Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specification of Management Measures for Atlantic Herring for the 2016-2018 Fishing Years, 75731-75740 [2016-26320]

Download as PDF Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations adding in its place ‘‘Government Publishing Office’’. ■ b. In paragraph (e), adding ‘‘, or the Commandant of the United States Coast Guard’’ after ‘‘Department of Transportation’’. § 800.5 [Amended] 5. Amend § 800.5 by adding ‘‘–003’’ after ‘‘20594’’. ■ [Amended] 6. Amend § 800.21 by removing ‘‘Subpart B’’ and adding in its place ‘‘subpart’’. 16. Amend § 800.41 by removing ‘‘unless all persons subject to it are named and are personally served with a copy of it’’. 17. The authority citation for part 803 is revised to read as follows: [Amended] [Amended] 8. Amend § 800.24(f) by removing ‘‘the Independent Safety Board Act of 1974, as amended,’’ adding in its place ‘‘49 U.S.C. chapter 11, subchapter IV,’’. [Amended] 9. Amend § 800.25 as follows: a. In paragraph (c), removing ‘‘§ 845.41 of this Chapter’’ adding in its place ‘‘§ 845.32 of this chapter’’. ■ b. In paragraph (d), removing ‘‘§ 304(a) of the Independent Safety Board Act of 1974, as amended (49 U.S.C. 1131(a)) and the Appendix to this Part’’ adding in its place ‘‘49 U.S.C. 1131 and the appendix to this part’’. ■ ■ Authority: 49 U.S.C. 1111(j), 1113(f). [Amended] 11. Amend § 800.27 by removing ‘‘of the Safety Board’’. ■ Subpart C—Procedures for Adoption of Rules [Amended] 12. Amend § 800.30 by removing ‘‘1101–1155’’ and adding in its place ‘‘1113(f)’’. ■ jstallworth on DSK7TPTVN1PROD with RULES § 800.31 13. Amend § 800.31 by removing ‘‘deemed relevant by the NTSB relating to rulemaking’’ and adding in its place ‘‘relevant to NTSB rulemaking’’. § 800.33 14. Amend § 800.33 by removing ‘‘551’’ and adding in its place ‘‘553’’. ■ 15:21 Oct 31, 2016 § 803.5 Jkt 241001 [Amended] 19. Amend § 803.5(c) by: a. Removing ‘‘Bureau’’ and adding in its place ‘‘Office’’; ■ b. Removing ‘‘800 Independence Avenue’’ and adding in its place ‘‘490 L’Enfant Plaza’’; and ■ c. Adding ‘‘–003’’ after ‘‘20594’’. ■ ■ PART 804—RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT 20. The authority citation for part 804 is revised to read as follows: ■ Authority: 5 U.S.C. 552b; 49 U.S.C. 1113(f). [Amended] 21. Amend § 804.1(b) by removing ‘‘the NTSB regulations (49 CFR part 801)’’ and adding in its place ‘‘this chapter’’. ■ 22. Revise § 804.5(d) to read as follows: § 804.5 Ground on which meetings may be closed or information may be withheld. * * * * * (d) Disclose trade secrets or privileged or confidential commercial or financial information obtained from a person; * * * * * [Amended] 23. Amend § 804.6(b) by: a. Removing ‘‘800 Independence Avenue’’ and adding in its place ‘‘490 L’’Enfant Plaza’’; and ■ b. Adding ‘‘–003’’ after ‘‘20594’’. ■ ■ § 804.7 [Amended] VerDate Sep<11>2014 18. Amend § 803.3 by removing ‘‘Bureau’’ everywhere it appears and adding in its place ‘‘Office’’. ■ § 804.6 [Amended] ■ [Amended] ■ 10. Amend § 800.26 by removing ‘‘board’’ and adding in its place ‘‘Board’’. § 800.30 § 803.3 § 804.1 [Amended] ■ § 800.27 [FR Doc. 2016–26232 Filed 10–31–16; 8:45 am] [Amended] ■ ■ § 800.26 David Tochen, General Counsel. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration PART 803—OFFICIAL SEAL 7. Amend § 800.22(a)(2) by removing ‘‘sections 304(a)(2) and 307 of the Independent Safety Board Act of 1974 (49 U.S.C. 1131(d) and 1135(c))’’ adding in its place ‘‘49 U.S.C. 1131(e), 1135(c)’’. § 800.25 [Amended] 25. Amend § 804.10 by removing ‘‘the NTSB shall maintain’’ and adding in its place ‘‘The NTSB shall maintain’’. ■ ■ ■ § 800.24 § 804.10 BILLING CODE 7533–01–P ■ § 800.22 [Amended] 15. Amend § 800.35(a) by: a. Removing ‘‘in rulemaking’’ and adding in its place ‘‘in a rulemaking’’; and ■ b. Removing ‘‘comments in writing containing’’ adding in its place ‘‘written comments,’’. ■ ■ § 800.41 Subpart B—Delegations of Authority to Staff Members § 800.21 § 800.35 75731 [Amended] 24. Amend § 804.7(b)(2) by removing ‘‘be’’ and adding in its place ‘‘is’’. ■ PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 50 CFR Part 648 [Docket No. 151215999–6960–02] RIN 0648–BF64 Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specification of Management Measures for Atlantic Herring for the 2016–2018 Fishing Years National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS is implementing final specifications and management measures for the 2016–2018 Atlantic herring fishery. This action sets harvest specifications and river herring/shad catch caps for the herring fishery for the 2016–2018 fishing years, as recommended to NMFS by the New England Fishery Management Council. The river herring/shad catch caps are area and gear-specific. River herring and shad catch from a specific area with a specific gear counts against a cap for trips landing more than a minimum amount of herring. The specifications and management measures in this action meet conservation objectives while providing sustainable levels of access to the fishery. DATES: Effective December 1, 2016. ADDRESSES: Copies of supporting documents used by the New England Fishery Management Council, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, telephone (978) 465–0492. The EA/RIR/ IRFA is also accessible via the Internet at http:// www.greateratlantic.fisheries.noaa.gov/. FOR FURTHER INFORMATION CONTACT: Shannah Jaburek, Fishery Management SUMMARY: E:\FR\FM\01NOR1.SGM 01NOR1 75732 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations Specialist, (978) 282–8456, fax (978) 281–9135. SUPPLEMENTARY INFORMATION: TABLE 1—ATLANTIC HERRING SPECIFICATIONS—Continued Background NMFS published a proposed rule for the 2016–2018 specifications on June 21, 2016 (81 FR 40253). The comment period on the proposed rule ended on July 21, 2016. NMFS received 32 comments, which are summarized in the ‘‘Comments and Responses’’ section of this final rule. Regulations implementing the Atlantic Herring Fishery Management Plan (FMP) appear at 50 CFR part 648, subpart K. Regulations at § 648.200 require NMFS to make final determinations on the herring specifications recommended by the New England Fishery Management Council in the Federal Register, including: The overfishing limit (OFL); acceptable biological catch (ABC); annual catch limit (ACL); optimum yield (OY); domestic annual harvest (DAH); domestic annual processing (DAP); U.S. at-sea processing (USAP); border transfer (BT); management area subACLs; and the amount to be set aside for the research set aside (RSA) (up to 3 percent of any management area subACL) for 3 years. These regulations also allow for river herring/shad catch caps to be developed and implemented as part of the specifications. The 2016– 2018 herring specifications are consistent with these provisions, and provide the necessary elements to comply with the ACL and accountability measure (AM) requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Complete details on the development of the herring specifications and river herring/shad catch caps were included in the proposed rule; NMFS has not repeated that information here. Herring Specifications TABLE 1—ATLANTIC HERRING SPECIFICATIONS 2016–2018 Atlantic Herring Specifications—2016–2018 (mt) jstallworth on DSK7TPTVN1PROD with RULES Overfishing Limit .................. Acceptable Biological Catch Management Uncertainty .... Optimum Yield/ACL ............. Domestic Annual Harvest .... Border Transfer ................... Domestic Annual Processing. U.S. At-Sea Processing ...... Area 1A Sub-ACL ................ VerDate Sep<11>2014 15:21 Oct 31, 2016 138,000–2016. 117,000–2017. 111,000–2018. 111,000. 6,200. 104,800.* 104,800. 4,000. 100,800. 0. 30,300.* Jkt 241001 Area 1B Sub-ACL ................ Area 2 Sub-ACL .................. Area 3 Sub-ACL .................. Fixed Gear Set-Aside .......... Research Set-Aside ............ 4,500. 29,100. 40,900. 295. 3 percent of each subACL. * If New Brunswick weir fishery catch through October 1 is less than 4,000 mt, then 1,000 mt will be subtracted from the management uncertainty buffer and added to the ACL and Area 1A Sub-ACL. An operational update to the herring stock assessment, completed in May 2015, indicated that herring was not overfished and overfishing was not occurring. However, the assessment contained a retrospective pattern suggesting that spawning stock biomass (SSB) is likely overestimated and fishing mortality (F) is likely underestimated. Following an adjustment for the retrospective pattern, the assessment estimated the herring stock at approximately double its target biomass (SSBMSY) and F at approximately half the fishing mortality threshold (FMSY). The herring ABC of 111,000 mt (a 3mt decrease from status quo) for 2016– 2018 is based on the current control rule (constant catch with 50-percent probability that F > FMSY in last year) and is consistent with the Council’s Scientific and Statistical Committee’s (SSC) advice. The OFL is 138,000 mt in 2016, 117,000 mt in 2017, and 111,000 mt in 2018. While the ABC control rule does not explicitly adjust for herring’s role in the ecosystem, herring’s high biomass (approximately 74 percent of unfished biomass) and low fishing mortality (ratio of catch to consumption by predators is 1:4) likely achieves ecosystem goals, including accounting for herring’s role as forage. The herring ABC is typically reduced from the OFL to account for scientific uncertainty. Using the current constant catch control rule means that the ABC will equal the OFL in 2018. When the SSC considered the ABC of 111,000 mt, it concluded that the probability of the stock becoming overfished during 2016–2018 is near zero. Further, this final rule is consistent with the status quo specifications that set ABC equal to OFL in 2015 and overfishing did not occur. Under the FMP, the herring ACL is reduced from ABC to account for management uncertainty, and the primary source of management uncertainty is catch in the New Brunswick weir fishery. Catch in the weir fishery is variable, but has declined in recent years. This final rule implements a management uncertainty PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 buffer of 6,200 mt, which is equivalent to the value of the buffer in 2015. To help ensure catch in the New Brunswick weir fishery does not exceed the management uncertainty buffer, NMFS specifies a buffer greater than the most recent 3-year and 5-year average catch in the New Brunswick weir fishery. The resulting stockwide ACL will be 104,800 mt. Given the variability of the New Brunswick weir catch and the likelihood that weir catch may be less than 6,200 mt, NMFS also specifies a New Brunswick weir fishery payback provision. Specifically, NMFS will subtract 1,000 mt from the management uncertainty buffer and add it to the ACL if the weir fishery harvests less than 4,000 mt by October 1. The 1,000 mt added to the ACL would also increase the sub-ACL for Herring Management Area 1A. NMFS selects the October 1 date to trigger the payback provision for two reasons. First, there is typically only minimal catch in the New Brunswick weir fishery after October 1 (less than four percent of total reported landings from 1978 to 2014) so the likelihood of weir catch exceeding the management uncertainty buffer after October 1 is low. Second, adding 1,000 mt to the Area 1A sub-ACL in October is expected to allow herring vessels to access the additional harvest before catch in the herring fishery is limited in Area 1A. NMFS implements a 2,000-lb (907-kg) herring possession limit in Area 1A when it projects that 92 percent the sub-ACL has been harvested. If New Brunswick weir catch is less than 4,000 mt by October 1, the management uncertainty buffer will be reduced to 5,200 mt, the ACL will be increased to 105,800 mt, and the Herring Management Area 1A sub-ACL will be increased to 31,300 mt. The New Brunswick weir fishery payback provision was last in effect during fishing years 2010–2012, so this final rule puts the payback provision back in place for 2016–2018. NMFS is currently awaiting final data to decide whether or not to subtract 1,000 mt from the management uncertainty buffer and increase the ACL and the Area 1A subACL. BT is a processing allocation available to Canadian dealers. The MSA provides for the issuance of permits to Canadian vessels transporting U.S.-harvested herring to Canada for sardine processing. The amount specified for BT has equaled 4,000 mt since 2000. As there continues to be interest in transporting herring to Canada for sardine processing, NMFS maintains BT at 4,000 mt. E:\FR\FM\01NOR1.SGM 01NOR1 jstallworth on DSK7TPTVN1PROD with RULES Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations The Atlantic Herring FMP specifies that DAH will be set less than or equal to OY and be composed of DAP and BT. DAP is the amount of U.S. harvest that is processed domestically, as well as herring that is sold fresh (i.e., bait). DAP is calculated by subtracting BT from DAH. DAH should reflect the actual and potential harvesting capacity of the U.S. herring fleet. Since 2001, total landings in the U.S. fishery have decreased, but herring catch has remained somewhat consistent from 2003–2014, averaging 91,925 mt. When previously considering the DAH specification, the Council evaluated the harvesting capacity of the directed herring fleet and determined that the herring fleet is capable of fully utilizing the available yield from the fishery. This determination is still true. NMFS therefore sets DAH at 104,800 mt and DAP at 100,800 mt for the 2016– 2018 fishing years in this final rule. A portion of DAP may be specified for the at-sea processing of herring in Federal waters. When determining this USAP specification, the Council considered the availability of shore-side processing, status of the resource, and opportunities for vessels to participate in the herring fishery. During the 2007– 2009 fishing years, the Council maintained a USAP specification of 20,000 mt (Herring Management Areas 2⁄3 only) based on information received about a new at-sea processing vessel that intended to utilize a substantial amount of the USAP specification. At that time, landings from Areas 2 and 3– where USAP was authorized–were considerably lower than recent subACLs for Areas 2 and 3. Moreover, the specification of 20,000 mt for USAP did not restrict either the operation or the expansion of the shoreside processing facilities during the 2007–2009 fishing years. However, this operation never materialized, and none of the USAP specification was used during the 2007– 2009 fishing years. Consequently, NMFS set USAP at zero for the 2010–2015 fishing years. Lacking any additional information that would support changing this specification, NMFS maintains the USAP at zero for fishing years 2016–2018. The herring ABC specification recommended by the SSC for 2016–2018 is not substantially different from the 2013–2015 ABC specification because, in part, key attributes of the herring stock (SSB, recruitment, F, and survey indices) have not significantly changed since the 2013–2015 herring specifications. Therefore, NMFS determined that there is no new information on which to modify the allocation of the total ACL between the herring management areas. This final VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 rule maintains status quo percentage allocations for the herring sub-ACLs for the 2016–2018 specifications. The resulting sub-ACLs are slightly lower than 2013–2015 specifications (see Table 1). NMFS maintains the 2016–2018 RSA specification at 3 percent of each herring management area sub-ACL. The herring RSA is removed from each subACL prior to allocating the sub-ACL to the fishery. If an RSA proposal is approved, but a final award is not made by NMFS, or if NMFS determines that the RSA cannot be utilized by a project, NMFS shall reallocate the unallocated or unused amount of the RSA to the respective sub-ACL. On February 29, 2016, NMFS fully awarded the herring RSA for fishing years 2016–2018. Herring regulations at § 648.201(e) specify that up to 500 mt of the Herring Management Area 1A sub-ACL shall be allocated for the fixed gear fisheries (weirs and stop seines) in Area 1A that occur west of 67°16.8′ W. long. This setaside shall be available for harvest by the fixed gear fisheries within Area 1A until November 1 of each year; any unused portion of the allocation will be restored to the Area 1A sub-ACL after