisheries
Commission recently adopted a
requirement that vessel fish holds be
empty of fish before vessels depart on a
herring trip, contingent on adoption in
Federal waters, in Amendment 3 to the
Interstate FMP for Atlantic Herring.
Establishing a similar provision in this
action would have promoted
coordination between Federal and state
management, but, for the reasons
described above, it is unlikely to
improve catch monitoring in the herring
fishery.
For these reasons, NMFS concluded
that the measure requiring fish holds to
be empty of fish before leaving port,
unless a waiver is issued by an
authorized officer, is inconsistent with
the requirements of the MagnusonStevens Act, APA, and PRA. The
measure is inconsistent with the APA
because there is insufficient support in
Framework 4 documenting the need for
this measure and how this measure
would address the purported need. The
measure is inconsistent with MagnusonStevens Act National Standard 7 and the
PRA because the benefit of requiring
E:\FR\FM\04APR1.SGM
04APR1
19048
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
mstockstill on DSK4VPTVN1PROD with RULES
empty fish holds when departing on a
herring trip does not outweigh the
additional reporting burden on vessel
operators to request and obtain a waiver
from an authorized officer. The measure
is inconsistent with Magnuson-Stevens
Act National Standard 7 because it does
not provide fishermen with the greatest
possible freedom of action in
conducting business and imposes an
unnecessary enforcement burden.
Finally, the measure is inconsistent
with Magnuson-Stevens Act National
Standard 5 because it does not allow the
fishery to operate at the lowest possible
administrative and enforcement costs
relative to any additional monitoring
benefit provided by the measure.
Comments and Responses
NMFS received four comment letters
on the proposed rule. Two letters were
from environmental advocacy groups
(Herring Alliance and CHOIR (Coalition
for the Atlantic Herring Fishery’s
Orderly, Informed, and Responsible
Long Term Development)) and two
letters were from herring industry
groups (Seafreeze Ltd. and the
Sustainable Fisheries Coalition).
Comment 1: The Herring Alliance
supports proposed measures in
Framework 4 that would clarify the
slippage definition and require slippage
to be reported via the daily VMS catch
report.
Response: NMFS is implementing
measures to clarify the slippage
definition and require slippage to be
reporting via the daily VMS catch
report.
Comment 2: CHOIR expressed
concern with the potential for increased
discarding of unsampled catch
associated with the clarifications to
existing slippage measures that allow
for operational discards and catch that
falls out of or off gear. Despite its
concern, CHOIR supports the proposed
clarifications to existing slippage
measures, because it believes that the
proposed slippage consequence
measures will drastically improve
management of herring fishery.
Response: NMFS agrees with CHOIR
that slippage consequence measures
will likely improve management of the
herring fishery, but disagrees with
CHOIR that continuing to allow for
operational discards and fish that fall
out of or off gear would increase the
discarding of unsampled catch.
Framework 4 maintains the existing
requirements that prohibit operational
discards aboard midwater trawl vessels
fishing in the Groundfish Closed Areas,
but allows operational discards to occur
on board herring vessels fishing outside
the Groundfish Closed Areas.
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
Framework 4 clarifies that operational
discards are small amounts of fish that
cannot be pumped on board and remain
in the codend or seine at the end of
pumping operations. Current observer
protocols include estimating the amount
and composition of operational
discards. Because the fish cannot be
pumped, it can be time and labor
intensive to bring these small amounts
of fish on board the vessel. There is no
evidence in Framework 4 to suggest that
continuing to allow operational discards
would increase the discarding of
unsampled catch. Rather, Framework 4
concludes that the compliance costs
associated with requiring herring
vessels fishing outside the Groundfish
Closed Areas to bring operational
discards on board would likely
outweigh any benefits to the catch
monitoring program and the herring
resource.
Framework 4 clarifies that catch that
falls out of or off of gear and is not
brought on board would be categorized
as discarded catch, but not slippage. In
general, only small amounts of catch fall
out or off of gear during fishing and/or
when catch is being brought aboard the
vessel, unlike the potential for catch
loss due to mechanical failure. It would
be very difficult for vessels to retrieve
the small amounts of fish that fall out
of or off gear and bring those fish on
board the vessel. Again, there is no
evidence in Framework 4 suggesting
that this measure would increase the
discarding of unsampled catch and the
compliance costs associated with
requiring these fish be brought on board
the vessel for sampling would likely
outweigh any benefit to herring catch
monitoring.
Comment 3: The Sustainable Fisheries
Coalition supports minor clarifications
and corrections to existing measures
because it believes they are not a
substantive change to current
regulations and are consistent with the
Herring FMP. The Sustainable Fisheries
Coalition also supports categorizing
catch not brought on board due to gear
damage as an allowable slippage event
and catch that falls out of or off gear as
a discard event. The Sustainable
Fisheries Coalition supports continuing
to allow operational discards in the
herring fishery, except on board herring
vessels fishing in the Groundfish Closed
Areas, noting that the costs of
prohibiting operational discards would
likely outweigh any benefits. Lastly, the
Sustainable Fisheries Coalition has no
objection to the proposed requirement
to report slippage via the VMS daily
catch report.
Response: NMFS agrees with the
Sustainable Fisheries Coalition and the
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
measures implemented in this final rule
are consistent with the Sustainable
Fisheries Coalition recommendations.
Comment 4: The Sustainable Fisheries
Coalition supports including the
definition of operational discards in the
regulations, but suggests that the
operational discards definition, as well
as the slippage definition, be revised to
acknowledge that releasing small
amounts of fish from the codend or
seine at the end of pumping operations
is also operationally discarding catch.
Response: This final rule adds the
definition of operational discards to
regulations at § 648.2. Operational
discards are defined as small amounts of
fish that cannot be pumped on board the
vessel and remain in the codend or
seine at the end of pumping operations.
Leaving small amounts of fish in the
codend or seine at the end of pumping
operations is operationally discarding
catch. This final rule also categorizes
instances of catch falling out or off of
gear during fishing and/or when catch is
being brought aboard the vessel as
discarding, rather than slippage.
Framework 4 explains that, in general,
only small amounts of catch fall out or
off of gear during fishing and/or when
catch is being brought aboard the vessel.
NMFS believes that categorizing catch
that falls out of gear as discarding
addresses the Sustainable Fisheries
Coalition’s recommendation to
acknowledge releasing small amounts of
fish from the codend or seine at the end
of pumping operations is a discard
event and not slippage.
Comment 5: CHOIR and the Herring
Alliance support the proposed slippage
consequence measures. CHOIR
commented that proposed slippage
consequence measures are vital to
provide vessels with incentive to avoid
slippage and the Herring Alliance
commented that the proposed slippage
consequence measures are reasonable,
safe, and necessary to further deter
slippage events on observed trips.
Response: NMFS is implementing the
slippage consequence measures to help
improve catch monitoring and further
deter slippage in the herring fishery.
Comment 6: Seafreeze Ltd. and the
Sustainable Fisheries Coalition do not
support the proposed measure requiring
vessels to move and remain at least 15
nautical miles (27.78 km) away from an
allowable slippage event for the
duration of that fishing trip.
Seafreeze Ltd. and the Sustainable
Fisheries Coalition commented that
because no scientific analysis supports
the requirement to move 15 nautical
miles (27.78 km), the measure is
inconsistent with the requirement that
measures be based on the best available
E:\FR\FM\04APR1.SGM
04APR1
mstockstill on DSK4VPTVN1PROD with RULES
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
science. Seafreeze Ltd. noted that
fishing effort is often already spatially
limited by regulations, oceanographic
features, or fish distribution. Both
Seafreeze Ltd. and the Sustainable
Fisheries Coalition commented that
requiring vessels to move 15 nautical
miles (27.78 km) following an allowable
slippage event may result in lost fishing
opportunities and will not rectify the
problem that caused the slippage event.
Additionally, the Sustainable Fisheries
Coalition commented that the measure
raises concerns with the ability of the
herring fleet to achieve the herring OY,
the need to minimize adverse impacts
on fishing communities, and the
measure having a limited conservation
benefit as bycatch has already been
minimized to the extent practicable.
Seafreeze Ltd. noted that as spiny
dogfish populations continue to
increase, herring fishery interactions
with dogfish will also likely increase.
Seafreze Ltd. also noted that vessels
typically move from an area following
interactions with dogfish, but they do
not move as far as 15 nautical miles
(27.78 km).
Seafreeze Ltd. and the Sustainable
Fisheries Coalition commented that
needing to slip catch for safety or
mechanical failure is often beyond the
control of the vessel operator. Seafreeze
Ltd. also commented that requiring
vessels to move 15 nautical miles (27.78
km) following allowable slippage events
may pressure vessel operators to
possibly engage in unsafe fishing
practices to avoid a penalty.
Additionally, Seafreeze Ltd. commented
that penalizing a vessel for safety
concerns violates National Standard 10.
Lastly, Seafreeze Ltd. commented that
its bottom trawl vessels have higher
observer coverage rates than other gear
types participating in the herring fishery
and would, therefore, be
disproportionately impacted by the
proposed slippage consequence measure
following an allowable slippage event.
Response: NMFS disagrees with
Seafreeze Ltd. and the Sustainable
Fisheries Coalition that the slippage
consequence measure requiring vessels
to move and remain at least 15 nautical
miles (27.78 km) away from an
allowable slippage event for the
duration of that fishing trip should not
be approved.
NMFS anticipates this slippage
consequence measure will address
concerns about bycatch and slippage by
discouraging the occurrence of slippage
throughout the fishery, while
continuing to promote safe and efficient
fishing practices on vessels participating
in the herring fishery. Safety is an
important consideration for all fishery
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
management plans and Framework 4
acknowledges that slippage events due
to safety concerns or mechanical failure
may be beyond the control of the vessel
operator. NMFS expects the requirement
to move 15 nautical miles (27.78 km)
following an allowable slippage event
will accommodate any safety concerns
because it allows vessels to continue
fishing, when it is safe to do so, rather
than requiring trip termination.
NMFS also expects that this slippage
consequence measure will enhance the
catch monitoring program established
through Amendment 5 by further
discouraging slippage in the herring
fishery. The requirement for a vessel to
move following an allowable slippage
event is not based on the biology or
distribution of a fish species, like the
Groundfish Closed Areas, nor is it
intended to rectify mechanical failures,
unsafe weather conditions, or
encounters with spiny dogfish. Instead,
the measure was based on an analysis
evaluating the distances vessels move
during fishing operations and is
intended to provide sufficient incentive
(i.e., cost in time and fuel) for herring
vessels to minimize slippage, while
providing opportunities to utilize the
herring OY. Options for moving 10
nautical miles (16.09 km) and 20
nautical miles (32.19 km) were also
considered in Framework 4, but the 15nautical mile (27.78-km) option was
recommended by the Council because
15 nautical miles (27.78 km) is the
median value between 10 nautical miles
(16.09 km) and 20 nautical miles (32.19
km). Additionally, this measure applies
uniformly to all vessels that slip catch,
unlike other considered alternatives
(e.g., leaving a management area,
leaving a statistical area) in Framework
4 where the magnitude of the move
would have depended upon the location
of the allowable slippage event.
Framework 4 describes the impact of
this slippage consequence measure as a
low negative for the herring industry.
This impact is not related to safety
concerns, but to the potential for lost
time and money associated with moving
following an allowable slippage event.
Analyses in Framework 4 show that
midwater trawl and purse seine vessels
participating in the herring fishery have
the potential to be most affected by the
requirement to move following an
allowable slippage event. Small mesh
bottom trawl vessels are expected to be
least affected by the move requirement
because documented slippage events by
those vessels are low.
NMFS implemented this same
slippage consequence measure in the
mackerel fishery as part of the measures
recommended by the Mid-Atlantic
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
19049
Fishery Management Council in
Framework 9 to the MSB FMP. Many
vessels participate in both the herring
and mackerel fisheries, and NMFS
expects that implementing consistent
slippage consequences across these
fisheries will improve compliance and
enforcement of slippage measures.
Comment 7: The Sustainable Fisheries
Coalition supports the proposed
measure requiring vessels to terminate a
fishing trip and return to port following
a non-allowable slippage event. With
the exception of the allowable slippage
events, the Sustainable Fisheries
Coalition commented that vessels
should be able to bring catch aboard and
make it available to the observer for
sampling. The Sustainable Fisheries
Coalition noted that if the condition of
the fish results in catch being
unmarketable, those fish would be
discarded after they were sampled by
the observer.
Response: NMFS is implementing the
requirement to terminate a fishing trip
and return to port following a nonallowable slippage event.
Comment 8: CHOIR and the Herring
Alliance support the measure requiring
vessel fish holds to be certified and
NEFOP observers to collect volumetric
estimates of total catch. CHOIR noted
that the volumetric catch estimate is
especially important to confirm industry
catch reports, given past instances of
misreporting and when vessels and
dealers both work for the same
company. Even if observers only
sporadically collected catch estimates,
CHOIR commented that having a
mechanism to confirm catch reports
could improve catch reporting. Herring
Alliance commented that third-party
catch verification is needed to needed
ensure industry catch reports are
accurate, complete, and credible and
that catch limits are not exceeded. The
Herring Alliance explained that accurate
landings data will improve stock
assessments and aid in monitoring
fishery catch caps. Additionally, the
Herring Alliance noted that logistical
and operational challenges associated
with observers collecting volumetric
estimates of catch, such as modifying
the description of observer duties and
contracts with observer service
providers to require observers to sample
vessels in port, are solvable.