November 1. During the 2013–2015 fishing years, the fixed gear set-aside was specified at 295 mt. Because the proposed Area 1A sub-ACL for the 2016–2018 fishing years is not substantially different from the Area 1A sub-ACL in 2015, NMFS maintains the fixed gear set-aside at 295 mt. River Herring/Shad Catch Caps Framework 3 to the Atlantic Herring FMP established gear and area-specific river herring/shad catch caps for the herring fishery in 2014. These included catch caps for midwater trawl vessels fishing in the Gulf of Maine, off Cape Cod, and in Southern New England, as well as for small-mesh bottom trawl vessels fishing in Southern New England. The caps are intended to minimize river herring and shad bycatch and bycatch mortality to the extent practicable while allowing the herring fishery an opportunity to fully harvest the herring ACL. The incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. Herring regulations at § 648.201(a)(4)(ii) state that once 95 percent of a catch cap is harvested, the herring possession limit for vessels using that gear type and fishing in that area is reduced to 2,000 lb (907 kg) for the remainder of the fishing year. Once a 2,000-lb (907-kg) possession limit is in effect for a particular gear and area, the herring fishery’s ability to harvest the herring PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 75733 sub-ACL associated with that area is limited. The herring fleet’s avoidance of river herring and shad combined with the catch caps are expected to minimize river herring and shad bycatch and bycatch mortality. Additionally, the herring fishery is expected to be able to harvest the herring ACL, provided the fishery continues to avoid river herring and shad. As noted in Framework 3, available data are not robust enough to specify biologically-based catch caps that reflect river herring and shad abundance or to evaluate the potential impacts of catch caps on the river herring and shad stocks. Specific biological impacts on river herring and shad are influenced by fishing activity, environmental factors, climate change, restoration efforts, and other factors. In the absence of sufficient data to specify biologically-based catch caps, the caps have been set using recent river herring and shad catch data with the intent of keeping catch below its highest levels to limit fishing mortality on river herring and shad. Limiting fishing mortality is expected to result in positive impacts on the stocks. To date the values of the caps have been specified using the median catch of river herring and shad catch over the previous 5 years (2008–2012). The 2016–2018 river herring/shad catch caps, as specified below in Table 2, are calculated using a revised methodology and updated data over a longer time period. The revised methodology uses a weighted mean catch of river herring and shad (versus median catch). This methodology better accounts for the inter-annual variability in the level of sampling by both observers and portside samplers by weighting years with higher sampling levels more heavily than years with lower sampling levels. Additionally, the revised methodology includes previously omitted catch data, including some shad landings and trips from catch cap areas where trips did not meet the 6,600-lb (3-mt) herring landing threshold, and updated extrapolation methodology (using sampled trips to estimate catch on unsampled trips). Lastly, by using a longer time series (the most recent 7 years versus 5 years), the value of the caps can be based on more data, especially the most recent catch information, to better ensure the catch caps reflect the herring fishery’s interactions with river herring and shad and overall fishing effort. NMFS determined that using a longer time series, including more recent and previously omitted data, as well as using a weighted mean to generate the values for river herring/shad catch caps is consistent with using the best available science. Setting cap amounts E:\FR\FM\01NOR1.SGM 01NOR1 75734 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations using recent catch data better reflects current fishing behavior and catch levels. Similarly, relying more heavily on years with higher levels of sampling should provide cap values that more precisely reflect recent catch. Additionally, catch data may indirectly reflect stock abundance. For example, increases in stock abundance may potentially result in increased incidental catch whereas decreases in abundance may result in decreased incidental catch. Therefore, setting catch cap amounts based on catch data are expected to result in catch caps that are more consistent with current fishing activity, and possibly stock conditions, while balancing the incentive to avoid river herring and shad against the opportunity for the herring fishery to harvest the ACL. NMFS is adjusting the river herring/ shad catch caps to reflect the use of best available scientific data and a revised, superior methodology. This adjustment increases the catch caps for three of the four river herring/shad catch caps in the herring fishery. Based on fishing practices to date, however, NMFS expects river herring and shad catch to remain below the catch cap amounts. For example, the herring industry currently has harvested only 57 percent of the total river herring and shad catch allowed under the 2015 river herring/ shad catch caps. Because river herring and shad catch is currently well below allowable catch limits, NMFS does not expect that any catch cap increases implemented in this action will result in a substantial increase in river herring and shad catch. Rather, NMFS anticipates that the 2,000-lb (907-kg) herring possession limit that will result if a cap is harvested will continue to provide a strong incentive for the herring industry to avoid catching river herring and shad and that the herring industry will continue to harvest less than the river herring and shad catch allowed under the adjusted catch caps. TABLE 2—RIVER HERRING/SHAD CATCH CAPS Area Gear Amount (mt) 2016–2018 River Herring/Shad Catch Caps Gulf Of Maine ............................................................................................................... Cape Cod ..................................................................................................................... Southern New England/Mid-Atlantic ............................................................................ Southern New England/Mid-Atlantic ............................................................................ Midwater Trawl ......................................... Midwater Trawl ......................................... Midwater Trawl ......................................... Bottom Trawl ............................................. 76.7 32.4 129.6 122.3 Total ...................................................................................................................... All Gears ................................................... 361.0 jstallworth on DSK7TPTVN1PROD with RULES Comments and Responses NMFS received 32 comment letters on the proposed rule: 9 from interested members of the public; 3 from herring industry participants; 2 from other fishing industry participants (Massachusetts Lobstermen’s Association (MLA) and the Cape Cod Commercial Fishermen’s Alliance); 4 from local watershed groups (Jones River, Ipswich River, Mystic River, and the Herring Ponds Watershed Associations); and 12 from nongovernmental organizations (NGOs), including 6 prominent environmental advocacy groups (Conservation Law Foundation, Earth Justice, the Herring Alliance, Save the Bay-Narragansett, the Mohegan Tribe, and Alewife Harvesters of Maine). Two of the environmental advocacy group comments were form letters that contained signatures and personalized comments, including: A letter from PEW Charitable Trusts with 10,593 signatures and 931 personalized comments; and a letter from Earth Justice with 2,298 signatures and 234 personalized comments. Comment 1: Three herring fishery participants and the MLA commented in support of the proposed 2016–2018 herring specifications and river herring/ shad caps. Response: NMFS approved the 2016– 2018 herring specifications and river herring/shad catch caps because they VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 promote achieving optimal yield, fishery conservation, are based upon best available science, and are consistent with the goals and objectives of the Atlantic Herring FMP. Comment 2: The Cape Cod Commercial Fishermen’s Alliance, Jones River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth Justice opposed setting the ABC equal to the OFL in 2018. Their comments claimed that the 2018 ABC does not adequately account for scientific uncertainty. Earth Justice commented that NMFS could revise the specifications to account for scientific uncertainty in a number of ways. They suggested NMFS could implement ABCs in 2017 and 2018 with the same scientific uncertainty buffer that was set for 2016 (27,000 mt) or implement the 2017 scientific uncertainty buffer (6,000 mt) in 2018. They further commented that NMFS could request advice from the SSC for an appropriate buffer in 2018. Additionally, the Herring Alliance, Mohegan Tribe, and Earth Justice commented that NMFS should use its authority to implement a revised ABC that appropriately buffers for scientific uncertainty in 2018. Response: NMFS disagrees. The recent herring stock assessment update completed in May 2015 contained a retrospective pattern suggesting that the spawning stock biomass (SSB) is likely PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 overestimated and fishing mortality (F) is likely underestimated. The assessment was adjusted to account for the retrospective pattern. Even with the adjustment to account for the scientific uncertainty associated with the retrospective pattern, the assessment estimated the herring stock at approximately double its target biomass (SSBMSY) and F is approximately half the fishing mortality threshold (FMSY). The stock assessment update generated catch projections for 2016–2018 based on the constant catch control rule. When the SSC evaluated the resulting ABC, it supported the resulting ABC and did not recommend specifying a scientific uncertainty buffer between OFL and ABC in 2018. Because the recent stock assessment update adjusted for scientific uncertainty and the SSC did not recommend that an additional scientific uncertainty buffer be specified for 2018, NMFS implements an ABC that equals OFL in 2018. Comment 3: The Cape Cod Commercial Fishermen’s Alliance, Jones River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth Justice opposed setting the ABC equal to the OFL in 2018. Their comments noted that this introduces unnecessary risk of overfishing. Response: NMFS disagrees. Herring are currently not overfished and overfishing is not occurring. While E:\FR\FM\01NOR1.SGM 01NOR1 jstallworth on DSK7TPTVN1PROD with RULES Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations setting the ABC equal to the OFL in 2018 has a 50-percent probability of overfishing in 2018, the overall probability of overfishing herring during 2016–2018 is near zero. In addition, the realized catch in the fishery is generally well below ABC, further reducing the likelihood of overfishing. Lastly, setting the ABC equal to OFL in 2018 would continue to provide the herring fishery with some economic stability, an important consideration in the Council’s harvest risk policy. Comment 4: The Herring Alliance, Mohegan Tribe, and Earth Justice oppose using the current constant catch control rule because it does not adjust the ABC to explicitly account for herring’s role as forage in the ecosystem and recommend that NMFS consider further reductions in ABC. Response: NMFS disagrees. When generating ABC catch projections for 2016–2018, the 2015 stock assessment update adjusted for predator consumption of herring by maintaining a relatively high natural mortality rate. Additionally, the recent stock assessment update indicated that herring has a high biomass (approximately 74 percent of unfished biomass) and low fishing mortality (ratio of catch to consumption by predators is 1:4). The constant catch ABC control rule is expected to maintain the high herring biomass, bolstered by two very large year classes, and low fishing mortality. Thus, the ABC control rule should meet forage demands and maintain a biomass level consistent with forage-based control rules in the short-term while the Council continues its consideration of herring’s role as forage in Amendment 8 to the Atlantic Herring FMP. For these reasons, NMFS concludes that the current constant control rule, as well as the associated ABC, sufficiently account for herring’s role as forage in the ecosystem during 2016–2018. Comment 5: Earth Justice commented that the ABC was not selected as part of a reasonable range of alternatives as required by the National Environmental Policy Act (NEPA) because none of the alternatives accounted for scientific uncertainty in 2018. They also stated that the EA acknowledged this lack of uncertainty buffer is not consistent with the best available science. Response: NFMS disagrees. As described above, the ABC sufficiently accounts for scientific uncertainty. The Council developed three ABC alternatives and fully analyzed them in the EA supporting this action. NEPA requires a Federal agency to consider a range of alternatives, and that the alternatives are reasonable alternatives VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 (i.e., those that meet the stated purpose and need, and objectives, for the action). The SSC recommended that the ABC for 2016–2018 remain relatively similar or modestly reduced compared to status quo. Consistent with SSC advice, the range of ABC alternatives considered in the EA were similar but reduced from status quo. For the status quo alternative, the EA cautioned that setting ABC equal to OFL for all three years appears to be inconsistent with best available science. The EA also explained that the ABC implemented in this action is more precautionary and expected to have more positive impacts than the status quo ABC because the scientific uncertainty buffer between the OFL and ABC during 2016 and 2017 results in a lower risk of overfishing. For these reasons, NMFS has determined that the range of ABC alternatives considered in this action was sufficient and consistent with the requirements of NEPA. Comment 6: One member of the public commented that the herring ACL should be decreased to 90,000 mt. Response: NMFS disagrees. The commenter provided no basis for setting the ACL at 90,000 mt. The most recent stock assessment update indicated herring was not overfished and overfishing was not occurring. Setting specifications always requires a balance between conservation and harvesting opportunity. The most current data show that an ABC of 111,000 mt would have a low positive economic impact on fishery-related businesses and communities while equaling less than half a sustainable fishery morality rate. Comment 7: The Alewife Harvesters of Maine commented in favor of the proposed decrease of the Gulf of Maine river herring/shad catch cap. It also commented in support of using the revised methodology with the longer time series and weighted mean, however, it ‘‘would propose a more gentle increase in catch cap that accounts for the biological uncertainty, raising the cap to the full weighted mean estimate over the course of several years.’’ Response: NMFS agrees with the Alewife Harvesters of Maine that using a longer time series and weighted mean is appropriate to calculate river herring/ shad catch caps. But NMFS disagrees with the suggestion that the value of the cap, rather than the methodology, should be the primary consideration when setting catch caps. The catch cap methodology uses the best available science to reflect recent fishing behavior and recent catch levels. Without a reasonable basis for developing different methodologies for each area or gear PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 75735 type, the methodology used to calculate one catch cap should apply to all catch caps. Comment 8: Five interested members of the public, six state and local advocacy groups, all four river watershed associations, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice on behalf of numerous U.S. citizens expressed concern that raising the river herring/shad catch caps will set back ongoing efforts by the states and local advocacy groups to restore river herring and shad to sustainable levels. Additionally, the Mohegan Tribe, Mystic River Watershed, Earth Justice, and Conservation Law Foundation suggests that the herring fishery may be a contributing factor to declines in Southern New England river herring and shad stock, based on a study by Hasselman et al. in 2015. Response: NMFS recognizes and supports the effort, time, and resources that states and local advocacy groups have devoted to river herring and shad restoration efforts. However, NMFS disagrees with the commenters that raising the river herring/shad catch caps will set back those efforts. Although the comments suggest otherwise, NMFS cannot directly link catch levels of river herring and shad in the herring fishery to impacts on river herring and shad recovery efforts by the states in specific rivers and streams. NMFS considered the Hasselman et al. study, despite it being published almost two months after the Council took final action at its meeting on September 29, 2015. NMFS acknowledges that certain river herring stocks may be disproportionately affected by the herring fishery, but points out the study also cautions that currently river herring and shad catch in the ocean cannot be confidently assigned to a specific population of origin. Instead, the catch caps are designed to minimize bycatch and bycatch mortality so that the catch of river herring and shad is kept below recent levels and limit fishing mortality to provide an opportunity for positive impacts on stocks. The incentive for the herring fishery to avoid river herring and shad catch comes from the potential that river herring and shad catch will limit the fishery’s ability to harvest the ACL. While this action increases the value of caps off Cape Cod and in Southern New England, the incentive to avoid river herring and shad catch remains while the caps are in place and are set based on fishing activity. NMFS has determined that the river herring/ shad catch caps implemented in this action will support ongoing E:\FR\FM\01NOR1.SGM 01NOR1 jstallworth on DSK7TPTVN1PROD with RULES 75736 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations conservation efforts by the states and local advocacy groups and will help achieve conservation and management objectives outlined in the River Herring Conservation Plan coordinated by the Atlantic States Marine Fisheries Commission and NMFS. Comment 9: Three NGOs, one interested member of the public, the Mystic River Watershed Association, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice submitted on behalf of numerous U.S. citizens commented that the caps do not provide an incentive to avoid river herring and shad. One interested member of the public, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice on behalf of numerous U.S. citizens commented that the herring industry has stayed well within the current river herring/shad catch caps since 2015 and does not need more river herring and shad catch to operate. Additionally, the Conservation Law Foundation, Earth Justice, Herring Alliance, The Mohegan Tribe, and Save the Bay-Narragansett further suggest that NMFS use its authority to implement river herring/ shad catch caps that reduce catch and stay consistent with the incentive to avoid and minimize river herring and shad catch. Response: NMFS disagrees with the commenters that the catch caps do not provide an incentive for the herring fishery to avoid river herring and shad catch. River herring/shad catch caps were first implemented in the herring fishery in 2014. As described previously, caps have been based on recent catch with the intent of keeping catch below its highest levels. Once 95 percent of a catch cap is harvested, the herring possession limit for vessels using that gear type and fishing in that area is reduced to 2,000 lb (907 kg) for the remainder of the fishing year. Implementation of this possession limit in a catch cap area decreases the herring fishery’s ability to harvest the herring sub-ACL associated with that areas as well as the herring ACL. The incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. For example, catch tracked against the Southern New England/MidAtlantic bottom trawl cap is currently 21 mt compared to 51 mt at this same time last year. This suggests that the existence of the catch caps is an effective incentive to avoid river herring and shad catch and more restrictive caps are not required to provide an VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 incentive to continue to avoid river herring and shad catch. The University of Massachusetts and Massachusetts Division of Marine Fisheries operate a river herring avoidance program for vessels participating in the herring fishery. This program is funded, in part, by the herring RSA for 2016–2018. The participation level of midwater trawl and bottom trawl vessels in the avoidance program has increased in recent years and currently includes the majority of midwater trawl and bottom trawl vessels. The river herring avoidance program provides vessels with near real-time information on where herring vessels are encountering river herring and encourages vessels to avoid and/or leave those areas. Select vessels that comply with the requirements of the avoidance program are able to harvest the herring RSA. Both the river herring avoidance program and the opportunity to harvest the herring RSA provide additional incentive for herring vessels to avoid river herring and shad. For these reasons, NMFS concludes the catch caps implemented in this action are consistent with the incentives to avoid and minimize catch to the extent practicable. Comment 10: Conservation Law Foundation, Earth Justice, Save the BayNarragansett, and the Earth Justice form letter stated that using a longer time series and a weighted mean to calculate the catch caps, compared to prior years, increases bias toward outlier years. Earth Justice, Conservation Law Foundation, Herring Alliance, Save the Bay-Narragansett, and the Earth Justice letter on behalf of 2,298 citizens commented that the industry had an incentive to catch more river herring and shad in 2013 and 2014 because it knew that more river herring and shad catch would mean higher catch caps in the future. Earth Justice and Save the Bay-Narragansett also commented that using the revised methodology is arbitrary and capricious in that it rewards the fleet for increasing river herring and shad catch 2013 and 2014. Response: Catch caps were implemented in Framework 3 to minimize river herring and shad bycatch and bycatch mortality to the extent practicable, while allowing the herring fishery an opportunity to fully harvest the herring ACL. Additionally, catch caps were intended to be adjusted when new information became available. The catch caps implemented in this action were calculated using updated data and a revised methodology. PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 Catch caps for the 2016–2018 fishing years were calculated by using previously omitted catch data and a longer time series (most recent 7 years rather than 5 years). This ensures that the value of the catch caps are based on more data, especially the most recent catch information, to better ensure the catch caps reflect the herring fishery’s interactions with river herring and shad and overall fishing effort. Because catch data may indirectly reflect stock abundance, setting catch caps based on recent catch data are expected to result in catch caps that are more consistent with current fishing activity, and possibly stock conditions. Commenters provided no information to substantiate claims that the herring industry intentionally caught more river herring and shad in 2013 and 2014 in order to artificially inflate catch caps. Therefore, NMFS concludes extending the time series used to calculate caps to include the two most recent years (2013 and 2014) best reflects the recent catch of river herring and shad, makes the best use of new information, and is consistent with Framework 3. Using a weighted mean, rather than the median or unweighted mean, to calculate catch caps best accounts for the inter-annual variability in the level of sampling (both observer and portside) of river herring and shad catch. Caps calculated using the median catch of river herring and shad would base the value of the cap on the total number of catch estimates, giving equal weight to all years regardless of sampling level. Using the unweighted mean, caps would be based on the average catch each year regardless of sampling level. In contrast, using a weighted mean to calculate catch caps adjusts for the sampling level each year and incorporates those averages into the overall average, thereby giving more weight to years with more sampling versus years with less sampling. Therefore, using a weighted mean helps account for the fluctuations in levels of sampling relative to observed catch of river herring and shad to help mitigate the effects of any outlier years. The revised methodology was developed by the Herring Plan Development Team (PDT). The PDT is the Council’s technical group responsible for developing and preparing analyses to support the Council’s management actions. The PDT is responsible for generating analyses to calculate quotas, caps, or any other technical aspects of the FMP. For the 2016–2018 catch caps, the PDT reviewed updated river herring and shad catch data and generated a range of catch cap alternatives for the E:\FR\FM\01NOR1.SGM 01NOR1 jstallworth on DSK7TPTVN1PROD with RULES Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations Council’s consideration. The PDT concluded that using a weighted mean and longer time series would be the most technically sound approach for specifying the values of the caps because it is consistent with using the best available science. The Council ultimately decided to adopt the river herring/shad catch caps based on the revised methodology recommended by the PDT. Using the revised methodology to calculate river herring/shad catch caps is consistent with using the best available science and it balances the incentive to avoid river herring and shad against the opportunity for the herring fishery to harvest the ACL. For these reasons, NMFS disagrees that the basis for setting river herring/shad catch caps implemented through this action, including the revised methodology, is arbitrary and capricious. Comment 11: Conservation Law Foundation, Earth Justice, and Save the Bay-Narragansett expressed concern that basing the river herring/shad catch caps on historical landings and not on biological status is problematic and not scientifically sound. The Ipswich River Watershed also commented that there is no science to support raising the caps. Response: NMFS disagrees. As described previously, available data are not robust enough to specify biologically-based catch caps that reflect river herring and shad abundance. Harvest limits are often based on recent catch when estimates of relative abundance are not available. For example, the herring ABC recommended by the SSC and implemented for 2010–2012 was based on recent catch because of scientific uncertainty associated with the 2009 herring stock assessment. In the absence of sufficient data to specify biologicallybased catch caps, the catch caps are set based on recent catch data with the intent of keeping catch below its highest levels to limit fishing mortality on river herring and shad. Limiting catch to recent levels is expected to result in positive impacts on the stocks. Comment 12: Letters generated by PEW Charitable Trusts and Earth Justice on behalf of numerous U.S. citizens commented that river herring and shad should be added as stocks in the Atlantic Herring FMP and managed based on science. Response: The intent of this action is to set herring specifications and river herring/shad catch caps for the 2016– 2018 fishing years. Adding river herring and shad as stocks in the fishery and developing management measures for both the river herring and shad stocks under the Atlantic Herring FMP are VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 beyond the scope of this action and would require a regulatory amendment. Comment 13: Earth Justice commented that the revised methodology used to set the river herring/shad catch caps for the 2016– 2018 fishing years is not consistent with the Mid-Atlantic Fishery Management Council’s (MAFMC) approach for setting the same cap in the Atlantic Mackerel, Squid, and Butterfish FMP. They also commented that implementing the proposed river herring/shad catch caps would interfere with the catch measures first implemented by the MAFMC and are thus inconsistent with the MSA’s requirement that new regulations be consistent with existing FMPs, amendments, MSA, and applicable law as stated in U.S.C. 1854(b)(1). Response: The MSA requires regulations to be consistent with the FMP. The MSA provision cited by the commenters does not require measures to be the same between FMPs. NMFS has determined that the river herring/ shad catch caps for the herring and mackerel fisheries, including the associated methodologies for setting caps, are consistent with the Atlantic Herring FMP and the Atlantic Mackerel, Squid, and Butterfish FMP, respectively. When the MAFMC developed the river herring and shad catch cap for the mackerel fishery, the catch cap was based on median river herring and shad catch in the mackerel fishery during 2005–2012. This methodology was identical to the river herring and shad catch cap methodology developed by the Council for the 2014–2015 herring fishery. However, the Council considers both observer and portside sampling data to set catch caps while the MAFMC only considers observer data. The MAFMC continues to use the median river herring and shad catch estimate from 2005–2012 to set the catch cap for the mackerel fishery. However, if the mackerel fishery harvests 10,000 mt of mackerel in a given year, the river herring and shad catch cap is scaled up to the match the median river herring and shad catch estimate based on the mackerel ACL. NMFS agrees that river herring/shad catch caps for the herring and mackerel fisheries should not cause management inconsistencies between the two fisheries. Midwater trawl and bottom trawl vessels often participate in both the herring and mackerel fisheries. When fishing trips meet the minimum harvest threshold for catch caps in the herring fishery (6,600 lb (3 mt) of herring) and the minimum harvest threshold for the catch cap in the mackerel fishery (20,000 lb (9,072 kg) of mackerel), then river herring and shad PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 75737 catch on those trips is counted against both caps and vessels would be subject to the most restrictive catch cap. Rather than management inconsistencies, river herring/shad catch caps in both the herring and mackerel fisheries provide an additional incentive to avoid river herring and shad catch, thereby potentially limiting fishing mortality on these species. Comment 14: Three NGOs, one interested member of the public, the Mystic River Watershed Association, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice submitted on behalf of numerous U.S. citizens commented that raising the river herring/shad catch caps does not minimize bycatch and is inconsistent with the MSA and the goals and objectives of the Atlantic Herring FMP. Earth Justice further commented that raising the catch caps is inconsistent with National Standard 9, which requires that conservation and management measures minimize bycatch to the extent practicable. Lastly, Earth Justice commented that the smallmesh bottom trawl fleet in Southern New England discards an estimated 73 percent of its river herring and shad catch at sea, but NMFS does not explain how it plans to minimize this bycatch, consistent with the MSA. Response: NMFS disagrees. The MSA, specifically National Standard 9, does not require the elimination of bycatch or bycatch mortality, nor does it require minimizing bycatch at the exclusion of other considerations. Rather, National Standard 9 requires minimizing bycatch and bycatch mortality to the extent practicable, which includes a consideration of the net benefits to the nation. This consideration includes evaluating the negative impacts on affected stocks and other species in the ecosystem, incomes accruing to participants