Response: NMFS agrees with the
Herring Alliance that it is possible to
make the necessary programmatic
changes to enable observers to collect
volumetric estimates in port, but
disagrees with CHOIR and the Herring
Alliance that the proposed volumetric
catch estimate is a cost-effective
measure that is necessary to confirm
E:\FR\FM\04APR1.SGM
04APR1
mstockstill on DSK4VPTVN1PROD with RULES
19050
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
industry catch reports and will improve
catch reporting and stock assessments.
Vessels and dealers report catch by
species. VTRs, in combination with
observer data, are used in herring stock
assessments, while a combination of
dealer data, VTR, and VMS, and
observer data are used to track catch
against herring annual catch limits and
catch caps in the herring fishery. The
proposed measure would provide an
estimate of total catch, but not catch by
species. Therefore, the volumetric
estimate could not be used to replace
either VTRs or dealer data and it could
not be used for catch monitoring or
stock assessments.
Framework 4 does not provide
evidence of misreporting by the herring
industry, but it does highlight past
differences, that have since been
minimized, between the amount of
herring reported by vessels and dealers.
In recent years, discrepancies between
VTRs and dealer data have been
minimal. VTRs were higher than dealer
reports in 2009 (2 percent), 2010 (1.3
percent), 2011 (1.2 percent), and 2013
(0.1 percent) and less than dealer
reports in 2012 (0.1 percent). GARFO
staff use a rigorous process to match
vessel and dealer reported data and
make corrections to the appropriate data
set. Given that discrepancies between
VTR and dealer data are minimal as
well as investigated and resolved,
NMFS does not consider the proposed
volumetric catch estimate necessary to
help identify or resolve discrepancies
between VTR and dealer data.
NMFS disapproved the requirement
for volumetric catch estimates because it
considers the measure inconsistent with
the Magnusson-Stevens Act, APA, and
PRA.
Comment 9: Seafreeze Ltd. does not
support the proposed measure requiring
fish holds to be certified and NEFOP
observers to collect volumetric estimates
of total catch. The Sustainable Fisheries
Coalition noted that its members did not
reach a consensus whether the
volumetric catch estimate should be
approved or disapproved, but it
expressed concern with the potential
inaccuracies associated with the
proposed measure. Additionally, the
Sustainable Fisheries Coalition
recommended that if the proposed
measure was implemented, that it only
apply to vessels whose fish holds had
already been certified to help minimize
vessel compliance costs. Seafreeze Ltd.
also questioned the accuracy of the
proposed volumetric estimates and
expressed concern that the proposed
measure would increase observer
workload. Seafreeze Ltd. commented
that because discrepancies between
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
vessel and dealer reports are minimal,
the proposed measure is not warranted.
Lastly, Seafreeze Ltd. noted that the
proposed measure would not be
applicable to the Seafreeze Ltd. vessels
that offload frozen product.
Response: NMFS shares Seafreeze
Ltd.’s and the Sustainable Fisheries
Coalition’s concern with the accuracy of
the proposed volumetric catch estimates
and disapproved this measure in
Framework 4. The volumetric
conversions proposed in Framework 4
are based on herring harvested in other
parts of the world. Using a volumetric
conversion assumes consistency in the
size, weight, and density of the catch,
but there can be substantial variability
in the catch composition of the herring
fishery, depending on the area and
season. Additionally, the proposed 5
percent deduction from total weight to
account for water in the tanks is based
on industry practices, but the Council
did not rigorously evaluate the amount
of the deduction. For these reasons,
Framework 4 questioned whether the
proposed measure would be more
accurate than methods currently used
by vessel operators or dealers to
estimate catch.
NMFS agrees with Seafreeze Ltd. that
requiring observers to collect volumetric
catch estimates would increase observer
workload and that discrepancies
between vessel and dealer reports are
minimal. As described previously,
volumetric estimates could not be used
to replace either VTRs or dealer data
and it could not be used for catch
monitoring or stock assessments.
Increasing observer workload with
duties that are unlikely to improve
herring catch monitoring is not an
effective use of NMFS resources. As
described previously, NMFS does not
consider the proposed volumetric catch
estimate necessary to help identify or
resolve the minimal discrepancies
between VTR and dealer data.
Lastly, the measure, as proposed,
would have required all vessels with
limited access herring permits to have
their fish holds certified and observers
to collect volumetric catch estimates.
Limiting the measure to only apply to
vessels whose fish holds had already
been certified would have meant
substantially revising the measure.
NMFS can only approve or disapprove
a proposed measure; therefore, NMFS
cannot revise the measure to only apply
to vessels whose fish holds have already
been certified.
Comment 10: CHOIR and Herring
Alliance support the proposed measure
requiring fish holds to be empty of fish
before a vessel departs on a herring trip,
unless a waiver has been issued. CHOIR
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
expressed concern with the perceived
practice of fish being harvested without
a confirmed buyer and unsold fish being
discarded at sea, especially when
discarded fish may not have been
reported. CHOIR surmised that
requiring empty fish holds would likely
ensure that vessels do not harvest excess
fish or discard unsold fish at sea.
Response: The proposed measure
requiring empty fish holds was intended
to enhance catch monitoring and
discourage wasteful fishing practices in
the herring fishery. While prohibiting
the disposal of unsold fish at sea may
discourage wasteful fishing practices,
there is insufficient support in the
record to conclude that herring vessels
are harvesting excess fish and
discarding unsold fish at sea. The costs
associated with a herring trip, including
fuel, crew wages, and insurance, are
substantial, so it is unlikely that vessel
operators are making herring trips to
harvest fish that will ultimately be
discarded. Additionally, if discarding of
unsold fish at sea is occurring,
Framework 4 explains that it is unclear
whether unsold catch disposed of at sea
on a subsequent trip is reported.
Part of the justification for the waiver
provision is to provide a way to verify
that fish have been reported and
document the extent to which vessels
are departing on trips with fish in their
fish holds. However, Framework 4’s
proposed waiver provides no way of
verifying the amount of fish reported
relative to the amount of fish left in the
hold. Therefore, NMFS does not believe
this measure contains a viable
mechanism to verify whether harvested
fish that are left in the hold were
reported by the vessel and is unlikely to
improve catch monitoring in the herring
fishery.
NMFS disapproved the requirement
for empty fish holds because it
considers the measure inconsistent with
the Magnusson-Stevens Act, APA, and
PRA.
Comment 11: Seafreeze Ltd. does not
support the proposed measure requiring
fish holds to be empty of fish before a
vessel departs on a herring trip.
Seafreeze Ltd. noted that its processing
vessels produce a frozen, processed
product that would not be discarded at
sea. Additionally, Seafreeze Ltd. noted
that fish cannot be pumped out of the
fish hold of its harvesting vessel at sea,
only in port. For these reasons,
Seafreeze Ltd. commented that this
measure is not applicable to its vessels
and would impact the vessels
unnecessarily.
Response: NMFS disapproved this
measure in Framework 4, so the
application to frozen fish is not relevant.
E:\FR\FM\04APR1.SGM
04APR1
mstockstill on DSK4VPTVN1PROD with RULES
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
However, had NMFS approved the
measure, it would not have applied to
a frozen product or fish stored in
freezers.
Comment 12: The Sustainable
Fisheries Coalition did not have
consensus whether the empty fish hold
requirement should be approved or
disapproved, but it commented that
Framework 4 does not provide evidence
of the misreporting and wasteful fishing
practices that the empty fish hold
requirement is intended to rectify. The
Sustainable Fisheries Coalition noted
that rarely does a vessel leave port with
fish in its hold unless it is offloading at
multiple locations, storing fish for
which there is no immediate market, or
disposing of poor quality fish. Given the
absence of a clearly documented
problem, the Sustainable Fisheries
Coalition commented that the cost of
delaying a trip to obtain a waiver, in
order to depart on a herring trip with
fish in the hold, would be a hardship.
Response: As described previously,
there is insufficient evidence in
Framework 4 to support claims of
misreporting and wasteful fishing
practices. Additionally, because the
proposed measure lacks a mechanism to
verify or correct the amount of fish
reported on the VTR, the proposed
measure is unlikely to improve catch
monitoring in the herring fishery. In
contrast, the compliance and
enforcement costs associated with the
proposed measure may be high. For
example, vessel operators needing to
dispose of fish at sea may lose time and
money waiting for an authorized law
enforcement officer to travel to their
vessel, inspect the fish hold, and issue
a waiver. Additionally, it would likely
be time consuming for authorized
officers to issue waivers and would
divert resources from other law
enforcement duties.
Comment 13: The Herring Alliance
and CHOIR also commented on
initiatives to increase monitoring in the
herring fishery that are related to this
action, but are outside the scope of
measures considered and approved as
part of Framework 4. Specifically, the
commenters recommended that slippage
consequence measures should apply if
electronic monitoring is to be used to
monitor the herring fishery and that
NMFS should provide reasonable cost
estimates for electronic monitoring as
soon as possible to prevent a delay in
allowing industry-funded monitoring to
increase monitoring of the herring
fishery.
Response: NMFS is working with the
Council to develop measures related to
these issues. Although NMFS
understands the connection between
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
these measures and slippage
consequence measures established in
this action, these additional initiatives
are outside the scope of Framework 4.
Changes From the Proposed Rule
The proposed rule for Framework 4
contained all the measures in that were
adopted by the Council in April 2014.
As described previously, NMFS
disapproved the measures requiring fish
holds to be certified and observers to
collect volumetric catch estimates, and
fish holds to be empty of fish before
leaving port, unless a waiver is issued
by an authorized law enforcement
officer. Thus, the regulatory
requirements associated with those two
measures are not included in this final
rule. Specifically, the following sections
from the proposed rule have been
removed: §§ 648.4(a)(10)(iv)(P), 648.11
(m)(5), 648.14(r)(1)(ii)(D),
648.14(r)(2)(xiii), and 648.204(c) are not
being implemented in this rule.
Additionally, proposed
§ 648.11(m)(3)(ii) was revised to remove
provisions related to providing an
observer with a NMFS-approved
measuring stick when requested.
This final rule also contains minor
clarifications to the slippage definition,
slippage reporting requirements, and
slippage consequence measures to
ensure consistency with slippage
requirements for the Atlantic mackerel
fishery. Specifically, the following
sections have been revised: §§ 648.2,
648.11(m)(4)(C)(iv), and
648.14(r)(2)(vii), (xi), and (xii). Many
vessels participate in both the herring
and mackerel fisheries and NMFS
expects that implementing consistent
requirements across these fisheries will
improve compliance and enforcement of
slippage requirements. NMFS is revising
the regulations under the authority of
section 305(d) to the Magnuson-Stevens
Act, which provides that the Secretary
of Commerce may promulgate
regulations necessary to ensure that
framework adjustments to FMPs are
carried out in accordance with the FMP
and the Magnuson-Stevens Act.
Classification
The Assistant Administrator for
Fisheries, NOAA, has determined that
this rule is consistent with the national
standards and other provisions of the
Magnuson-Stevens Act and other
applicable laws.
The Office of Management and Budget
has determined that this rule is not
significant according to Executive Order
12866.
This final rule does not contain
policies with federalism or ‘‘takings’’
implications, as those terms are defined
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
19051
in E.O. 13132 and E.O. 12630,
respectively.
NMFS, pursuant to section 604 of the
Regulatory Flexibility Act (RFA), has
completed a final regulatory flexibility
analysis (FRFA) in support of
Framework 4 in this final rule. The
FRFA incorporates the IRFA, a summary
of the significant issues raised by the
public comments in response to the
IRFA, NMFS responses to those
comments, a summary of the analyses
completed in the Framework 4 EA, and
this portion of the preamble. A
summary of the IRFA was published in
the proposed rule for this action and is
not repeated here. A description of why
this action was considered, the
objectives of, and the legal basis for this
rule is contained in Framework 4 and in
the preamble to the proposed and this
final rule, and is not repeated here. All
of the documents that constitute the
FRFA are available from NMFS and a
copy of the IRFA, the RIR, and the EA
are available upon request (see
ADDRESSES) or via the Internet at
www.greateratlantic.fisheries.noaa.gov.
Summary of the Significant Issues
Raised by the Public Comments in
Response to the IRFA, a Summary of the
Agency’s Assessment of Such Issues,
and a Statement of Any Changes Made
in the Final Rule as a Result of Such
Comments
NMFS received four comment letters
on the proposed rule. Those comments,
and NMFS’ responses, are contained in
the Comments and Responses section of
this final rule and are not repeated here.
None of the comments addressed the
IRFA and NMFS did not make any
changes in the final rule based on public
comment.
Description and Estimate of Number of
Small Entities to Which the Rule Would
Apply
This action regulates the activity of
vessels with limited access herring
permits and vessels with Category A or
B limited access herring permits.
Therefore, the regulated entity is the
business that owns at least one limited
access herring permit.
In 2013, the most recent full year of
fishery permit data, 93 fishing vessels
were issued a limited access herring
permit. Vessels and/or permits may be
owned by entities affiliated by stock
ownership, common management,
identity of interest, contractual
relationships, or economic dependency.
For the purposes of this analysis,
ownership entities are defined as those
entities with common ownership
personnel as listed on permit
application documentation. Only
E:\FR\FM\04APR1.SGM
04APR1
19052
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
mstockstill on DSK4VPTVN1PROD with RULES
permits with identical ownership
personnel are categorized as an
affiliated entity. For example, if five
permits have the same seven personnel
listed as co-owners on their application
paperwork, those seven personnel form
one ownership entity, covering those
five permits. If one or several of the
seven owners also own additional
vessels, with sub-sets of the original
seven personnel or with new co-owners,
those ownership arrangements are
deemed to be separate entities for the
purpose of this analysis.