in the directed fishery in both the short and long-term, changes in fishing practices and behavior, and environmental consequences. As discussed previously, the incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. Once a 2,000-lb (907-kg) possession limit is in effect for a particular gear and area, the herring fishery’s ability to harvest the herring sub-ACL associated with that area or the herring ACL is limited. This potential economic loss must be weighed against the role of river herring and shad in the herring fishery. River herring and shad are not target species in the herring fishery. Rather, they are harvested because they co-occur with herring and E:\FR\FM\01NOR1.SGM 01NOR1 jstallworth on DSK7TPTVN1PROD with RULES 75738 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations the incidental catch and bycatch of these species is low. Thus, the river herring/shad catch caps are not designed to eliminate all incidental catch. The caps are also not designed to remain static or continually decrease over time. These design features would not provide the flexibility for a full consideration of the net benefits to the nation because they may preclude an opportunity for herring industry to harvest its allowable catch. When evaluating the river herring/ shad catch caps recommended by the Council, NMFS considered the ecological and economic considerations associated with the catch caps, as well fishing practices and behavior. The catch caps are intended to minimize river herring and shad bycatch and bycatch mortality to the extent practicable, while allowing the herring fishery an opportunity to fully harvest the herring ACL. The total catch of river herring and shad (both retained and discarded) is tracked against the catch caps. Because total catch of river herring and shad catch is counted against the catch caps, these caps not only help minimize the retained catch of river herring and shad, but they also help minimize any river herring and shad catch that is discarded at sea. As described in the responses to previous comments, NMFS concludes that catch caps are calculated using new and updated information and are based on the best available science. NMFS also concludes that if vessels continue to avoid river herring and shad, they would have an opportunity to harvest the herring ACL. Additionally, NMFS concludes that catch caps may limit fishing mortality on river herring and shad, thereby supporting ongoing Federal, state, and local conservation efforts. For these reasons, NMFS determines the river herring/shad catch caps implemented in this action reduce bycatch and bycatch mortality to the extent practicable and are consistent with the MSA, National Standard 9, and the Atlantic Herring FMP. Comment 15: The Mystic River Watershed Association, Conservation Law Foundation, Herring Alliance, and Earth Justice all commented that there is a lack of onboard monitoring and that it is highly likely that more river herring and shad are/will be discarded at sea than reported. Response: In 2016, NMFS increased observer coverage allocated to New England midwater trawl vessels to approximately 440 days, consistent with the standardized bycatch reporting methodology (SBRM). This is an increase of 401 days (175 percent) over the 160 days observed on the New VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 England midwater trawl fleet in 2015. Three of the four river herring/shad catch caps implemented in this action are for vessels using midwater trawl gear. Additionally, observer coverage allocated to New England small-mesh bottom trawl vessels in 2016 (798 days) is expected to be similar to days observed in 2015 (933 days). The increase in observer coverage should help NMFS more precisely track catch against river herring/shad catch caps. Portside sampling by the Commonwealth of Massachusetts and the State of Maine is expected to continue into the future, collecting data on river herring and shad that are landed by midwater trawl and smallmesh bottom trawl vessels participating in the herring fishery. NMFS is currently considering if it would be appropriate to use portside sampling data along with observer data to track the catch of river herring and shad. Lastly, the Council is considering increasing monitoring in the herring fishery in the Industry-Funded Monitoring Omnibus Amendment. The Council is expected to take final action on this amendment in early 2017. Comment 16: Conservation Law Foundation, Herring Alliance, and Alewife Harvesters of Maine commented that all the biological uncertainty surrounding river herring and shad estimates demands a precautionary approach to management that requires either no increase in the catch caps or a more gradual increase. Response: The river herring/shad catch caps were developed by the Council to minimize river herring and shad bycatch to the extent practicable while allowing the herring fishery an opportunity to fully harvest the herring ACL. While NMFS acknowledges the uncertainty in the abundance estimates in the stock assessment for river herring and shad, that uncertainty was not intended to directly factor into the calculation of the river herring/shad catch caps. In fact, because of the absence of sufficient data to specify biologically-based catch caps, the catch caps are set based on recent catch data. The methodology used to calculate the catch caps, which accounts for variability of catch from year to year, incorporates precaution by keeping the catch caps below the highest catch levels and by establishing an incentive for the herring industry to avoid river herring and shad catch. Comment 17: Save the BayNarragansett commented that catch caps are being increased based on socioeconomic concerns and that only the Council, and its supporting scientists, PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 and the herring industry support increases to the catch caps. Response: NMFS must consider all factors, biological and socio-economic factors, when determining whether to accept or reject the Council’s recommendations. NMFS has determined that the Council’s recommended river herring/shad catch caps are consistent with the Atlantic Herring FMP, the MSA, and other applicable laws, and that comments opposing the increased catch caps provide no compelling information to reject the Council’s recommendations. Classification The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of this action. 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, and a summary of the analyses completed in the 2016– 2018 herring specifications EA. 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 action is contained in the preamble to the proposed rule (81 FR 40253), 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. A Summary of the Significant Issues Raised by the Public 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 32 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. E:\FR\FM\01NOR1.SGM 01NOR1 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations jstallworth on DSK7TPTVN1PROD with RULES Description and Estimate of Number of Small Entities to Which This Rule Would Apply This final rule would affect all permitted herring vessels; therefore, the regulated entity is the business that owns at least one herring permit. From 2014 permit data, there were 1,206 firms that held at least one herring permit; of those, 1,188 were classified as small businesses. There were 103 firms, 96 classified as small businesses, which held at least one limited access permit. There were 38 firms, including 34 small businesses, which held a limited access permit and were active in the herring fishery. All four of the active large entities, held at least one limited access herring permit. The small firms with limited access permits had 60 percent higher gross receipts and 85 percent higher revenue from herring than the small firms without a limited access herring permit. Based on 2014 permit data, the number of potential fishing vessels in each permit category in the herring fishery are as follows: 39 for Category A (limited access, all herring management areas); 4 for Category B (limited access, Herring Management Areas 2⁄3); 46 for Category C (limited access, all herring management areas); 1,841 for Category D (open access, all herring management areas); and 4 for Category E (open access, Herring Management Areas 2⁄3). On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration’s (SBA) previous standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors, respectively, of the U.S. commercial fishing industry. An IRFA was developed for this regulatory action prior to July 1, 2016, using SBA’s previous size standards. Under the SBA’s size standards, 4 of 38 active herring fishing entities with limited access permits were determined to be large. NMFS has qualitatively reviewed the analyses prepared for this action using the new size standard. The new standard could result in fewer commercial finfish businesses being considered small (due to the decrease in size standards). VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 Taking this change into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of the proposed rule on small entities. The ACLs are fishery wide and any closures would apply to the entire fishery, and should be felt proportionally by both large and small entities. Further, the new size standard does not affect the decision to prepare a FRFA as opposed to a certification for this regulatory action. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This final rule does not introduce any new reporting, recordkeeping, or other compliance requirements. 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 Specification of commercial harvest and river herring/shad catch caps are constrained by the conservation objectives set forth in the FMP and implemented at 50 CFR part 648, subpart K under the authority of the MSA. Furthermore, specifications must be based on the best available scientific information, consistent with National Standard 2 of the MSA. With the specification options considered, the measures in this final rule are the only measures that both satisfy these overarching regulatory and statutory requirements while minimizing, to the extent possible, impacts on small entities. This rule implements the herring specifications outlined in Table 1 and the river herring/shad catch caps outlined in Table 2. Other options considered by the Council, including those that could have less of an impact on small entities, failed to meet one or more of these stated objectives and, therefore, cannot be implemented. Under Alternatives 1 and 2 for harvest specifications, small entities may have experienced slight increases in both gross revenues and herring revenues over the preferred alternative due to higher ACLs. However, Alternative 1 would fail to create a sustainable fishery because the ABC exceeds the ABC recommended by the SSC for 2016–2018 and has an increased risk of overfishing as compared to the preferred alternative. The ABC associated with Alternative 2 is equal to the ABC associated with the preferred alternative; however, the management uncertainty buffer is less under Alternative 2, resulting in a higher ACL than the preferred PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 75739 alternative. Rather than select an alternative with a higher ACL, the Council selected Alternative 3 to be more precautionary. Alternatives 1 and 2 for the river herring/shad catch caps failed to use the best available science as compared to the Alternative 3, which uses a longer time series, including more recent and previously omitted data, as well as a weighted mean, to best account for the inter-annual variability in the level of river herring and shad sampling, to generate the values for river herring/shad catch caps. The impacts of the specifications, as implemented by this final rule, are not expected to disproportionately affect large or small entities. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (GARFO), and the compliance guide, i.e., permit holder letter, will be sent to all holders of permits for the Atlantic herring fishery. The guide and this final rule will be posted or publicly available on the GARFO Web site. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: October 26, 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 § 648.201, add paragraph (h) to read as follows: ■ § 648.201 AMs and harvest controls. * * * * * (h) If NMFS determines that the New Brunswick weir fishery landed less than E:\FR\FM\01NOR1.SGM 01NOR1 75740 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Rules and Regulations 4,000 mt through October 1, NMFS will allocate an additional 1,000 mt to the stockwide ACL and Area 1A sub-ACL. NMFS will notify the Council of this adjustment and publish the adjustment in the Federal Register. [FR Doc. 2016–26320 Filed 10–31–16; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863–6211–02] RIN 0648–XF009 Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; reallocation. AGENCY: NMFS is exchanging unused flathead sole and rock sole Community SUMMARY: Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2016 total allowable catch of yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested. DATES: Effective November 1, 2016 through December 31, 2016. FOR FURTHER INFORMATION CONTACT: Steve Whitney, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2016 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,233 metric tons (mt), 4,970 mt, and 17,562 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 72740, October 21, 2016). The 2016 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,856 mt, 12,268 mt, and 5,090 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 72740, October 21, 2016). The Yukon Delta Fisheries Development Association has requested that NMFS exchange 73 mt of flathead sole and 606 mt of rock sole CDQ reserves for 679 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 73 mt of flathead sole and 606 mt of rock sole CDQ reserves for 679 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and following revision (81 FR 72740, October 21, 2016), are revised as follows: TABLE 11—FINAL 2016 COMMUNITY DEVELOPMENT QUOTA (CDQ) RESERVES, INCIDENTAL CATCH AMOUNTS (ICAS), AND AMENDMENT 80 ALLOCATIONS OF THE ALEUTIAN ISLANDS PACIFIC OCEAN PERCH, AND BSAI FLATHEAD SOLE, ROCK SOLE, AND YELLOWFIN SOLE TACS [Amounts are in metric tons] Pacific ocean perch Sector Eastern Aleutian District TAC .......................................................... CDQ ......................................................... ICA ........................................................... BSAI trawl limited access ........................ Amendment 80 ......................................... Alaska Groundfish Cooperative ............... Alaska Seafood Cooperative ................... Central Aleutian District 7,900 845 200 685 6,169 3,271 2,898 Flathead sole Western Aleutian District 7,000 749 75 618 5,558 2,947 2,611 9,000 963 10 161 7,866 4,171 3,695 Rock sole Yellowfin sole BSAI BSAI BSAI 16,013 1,160 5,000 0 9,853 1,411 8,442 54,329 4,364 6,000 0 43,965 11,129 32,836 151,758 18,241 3,500 14,979 115,038 43,748 71,290 Note: Sector apportionments may not total precisely due to rounding. TABLE 13—FINAL 2016 AND 2017 ABC SURPLUS, COMMUNITY DEVELOPMENT QUOTA (CDQ) ABC RESERVES, AND AMENDMENT 80 ABC RESERVES IN THE BSAI FOR FLATHEAD SOLE, ROCK SOLE, AND YELLOWFIN SOLE [Amounts are in metric tons] 2016 Flathead sole jstallworth on DSK7TPTVN1PROD with RULES Sector ABC .......................................................... TAC .......................................................... ABC surplus ............................................. ABC reserve ............................................. CDQ ABC reserve ................................... Amendment 80 ABC reserve ................... Alaska Groundfish Cooperative for 2016 1 ................................................... VerDate Sep<11>2014 15:21 Oct 31, 2016 Jkt 241001 2016 Rock sole 2016 Yellowfin sole 2017 Flathead sole 2017 Rock sole 2017 Yellowfin sole 66,250 16,013 50,237 50,237 5,929 44,308 211,700 151,758 59,942 59,942 4,411 55,531 64,580 21,000 43,580 43,580 4,663 38,917 145,000 57,100 87,900 87,900 9,405 78,495 203,500 144,000 59,500 59,500 6,367 53,134 4,145 PO 00000 161,100 54,329 106,771 106,771 12,874 93,897 22,974 24,019 n/a n/a n/a Frm 00070 Fmt 4700 Sfmt 4700 E:\FR\FM\01NOR1.SGM 01NOR1

Agencies

[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Rules and Regulations]
[Pages 75731-75740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26320]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 151215999-6960-02]
RIN 0648-BF64


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Specification of Management Measures for Atlantic Herring for 
the 2016-2018 Fishing Years

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

ACTION: Final rule.

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

SUMMARY: NMFS is implementing final specifications and management 
measures for the 2016-2018 Atlantic herring fishery. This action sets 
harvest specifications and river herring/shad catch caps for the 
herring fishery for the 2016-2018 fishing years, as recommended to NMFS 
by the New England Fishery Management Council. The river herring/shad 
catch caps are area and gear-specific. River herring and shad catch 
from a specific area with a specific gear counts against a cap for 
trips landing more than a minimum amount of herring. The specifications 
and management measures in this action meet conservation objectives 
while providing sustainable levels of access to the fishery.

DATES: Effective December 1, 2016.

ADDRESSES: Copies of supporting documents used by the New England 
Fishery Management Council, including the Environmental Assessment (EA) 
and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility 
Analysis (IRFA), are available from: Thomas A. Nies, Executive 
Director, New England Fishery Management Council, 50 Water Street, Mill 
2, Newburyport, MA 01950, telephone (978) 465-0492. The EA/RIR/IRFA is 
also accessible via the Internet at http://www.greateratlantic.fisheries.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Shannah Jaburek, Fishery Management

[[Page 75732]]

Specialist, (978) 282-8456, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    NMFS published a proposed rule for the 2016-2018 specifications on 
June 21, 2016 (81 FR 40253). The comment period on the proposed rule 
ended on July 21, 2016. NMFS received 32 comments, which are summarized 
in the ``Comments and Responses'' section of this final rule.
    Regulations implementing the Atlantic Herring Fishery Management 
Plan (FMP) appear at 50 CFR part 648, subpart K. Regulations at Sec.  
648.200 require NMFS to make final determinations on the herring 
specifications recommended by the New England Fishery Management 
Council in the Federal Register, including: The overfishing limit 
(OFL); acceptable biological catch (ABC); annual catch limit (ACL); 
optimum yield (OY); domestic annual harvest (DAH); domestic annual 
processing (DAP); U.S. at-sea processing (USAP); border transfer (BT); 
management area sub-ACLs; and the amount to be set aside for the 
research set aside (RSA) (up to 3 percent of any management area sub-
ACL) for 3 years. These regulations also allow for river herring/shad 
catch caps to be developed and implemented as part of the 
specifications. The 2016-2018 herring specifications are consistent 
with these provisions, and provide the necessary elements to comply 
with the ACL and accountability measure (AM) requirements of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA). 
Complete details on the development of the herring specifications and 
river herring/shad catch caps were included in the proposed rule; NMFS 
has not repeated that information here.

Herring Specifications

                Table 1--Atlantic Herring Specifications
------------------------------------------------------------------------
 
------------------------------------------------------------------------
        2016-2018 Atlantic Herring Specifications--2016-2018 (mt)
------------------------------------------------------------------------
Overfishing Limit.......................  138,000-2016.
                                          117,000-2017.
                                          111,000-2018.
Acceptable Biological Catch.............  111,000.
Management Uncertainty..................  6,200.
Optimum Yield/ACL.......................  104,800.*
Domestic Annual Harvest.................  104,800.
Border Transfer.........................  4,000.
Domestic Annual Processing..............  100,800.
U.S. At-Sea Processing..................  0.
Area 1A Sub-ACL.........................  30,300.*
Area 1B Sub-ACL.........................  4,500.
Area 2 Sub-ACL..........................  29,100.
Area 3 Sub-ACL..........................  40,900.
Fixed Gear Set-Aside....................  295.
Research Set-Aside......................  3 percent of each sub-ACL.
------------------------------------------------------------------------
\*\ If New Brunswick weir fishery catch through October 1 is less than
  4,000 mt, then 1,000 mt will be subtracted from the management
  uncertainty buffer and added to the ACL and Area 1A Sub-ACL.

    An operational update to the herring stock assessment, completed in 
May 2015, indicated that herring was not overfished and overfishing was 
not occurring. However, the assessment contained a retrospective 
pattern suggesting that spawning stock biomass (SSB) is likely 
overestimated and fishing mortality (F) is likely underestimated. 
Following an adjustment for the retrospective pattern, the assessment 
estimated the herring stock at approximately double its target biomass 
(SSBMSY) and F at approximately half the fishing mortality 
threshold (FMSY).
    The herring ABC of 111,000 mt (a 3-mt decrease from status quo) for 
2016-2018 is based on the current control rule (constant catch with 50-
percent probability that F > FMSY in last year) and is 
consistent with the Council's Scientific and Statistical Committee's 
(SSC) advice. The OFL is 138,000 mt in 2016, 117,000 mt in 2017, and 
111,000 mt in 2018. While the ABC control rule does not explicitly 
adjust for herring's role in the ecosystem, herring's high biomass 
(approximately 74 percent of unfished biomass) and low fishing 
mortality (ratio of catch to consumption by predators is 1:4) likely 
achieves ecosystem goals, including accounting for herring's role as 
forage. The herring ABC is typically reduced from the OFL to account 
for scientific uncertainty. Using the current constant catch control 
rule means that the ABC will equal the OFL in 2018. When the SSC 
considered the ABC of 111,000 mt, it concluded that the probability of 
the stock becoming overfished during 2016-2018 is near zero. Further, 
this final rule is consistent with the status quo specifications that 
set ABC equal to OFL in 2015 and overfishing did not occur.
    Under the FMP, the herring ACL is reduced from ABC to account for 
management uncertainty, and the primary source of management 
uncertainty is catch in the New Brunswick weir fishery. Catch in the 
weir fishery is variable, but has declined in recent years. This final 
rule implements a management uncertainty buffer of 6,200 mt, which is 
equivalent to the value of the buffer in 2015. To help ensure catch in 
the New Brunswick weir fishery does not exceed the management 
uncertainty buffer, NMFS specifies a buffer greater than the most 
recent 3-year and 5-year average catch in the New Brunswick weir 
fishery. The resulting stockwide ACL will be 104,800 mt.
    Given the variability of the New Brunswick weir catch and the 
likelihood that weir catch may be less than 6,200 mt, NMFS also 
specifies a New Brunswick weir fishery payback provision. Specifically, 
NMFS will subtract 1,000 mt from the management uncertainty buffer and 
add it to the ACL if the weir fishery harvests less than 4,000 mt by 
October 1. The 1,000 mt added to the ACL would also increase the sub-
ACL for Herring Management Area 1A. NMFS selects the October 1 date to 
trigger the payback provision for two reasons. First, there is 
typically only minimal catch in the New Brunswick weir fishery after 
October 1 (less than four percent of total reported landings from 1978 
to 2014) so the likelihood of weir catch exceeding the management 
uncertainty buffer after October 1 is low. Second, adding 1,000 mt to 
the Area 1A sub-ACL in October is expected to allow herring vessels to 
access the additional harvest before catch in the herring fishery is 
limited in Area 1A. NMFS implements a 2,000-lb (907-kg) herring 
possession limit in Area 1A when it projects that 92 percent the sub-
ACL has been harvested. If New Brunswick weir catch is less than 4,000 
mt by October 1, the management uncertainty buffer will be reduced to 
5,200 mt, the ACL will be increased to 105,800 mt, and the Herring 
Management Area 1A sub-ACL will be increased to 31,300 mt. The New 
Brunswick weir fishery payback provision was last in effect during 
fishing years 2010-2012, so this final rule puts the payback provision 
back in place for 2016-2018. NMFS is currently awaiting final data to 
decide whether or not to subtract 1,000 mt from the management 
uncertainty buffer and increase the ACL and the Area 1A sub-ACL.
    BT is a processing allocation available to Canadian dealers. The 
MSA provides for the issuance of permits to Canadian vessels 
transporting U.S.-harvested herring to Canada for sardine processing. 
The amount specified for BT has equaled 4,000 mt since 2000. As there 
continues to be interest in transporting herring to Canada for sardine 
processing, NMFS maintains BT at 4,000 mt.

[[Page 75733]]

    The Atlantic Herring FMP specifies that DAH will be set less than 
or equal to OY and be composed of DAP and BT. DAP is the amount of U.S. 
harvest that is processed domestically, as well as herring that is sold 
fresh (i.e., bait). DAP is calculated by subtracting BT from DAH. DAH 
should reflect the actual and potential harvesting capacity of the U.S. 
herring fleet. Since 2001, total landings in the U.S. fishery have 
decreased, but herring catch has remained somewhat consistent from 
2003-2014, averaging 91,925 mt. When previously considering the DAH 
specification, the Council evaluated the harvesting capacity of the 
directed herring fleet and determined that the herring fleet is capable 
of fully utilizing the available yield from the fishery. This 
determination is still true. NMFS therefore sets DAH at 104,800 mt and 
DAP at 100,800 mt for the 2016-2018 fishing years in this final rule.
    A portion of DAP may be specified for the at-sea processing of 
herring in Federal waters. When determining this USAP specification, 
the Council considered the availability of shore-side processing, 
status of the resource, and opportunities for vessels to participate in 
the herring fishery. During the 2007-2009 fishing years, the Council 
maintained a USAP specification of 20,000 mt (Herring Management Areas 
\2/3\ only) based on information received about a new at-sea processing 
vessel that intended to utilize a substantial amount of the USAP 
specification. At that time, landings from Areas 2 and 3-where USAP was 
authorized-were considerably lower than recent sub-ACLs for Areas 2 and 
3. Moreover, the specification of 20,000 mt for USAP did not restrict 
either the operation or the expansion of the shoreside processing 
facilities during the 2007-2009 fishing years. However, this operation 
never materialized, and none of the USAP specification was used during 
the 2007-2009 fishing years. Consequently, NMFS set USAP at zero for 
the 2010-2015 fishing years. Lacking any additional information that 
would support changing this specification, NMFS maintains the USAP at 
zero for fishing years 2016-2018.
    The herring ABC specification recommended by the SSC for 2016-2018 
is not substantially different from the 2013-2015 ABC specification 
because, in part, key attributes of the herring stock (SSB, 
recruitment, F, and survey indices) have not significantly changed 
since the 2013-2015 herring specifications. Therefore, NMFS determined 
that there is no new information on which to modify the allocation of 
the total ACL between the herring management areas. This final rule 
maintains status quo percentage allocations for the herring sub-ACLs 
for the 2016-2018 specifications. The resulting sub-ACLs are slightly 
lower than 2013-2015 specifications (see Table 1).
    NMFS maintains the 2016-2018 RSA specification at 3 percent of each 
herring management area sub-ACL. The herring RSA is removed from each 
sub-ACL prior to allocating the sub-ACL to the fishery. If an RSA 
proposal is approved, but a final award is not made by NMFS, or if NMFS 
determines that the RSA cannot be utilized by a project, NMFS shall 
reallocate the unallocated or unused amount of the RSA to the 
respective sub-ACL. On February 29, 2016, NMFS fully awarded the 
herring RSA for fishing years 2016-2018.
    Herring regulations at Sec.  648.201(e) specify that up to 500 mt 
of the Herring Management Area 1A sub-ACL shall be allocated for the 
fixed gear fisheries (weirs and stop seines) in Area 1A that occur west 
of 67[deg]16.8' W. long. This set-aside shall be available for harvest 
by the fixed gear fisheries within Area 1A until November 1 of each 
year; any unused portion of the allocation will be restored to the Area 
1A sub-ACL after November 1. During the 2013-2015 fishing years, the 
fixed gear set-aside was specified at 295 mt. Because the proposed Area 
1A sub-ACL for the 2016-2018 fishing years is not substantially 
different from the Area 1A sub-ACL in 2015, NMFS maintains the fixed 
gear set-aside at 295 mt.