Based on this ownership criterion,
NMFS dealer data for recent years
(2010–2013), and the size standards for
finfish and shellfish firms, there are 68
regulated fishing firms with a limited
access herring permit. Of those 68 firms,
there are 61 small entities and 7 large
entities. Not all of these permitted firms
are active: Only 32 small entities and 5
large entities were actively fishing for
herring during the last 3 years.
Additionally, there are 32 regulated
fishing firms that hold Category A or B
herring permits. Of those 32 firms, there
are 27 small entities and 5 large entities.
Not all of these permitted firms are
active: Only 19 small entities and 5
large entities holding Category A or B
herring permits were actively fishing for
herring during the last 3 years.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
This final rule contains collection-ofinformation requirements subject to the
PRA that have been approved by the
OMB under Control Number 0648–0202.
This action requires all limited access
vessels to report slippage events via the
daily VMS herring catch report. This
information is intended to improve
catch monitoring in the herring fishery.
All limited access herring vessels are
currently required to submit daily VMS
catch reports, therefore, reporting
slippage via VMS is not expected to
cause any additional time or cost
burden above that which was previously
approved under OMB Control Number
0648–0202. Time burdens that were
previously approved through OMB
Control Number 0648–0202 include an
estimated burden of 5 minutes to
complete daily catch reports, with an
additional 2 minutes if the vessel is also
reporting all fish kept, and a total
burden of 429 hours. Cost burdens that
were previously approved through OMB
Control Number 0648–0202 include an
estimated burden of $0.60 per
transmission of daily catch reports and
a total burden of $2,323. In a given
fishing year, NMFS estimates that the
additional reporting requirements
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
included in Framework 4 will not cause
any additional time or cost burden from
that which was previously approved.
Send comments regarding these burden
estimates or any other aspect of this data
collection, including suggestions for
reducing the burden, to NMFS (see
ADDRESSES) and by email to OIRA_
Submission@omb.eop.gov, or fax to
(202) 395–7285.
Notwithstanding any other provisions
of the law, no person is required to, nor
shall any person be subject to a penalty
for failure to comply with, a collection
of information subject to the
requirements of the PRA, unless that
collection of information displays a
currently valid OMB Control Number.
All currently approved NOAA
collections of information may be
viewed at: https://www.cio.noaa.gov/
services_programs/prasubs.html.
Description of the Steps the Agency Has
Taken To Minimize the Significant
Economic Impact on Small Entities
Consistent With the Stated Objectives of
Applicable Statutes
NMFS disapproved two measures in
Framework 4 because it determined the
measures were inconsistent with the
Magnuson-Stevens Act, APA, and PRA.
One of the disapproved measures in
Framework 4 would have required
owners of vessels with limited access
herring permits to certify the capacity of
their fish holds and purchase and carry
a NMFS-approved measuring stick to
estimate the volume of fish in the fish
hold. Each fish hold certification done
by a certified marine surveyor is
estimated to cost $300–$400. The cost of
the NMFS-approved measuring stick is
unknown at this time, but expected to
be minimal. Ninety-three vessels were
issued a limited access herring permit in
2013. Therefore, an estimated 93 vessels
would have been required to submit a
fish hold certification at the time of
permit issuance in 2016 and obtain and
carry on board a NMFS-approved
measuring stick. By disapproving this
measure, vessel owners will not incur
the costs associated with this measure.
The other disapproved measure in
Framework 4 would have required
vessels with Category A or B herring
permits to have fish holds empty of fish
prior to departing on a herring trip. A
waiver may have been issued by an
authorized law enforcement officer
when fish had been reported as caught
but could not be sold due to condition.
Forty-three vessels were issued a
Category A or B herring permit in 2013.
Therefore, an estimated 43 vessels
would have been required to obtain a
waiver from an authorized officer prior
to leaving the dock on a herring trip
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
with fish in the hold. The burden to the
vessel operator/owner associated with
obtaining a waiver would be any loss of
time and/or money waiting for an
authorized officer to travel to their
vessel, inspect the fish hold, and issue
a waiver. By disapproving this measure,
vessel owners will not incur the burden
associated with this measure.
NMFS is implementing slippage
consequence measures for vessels with
Category A and B herring permits in this
rule, including requirements to move 15
nautical miles (27.78 km) following an
allowable slippage event and terminate
a trip following a non-allowable
slippage event. Because non-allowable
slippage events are already prohibited
in the herring fishery, NMFS expects
that instances of vessels terminating a
trip and returning to port following a
non-allowable slippage event will be
rare. Therefore, the requirement to
terminate a trip following a nonallowable slippage event will not have
a significant economic impact on
vessels with Category A and B herring
permits. NMFS also expects that the
requirement to move 15 nautical miles
(27.78 km) following an allowable
slippage event will also not have a
significant economic impact on
Category A and B vessels. The measure
is based on an analysis evaluating the
distances vessels move during fishing
operations and is intended to provide
sufficient incentive (i.e., cost in time
and fuel) for herring vessels to minimize
slippage, while still promoting safety at
sea and maximizing opportunities to
utilize the herring OY. Options for
moving 10 nautical miles (16.09 km)
and 20 nautical miles (32.19 km) were
also considered in Framework 4, but the
15-nautical mile (27.78-km) option is
being implemented because 15 nautical
miles (27.78 km) is the median value
between 10 nautical miles (16.09 km)
and 20 nautical miles (32.19 km).
Additionally, this measure applies
uniformly to all vessels that slip catch,
unlike other considered alternatives
(e.g., leaving a management area,
leaving a statistical area) in Framework
4 where the magnitude of the move, and
resulting economic impacts, would have
depended upon the location of the
allowable slippage event.
This rule also implements
clarifications and minor corrections to
existing regulations. These clarifications
and minor corrections are intended to
clarify existing slippage measures; allow
vessels to transit herring management
areas during periods when zero percent
of the sub-ACL for those areas is
available for harvest, provided gear was
stowed and not available for use; and
correcting coordinates for Herring
E:\FR\FM\04APR1.SGM
04APR1
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
Management Area 2 to more accurately
define the area. NMFS expects these
clarifications and corrections to
facilitate operation of the herring
fishery.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
Dated: March 29, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 648 is amended
as follows:
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.2, the definition for
‘‘Slippage in the Atlantic herring
fishery’’ is removed and the definitions
for ‘‘Operational discards in the Atlantic
herring fishery’’ and ‘‘Slip(s) or slipping
catch in the Atlantic herring fishery’’ are
added in alphabetical order to read as
follows:
■
§ 648.2
Definitions.
mstockstill on DSK4VPTVN1PROD with RULES
*
*
*
*
*
Operational discards in the Atlantic
herring fishery means small amounts of
fish that cannot be pumped on board
and remain in the codend or seine at the
end of pumping operations. Leaving
small amounts of fish in the codend or
seine at the end of pumping operations
is operationally discarding catch.
*
*
*
*
*
Slip(s) or slipping catch in the
Atlantic herring fishery means
discarded catch from a vessel issued an
Atlantic herring permit that is carrying
a NMFS-approved observer prior to the
catch being brought on board or prior to
the catch being made available for
sampling and inspection by a NMFSapproved observer after the catch is on
board. Slip(s) or slipping catch includes
releasing fish from a codend or seine
prior to the completion of pumping the
fish on board and the release of fish
from a codend or seine while the
codend or seine is in the water. Slippage
or slipped catch refers to fish that are
slipped. Slippage or slipped catch does
not include operational discards,
discards that occur after the catch is
brought on board and made available for
sampling and inspection by a NMFSapproved observer, or fish that
inadvertently fall out of or off fishing
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
gear as gear is being brought on board
the vessel.
*
*
*
*
*
■ 3. In § 648.11, paragraph (m)(4) is
revised to read as follows:
§ 648.11 At-sea sea sampler/observer
coverage.
*
*
*
*
*
(m) * * *
(4) Measures to address slippage. (i)
No vessel issued a limited access
herring permit may slip catch, as
defined at § 648.2, except in the
following circumstances:
(A) The vessel operator has
determined, and the preponderance of
available evidence indicates that, there
is a compelling safety reason; or
(B) A mechanical failure, including
gear damage, precludes bringing some
or all of the catch on board the vessel
for inspection; or,
(C) The vessel operator determines
that pumping becomes impossible as a
result of spiny dogfish clogging the
pump intake. The vessel operator shall
take reasonable measures, such as
strapping and splitting the net, to
remove all fish which can be pumped
from the net prior to release.
(ii) Vessels may make test tows
without pumping catch on board if the
net is re-set without releasing its
contents provided that all catch from
test tows is available to the observer to
sample when the next tow is brought on
board for sampling.
(iii) If a vessel issued any limited
access herring permit slips catch, the
vessel operator must report the slippage
event on the Atlantic herring daily VMS
catch report and indicate the reason for
slipping catch. Additionally, the vessel
operator must complete and sign a
Released Catch Affidavit detailing: The
vessel name and permit number; the
VTR serial number; where, when, and
the reason for slipping catch; the
estimated weight of each species
brought on board or slipped on that tow.
A completed affidavit must be
submitted to NMFS within 48 hr of the
end of the trip.
(iv) If a vessel issued an All Areas or
Areas 2/3 Limited Access Herring
permit slips catch for any of the reasons
described in paragraph (m)(4)(i) of this
section, the vessel operator must move
at least 15 nm (27.78 km) from the
location of the slippage event before
deploying any gear again, and must stay
at least 15 nm (27.78 km) away from the
slippage event location for the
remainder of the fishing trip.
(v) If catch is slipped by a vessel
issued an All Areas or Areas 2/3
Limited Access Herring permit for any
reason not described in paragraph
PO 00000
Frm 00033
Fmt 4700
Sfmt 4700
19053
(m)(4)(i) of this section, the vessel
operator must immediately terminate
the trip and return to port. No fishing
activity may occur during the return to
port.
*
*
*
*
*
■ 4. In § 648.14, paragraph (r)(1)(vii)(F)
is added and paragraphs (r)(2)(v)
through (xii) are revised to read as
follows:
§ 648.14
Prohibitions.
*
*
*
*
*
(r) * * *
(1) * * *
(vii) * * *
(F) Transit or be in an area that has
zero percent sub-ACL available for
harvest specified at § 648.201(d) with
herring on board, unless such herring
were caught in an area or areas with an
available sub-ACL specified at
§ 648.201(d), all fishing gear is stowed
and not available for immediate use as
defined in § 648.2, and the vessel is
issued a vessel permit that authorizes
the amount of herring on board for the
area where the herring was harvested.
*
*
*
*
*
(2) * * *
(v) Fish with midwater trawl gear in
any Northeast Multispecies Closed Area,
as defined in § 648.81(a) through (e),
without a NMFS-approved observer on
board, if the vessel has been issued an
Atlantic herring permit.
(vi) Slip or operationally discard
catch, as defined at § 648.2, unless for
one of the reasons specified at
§ 648.202(b)(2), if fishing any part of a
tow inside the Northeast Multispecies
Closed Areas, as defined at § 648.81(a)
through (e).
(vii) Fail to immediately leave the
Northeast Multispecies Closed Areas or
comply with reporting requirements
after slipping catch or operationally
discarding catch, as required by
§ 648.202(b)(4).
(viii) Slip catch, as defined at § 648.2,
unless for one the reasons specified at
§ 648.11(m)(4)(i).
(ix) For vessels with All Areas or
Areas 2/3 Limited Access Herring
Permits, fail to move 15 nm (27.78 km),
as required by § 648.11(m)(4)(iv) and
§ 648.202(b)(4)(iv).
(x) For vessels with All Areas or Areas
2/3 Limited Access Herring Permits, fail
to immediately return to port, as
required by § 648.11(m)(4)(v) and
§ 648.202(b)(4)(iv).
(xi) Fail to complete, sign, and submit
a Released Catch Affidavit as required
by § 648.11(m)(4)(iii) and
§ 648.202(b)(4)(ii).
(xii) Fail to report or fail to accurately
report a slippage event on the Atlantic
E:\FR\FM\04APR1.SGM
04APR1
19054
Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Rules and Regulations
herring daily VMS catch report, as
required by § 648.11(m)(4)(iii) and
§ 648.202(b)(4)(iii).
*
*
*
*
*
§ 648.80
[Amended]
5. In § 648.80, paragraph (d)(7) is
removed.
■ 6. In § 648.200, paragraph (f)(2) is
revised to read as follows:
■
§ 648.200
Specifications.
*
*
*
*
*
(f) * * *
(2) Management Area 2 (South
Coastal Area): All state and Federal
waters inclusive of sounds and bays,
bounded on the east by 70°00′ W. long.
and the outer limit of the U.S. Exclusive
Economic Zone; bounded on the north
and west by the southern coastline of
Cape Cod, Massachusetts, and the
coastlines of Rhode Island, Connecticut,
New York, New Jersey, Delaware,
Maryland, Virginia, and North Carolina;
and bounded on the south by a line
following the lateral seaward boundary
between North Carolina and South
Carolina from the coast to the
Submerged Lands Act line,
approximately 33°48′46.37″ N. lat.,
78°29′46.46″ W. long., and then heading
due east along 33°48′46.37″ N. lat. to the
outer limit of the US Exclusive
Economic Zone.
*
*
*
*
*
■ 7. In § 648.201, paragraphs (e) and (f)
are revised and paragraph (g) is added
to read as follows:
§ 648.201
mstockstill on DSK4VPTVN1PROD with RULES
§ 648.202
AMs and harvest controls.