River Herring/Shad Catch Caps

    Framework 3 to the Atlantic Herring FMP established gear and area-
specific river herring/shad catch caps for the herring fishery in 2014. 
These included catch caps for midwater trawl vessels fishing in the 
Gulf of Maine, off Cape Cod, and in Southern New England, as well as 
for small-mesh bottom trawl vessels fishing in Southern New England. 
The caps are intended to minimize river herring and shad bycatch and 
bycatch mortality to the extent practicable while allowing the herring 
fishery an opportunity to fully harvest the herring ACL. The incentive 
to minimize the catch of river herring and shad is to avoid the 
implementation of a herring possession limit. Herring regulations at 
Sec.  648.201(a)(4)(ii) state that once 95 percent of a catch cap is 
harvested, the herring possession limit for vessels using that gear 
type and fishing in that area is reduced to 2,000 lb (907 kg) for the 
remainder of the fishing year. Once a 2,000-lb (907-kg) possession 
limit is in effect for a particular gear and area, the herring 
fishery's ability to harvest the herring sub-ACL associated with that 
area is limited. The herring fleet's avoidance of river herring and 
shad combined with the catch caps are expected to minimize river 
herring and shad bycatch and bycatch mortality. Additionally, the 
herring fishery is expected to be able to harvest the herring ACL, 
provided the fishery continues to avoid river herring and shad.
    As noted in Framework 3, available data are not robust enough to 
specify biologically-based catch caps that reflect river herring and 
shad abundance or to evaluate the potential impacts of catch caps on 
the river herring and shad stocks. Specific biological impacts on river 
herring and shad are influenced by fishing activity, environmental 
factors, climate change, restoration efforts, and other factors. In the 
absence of sufficient data to specify biologically-based catch caps, 
the caps have been set using recent river herring and shad catch data 
with the intent of keeping catch below its highest levels to limit 
fishing mortality on river herring and shad. Limiting fishing mortality 
is expected to result in positive impacts on the stocks.
    To date the values of the caps have been specified using the median 
catch of river herring and shad catch over the previous 5 years (2008-
2012). The 2016-2018 river herring/shad catch caps, as specified below 
in Table 2, are calculated using a revised methodology and updated data 
over a longer time period. The revised methodology uses a weighted mean 
catch of river herring and shad (versus median catch). This methodology 
better accounts for the inter-annual variability in the level of 
sampling by both observers and portside samplers by weighting years 
with higher sampling levels more heavily than years with lower sampling 
levels. Additionally, the revised methodology includes previously 
omitted catch data, including some shad landings and trips from catch 
cap areas where trips did not meet the 6,600-lb (3-mt) herring landing 
threshold, and updated extrapolation methodology (using sampled trips 
to estimate catch on unsampled trips). Lastly, by using a longer time 
series (the most recent 7 years versus 5 years), the value of the caps 
can be based on more data, especially the most recent catch 
information, to better ensure the catch caps reflect the herring 
fishery's interactions with river herring and shad and overall fishing 
effort.
    NMFS determined that using a longer time series, including more 
recent and previously omitted data, as well as using a weighted mean to 
generate the values for river herring/shad catch caps is consistent 
with using the best available science. Setting cap amounts

[[Page 75734]]

using recent catch data better reflects current fishing behavior and 
catch levels. Similarly, relying more heavily on years with higher 
levels of sampling should provide cap values that more precisely 
reflect recent catch. Additionally, catch data may indirectly reflect 
stock abundance. For example, increases in stock abundance may 
potentially result in increased incidental catch whereas decreases in 
abundance may result in decreased incidental catch. Therefore, setting 
catch cap amounts based on catch data are expected to result in catch 
caps that are more consistent with current fishing activity, and 
possibly stock conditions, while balancing the incentive to avoid river 
herring and shad against the opportunity for the herring fishery to 
harvest the ACL.
    NMFS is adjusting the river herring/shad catch caps to reflect the 
use of best available scientific data and a revised, superior 
methodology. This adjustment increases the catch caps for three of the 
four river herring/shad catch caps in the herring fishery. Based on 
fishing practices to date, however, NMFS expects river herring and shad 
catch to remain below the catch cap amounts. For example, the herring 
industry currently has harvested only 57 percent of the total river 
herring and shad catch allowed under the 2015 river herring/shad catch 
caps. Because river herring and shad catch is currently well below 
allowable catch limits, NMFS does not expect that any catch cap 
increases implemented in this action will result in a substantial 
increase in river herring and shad catch. Rather, NMFS anticipates that 
the 2,000-lb (907-kg) herring possession limit that will result if a 
cap is harvested will continue to provide a strong incentive for the 
herring industry to avoid catching river herring and shad and that the 
herring industry will continue to harvest less than the river herring 
and shad catch allowed under the adjusted catch caps.

                 Table 2--River Herring/Shad Catch Caps
------------------------------------------------------------------------
               Area                         Gear            Amount (mt)
------------------------------------------------------------------------
                 2016-2018 River Herring/Shad Catch Caps
------------------------------------------------------------------------
Gulf Of Maine.....................  Midwater Trawl......            76.7
Cape Cod..........................  Midwater Trawl......            32.4
Southern New England/Mid-Atlantic.  Midwater Trawl......           129.6
Southern New England/Mid-Atlantic.  Bottom Trawl........           122.3
                                   -------------------------------------
    Total.........................  All Gears...........           361.0
------------------------------------------------------------------------

Comments and Responses

    NMFS received 32 comment letters on the proposed rule: 9 from 
interested members of the public; 3 from herring industry participants; 
2 from other fishing industry participants (Massachusetts Lobstermen's 
Association (MLA) and the Cape Cod Commercial Fishermen's Alliance); 4 
from local watershed groups (Jones River, Ipswich River, Mystic River, 
and the Herring Ponds Watershed Associations); and 12 from non-
governmental organizations (NGOs), including 6 prominent environmental 
advocacy groups (Conservation Law Foundation, Earth Justice, the 
Herring Alliance, Save the Bay-Narragansett, the Mohegan Tribe, and 
Alewife Harvesters of Maine). Two of the environmental advocacy group 
comments were form letters that contained signatures and personalized 
comments, including: A letter from PEW Charitable Trusts with 10,593 
signatures and 931 personalized comments; and a letter from Earth 
Justice with 2,298 signatures and 234 personalized comments.
    Comment 1: Three herring fishery participants and the MLA commented 
in support of the proposed 2016-2018 herring specifications and river 
herring/shad caps.
    Response: NMFS approved the 2016-2018 herring specifications and 
river herring/shad catch caps because they promote achieving optimal 
yield, fishery conservation, are based upon best available science, and 
are consistent with the goals and objectives of the Atlantic Herring 
FMP.
    Comment 2: The Cape Cod Commercial Fishermen's Alliance, Jones 
River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth 
Justice opposed setting the ABC equal to the OFL in 2018. Their 
comments claimed that the 2018 ABC does not adequately account for 
scientific uncertainty. Earth Justice commented that NMFS could revise 
the specifications to account for scientific uncertainty in a number of 
ways. They suggested NMFS could implement ABCs in 2017 and 2018 with 
the same scientific uncertainty buffer that was set for 2016 (27,000 
mt) or implement the 2017 scientific uncertainty buffer (6,000 mt) in 
2018. They further commented that NMFS could request advice from the 
SSC for an appropriate buffer in 2018. Additionally, the Herring 
Alliance, Mohegan Tribe, and Earth Justice commented that NMFS should 
use its authority to implement a revised ABC that appropriately buffers 
for scientific uncertainty in 2018.
    Response: NMFS disagrees. The recent herring stock assessment 
update completed in May 2015 contained a retrospective pattern 
suggesting that the spawning stock biomass (SSB) is likely 
overestimated and fishing mortality (F) is likely underestimated. The 
assessment was adjusted to account for the retrospective pattern. Even 
with the adjustment to account for the scientific uncertainty 
associated with the retrospective pattern, the assessment estimated the 
herring stock at approximately double its target biomass 
(SSBMSY) and F is approximately half the fishing mortality 
threshold (FMSY). The stock assessment update generated 
catch projections for 2016-2018 based on the constant catch control 
rule. When the SSC evaluated the resulting ABC, it supported the 
resulting ABC and did not recommend specifying a scientific uncertainty 
buffer between OFL and ABC in 2018. Because the recent stock assessment 
update adjusted for scientific uncertainty and the SSC did not 
recommend that an additional scientific uncertainty buffer be specified 
for 2018, NMFS implements an ABC that equals OFL in 2018.
    Comment 3: The Cape Cod Commercial Fishermen's Alliance, Jones 
River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth 
Justice opposed setting the ABC equal to the OFL in 2018. Their 
comments noted that this introduces unnecessary risk of overfishing.
    Response: NMFS disagrees. Herring are currently not overfished and 
overfishing is not occurring. While

[[Page 75735]]