*
*
*
*
*
(e) A vessel may transit an area that
has zero percent sub-ACL available for
harvest specified in paragraph (d) of this
section with herring on board, provided
such herring were caught in an area or
areas with sub-ACL available specified
in paragraph (d) of this section, that all
fishing gear is stowed and not available
for immediate use as defined in § 648.2,
and the vessel is issued a permit that
authorizes the amount of herring on
board for the area where the herring was
harvested.
(f) Up to 500 mt of the Area 1A subACL shall be allocated for the fixed gear
fisheries in Area 1A (weirs and stop
seines) that occur west of 67°16.8′ W.
long (Cutler, Maine). This set-aside shall
be available for harvest by fixed gear
within the specified area until
November 1 of each fishing year. Any
portion of this allocation that has not
been utilized by November 1 shall be
restored to the sub-ACL allocation for
Area 1A.
(g) Carryover. Subject to the
conditions described in this paragraph
VerDate Sep<11>2014
17:02 Apr 01, 2016
Jkt 238001
(g), unharvested catch in a herring
management area in a fishing year (up
to 10 percent of that area’s sub-ACL)
shall be carried over and added to the
sub-ACL for that herring management
area for the fishing year following the
year when total catch is determined. For
example, NMFS will determine total
catch from Year 1 during Year 2, and
will add carryover to the applicable subACL(s) in Year 3. All such carryover
shall be based on the herring
management area’s initial sub-ACL
allocation for the fishing year, not the
sub-ACL as increased by carryover or
decreased by an overage deduction, as
specified in paragraph (a)(3) of this
section. All herring landed from a
herring management area shall count
against that area’s sub-ACL, as increased
by carryover. For example, if 500 mt of
herring is added as carryover to a 5,000
mt sub-ACL, catch in that management
area would be tracked against a total
sub-ACL of 5,500 mt. NMFS shall add
sub-ACL carryover only if the ACL,
specified consistent with
§ 648.200(b)(3), for the fishing year in
which there is unharvested herring, is
not exceeded. The ACL, consistent with
§ 648.200(b)(3), shall not be increased
by carryover specified in this paragraph
(g).
8. In § 648.202, paragraphs (b)(2)
introductory text, (b)(2)(ii), (b)(4)
introductory text, and (b)(4)(ii) are
revised, and paragraphs (b)(4)(iii) and
(iv) are added to read as follows:
Season and area restrictions.
*
*
*
*
*
(b) * * *
(2) No vessel issued an Atlantic
herring permit and fishing with
midwater trawl gear, when fishing any
part of a midwater trawl tow in the
Closed Areas, may slip or operationally
discard catch, as defined at § 648.2,
except in the following circumstances:
*
*
*
*
*
(ii) A mechanical failure, including
gear damage, precludes bringing some
or all of the catch on board the vessel
for inspection; or,
*
*
*
*
*
(4) If catch is slipped or operational
discarded by a vessel, the vessel
operator must:
*
*
*
*
*
(ii) Complete and sign a Released
Catch Affidavit detailing: The vessel
name and permit number; the VTR
serial number; where, when, and for
what reason the catch was released; the
estimated weight of each species
brought on board or released on that
tow. A completed affidavit must be
PO 00000
Frm 00034
Fmt 4700
Sfmt 4700
submitted to NMFS within 48 hr of the
end of the trip.
(iii) Report slippage events on the
Atlantic herring daily VMS catch report
and indicate the reason for slipping
catch if the vessel was issued a limited
access herring permit.
(iv) Comply with the measures to
address slippage specified in
§ 648.11(m)(4)(iv) and (v) if the vessel
was issued an All Areas or Areas 2/3
Limited Access Herring Permit.
[FR Doc. 2016–07583 Filed 4–1–16; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No.: 150629565–6224–02]
RIN 0648–BF15
Fisheries Off West Coast States;
Comprehensive Ecosystem-Based
Amendment 1; Amendments to the
Fishery Management Plans for Coastal
Pelagic Species, Pacific Coast
Groundfish, U.S. West Coast Highly
Migratory Species, and Pacific Coast
Salmon
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues regulations to
implement Comprehensive EcosystemBased Amendment 1 (CEBA 1), which
includes amendments to the Pacific
Fishery Management Council’s
(Council’s) four fishery management
plans (FMPs): the Coastal Pelagic
Species (CPS) FMP, the Pacific Coast
Groundfish FMP, the FMP for U.S. West
Coast Highly Migratory Species (HMS),
and the Pacific Coast Salmon FMP.
CEBA 1 amended the Council’s FMPs to
bring new ecosystem component species
(collectively, ‘‘Shared EC Species’’) into
each of those FMPs, and prohibits
directed commercial fisheries for Shared
EC Species within the U.S. West Coast
Exclusive Economic Zone (EEZ). This
final rule defines and prohibits directed
commercial fishing for Shared EC
Species, and prohibits, with limited
exceptions, at-sea processing of Shared
EC Species.
DATES: Effective May 4, 2016.
ADDRESSES: Electronic copies of CEBA 1
may be obtained from the Council Web
site at https://www.pcouncil.org.
Electronic copies of the environmental
SUMMARY:
E:\FR\FM\04APR1.SGM
04APR1
Agencies
[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Rules and Regulations]
[Pages 19044-19054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07583]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No.: 150304214-6231-02]
RIN 0648-BE94
Fisheries of the Northeastern United States; Atlantic Herring
Fishery; Framework Adjustment 4
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS implements approved measures in Framework 4 to the
Atlantic Herring Fishery Management Plan. The New England Fishery
Management Council developed Framework 4 to further enhance catch
monitoring and address discarding in the herring fishery. The approved
measures include: A requirement that vessels report slippage (i.e.,
catch discarded prior to sampling by an observer) via the vessel
monitoring system; slippage consequences measures (i.e., requirement to
move 15 nautical miles (27.78 km) or return to port following a
slippage event); and clarifications to existing slippage measures and
definitions. NMFS disapproved two measures in Framework 4. These
measures would have required: Fish holds to be certified and observers
to collect volumetric catch estimates of total catch; and fish holds to
be empty of fish before leaving port, unless a waiver is issued by an
authorized law enforcement officer. NMFS disapproved these measures
because it determined that they are inconsistent with the Magnuson-
Stevens Fishery Conservation and Management Act, the Administrative
Procedure Act, and the Paperwork Reduction Act. Therefore, those two
measures are not implemented in this action. Lastly, NMFS implements
minor corrections to regulations to clarify their intent and ensure
they are consistent with the Atlantic Herring Fishery Management Plan.
DATES: Effective May 4, 2016.
ADDRESSES: The New England Fishery Management Council (Council)
developed an environmental assessment (EA) for this action that
describes the proposed action and other considered alternatives and
provides a thorough analysis of the impacts of the proposed measures
and alternatives. Copies of the framework, the EA, and the Regulatory
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are
available upon request from Thomas A. Nies, Executive Director, New
England Fishery Management Council, 50 Water Street, Newburyport, MA
01950. The EA/RIR/IRFA is accessible via the Internet at
www.greateratlantic.fisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS, Greater Atlantic Regional
Fisheries Office and by email to OIRA_Submission@omb.eop.gov, or fax to
(202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, phone 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The Council adopted Framework Adjustment 4 to the Atlantic Herring
Fishery Management Plan at its April 22, 2014, meeting. The Council
submitted Framework 4 to NMFS for review on July 18, 2014, and
resubmitted it to NMFS on February 27, 2015, and April 30, 2015. The
proposed rule for Framework 4 published in the Federal Register on
August 27, 2015 (80 FR 52005), with a 30-day public comment period that
ended September 28, 2015. NMFS received four comment letters on the
proposed rule.
NMFS implements approved measures in Framework 4 to the Atlantic
Herring Fishery Management Plan (Herring FMP) and minor corrections to
existing regulations in this final rule. The Council developed
Framework 4 to build on catch monitoring improvements implemented in
Amendment 5 to the Herring FMP (79 FR 8786, February 13, 2014) by
further enhancing catch monitoring and addressing discarding in the
herring fishery. The approved measures in Framework 4 clarify the
slippage definition, require limited access herring vessels to report
slippage events on the daily vessel monitoring system (VMS) catch
report, and establish slippage consequences. Slippage consequence
measures require vessels with All Areas (Category A) or Areas 2/3
(Category B) Limited Access Herring Permits to move 15 nautical miles
(27.78 km) following an allowable slippage event (i.e., slippage due to
safety, mechanical failure, or excess catch of spiny dogfish) and to
terminate a fishing trip and return to port following a non-allowable
slippage event (i.e., slippage for any other reason). NMFS also makes
minor corrections to new and existing regulations. These revisions,
identified and described below, are necessary to clarify current
regulations or the intent of the Herring FMP, and do not change the
intent of any regulations.
NMFS disapproved two measures recommended by the Council in
Framework 4. Those measures would have required: Herring vessel fish
holds to be certified and observers to collect volumetric catch
estimates on herring trips as a cross-check of vessel and dealer data;
and herring vessel fish holds to be empty of fish before leaving port,
unless a waiver is issued by an authorized law enforcement officer.
During the development of Framework 4, NMFS expressed its concern with
the lack of support for these two measures in Framework 4.
Specifically, NMFS commented that these measures are not likely to
improve catch monitoring, but they would result in compliance and
enforcement costs. Despite NMFS urging, the Council did not include
sufficient support for these two measures in Framework 4. Framework 4
does not provide evidence of specific problems with catch monitoring or
discarding that need to be addressed, nor does it demonstrate how these
[[Page 19045]]
recommended measures would rectify problems with monitoring or
discarding. NMFS described its concern with these measures in the
proposed rule, and explained that that they appear inconsistent with
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and other applicable law. Some public comments on the
proposed rule expressed support for the approval and implementation of
both measures, but the commenters did not provide evidence that the
utility of these measures would outweigh costs. Therefore, NMFS
determined that these two measures must be disapproved because they are
inconsistent with the Magnuson-Stevens Act, the Administrative
Procedure Act (APA), and the Paperwork Reduction Act (PRA).
Approved Measures
NMFS approves the following measures because it believes they will
further enhance catch monitoring and address discarding in the herring
fishery.
Clarification of Existing Slippage Measures
Framework 4 maintains the existing requirements that prohibit
operational discards (i.e., small amounts of fish that cannot be pumped
on board and remain in the codend or seine at the end of pumping
operations) aboard midwater trawl vessels fishing in the Groundfish
Closed Areas and allow operational discards to occur on board herring
vessels fishing outside the Groundfish Closed Areas. Current observer
protocols include documenting operational discards and existing
regulations require vessel operators to assist the observer with this
process. Because it can be time and labor intensive to bring these
small amounts of fish on board the vessel, the Council and NMFS believe
that compliance costs associated with prohibiting operational discards
outside the Groundfish Closed Areas would likely outweigh any benefits
to the catch monitoring program and the herring resource.
Framework 4 clarifies that a slippage event due to safety,
mechanical failure, or excess catch of spiny dogfish is categorized as
an ``allowable'' slippage event and clarifies that slippage for any
other reason is categorized as a ``non-allowable'' slippage event. The
Council recommended these categories to help distinguish between
slippage types and the triggers for slippage consequence measures.
Framework 4 clarifies that catch not brought on board due to gear
damage would be categorized as mechanical failure and, therefore, as an
allowable slippage event. Although a gear failure that results in the
release of catch from a codend is often beyond the control of the
vessel operator, instances of catch released due to gear damage are
similar to instances of catch released due to mechanical failure.
Therefore, the Council and NMFS believe that catch released due to gear
damage should be categorized as mechanical failure and an allowable
slippage event. As an allowable slippage event, catch not brought on
board due to gear damage would be subject to a slippage consequence
measure.
Framework 4 clarifies that when catch that falls out of or off of
gear and is not brought on board, the event would not be categorized as
a slippage event. In general, only small amounts of catch fall out or
off of gear during fishing and/or when catch is being brought aboard
the vessel, unlike the potential for catch loss due to mechanical
failure. Therefore, the Council and NMFS believe that fish that fall
out of the gear should be categorized as discarded catch, but not
slippage. For these reasons, instances of catch falling out or off of
gear during fishing and/or when catch is being brought aboard the
vessel would not be subject to existing slippage requirements or any
slippage consequence measures.
Slippage Consequences
Building on the slippage restrictions established in Amendment 5,
Framework 4 requires vessels to move following an allowable slippage
event before resuming fishing. Specifically, vessels with Category A or
B herring permits slipping catch due to safety, mechanical failure, or
excess catch of spiny dogfish, are required to move at least 15
nautical miles (27.78 km) away from the slippage event location. The
vessel is allowed to move 15 nautical miles (27.78 km) away in any
direction, but it is prohibited from resuming fishing until it is at
least 15 nautical miles (27.78 km) from the location of the allowable
slippage event. Additionally, the vessel is required to remain at least
15 nautical miles (27.78 km) from the slippage event location for the
duration of that fishing trip. In addition to moving and remaining at
least 15 nautical miles (27.78 km) away from an allowable slippage
event, vessels with Category A or B herring permits fishing with
midwater trawl gear in the Groundfish Closed Areas must leave the
Groundfish Closed Areas and remain outside of the Groundfish Closed
Areas for the remainder of the fishing trip following an allowable
slippage event.