setting the ABC equal to the OFL in 2018 has a 50-percent probability 
of overfishing in 2018, the overall probability of overfishing herring 
during 2016-2018 is near zero. In addition, the realized catch in the 
fishery is generally well below ABC, further reducing the likelihood of 
overfishing. Lastly, setting the ABC equal to OFL in 2018 would 
continue to provide the herring fishery with some economic stability, 
an important consideration in the Council's harvest risk policy.
    Comment 4: The Herring Alliance, Mohegan Tribe, and Earth Justice 
oppose using the current constant catch control rule because it does 
not adjust the ABC to explicitly account for herring's role as forage 
in the ecosystem and recommend that NMFS consider further reductions in 
ABC.
    Response: NMFS disagrees. When generating ABC catch projections for 
2016-2018, the 2015 stock assessment update adjusted for predator 
consumption of herring by maintaining a relatively high natural 
mortality rate. Additionally, the recent stock assessment update 
indicated that herring has a high biomass (approximately 74 percent of 
unfished biomass) and low fishing mortality (ratio of catch to 
consumption by predators is 1:4). The constant catch ABC control rule 
is expected to maintain the high herring biomass, bolstered by two very 
large year classes, and low fishing mortality. Thus, the ABC control 
rule should meet forage demands and maintain a biomass level consistent 
with forage-based control rules in the short-term while the Council 
continues its consideration of herring's role as forage in Amendment 8 
to the Atlantic Herring FMP. For these reasons, NMFS concludes that the 
current constant control rule, as well as the associated ABC, 
sufficiently account for herring's role as forage in the ecosystem 
during 2016-2018.
    Comment 5: Earth Justice commented that the ABC was not selected as 
part of a reasonable range of alternatives as required by the National 
Environmental Policy Act (NEPA) because none of the alternatives 
accounted for scientific uncertainty in 2018. They also stated that the 
EA acknowledged this lack of uncertainty buffer is not consistent with 
the best available science.
    Response: NFMS disagrees. As described above, the ABC sufficiently 
accounts for scientific uncertainty. The Council developed three ABC 
alternatives and fully analyzed them in the EA supporting this action. 
NEPA requires a Federal agency to consider a range of alternatives, and 
that the alternatives are reasonable alternatives (i.e., those that 
meet the stated purpose and need, and objectives, for the action). The 
SSC recommended that the ABC for 2016-2018 remain relatively similar or 
modestly reduced compared to status quo. Consistent with SSC advice, 
the range of ABC alternatives considered in the EA were similar but 
reduced from status quo. For the status quo alternative, the EA 
cautioned that setting ABC equal to OFL for all three years appears to 
be inconsistent with best available science. The EA also explained that 
the ABC implemented in this action is more precautionary and expected 
to have more positive impacts than the status quo ABC because the 
scientific uncertainty buffer between the OFL and ABC during 2016 and 
2017 results in a lower risk of overfishing. For these reasons, NMFS 
has determined that the range of ABC alternatives considered in this 
action was sufficient and consistent with the requirements of NEPA.
    Comment 6: One member of the public commented that the herring ACL 
should be decreased to 90,000 mt.
    Response: NMFS disagrees. The commenter provided no basis for 
setting the ACL at 90,000 mt. The most recent stock assessment update 
indicated herring was not overfished and overfishing was not occurring. 
Setting specifications always requires a balance between conservation 
and harvesting opportunity. The most current data show that an ABC of 
111,000 mt would have a low positive economic impact on fishery-related 
businesses and communities while equaling less than half a sustainable 
fishery morality rate.
    Comment 7: The Alewife Harvesters of Maine commented in favor of 
the proposed decrease of the Gulf of Maine river herring/shad catch 
cap. It also commented in support of using the revised methodology with 
the longer time series and weighted mean, however, it ``would propose a 
more gentle increase in catch cap that accounts for the biological 
uncertainty, raising the cap to the full weighted mean estimate over 
the course of several years.''
    Response: NMFS agrees with the Alewife Harvesters of Maine that 
using a longer time series and weighted mean is appropriate to 
calculate river herring/shad catch caps. But NMFS disagrees with the 
suggestion that the value of the cap, rather than the methodology, 
should be the primary consideration when setting catch caps. The catch 
cap methodology uses the best available science to reflect recent 
fishing behavior and recent catch levels. Without a reasonable basis 
for developing different methodologies for each area or gear type, the 
methodology used to calculate one catch cap should apply to all catch 
caps.
    Comment 8: Five interested members of the public, six state and 
local advocacy groups, all four river watershed associations, 
Conservation Law Foundation, Earth Justice, Herring Alliance, and 
letters from PEW Charitable Trust and Earth Justice on behalf of 
numerous U.S. citizens expressed concern that raising the river 
herring/shad catch caps will set back ongoing efforts by the states and 
local advocacy groups to restore river herring and shad to sustainable 
levels. Additionally, the Mohegan Tribe, Mystic River Watershed, Earth 
Justice, and Conservation Law Foundation suggests that the herring 
fishery may be a contributing factor to declines in Southern New 
England river herring and shad stock, based on a study by Hasselman et 
al. in 2015.
    Response: NMFS recognizes and supports the effort, time, and 
resources that states and local advocacy groups have devoted to river 
herring and shad restoration efforts. However, NMFS disagrees with the 
commenters that raising the river herring/shad catch caps will set back 
those efforts. Although the comments suggest otherwise, NMFS cannot 
directly link catch levels of river herring and shad in the herring 
fishery to impacts on river herring and shad recovery efforts by the 
states in specific rivers and streams. NMFS considered the Hasselman et 
al. study, despite it being published almost two months after the 
Council took final action at its meeting on September 29, 2015. NMFS 
acknowledges that certain river herring stocks may be 
disproportionately affected by the herring fishery, but points out the 
study also cautions that currently river herring and shad catch in the 
ocean cannot be confidently assigned to a specific population of 
origin. Instead, the catch caps are designed to minimize bycatch and 
bycatch mortality so that the catch of river herring and shad is kept 
below recent levels and limit fishing mortality to provide an 
opportunity for positive impacts on stocks. The incentive for the 
herring fishery to avoid river herring and shad catch comes from the 
potential that river herring and shad catch will limit the fishery's 
ability to harvest the ACL. While this action increases the value of 
caps off Cape Cod and in Southern New England, the incentive to avoid 
river herring and shad catch remains while the caps are in place and 
are set based on fishing activity. NMFS has determined that the river 
herring/shad catch caps implemented in this action will support ongoing

[[Page 75736]]

conservation efforts by the states and local advocacy groups and will 
help achieve conservation and management objectives outlined in the 
River Herring Conservation Plan coordinated by the Atlantic States 
Marine Fisheries Commission and NMFS.
    Comment 9: Three NGOs, one interested member of the public, the 
Mystic River Watershed Association, Conservation Law Foundation, Earth 
Justice, Herring Alliance, and letters from PEW Charitable Trust and 
Earth Justice submitted on behalf of numerous U.S. citizens commented 
that the caps do not provide an incentive to avoid river herring and 
shad. One interested member of the public, Conservation Law Foundation, 
Earth Justice, Herring Alliance, and letters from PEW Charitable Trust 
and Earth Justice on behalf of numerous U.S. citizens commented that 
the herring industry has stayed well within the current river herring/
shad catch caps since 2015 and does not need more river herring and 
shad catch to operate. Additionally, the Conservation Law Foundation, 
Earth Justice, Herring Alliance, The Mohegan Tribe, and Save the Bay-
Narragansett further suggest that NMFS use its authority to implement 
river herring/shad catch caps that reduce catch and stay consistent 
with the incentive to avoid and minimize river herring and shad catch.
    Response: NMFS disagrees with the commenters that the catch caps do 
not provide an incentive for the herring fishery to avoid river herring 
and shad catch. River herring/shad catch caps were first implemented in 
the herring fishery in 2014. As described previously, caps have been 
based on recent catch with the intent of keeping catch below its 
highest levels. Once 95 percent of a catch cap is harvested, the 
herring possession limit for vessels using that gear type and fishing 
in that area is reduced to 2,000 lb (907 kg) for the remainder of the 
fishing year. Implementation of this possession limit in a catch cap 
area decreases the herring fishery's ability to harvest the herring 
sub-ACL associated with that areas as well as the herring ACL.
    The incentive to minimize the catch of river herring and shad is to 
avoid the implementation of a herring possession limit. For example, 
catch tracked against the Southern New England/Mid-Atlantic bottom 
trawl cap is currently 21 mt compared to 51 mt at this same time last 
year. This suggests that the existence of the catch caps is an 
effective incentive to avoid river herring and shad catch and more 
restrictive caps are not required to provide an incentive to continue 
to avoid river herring and shad catch.
    The University of Massachusetts and Massachusetts Division of 
Marine Fisheries operate a river herring avoidance program for vessels 
participating in the herring fishery. This program is funded, in part, 
by the herring RSA for 2016-2018. The participation level of midwater 
trawl and bottom trawl vessels in the avoidance program has increased 
in recent years and currently includes the majority of midwater trawl 
and bottom trawl vessels. The river herring avoidance program provides 
vessels with near real-time information on where herring vessels are 
encountering river herring and encourages vessels to avoid and/or leave 
those areas. Select vessels that comply with the requirements of the 
avoidance program are able to harvest the herring RSA. Both the river 
herring avoidance program and the opportunity to harvest the herring 
RSA provide additional incentive for herring vessels to avoid river 
herring and shad.
    For these reasons, NMFS concludes the catch caps implemented in 
this action are consistent with the incentives to avoid and minimize 
catch to the extent practicable.
    Comment 10: Conservation Law Foundation, Earth Justice, Save the 
Bay-Narragansett, and the Earth Justice form letter stated that using a 
longer time series and a weighted mean to calculate the catch caps, 
compared to prior years, increases bias toward outlier years. Earth 
Justice, Conservation Law Foundation, Herring Alliance, Save the Bay-
Narragansett, and the Earth Justice letter on behalf of 2,298 citizens 
commented that the industry had an incentive to catch more river 
herring and shad in 2013 and 2014 because it knew that more river 
herring and shad catch would mean higher catch caps in the future. 
Earth Justice and Save the Bay-Narragansett also commented that using 
the revised methodology is arbitrary and capricious in that it rewards 
the fleet for increasing river herring and shad catch 2013 and 2014.
    Response: Catch caps were implemented in Framework 3 to minimize 
river herring and shad bycatch and bycatch mortality to the extent 
practicable, while allowing the herring fishery an opportunity to fully 
harvest the herring ACL. Additionally, catch caps were intended to be 
adjusted when new information became available. The catch caps 
implemented in this action were calculated using updated data and a 
revised methodology.
    Catch caps for the 2016-2018 fishing years were calculated by using 
previously omitted catch data and a longer time series (most recent 7 
years rather than 5 years). This ensures that the value of the catch 
caps are based on more data, especially the most recent catch 
information, to better ensure the catch caps reflect the herring 
fishery's interactions with river herring and shad and overall fishing 
effort. Because catch data may indirectly reflect stock abundance, 
setting catch caps based on recent catch data are expected to result in 
catch caps that are more consistent with current fishing activity, and 
possibly stock conditions. Commenters provided no information to 
substantiate claims that the herring industry intentionally caught more 
river herring and shad in 2013 and 2014 in order to artificially 
inflate catch caps. Therefore, NMFS concludes extending the time series 
used to calculate caps to include the two most recent years (2013 and 
2014) best reflects the recent catch of river herring and shad, makes 
the best use of new information, and is consistent with Framework 3.
    Using a weighted mean, rather than the median or unweighted mean, 
to calculate catch caps best accounts for the inter-annual variability 
in the level of sampling (both observer and portside) of river herring 
and shad catch. Caps calculated using the median catch of river herring 
and shad would base the value of the cap on the total number of catch 
estimates, giving equal weight to all years regardless of sampling 
level. Using the unweighted mean, caps would be based on the average 
catch each year regardless of sampling level. In contrast, using a 
weighted mean to calculate catch caps adjusts for the sampling level 
each year and incorporates those averages into the overall average, 
thereby giving more weight to years with more sampling versus years 
with less sampling. Therefore, using a weighted mean helps account for 
the fluctuations in levels of sampling relative to observed catch of 
river herring and shad to help mitigate the effects of any outlier 
years.
    The revised methodology was developed by the Herring Plan 
Development Team (PDT). The PDT is the Council's technical group 
responsible for developing and preparing analyses to support the 
Council's management actions. The PDT is responsible for generating 
analyses to calculate quotas, caps, or any other technical aspects of 
the FMP. For the 2016-2018 catch caps, the PDT reviewed updated river 
herring and shad catch data and generated a range of catch cap 
alternatives for the

[[Page 75737]]