Framework 4 also requires trip termination for non-allowable
slippage events. Specifically, vessels with Category A or B herring
permits, including those fishing with midwater trawl gear in the
Groundfish Closed Areas, that slip catch for any reason other than
safety, mechanical failure, or excess catch of spiny dogfish, are
required to immediately stop fishing and return to port. After having
returned to port and terminated the fishing trip, vessels are allowed
to initiate another fishing trip, consistent with the existing pre-trip
notification requirements (e.g., contact the Northeast Fisheries
Observer Program (NEFOP) to request an observer, vessel monitoring
system (VMS) trip/gear declaration) for limited access vessels
participating in the herring fishery.
NMFS is implementing slippage consequences for both allowable and
non-allowable slippage events to further discourage slippage in the
herring fishery and enhance the catch monitoring program established
through Amendment 5. The herring fishery is a relatively high-volume
fishery capable of catching large quantities of fish in a single tow.
Therefore, even a few slippage events have the potential to
substantially affect species composition data, especially
extrapolations of incidental catch. Additionally, slippage is a
significant concern for many stakeholders because they believe it
undermines the ability to collect unbiased estimates of herring catch,
as well as other species, in the herring fishery. Stakeholders
expressed support for the slippage consequence measures in Framework 4
to further ensure accountability for all catch in the herring fishery.
NMFS expects the requirement for vessels to move following slippage
events will provide sufficient incentive for herring vessels to
minimize slippage, while still promoting safety at sea and providing
opportunities to utilize the herring optimum yield (OY). The
requirement for vessels to move 15 nautical miles (27.78 km) following
an allowable slippage event applies uniformly to all vessels that slip
catch, unlike other considered alternatives (e.g., leaving a management
area, leaving a statistical area) where the magnitude of the move would
have depended upon the location of the allowable slippage event. NMFS
expects that the requirement for vessels to move 15 nautical miles
(27.78 km) following an allowable slippage event provides sufficient
incentive (i.e., cost in time and fuel) for herring vessels to minimize
[[Page 19046]]
slippage, and the requirement that vessels terminate their fishing trip
and return to port following a non-allowable slippage event will
further minimize slippage. NMFS believes that minimizing slippage
events and better documentation of slipped catch may improve estimates
of bycatch in the fishery. To the extent that the amount and species
composition of slipped catch can be sampled and/or estimated, catch
monitoring will be enhanced. To the extent that slippage events can
continue to be reduced, bycatch can be further minimized.
The Mid-Atlantic Fishery Management Council recommended these same
slippage consequences for allowable and non-allowable slippage events
in the Atlantic mackerel fishery as part of Framework 9 to the Atlantic
Mackerel, Squid, and Butterfish FMP. Many vessels participate in both
the herring and mackerel fisheries, and NMFS expects that implementing
consistent slippage consequences across these fisheries will improve
compliance and enforcement of slippage requirements.
Reporting Slippage Events
Framework 4 requires vessels with limited access herring permits to
report slippage events, including the reason for the slippage event,
via the herring daily VMS catch report. NMFS expects that this VMS
report, in combination with observer data, will help enhance the
enforceability of existing slippage requirements, such as completing a
released catch affidavit, as well as the slippage consequences.
Clarifications and Corrections
This final rule also contains minor clarifications and corrections
to existing regulations. NMFS implements these adjustments under the
authority of section 305(d) to the Magnuson-Stevens Act, which provides
that the Secretary of Commerce may promulgate regulations necessary to
ensure that framework adjustments to a FMPs are carried out in
accordance with the FMP and the Magnuson-Stevens Act. These
adjustments, identified and described below, are necessary to clarify
current regulations and do not change the intent of any regulations.
NMFS is implementing a transiting provision for herring management
areas with seasonal sub-ACLs. This provision allows vessels to transit
herring management areas during periods when zero percent of the sub-
ACL for those areas is available for harvest, with herring harvested
from other herring management areas aboard, provided gear is stowed and
not available for use. NMFS overlooked this provision during rulemaking
for Framework Adjustment 2 to the Herring FMP and the provision is
consistent with the intent of that action and the Herring FMP. NMFS is
removing regulations at Sec. 648.80(d)(7) describing requirements for
midwater trawl vessels fishing in Groundfish Closed Area I because they
are redundant with regulations at Sec. 648.202(b) describing
requirements for midwater trawl vessels fishing in any of the
Groundfish Closed Areas. NMFS is adding the definition of operational
discards at Sec. 648.2 and clarifying that operational discards are
not permitted aboard midwater trawl vessels fishing in Groundfish
Closed Areas, unless those fish have first been made available to an
observer for sampling. NMFS is revising references to individual years
in regulations for carryover at Sec. 648.201 to more correctly
describe the timing of carryover. Lastly, NMFS is correcting
coordinates for Herring Management Area 2 at Sec. 648.200(f)(2).
Disapproved Measures
NMFS disapproved the following measures because it determined they
are inconsistent with the Magnuson-Stevens Act, APA, and PRA.
Volumetric Catch Estimates
Framework 4 would have required vessels with limited access herring
permits to have their fish holds certified and NEFOP observers to
collect volumetric estimates of total catch by measuring the volume of
the fish in hold prior to offloading. Observers would have converted
the volumetric estimate to a weight and submitted the estimated weight
to the Greater Atlantic Region Fisheries Office (GARFO) for a cross-
check of vessel trip reports (VTRs) and dealer reports. The requirement
for observers to estimate the amount of catch in the fish hold was
intended to enhance catch monitoring in the herring fishery by
providing an independent estimate of total catch.
This measure was developed to address stakeholder concerns with
NMFS's reliance on industry-reported catch data to monitor the herring
fishery. Specifically, some stakeholders, including environmental
organizations, the groundfish industry, and recreational fishing
groups, believe that herring catch is not accurately reported by the
industry and that large discrepancies exist between vessel and dealer
reports. The herring industry, in general, does not believe that
herring catch is being misreported but, in an effort to address
stakeholder concerns, supports the requirement for observers to collect
an estimate of total catch.
Framework 4 does not provide evidence of misreporting by the
herring industry, but it does highlight past differences, that have
since been minimized, between the amount of herring reported by vessels
and dealers. In past years, discrepancies between VTRs and dealer data
have been as large as 54 percent. But recently, GARFO staff has
improved the process for cross-checking and resolving differences
between VTRs and dealer data. Now discrepancies between VTRs and dealer
data are minimal, with differences averaging 1 percent. Because
discrepancies between VTRs and dealer data are now minimal, NMFS does
not believe that the proposed measure requiring volumetric estimates of
total catch is necessary to help resolve discrepancies between VTR and
dealer data.
Vessels and dealers report catch by species. VTRs, in combination
with observer data, are used in herring stock assessments, while a
combination of dealer data, VTR, and VMS, and observer data are used to
track catch against herring annual catch limits and catch caps in the
herring fishery. The measure requiring volumetric catch estimates would
have provided an estimate of total catch, but would not have
differentiated catch by species. Because the volumetric estimate would
not have provided catch by species, it could not have been used to
replace VTRs or dealer data nor could it have been used for catch
monitoring or stock assessments.
Additionally, Framework 4 cautions whether the proposed measure
would be more accurate than methods currently used by vessel operators
or dealers to estimate catch. The volumetric conversion proposed in
Framework 4 is based on herring harvested in other parts of the world.
Using a volumetric conversion assumes consistency in the size, weight,
and density of the catch, but there can be substantial variability in
the catch composition of the herring fishery, depending on the area and
season. Additionally, the proposed 5 percent deduction from total
weight to account for water in the tanks is based on industry
practices, but the Council did not rigorously evaluate the amount of
the deduction. For these reasons, Framework 4 explains that converting
a volume of total fish to pounds based on the proposed conversion could
produce less accurate catch estimates than current vessel or dealer
estimates.
The measure requiring a volumetric catch estimate is unlikely to
improve catch monitoring in the herring fishery because that estimate
cannot be used to
[[Page 19047]]
replace VTR or dealer report to monitor catch and it is not necessary
to resolve minimal discrepancies between VTR and dealer data. In
contrast, the compliance costs associated with the measure may be high.
If a vessel's fish holds are not already certified, the vessel owner
would need to pay to have the fish holds certified. NMFS would need to
significantly develop the measure prior to implementation, including
generating a sampling protocol, approving volume to weight conversions
and deductions to account for water in the fish hold, training
observers, and evaluating how to use the data. Additionally, requiring
observers to sample vessels in port would require modifications to the
description of observer duties and contracts with observer service
providers.
For these reasons, NMFS concluded that the measure requiring fish
holds to be certified and observers to collect volumetric catch
estimates is inconsistent with the requirements of the Magnuson-Stevens
Act, APA, and PRA. The measure is inconsistent with the APA because
there is insufficient support in Framework 4 documenting the need for
this measure and how this measure would address the purported need. The
measure is inconsistent with the requirements of Magnuson-Stevens Act
National Standard 7 and the PRA because the benefit of the volumetric
catch estimate is dubious and does not outweigh the additional burden
on vessel owners of certifying their fish holds and making available a
measuring stick for observers. The measure is inconsistent with
Magnuson-Stevens Act National Standard 2 because the quality of the
volumetric catch estimate is not sufficient for monitoring the fishery,
facilitating inseason management, or judging the performance of the
management regime. Finally, the measure is inconsistent with Magnuson-
Stevens Act National Standard 5 because it does not allow the fishery
to operate at the lowest possible administrative costs relative to any
additional monitoring benefit provided by the measure.
Empty Fish Holds
Framework 4 would have required fish holds of vessels with Category
A or B Limited Access Herring Permits to be empty of fish before
leaving the dock on a herring trip. A waiver may have been issued by an
authorized law enforcement officer when fish have been reported as
caught but cannot be sold due to the condition of fish.
The Council recommended this measure to enhance catch monitoring
and discourage wasteful fishing practices in the herring fishery. Some
stakeholders are concerned that vessels are harvesting more fish than
they can sell and then discarding the unsold fish on subsequent fishing
trips. These stakeholders are also concerned that fish not purchased by
a dealer, and discarded on subsequent trips, may not be reported on the
VTR. The Council intended this measure to discourage the discarding of
unreported fish, provide a mechanism to document when harvested fish
become unmarketable, and prevent vessel operators from mixing fish from
multiple trips in the hold, potentially biasing catch data.
While prohibiting the disposal of unsold fish at sea may discourage
wasteful fishing practices, there is insufficient support in the record
to conclude that herring vessels are harvesting excess fish and
discarding unsold fish at sea. The costs associated with a herring
trip, including fuel, crew wages, and insurance, are substantial, so it
is unlikely that vessel operators are making herring trips to harvest
fish that will ultimately be discarded. Additionally, if discarding of
unsold fish at sea is occurring, Framework 4 explains that it is
unclear whether unsold catch disposed of at sea on a subsequent trip is
reported.
Initially, this measure requiring empty fish holds simply required
that fish holds be empty of fish at the beginning of a herring trip.
But recognizing that there may be unforeseen events making it difficult
to sell fish (e.g., refrigeration failure, poor condition, lack of
market), the Council recommended the waiver provision to mitigate the
potential costs associated with disposing of unmarketable catch on
land. The Council intended the waiver to provide a mechanism to verify
that fish had been reported and document the nature and extent to which
vessels are departing on trips with fish in their fish holds.
Additionally, some vessels in the herring fishery land their catch in
multiple ports, and the Council intended that the waiver provision
would allow that practice to continue.
Part of the justification for the waiver provision is to provide a
way to verify that fish have been reported and to document the extent
to which vessels are departing on trips with fish in their fish holds.
However, Framework 4's proposed waiver provides no way of verifying the
amount of fish reported relative to the amount of fish left in the
hold. Therefore, NMFS does not believe that this measure contains a
viable mechanism to verify whether harvested fish that are left in the
hold were reported by the vessel.
Because the measure lacks a mechanism to verify or correct the
amount of fish reported on the VTR, the measure is unlikely to improve
catch monitoring in the herring fishery. In contrast, the compliance
and enforcement costs associated with the measure may be high. For
example, vessel operators needing to dispose of fish at sea may lose
time and money waiting for an authorized law enforcement officer to
travel to their vessel, inspect the fish in the fish hold, and issue a
waiver. Additionally, it would likely be time consuming for authorized
officers to issue waivers and would divert resources from other law
enforcement duties.
This measure is also intended to prevent vessel operators from
mixing catch from multiple trips in the hold and biasing catch data.
NEFOP observers sample the catch while it is on the deck, before it is
placed in the fish hold, so there would be no chance that observers
would be sampling fish from multiple trips that were mixed in the hold.
The herring fishery is also sampled portside by the Massachusetts
Department of Marine Fisheries (MA DMF) and Maine's Department of
Marine Resources. Mixing of catch from multiple fishing trips, although
unlikely, may have the potential to bias landings data used to inform
herring stock assessments, state management spawning closures, and the
river herring avoidance program operated by the University of
Massachusetts' School of Marine Fisheries and MA DMF.
The Atlantic States Marine Fisheries Commission recently adopted a
requirement that vessel fish holds be empty of fish before vessels
depart on a herring trip, contingent on adoption in Federal waters, in
Amendment 3 to the Interstate FMP for Atlantic Herring. Establishing a
similar provision in this action would have promoted coordination
between Federal and state management, but, for the reasons described
above, it is unlikely to improve catch monitoring in the herring
fishery.
For these reasons, NMFS concluded that the measure requiring fish
holds to be empty of fish before leaving port, unless a waiver is
issued by an authorized officer, is inconsistent with the requirements
of the Magnuson-Stevens Act, APA, and PRA. The measure is inconsistent
with the APA because there is insufficient support in Framework 4
documenting the need for this measure and how this measure would
address the purported need. The measure is inconsistent with Magnuson-
Stevens Act National Standard 7 and the PRA because the benefit of
requiring
[[Page 19048]]
empty fish holds when departing on a herring trip does not outweigh the
additional reporting burden on vessel operators to request and obtain a
waiver from an authorized officer. The measure is inconsistent with
Magnuson-Stevens Act National Standard 7 because it does not provide
fishermen with the greatest possible freedom of action in conducting
business and imposes an unnecessary enforcement burden. Finally, the
measure is inconsistent with Magnuson-Stevens Act National Standard 5
because it does not allow the fishery to operate at the lowest possible
administrative and enforcement costs relative to any additional
monitoring benefit provided by the measure.
Comments and Responses
NMFS received four comment letters on the proposed rule. Two
letters were from environmental advocacy groups (Herring Alliance and
CHOIR (Coalition for the Atlantic Herring Fishery's Orderly, Informed,
and Responsible Long Term Development)) and two letters were from
herring industry groups (Seafreeze Ltd. and the Sustainable Fisheries
Coalition).
Comment 1: The Herring Alliance supports proposed measures in
Framework 4 that would clarify the slippage definition and require
slippage to be reported via the daily VMS catch report.
Response: NMFS is implementing measures to clarify the slippage
definition and require slippage to be reporting via the daily VMS catch
report.
Comment 2: CHOIR expressed concern with the potential for increased
discarding of unsampled catch associated with the clarifications to
existing slippage measures that allow for operational discards and
catch that falls out of or off gear. Despite its concern, CHOIR
supports the proposed clarifications to existing slippage measures,
because it believes that the proposed slippage consequence measures
will drastically improve management of herring fishery.
Response: NMFS agrees with CHOIR that slippage consequence measures
will likely improve management of the herring fishery, but disagrees
with CHOIR that continuing to allow for operational discards and fish
that fall out of or off gear would increase the discarding of unsampled
catch.
Framework 4 maintains the existing requirements that prohibit
operational discards aboard midwater trawl vessels fishing in the
Groundfish Closed Areas, but allows operational discards to occur on
board herring vessels fishing outside the Groundfish Closed Areas.
Framework 4 clarifies that operational discards are small amounts of
fish that cannot be pumped on board and remain in the codend or seine
at the end of pumping operations. Current observer protocols include
estimating the amount and composition of operational discards. Because
the fish cannot be pumped, it can be time and labor intensive to bring
these small amounts of fish on board the vessel. There is no evidence
in Framework 4 to suggest that continuing to allow operational discards
would increase the discarding of unsampled catch. Rather, Framework 4
concludes that the compliance costs associated with requiring herring
vessels fishing outside the Groundfish Closed Areas to bring
operational discards on board would likely outweigh any benefits to the
catch monitoring program and the herring resource.
Framework 4 clarifies that catch that falls out of or off of gear
and is not brought on board would be categorized as discarded catch,
but not slippage. In general, only small amounts of catch fall out or
off of gear during fishing and/or when catch is being brought aboard
the vessel, unlike the potential for catch loss due to mechanical
failure. It would be very difficult for vessels to retrieve the small
amounts of fish that fall out of or off gear and bring those fish on
board the vessel. Again, there is no evidence in Framework 4 suggesting
that this measure would increase the discarding of unsampled catch and
the compliance costs associated with requiring these fish be brought on
board the vessel for sampling would likely outweigh any benefit to
herring catch monitoring.
Comment 3: The Sustainable Fisheries Coalition supports minor
clarifications and corrections to existing measures because it believes
they are not a substantive change to current regulations and are
consistent with the Herring FMP. The Sustainable Fisheries Coalition
also supports categorizing catch not brought on board due to gear
damage as an allowable slippage event and catch that falls out of or
off gear as a discard event. The Sustainable Fisheries Coalition
supports continuing to allow operational discards in the herring
fishery, except on board herring vessels fishing in the Groundfish
Closed Areas, noting that the costs of prohibiting operational discards
would likely outweigh any benefits. Lastly, the Sustainable Fisheries
Coalition has no objection to the proposed requirement to report
slippage via the VMS daily catch report.
Response: NMFS agrees with the Sustainable Fisheries Coalition and
the measures implemented in this final rule are consistent with the
Sustainable Fisheries Coalition recommendations.
Comment 4: The Sustainable Fisheries Coalition supports including
the definition of operational discards in the regulations, but suggests
that the operational discards definition, as well as the slippage
definition, be revised to acknowledge that releasing small amounts of
fish from the codend or seine at the end of pumping operations is also
operationally discarding catch.
Response: This final rule adds the definition of operational
discards to regulations at Sec. 648.2. Operational discards are
defined as small amounts of fish that cannot be pumped on board the
vessel and remain in the codend or seine at the end of pumping
operations. Leaving small amounts of fish in the codend or seine at the
end of pumping operations is operationally discarding catch. This final
rule also categorizes instances of catch falling out or off of gear
during fishing and/or when catch is being brought aboard the vessel as
discarding, rather than slippage. Framework 4 explains that, in
general, only small amounts of catch fall out or off of gear during
fishing and/or when catch is being brought aboard the vessel. NMFS
believes that categorizing catch that falls out of gear as discarding
addresses the Sustainable Fisheries Coalition's recommendation to
acknowledge releasing small amounts of fish from the codend or seine at
the end of pumping operations is a discard event and not slippage.
Comment 5: CHOIR and the Herring Alliance support the proposed
slippage consequence measures. CHOIR commented that proposed slippage
consequence measures are vital to provide vessels with incentive to
avoid slippage and the Herring Alliance commented that the proposed
slippage consequence measures are reasonable, safe, and necessary to
further deter slippage events on observed trips.
Response: NMFS is implementing the slippage consequence measures to
help improve catch monitoring and further deter slippage in the herring
fishery.
Comment 6: Seafreeze Ltd. and the Sustainable Fisheries Coalition
do not support the proposed measure requiring vessels to move and
remain at least 15 nautical miles (27.78 km) away from an allowable
slippage event for the duration of that fishing trip.
Seafreeze Ltd. and the Sustainable Fisheries Coalition commented
that because no scientific analysis supports the requirement to move 15
nautical miles (27.78 km), the measure is inconsistent with the
requirement that measures be based on the best available
[[Page 19049]]
science. Seafreeze Ltd. noted that fishing effort is often already
spatially limited by regulations, oceanographic features, or fish
distribution. Both Seafreeze Ltd. and the Sustainable Fisheries
Coalition commented that requiring vessels to move 15 nautical miles
(27.78 km) following an allowable slippage event may result in lost
fishing opportunities and will not rectify the problem that caused the
slippage event. Additionally, the Sustainable Fisheries Coalition
commented that the measure raises concerns with the ability of the
herring fleet to achieve the herring OY, the need to minimize adverse
impacts on fishing communities, and the measure having a limited
conservation benefit as bycatch has already been minimized to the
extent practicable.
Seafreeze Ltd. noted that as spiny dogfish populations continue to
increase, herring fishery interactions with dogfish will also likely
increase. Seafreze Ltd. also noted that vessels typically move from an
area following interactions with dogfish, but they do not move as far
as 15 nautical miles (27.78 km).
Seafreeze Ltd. and the Sustainable Fisheries Coalition commented
that needing to slip catch for safety or mechanical failure is often
beyond the control of the vessel operator. Seafreeze Ltd. also
commented that requiring vessels to move 15 nautical miles (27.78 km)
following allowable slippage events may pressure vessel operators to
possibly engage in unsafe fishing practices to avoid a penalty.
Additionally, Seafreeze Ltd. commented that penalizing a vessel for
safety concerns violates National Standard 10.
Lastly, Seafreeze Ltd. commented that its bottom trawl vessels have
higher observer coverage rates than other gear types participating in
the herring fishery and would, therefore, be disproportionately
impacted by the proposed slippage consequence measure following an
allowable slippage event.
Response: NMFS disagrees with Seafreeze Ltd. and the Sustainable
Fisheries Coalition that the slippage consequence measure requiring
vessels to move and remain at least 15 nautical miles (27.78 km) away
from an allowable slippage event for the duration of that fishing trip
should not be approved.
NMFS anticipates this slippage consequence measure will address
concerns about bycatch and slippage by discouraging the occurrence of
slippage throughout the fishery, while continuing to promote safe and
efficient fishing practices on vessels participating in the herring
fishery. Safety is an important consideration for all fishery
management plans and Framework 4 acknowledges that slippage events due
to safety concerns or mechanical failure may be beyond the control of
the vessel operator. NMFS expects the requirement to move 15 nautical
miles (27.78 km) following an allowable slippage event will accommodate
any safety concerns because it allows vessels to continue fishing, when
it is safe to do so, rather than requiring trip termination.
NMFS also expects that this slippage consequence measure will
enhance the catch monitoring program established through Amendment 5 by
further discouraging slippage in the herring fishery. The requirement
for a vessel to move following an allowable slippage event is not based
on the biology or distribution of a fish species, like the Groundfish
Closed Areas, nor is it intended to rectify mechanical failures, unsafe
weather conditions, or encounters with spiny dogfish. Instead, the
measure was based on an analysis evaluating the distances vessels move
during fishing operations and is intended to provide sufficient
incentive (i.e., cost in time and fuel) for herring vessels to minimize
slippage, while providing opportunities to utilize the herring OY.
Options for moving 10 nautical miles (16.09 km) and 20 nautical miles
(32.19 km) were also considered in Framework 4, but the 15-nautical
mile (27.78-km) option was recommended by the Council because 15
nautical miles (27.78 km) is the median value between 10 nautical miles
(16.09 km) and 20 nautical miles (32.19 km). Additionally, this measure
applies uniformly to all vessels that slip catch, unlike other
considered alternatives (e.g., leaving a management area, leaving a
statistical area) in Framework 4 where the magnitude of the move would
have depended upon the location of the allowable slippage event.
Framework 4 describes the impact of this slippage consequence
measure as a low negative for the herring industry. This impact is not
related to safety concerns, but to the potential for lost time and
money associated with moving following an allowable slippage event.
Analyses in Framework 4 show that midwater trawl and purse seine
vessels participating in the herring fishery have the potential to be
most affected by the requirement to move following an allowable
slippage event. Small mesh bottom trawl vessels are expected to be
least affected by the move requirement because documented slippage
events by those vessels are low.
NMFS implemented this same slippage consequence measure in the
mackerel fishery as part of the measures recommended by the Mid-
Atlantic Fishery Management Council in Framework 9 to the MSB FMP. Many
vessels participate in both the herring and mackerel fisheries, and
NMFS expects that implementing consistent slippage consequences across
these fisheries will improve compliance and enforcement of slippage
measures.
Comment 7: The Sustainable Fisheries Coalition supports the
proposed measure requiring vessels to terminate a fishing trip and
return to port following a non-allowable slippage event. With the
exception of the allowable slippage events, the Sustainable Fisheries
Coalition commented that vessels should be able to bring catch aboard
and make it available to the observer for sampling. The Sustainable
Fisheries Coalition noted that if the condition of the fish results in
catch being unmarketable, those fish would be discarded after they were
sampled by the observer.
Response: NMFS is implementing the requirement to terminate a
fishing trip and return to port following a non-allowable slippage
event.
Comment 8: CHOIR and the Herring Alliance support the measure
requiring vessel fish holds to be certified and NEFOP observers to
collect volumetric estimates of total catch. CHOIR noted that the
volumetric catch estimate is especially important to confirm industry
catch reports, given past instances of misreporting and when vessels
and dealers both work for the same company. Even if observers only
sporadically collected catch estimates, CHOIR commented that having a
mechanism to confirm catch reports could improve catch reporting.
Herring Alliance commented that third-party catch verification is
needed to needed ensure industry catch reports are accurate, complete,
and credible and that catch limits are not exceeded. The Herring
Alliance explained that accurate landings data will improve stock
assessments and aid in monitoring fishery catch caps. Additionally, the
Herring Alliance noted that logistical and operational challenges
associated with observers collecting volumetric estimates of catch,
such as modifying the description of observer duties and contracts with
observer service providers to require observers to sample vessels in
port, are solvable.
Response: NMFS agrees with the Herring Alliance that it is possible
to make the necessary programmatic changes to enable observers to
collect volumetric estimates in port, but disagrees with CHOIR and the
Herring Alliance that the proposed volumetric catch estimate is a cost-
effective measure that is necessary to confirm
[[Page 19050]]
industry catch reports and will improve catch reporting and stock
assessments.
Vessels and dealers report catch by species. VTRs, in combination
with observer data, are used in herring stock assessments, while a
combination of dealer data, VTR, and VMS, and observer data are used to
track catch against herring annual catch limits and catch caps in the
herring fishery. The proposed measure would provide an estimate of
total catch, but not catch by species. Therefore, the volumetric
estimate could not be used to replace either VTRs or dealer data and it
could not be used for catch monitoring or stock assessments.
Framework 4 does not provide evidence of misreporting by the
herring industry, but it does highlight past differences, that have
since been minimized, between the amount of herring reported by vessels
and dealers. In recent years, discrepancies between VTRs and dealer
data have been minimal. VTRs were higher than dealer reports in 2009 (2
percent), 2010 (1.3 percent), 2011 (1.2 percent), and 2013 (0.1
percent) and less than dealer reports in 2012 (0.1 percent). GARFO
staff use a rigorous process to match vessel and dealer reported data
and make corrections to the appropriate data set. Given that
discrepancies between VTR and dealer data are minimal as well as
investigated and resolved, NMFS does not consider the proposed
volumetric catch estimate necessary to help identify or resolve
discrepancies between VTR and dealer data.
NMFS disapproved the requirement for volumetric catch estimates
because it considers the measure inconsistent with the Magnusson-
Stevens Act, APA, and PRA.
Comment 9: Seafreeze Ltd. does not support the proposed measure
requiring fish holds to be certified and NEFOP observers to collect
volumetric estimates of total catch. The Sustainable Fisheries
Coalition noted that its members did not reach a consensus whether the
volumetric catch estimate should be approved or disapproved, but it
expressed concern with the potential inaccuracies associated with the
proposed measure. Additionally, the Sustainable Fisheries Coalition
recommended that if the proposed measure was implemented, that it only
apply to vessels whose fish holds had already been certified to help
minimize vessel compliance costs. Seafreeze Ltd. also questioned the
accuracy of the proposed volumetric estimates and expressed concern
that the proposed measure would increase observer workload. Seafreeze
Ltd. commented that because discrepancies between vessel and dealer
reports are minimal, the proposed measure is not warranted. Lastly,
Seafreeze Ltd. noted that the proposed measure would not be applicable
to the Seafreeze Ltd. vessels that offload frozen product.
Response: NMFS shares Seafreeze Ltd.'s and the Sustainable
Fisheries Coalition's concern with the accuracy of the proposed
volumetric catch estimates and disapproved this measure in Framework 4.
The volumetric conversions proposed in Framework 4 are based on herring
harvested in other parts of the world. Using a volumetric conversion
assumes consistency in the size, weight, and density of the catch, but
there can be substantial variability in the catch composition of the
herring fishery, depending on the area and season. Additionally, the
proposed 5 percent deduction from total weight to account for water in
the tanks is based on industry practices, but the Council did not
rigorously evaluate the amount of the deduction. For these reasons,
Framework 4 questioned whether the proposed measure would be more
accurate than methods currently used by vessel operators or dealers to
estimate catch.
NMFS agrees with Seafreeze Ltd. that requiring observers to collect
volumetric catch estimates would increase observer workload and that
discrepancies between vessel and dealer reports are minimal. As
described previously, volumetric estimates could not be used to replace
either VTRs or dealer data and it could not be used for catch
monitoring or stock assessments. Increasing observer workload with
duties that are unlikely to improve herring catch monitoring is not an
effective use of NMFS resources. As described previously, NMFS does not
consider the proposed volumetric catch estimate necessary to help
identify or resolve the minimal discrepancies between VTR and dealer
data.
Lastly, the measure, as proposed, would have required all vessels
with limited access herring permits to have their fish holds certified
and observers to collect volumetric catch estimates. Limiting the
measure to only apply to vessels whose fish holds had already been
certified would have meant substantially revising the measure. NMFS can
only approve or disapprove a proposed measure; therefore, NMFS cannot
revise the measure to only apply to vessels whose fish holds have
already been certified.
Comment 10: CHOIR and Herring Alliance support the proposed measure
requiring fish holds to be empty of fish before a vessel departs on a
herring trip, unless a waiver has been issued. CHOIR expressed concern
with the perceived practice of fish being harvested without a confirmed
buyer and unsold fish being discarded at sea, especially when discarded
fish may not have been reported. CHOIR surmised that requiring empty
fish holds would likely ensure that vessels do not harvest excess fish
or discard unsold fish at sea.
Response: The proposed measure requiring empty fish holds was
intended to enhance catch monitoring and discourage wasteful fishing
practices in the herring fishery. While prohibiting the disposal of
unsold fish at sea may discourage wasteful fishing practices, there is
insufficient support in the record to conclude that herring vessels are
harvesting excess fish and discarding unsold fish at sea. The costs
associated with a herring trip, including fuel, crew wages, and
insurance, are substantial, so it is unlikely that vessel operators are
making herring trips to harvest fish that will ultimately be discarded.
Additionally, if discarding of unsold fish at sea is occurring,
Framework 4 explains that it is unclear whether unsold catch disposed
of at sea on a subsequent trip is reported.
Part of the justification for the waiver provision is to provide a
way to verify that fish have been reported and document the extent to
which vessels are departing on trips with fish in their fish holds.
However, Framework 4's proposed waiver provides no way of verifying the
amount of fish reported relative to the amount of fish left in the
hold. Therefore, NMFS does not believe this measure contains a viable
mechanism to verify whether harvested fish that are left in the hold
were reported by the vessel and is unlikely to improve catch monitoring
in the herring fishery.
NMFS disapproved the requirement for empty fish holds because it
considers the measure inconsistent with the Magnusson-Stevens Act, APA,
and PRA.
Comment 11: Seafreeze Ltd. does not support the proposed measure
requiring fish holds to be empty of fish before a vessel departs on a
herring trip. Seafreeze Ltd. noted that its processing vessels produce
a frozen, processed product that would not be discarded at sea.
Additionally, Seafreeze Ltd. noted that fish cannot be pumped out of
the fish hold of its harvesting vessel at sea, only in port. For these
reasons, Seafreeze Ltd. commented that this measure is not applicable
to its vessels and would impact the vessels unnecessarily.
Response: NMFS disapproved this measure in Framework 4, so the
application to frozen fish is not relevant.
[[Page 19051]]
However, had NMFS approved the measure, it would not have applied to a
frozen product or fish stored in freezers.
Comment 12: The Sustainable Fisheries Coalition did not have
consensus whether the empty fish hold requirement should be approved or
disapproved, but it commented that Framework 4 does not provide
evidence of the misreporting and wasteful fishing practices that the
empty fish hold requirement is intended to rectify. The Sustainable
Fisheries Coalition noted that rarely does a vessel leave port with
fish in its hold unless it is offloading at multiple locations, storing
fish for which there is no immediate market, or disposing of poor
quality fish. Given the absence of a clearly documented problem, the
Sustainable Fisheries Coalition commented that the cost of delaying a
trip to obtain a waiver, in order to depart on a herring trip with fish
in the hold, would be a hardship.
Response: As described previously, there is insufficient evidence
in Framework 4 to support claims of misreporting and wasteful fishing
practices. Additionally, because the proposed measure lacks a mechanism
to verify or correct the amount of fish reported on the VTR, the
proposed measure is unlikely to improve catch monitoring in the herring
fishery. In contrast, the compliance and enforcement costs associated
with the proposed measure may be high. For example, vessel operators
needing to dispose of fish at sea may lose time and money waiting for
an authorized law enforcement officer to travel to their vessel,
inspect the fish hold, and issue a waiver. Additionally, it would
likely be time consuming for authorized officers to issue waivers and
would divert resources from other law enforcement duties.
Comment 13: The Herring Alliance and CHOIR also commented on
initiatives to increase monitoring in the herring fishery that are
related to this action, but are outside the scope of measures
considered and approved as part of Framework 4. Specifically, the
commenters recommended that slippage consequence measures should apply
if electronic monitoring is to be used to monitor the herring fishery
and that NMFS should provide reasonable cost estimates for electronic
monitoring as soon as possible to prevent a delay in allowing industry-
funded monitoring to increase monitoring of the herring fishery.
Response: NMFS is working with the Council to develop measures
related to these issues. Although NMFS understands the connection
between these measures and slippage consequence measures established in
this action, these additional initiatives are outside the scope of
Framework 4.
Changes From the Proposed Rule
The proposed rule for Framework 4 contained all the measures in
that were adopted by the Council in April 2014. As described
previously, NMFS disapproved the measures requiring fish holds to be
certified and observers to collect volumetric catch estimates, and fish
holds to be empty of fish before leaving port, unless a waiver is
issued by an authorized law enforcement officer. Thus, the regulatory
requirements associated with those two measures are not included in
this final rule. Specifically, the following sections from the proposed
rule have been removed: Sec. Sec. 648.4(a)(10)(iv)(P), 648.11 (m)(5),
648.14(r)(1)(ii)(D), 648.14(r)(2)(xiii), and 648.204(c) are not being
implemented in this rule. Additionally, proposed Sec. 648.11(m)(3)(ii)
was revised to remove provisions related to providing an observer with
a NMFS-approved measuring stick when requested.
This final rule also contains minor clarifications to the slippage
definition, slippage reporting requirements, and slippage consequence
measures to ensure consistency with slippage requirements for the
Atlantic mackerel fishery. Specifically, the following sections have
been revised: Sec. Sec. 648.2, 648.11(m)(4)(C)(iv), and
648.14(r)(2)(vii), (xi), and (xii). Many vessels participate in both
the herring and mackerel fisheries and NMFS expects that implementing
consistent requirements across these fisheries will improve compliance
and enforcement of slippage requirements. NMFS is revising the
regulations under the authority of section 305(d) to the Magnuson-
Stevens Act, which provides that the Secretary of Commerce may
promulgate regulations necessary to ensure that framework adjustments
to FMPs are carried out in accordance with the FMP and the Magnuson-
Stevens Act.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this rule is consistent with the national standards and other
provisions of the Magnuson-Stevens Act and other applicable laws.
The Office of Management and Budget has determined that this rule
is not significant according to Executive Order 12866.
This final rule does not contain policies with federalism or
``takings'' implications, as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has completed a final regulatory flexibility analysis (FRFA) in
support of Framework 4 in this final rule. The FRFA incorporates the
IRFA, a summary of the significant issues raised by the public comments
in response to the IRFA, NMFS responses to those comments, a summary of
the analyses completed in the Framework 4 EA, and this portion of the
preamble. A summary of the IRFA was published in the proposed rule for
this action and is not repeated here. A description of why this action
was considered, the objectives of, and the legal basis for this rule is
contained in Framework 4 and in the preamble to the proposed and this
final rule, and is not repeated here. All of the documents that
constitute the FRFA are available from NMFS and a copy of the IRFA, the
RIR, and the EA are available upon request (see ADDRESSES) or via the
Internet at www.greateratlantic.fisheries.noaa.gov.
Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Agency's Assessment of Such
Issues, and a Statement of Any Changes Made in the Final Rule as a
Result of Such Comments
NMFS received four comment letters on the proposed rule. Those
comments, and NMFS' responses, are contained in the Comments and
Responses section of this final rule and are not repeated here. None of
the comments addressed the IRFA and NMFS did not make any changes in
the final rule based on public comment.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
This action regulates the activity of vessels with limited access
herring permits and vessels with Category A or B limited access herring
permits. Therefore, the regulated entity is the business that owns at
least one limited access herring permit.
In 2013, the most recent full year of fishery permit data, 93
fishing vessels were issued a limited access herring permit. Vessels
and/or permits may be owned by entities affiliated by stock ownership,
common management, identity of interest, contractual relationships, or
economic dependency. For the purposes of this analysis, ownership
entities are defined as those entities with common ownership personnel
as listed on permit application documentation. Only
[[Page 19052]]
permits with identical ownership personnel are categorized as an
affiliated entity. For example, if five permits have the same seven
personnel listed as co-owners on their application paperwork, those
seven personnel form one ownership entity, covering those five permits.
If one or several of the seven owners also own additional vessels, with
sub-sets of the original seven personnel or with new co-owners, those
ownership arrangements are deemed to be separate entities for the
purpose of this analysis.
Based on this ownership criterion, NMFS dealer data for recent
years (2010-2013), and the size standards for finfish and shellfish
firms, there are 68 regulated fishing firms with a limited access
herring permit. Of those 68 firms, there are 61 small entities and 7
large entities. Not all of these permitted firms are active: Only 32
small entities and 5 large entities were actively fishing for herring
during the last 3 years. Additionally, there are 32 regulated fishing
firms that hold Category A or B herring permits. Of those 32 firms,
there are 27 small entities and 5 large entities. Not all of these
permitted firms are active: Only 19 small entities and 5 large entities
holding Category A or B herring permits were actively fishing for
herring during the last 3 years.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This final rule contains collection-of-information requirements
subject to the PRA that have been approved by the OMB under Control
Number 0648-0202.
This action requires all limited access vessels to report slippage
events via the daily VMS herring catch report. This information is
intended to improve catch monitoring in the herring fishery. All
limited access herring vessels are currently required to submit daily
VMS catch reports, therefore, reporting slippage via VMS is not
expected to cause any additional time or cost burden above that which
was previously approved under OMB Control Number 0648-0202. Time
burdens that were previously approved through OMB Control Number 0648-
0202 include an estimated burden of 5 minutes to complete daily catch
reports, with an additional 2 minutes if the vessel is also reporting
all fish kept, and a total burden of 429 hours. Cost burdens that were
previously approved through OMB Control Number 0648-0202 include an
estimated burden of $0.60 per transmission of daily catch reports and a
total burden of $2,323. In a given fishing year, NMFS estimates that
the additional reporting requirements included in Framework 4 will not
cause any additional time or cost burden from that which was previously
approved. Send comments regarding these burden estimates or any other
aspect of this data collection, including suggestions for reducing the
burden, to NMFS (see ADDRESSES) and by email to
OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
Notwithstanding any other provisions of the law, no person is
required to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA, unless that collection of information displays a currently
valid OMB Control Number. All currently approved NOAA collections of
information may be viewed at: https://www.cio.noaa.gov/services_programs/prasubs.html.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes
NMFS disapproved two measures in Framework 4 because it determined
the measures were inconsistent with the Magnuson-Stevens Act, APA, and
PRA.
One of the disapproved measures in Framework 4 would have required
owners of vessels with limited access herring permits to certify the
capacity of their fish holds and purchase and carry a NMFS-approved
measuring stick to estimate the volume of fish in the fish hold. Each
fish hold certification done by a certified marine surveyor is
estimated to cost $300-$400. The cost of the NMFS-approved measuring
stick is unknown at this time, but expected to be minimal. Ninety-three
vessels were issued a limited access herring permit in 2013. Therefore,
an estimated 93 vessels would have been required to submit a fish hold
certification at the time of permit issuance in 2016 and obtain and
carry on board a NMFS-approved measuring stick. By disapproving this
measure, vessel owners will not incur the costs associated with this
measure.
The other disapproved measure in Framework 4 would have required
vessels with Category A or B herring permits to have fish holds empty
of fish prior to departing on a herring trip. A waiver may have been
issued by an authorized law enforcement officer when fish had been
reported as caught but could not be sold due to condition. Forty-three
vessels were issued a Category A or B herring permit in 2013.
Therefore, an estimated 43 vessels would have been required to obtain a
waiver from an authorized officer prior to leaving the dock on a
herring trip with fish in the hold. The burden to the vessel operator/
owner associated with obtaining a waiver would be any loss of time and/
or money waiting for an authorized officer to travel to their vessel,
inspect the fish hold, and issue a waiver. By disapproving this
measure, vessel owners will not incur the burden associated with this
measure.
NMFS is implementing slippage consequence measures for vessels with
Category A and B herring permits in this rule, including requirements
to move 15 nautical miles (27.78 km) following an allowable slippage
event and terminate a trip following a non-allowable slippage event.
Because non-allowable slippage events are already prohibited in the
herring fishery, NMFS expects that instances of vessels terminating a
trip and returning to port following a non-allowable slippage event
will be rare. Therefore, the requirement to terminate a trip following
a non-allowable slippage event will not have a significant economic
impact on vessels with Category A and B herring permits. NMFS also
expects that the requirement to move 15 nautical miles (27.78 km)
following an allowable slippage event will also not have a significant
economic impact on Category A and B vessels. The measure is based on an
analysis evaluating the distances vessels move during fishing
operations and is intended to provide sufficient incentive (i.e., cost
in time and fuel) for herring vessels to minimize slippage, while still
promoting safety at sea and maximizing opportunities to utilize the
herring OY. Options for moving 10 nautical miles (16.09 km) and 20
nautical miles (32.19 km) were also considered in Framework 4, but the
15-nautical mile (27.78-km) option is being implemented because 15
nautical miles (27.78 km) is the median value between 10 nautical miles
(16.09 km) and 20 nautical miles (32.19 km). Additionally, this measure
applies uniformly to all vessels that slip catch, unlike other
considered alternatives (e.g., leaving a management area, leaving a
statistical area) in Framework 4 where the magnitude of the move, and
resulting economic impacts, would have depended upon the location of
the allowable slippage event.
This rule also implements clarifications and minor corrections to
existing regulations. These clarifications and minor corrections are
intended to clarify existing slippage measures; allow vessels to
transit herring management areas during periods when zero percent of
the sub-ACL for those areas is available for harvest, provided gear was
stowed and not available for use; and correcting coordinates for
Herring
[[Page 19053]]
Management Area 2 to more accurately define the area. NMFS expects
these clarifications and corrections to facilitate operation of the
herring fishery.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: March 29, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.2, the definition for ``Slippage in the Atlantic
herring fishery'' is removed and the definitions for ``Operational
discards in the Atlantic herring fishery'' and ``Slip(s) or slipping
catch in the Atlantic herring fishery'' are added in alphabetical order
to read as follows:
Sec. 648.2 Definitions.
* * * * *
Operational discards in the Atlantic herring fishery means small
amounts of fish that cannot be pumped on board and remain in the codend
or seine at the end of pumping operations. Leaving small amounts of
fish in the codend or seine at the end of pumping operations is
operationally discarding catch.
* * * * *
Slip(s) or slipping catch in the Atlantic herring fishery means
discarded catch from a vessel issued an Atlantic herring permit that is
carrying a NMFS-approved observer prior to the catch being brought on
board or prior to the catch being made available for sampling and
inspection by a NMFS-approved observer after the catch is on board.
Slip(s) or slipping catch includes releasing fish from a codend or
seine prior to the completion of pumping the fish on board and the
release of fish from a codend or seine while the codend or seine is in
the water. Slippage or slipped catch refers to fish that are slipped.
Slippage or slipped catch does not include operational discards,
discards that occur after the catch is brought on board and made
available for sampling and inspection by a NMFS-approved observer, or
fish that inadvertently fall out of or off fishing gear as gear is
being brought on board the vessel.
* * * * *
0
3. In Sec. 648.11, paragraph (m)(4) is revised to read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(m) * * *
(4) Measures to address slippage. (i) No vessel issued a limited
access herring permit may slip catch, as defined at Sec. 648.2, except
in the following circumstances:
(A) The vessel operator has determined, and the preponderance of
available evidence indicates that, there is a compelling safety reason;
or
(B) A mechanical failure, including gear damage, precludes bringing
some or all of the catch on board the vessel for inspection; or,
(C) The vessel operator determines that pumping becomes impossible
as a result of spiny dogfish clogging the pump intake. The vessel
operator shall take reasonable measures, such as strapping and
splitting the net, to remove all fish which can be pumped from the net
prior to release.
(ii) Vessels may make test tows without pumping catch on board if
the net is re-set without releasing its contents provided that all
catch from test tows is available to the observer to sample when the
next tow is brought on board for sampling.
(iii) If a vessel issued any limited access herring permit slips
catch, the vessel operator must report the slippage event on the
Atlantic herring daily VMS catch report and indicate the reason for
slipping catch. Additionally, the vessel operator must complete and
sign a Released Catch Affidavit detailing: The vessel name and permit
number; the VTR serial number; where, when, and the reason for slipping
catch; the estimated weight of each species brought on board or slipped
on that tow. A completed affidavit must be submitted to NMFS within 48
hr of the end of the trip.
(iv) If a vessel issued an All Areas or Areas 2/3 Limited Access
Herring permit slips catch for any of the reasons described in
paragraph (m)(4)(i) of this section, the vessel operator must move at
least 15 nm (27.78 km) from the location of the slippage event before
deploying any gear again, and must stay at least 15 nm (27.78 km) away
from the slippage event location for the remainder of the fishing trip.
(v) If catch is slipped by a vessel issued an All Areas or Areas 2/
3 Limited Access Herring permit for any reason not described in
paragraph (m)(4)(i) of this section, the vessel operator must
immediately terminate the trip and return to port. No fishing activity
may occur during the return to port.
* * * * *
0
4. In Sec. 648.14, paragraph (r)(1)(vii)(F) is added and paragraphs
(r)(2)(v) through (xii) are revised to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(r) * * *
(1) * * *
(vii) * * *
(F) Transit or be in an area that has zero percent sub-ACL
available for harvest specified at Sec. 648.201(d) with herring on
board, unless such herring were caught in an area or areas with an
available sub-ACL specified at Sec. 648.201(d), all fishing gear is
stowed and not available for immediate use as defined in Sec. 648.2,
and the vessel is issued a vessel permit that authorizes the amount of
herring on board for the area where the herring was harvested.
* * * * *
(2) * * *
(v) Fish with midwater trawl gear in any Northeast Multispecies
Closed Area, as defined in Sec. 648.81(a) through (e), without a NMFS-
approved observer on board, if the vessel has been issued an Atlantic
herring permit.
(vi) Slip or operationally discard catch, as defined at Sec.
648.2, unless for one of the reasons specified at Sec. 648.202(b)(2),
if fishing any part of a tow inside the Northeast Multispecies Closed
Areas, as defined at Sec. 648.81(a) through (e).
(vii) Fail to immediately leave the Northeast Multispecies Closed
Areas or comply with reporting requirements after slipping catch or
operationally discarding catch, as required by Sec. 648.202(b)(4).
(viii) Slip catch, as defined at Sec. 648.2, unless for one the
reasons specified at Sec. 648.11(m)(4)(i).
(ix) For vessels with All Areas or Areas 2/3 Limited Access Herring
Permits, fail to move 15 nm (27.78 km), as required by Sec.
648.11(m)(4)(iv) and Sec. 648.202(b)(4)(iv).
(x) For vessels with All Areas or Areas 2/3 Limited Access Herring
Permits, fail to immediately return to port, as required by Sec.
648.11(m)(4)(v) and Sec. 648.202(b)(4)(iv).
(xi) Fail to complete, sign, and submit a Released Catch Affidavit
as required by Sec. 648.11(m)(4)(iii) and Sec. 648.202(b)(4)(ii).
(xii) Fail to report or fail to accurately report a slippage event
on the Atlantic
[[Page 19054]]
herring daily VMS catch report, as required by Sec. 648.11(m)(4)(iii)
and Sec. 648.202(b)(4)(iii).
* * * * *
Sec. 648.80 [Amended]
0
5. In Sec. 648.80, paragraph (d)(7) is removed.
0
6. In Sec. 648.200, paragraph (f)(2) is revised to read as follows:
Sec. 648.200 Specifications.
* * * * *
(f) * * *
(2) Management Area 2 (South Coastal Area): All state and Federal
waters inclusive of sounds and bays, bounded on the east by 70[deg]00'
W. long. and the outer limit of the U.S. Exclusive Economic Zone;
bounded on the north and west by the southern coastline of Cape Cod,
Massachusetts, and the coastlines of Rhode Island, Connecticut, New
York, New Jersey, Delaware, Maryland, Virginia, and North Carolina; and
bounded on the south by a line following the lateral seaward boundary
between North Carolina and South Carolina from the coast to the
Submerged Lands Act line, approximately 33[deg]48'46.37'' N. lat.,
78[deg]29'46.46'' W. long., and then heading due east along
33[deg]48'46.37'' N. lat. to the outer limit of the US Exclusive
Economic Zone.
* * * * *
0
7. In Sec. 648.201, paragraphs (e) and (f) are revised and paragraph
(g) is added to read as follows:
Sec. 648.201 AMs and harvest controls.
* * * * *
(e) A vessel may transit an area that has zero percent sub-ACL
available for harvest specified in paragraph (d) of this section with
herring on board, provided such herring were caught in an area or areas
with sub-ACL available specified in paragraph (d) of this section, that
all fishing gear is stowed and not available for immediate use as
defined in Sec. 648.2, and the vessel is issued a permit that
authorizes the amount of herring on board for the area where the
herring was harvested.
(f) Up to 500 mt of the Area 1A sub-ACL shall be allocated for the
fixed gear fisheries in Area 1A (weirs and stop seines) that occur west
of 67[deg]16.8' W. long (Cutler, Maine). This set-aside shall be
available for harvest by fixed gear within the specified area until
November 1 of each fishing year. Any portion of this allocation that
has not been utilized by November 1 shall be restored to the sub-ACL
allocation for Area 1A.
(g) Carryover. Subject to the conditions described in this
paragraph (g), unharvested catch in a herring management area in a
fishing year (up to 10 percent of that area's sub-ACL) shall be carried
over and added to the sub-ACL for that herring management area for the
fishing year following the year when total catch is determined. For
example, NMFS will determine total catch from Year 1 during Year 2, and
will add carryover to the applicable sub-ACL(s) in Year 3. All such
carryover shall be based on the herring management area's initial sub-
ACL allocation for the fishing year, not the sub-ACL as increased by
carryover or decreased by an overage deduction, as specified in
paragraph (a)(3) of this section. All herring landed from a herring
management area shall count against that area's sub-ACL, as increased
by carryover. For example, if 500 mt of herring is added as carryover
to a 5,000 mt sub-ACL, catch in that management area would be tracked
against a total sub-ACL of 5,500 mt. NMFS shall add sub-ACL carryover
only if the ACL, specified consistent with Sec. 648.200(b)(3), for the
fishing year in which there is unharvested herring, is not exceeded.
The ACL, consistent with Sec. 648.200(b)(3), shall not be increased by
carryover specified in this paragraph (g).
8. In Sec. 648.202, paragraphs (b)(2) introductory text,
(b)(2)(ii), (b)(4) introductory text, and (b)(4)(ii) are revised, and
paragraphs (b)(4)(iii) and (iv) are added to read as follows:
Sec. 648.202 Season and area restrictions.
* * * * *
(b) * * *
(2) No vessel issued an Atlantic herring permit and fishing with
midwater trawl gear, when fishing any part of a midwater trawl tow in
the Closed Areas, may slip or operationally discard catch, as defined
at Sec. 648.2, except in the following circumstances:
* * * * *
(ii) A mechanical failure, including gear damage, precludes
bringing some or all of the catch on board the vessel for inspection;
or,
* * * * *
(4) If catch is slipped or operational discarded by a vessel, the
vessel operator must:
* * * * *
(ii) Complete and sign a Released Catch Affidavit detailing: The
vessel name and permit number; the VTR serial number; where, when, and
for what reason the catch was released; the estimated weight of each
species brought on board or released on that tow. A completed affidavit
must be submitted to NMFS within 48 hr of the end of the trip.
(iii) Report slippage events on the Atlantic herring daily VMS
catch report and indicate the reason for slipping catch if the vessel
was issued a limited access herring permit.
(iv) Comply with the measures to address slippage specified in
Sec. 648.11(m)(4)(iv) and (v) if the vessel was issued an All Areas or
Areas 2/3 Limited Access Herring Permit.
[FR Doc. 2016-07583 Filed 4-1-16; 8:45 am]
BILLING CODE 3510-22-P