Council's consideration. The PDT concluded that using a weighted mean 
and longer time series would be the most technically sound approach for 
specifying the values of the caps because it is consistent with using 
the best available science. The Council ultimately decided to adopt the 
river herring/shad catch caps based on the revised methodology 
recommended by the PDT.
    Using the revised methodology to calculate river herring/shad catch 
caps is consistent with using the best available science and it 
balances the incentive to avoid river herring and shad against the 
opportunity for the herring fishery to harvest the ACL. For these 
reasons, NMFS disagrees that the basis for setting river herring/shad 
catch caps implemented through this action, including the revised 
methodology, is arbitrary and capricious.
    Comment 11: Conservation Law Foundation, Earth Justice, and Save 
the Bay-Narragansett expressed concern that basing the river herring/
shad catch caps on historical landings and not on biological status is 
problematic and not scientifically sound. The Ipswich River Watershed 
also commented that there is no science to support raising the caps.
    Response: NMFS disagrees. As described previously, available data 
are not robust enough to specify biologically-based catch caps that 
reflect river herring and shad abundance. Harvest limits are often 
based on recent catch when estimates of relative abundance are not 
available. For example, the herring ABC recommended by the SSC and 
implemented for 2010-2012 was based on recent catch because of 
scientific uncertainty associated with the 2009 herring stock 
assessment. In the absence of sufficient data to specify biologically-
based catch caps, the catch caps are set based on recent catch data 
with the intent of keeping catch below its highest levels to limit 
fishing mortality on river herring and shad. Limiting catch to recent 
levels is expected to result in positive impacts on the stocks.
    Comment 12: Letters generated by PEW Charitable Trusts and Earth 
Justice on behalf of numerous U.S. citizens commented that river 
herring and shad should be added as stocks in the Atlantic Herring FMP 
and managed based on science.
    Response: The intent of this action is to set herring 
specifications and river herring/shad catch caps for the 2016-2018 
fishing years. Adding river herring and shad as stocks in the fishery 
and developing management measures for both the river herring and shad 
stocks under the Atlantic Herring FMP are beyond the scope of this 
action and would require a regulatory amendment.
    Comment 13: Earth Justice commented that the revised methodology 
used to set the river herring/shad catch caps for the 2016-2018 fishing 
years is not consistent with the Mid-Atlantic Fishery Management 
Council's (MAFMC) approach for setting the same cap in the Atlantic 
Mackerel, Squid, and Butterfish FMP. They also commented that 
implementing the proposed river herring/shad catch caps would interfere 
with the catch measures first implemented by the MAFMC and are thus 
inconsistent with the MSA's requirement that new regulations be 
consistent with existing FMPs, amendments, MSA, and applicable law as 
stated in U.S.C. 1854(b)(1).
    Response: The MSA requires regulations to be consistent with the 
FMP. The MSA provision cited by the commenters does not require 
measures to be the same between FMPs. NMFS has determined that the 
river herring/shad catch caps for the herring and mackerel fisheries, 
including the associated methodologies for setting caps, are consistent 
with the Atlantic Herring FMP and the Atlantic Mackerel, Squid, and 
Butterfish FMP, respectively.
    When the MAFMC developed the river herring and shad catch cap for 
the mackerel fishery, the catch cap was based on median river herring 
and shad catch in the mackerel fishery during 2005-2012. This 
methodology was identical to the river herring and shad catch cap 
methodology developed by the Council for the 2014-2015 herring fishery. 
However, the Council considers both observer and portside sampling data 
to set catch caps while the MAFMC only considers observer data. The 
MAFMC continues to use the median river herring and shad catch estimate 
from 2005-2012 to set the catch cap for the mackerel fishery. However, 
if the mackerel fishery harvests 10,000 mt of mackerel in a given year, 
the river herring and shad catch cap is scaled up to the match the 
median river herring and shad catch estimate based on the mackerel ACL.
    NMFS agrees that river herring/shad catch caps for the herring and 
mackerel fisheries should not cause management inconsistencies between 
the two fisheries. Midwater trawl and bottom trawl vessels often 
participate in both the herring and mackerel fisheries. When fishing 
trips meet the minimum harvest threshold for catch caps in the herring 
fishery (6,600 lb (3 mt) of herring) and the minimum harvest threshold 
for the catch cap in the mackerel fishery (20,000 lb (9,072 kg) of 
mackerel), then river herring and shad catch on those trips is counted 
against both caps and vessels would be subject to the most restrictive 
catch cap. Rather than management inconsistencies, river herring/shad 
catch caps in both the herring and mackerel fisheries provide an 
additional incentive to avoid river herring and shad catch, thereby 
potentially limiting fishing mortality on these species.
    Comment 14: Three NGOs, one interested member of the public, the 
Mystic River Watershed Association, Conservation Law Foundation, Earth 
Justice, Herring Alliance, and letters from PEW Charitable Trust and 
Earth Justice submitted on behalf of numerous U.S. citizens commented 
that raising the river herring/shad catch caps does not minimize 
bycatch and is inconsistent with the MSA and the goals and objectives 
of the Atlantic Herring FMP. Earth Justice further commented that 
raising the catch caps is inconsistent with National Standard 9, which 
requires that conservation and management measures minimize bycatch to 
the extent practicable. Lastly, Earth Justice commented that the small-
mesh bottom trawl fleet in Southern New England discards an estimated 
73 percent of its river herring and shad catch at sea, but NMFS does 
not explain how it plans to minimize this bycatch, consistent with the 
MSA.
    Response: NMFS disagrees. The MSA, specifically National Standard 
9, does not require the elimination of bycatch or bycatch mortality, 
nor does it require minimizing bycatch at the exclusion of other 
considerations. Rather, National Standard 9 requires minimizing bycatch 
and bycatch mortality to the extent practicable, which includes a 
consideration of the net benefits to the nation. This consideration 
includes evaluating the negative impacts on affected stocks and other 
species in the ecosystem, incomes accruing to participants in the 
directed fishery in both the short and long-term, changes in fishing 
practices and behavior, and environmental consequences.
    As discussed previously, the incentive to minimize the catch of 
river herring and shad is to avoid the implementation of a herring 
possession limit. Once a 2,000-lb (907-kg) possession limit is in 
effect for a particular gear and area, the herring fishery's ability to 
harvest the herring sub-ACL associated with that area or the herring 
ACL is limited. This potential economic loss must be weighed against 
the role of river herring and shad in the herring fishery. River 
herring and shad are not target species in the herring fishery. Rather, 
they are harvested because they co-occur with herring and

[[Page 75738]]

the incidental catch and bycatch of these species is low. Thus, the 
river herring/shad catch caps are not designed to eliminate all 
incidental catch. The caps are also not designed to remain static or 
continually decrease over time. These design features would not provide 
the flexibility for a full consideration of the net benefits to the 
nation because they may preclude an opportunity for herring industry to 
harvest its allowable catch.
    When evaluating the river herring/shad catch caps recommended by 
the Council, NMFS considered the ecological and economic considerations 
associated with the catch caps, as well fishing practices and behavior. 
The catch caps are intended to minimize river herring and shad bycatch 
and bycatch mortality to the extent practicable, while allowing the 
herring fishery an opportunity to fully harvest the herring ACL. The 
total catch of river herring and shad (both retained and discarded) is 
tracked against the catch caps. Because total catch of river herring 
and shad catch is counted against the catch caps, these caps not only 
help minimize the retained catch of river herring and shad, but they 
also help minimize any river herring and shad catch that is discarded 
at sea. As described in the responses to previous comments, NMFS 
concludes that catch caps are calculated using new and updated 
information and are based on the best available science. NMFS also 
concludes that if vessels continue to avoid river herring and shad, 
they would have an opportunity to harvest the herring ACL. 
Additionally, NMFS concludes that catch caps may limit fishing 
mortality on river herring and shad, thereby supporting ongoing 
Federal, state, and local conservation efforts. For these reasons, NMFS 
determines the river herring/shad catch caps implemented in this action 
reduce bycatch and bycatch mortality to the extent practicable and are 
consistent with the MSA, National Standard 9, and the Atlantic Herring 
FMP.
    Comment 15: The Mystic River Watershed Association, Conservation 
Law Foundation, Herring Alliance, and Earth Justice all commented that 
there is a lack of onboard monitoring and that it is highly likely that 
more river herring and shad are/will be discarded at sea than reported.
    Response: In 2016, NMFS increased observer coverage allocated to 
New England midwater trawl vessels to approximately 440 days, 
consistent with the standardized bycatch reporting methodology (SBRM). 
This is an increase of 401 days (175 percent) over the 160 days 
observed on the New England midwater trawl fleet in 2015. Three of the 
four river herring/shad catch caps implemented in this action are for 
vessels using midwater trawl gear. Additionally, observer coverage 
allocated to New England small-mesh bottom trawl vessels in 2016 (798 
days) is expected to be similar to days observed in 2015 (933 days). 
The increase in observer coverage should help NMFS more precisely track 
catch against river herring/shad catch caps. Portside sampling by the 
Commonwealth of Massachusetts and the State of Maine is expected to 
continue into the future, collecting data on river herring and shad 
that are landed by midwater trawl and small-mesh bottom trawl vessels 
participating in the herring fishery. NMFS is currently considering if 
it would be appropriate to use portside sampling data along with 
observer data to track the catch of river herring and shad. Lastly, the 
Council is considering increasing monitoring in the herring fishery in 
the Industry-Funded Monitoring Omnibus Amendment. The Council is 
expected to take final action on this amendment in early 2017.
    Comment 16: Conservation Law Foundation, Herring Alliance, and 
Alewife Harvesters of Maine commented that all the biological 
uncertainty surrounding river herring and shad estimates demands a 
precautionary approach to management that requires either no increase 
in the catch caps or a more gradual increase.
    Response: The river herring/shad catch caps were developed by the 
Council to minimize river herring and shad bycatch to the extent 
practicable while allowing the herring fishery an opportunity to fully 
harvest the herring ACL. While NMFS acknowledges the uncertainty in the 
abundance estimates in the stock assessment for river herring and shad, 
that uncertainty was not intended to directly factor into the 
calculation of the river herring/shad catch caps. In fact, because of 
the absence of sufficient data to specify biologically-based catch 
caps, the catch caps are set based on recent catch data. The 
methodology used to calculate the catch caps, which accounts for 
variability of catch from year to year, incorporates precaution by 
keeping the catch caps below the highest catch levels and by 
establishing an incentive for the herring industry to avoid river 
herring and shad catch.
    Comment 17: Save the Bay-Narragansett commented that catch caps are 
being increased based on socio-economic concerns and that only the 
Council, and its supporting scientists, and the herring industry 
support increases to the catch caps.
    Response: NMFS must consider all factors, biological and socio-
economic factors, when determining whether to accept or reject the 
Council's recommendations. NMFS has determined that the Council's 
recommended river herring/shad catch caps are consistent with the 
Atlantic Herring FMP, the MSA, and other applicable laws, and that 
comments opposing the increased catch caps provide no compelling 
information to reject the Council's recommendations.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is consistent with the national standards and other 
provisions of the MSA and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has completed a final regulatory flexibility analysis (FRFA) in 
support of this action. 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, and a summary of the analyses 
completed in the 2016-2018 herring specifications EA. 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 action is contained in the 
preamble to the proposed rule (81 FR 40253), 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.

A Summary of the Significant Issues Raised by the Public 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 32 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.

[[Page 75739]]

Description and Estimate of Number of Small Entities to Which This Rule 
Would Apply

    This final rule would affect all permitted herring vessels; 
therefore, the regulated entity is the business that owns at least one 
herring permit. From 2014 permit data, there were 1,206 firms that held 
at least one herring permit; of those, 1,188 were classified as small 
businesses. There were 103 firms, 96 classified as small businesses, 
which held at least one limited access permit. There were 38 firms, 
including 34 small businesses, which held a limited access permit and 
were active in the herring fishery. All four of the active large 
entities, held at least one limited access herring permit. The small 
firms with limited access permits had 60 percent higher gross receipts 
and 85 percent higher revenue from herring than the small firms without 
a limited access herring permit. Based on 2014 permit data, the number 
of potential fishing vessels in each permit category in the herring 
fishery are as follows: 39 for Category A (limited access, all herring 
management areas); 4 for Category B (limited access, Herring Management 
Areas \2/3\); 46 for Category C (limited access, all herring management 
areas); 1,841 for Category D (open access, all herring management 
areas); and 4 for Category E (open access, Herring Management Areas \2/
3\).
    On December 29, 2015, NMFS issued a final rule establishing a small 
business size standard of $11 million in annual gross receipts for all 
businesses primarily engaged in the commercial fishing industry (NAICS 
11411) for RFA compliance purposes only (80 FR 81194, December 29, 
2015). The $11 million standard became effective on July 1, 2016, and 
is to be used in place of the U.S. Small Business Administration's 
(SBA) previous standards of $20.5 million, $5.5 million, and $7.5 
million for the finfish (NAICS 114111), shellfish (NAICS 114112), and 
other marine fishing (NAICS 114119) sectors, respectively, of the U.S. 
commercial fishing industry.
    An IRFA was developed for this regulatory action prior to July 1, 
2016, using SBA's previous size standards. Under the SBA's size 
standards, 4 of 38 active herring fishing entities with limited access 
permits were determined to be large. NMFS has qualitatively reviewed 
the analyses prepared for this action using the new size standard. The 
new standard could result in fewer commercial finfish businesses being 
considered small (due to the decrease in size standards).
    Taking this change into consideration, NMFS has identified no 
additional significant alternatives that accomplish statutory 
objectives and minimize any significant economic impacts of the 
proposed rule on small entities. The ACLs are fishery wide and any 
closures would apply to the entire fishery, and should be felt 
proportionally by both large and small entities. Further, the new size 
standard does not affect the decision to prepare a FRFA as opposed to a 
certification for this regulatory action.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This final rule does not introduce any new reporting, 
recordkeeping, or other compliance requirements.

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

    Specification of commercial harvest and river herring/shad catch 
caps are constrained by the conservation objectives set forth in the 
FMP and implemented at 50 CFR part 648, subpart K under the authority 
of the MSA. Furthermore, specifications must be based on the best 
available scientific information, consistent with National Standard 2 
of the MSA. With the specification options considered, the measures in 
this final rule are the only measures that both satisfy these 
overarching regulatory and statutory requirements while minimizing, to 
the extent possible, impacts on small entities. This rule implements 
the herring specifications outlined in Table 1 and the river herring/
shad catch caps outlined in Table 2. Other options considered by the 
Council, including those that could have less of an impact on small 
entities, failed to meet one or more of these stated objectives and, 
therefore, cannot be implemented. Under Alternatives 1 and 2 for 
harvest specifications, small entities may have experienced slight 
increases in both gross revenues and herring revenues over the 
preferred alternative due to higher ACLs. However, Alternative 1 would 
fail to create a sustainable fishery because the ABC exceeds the ABC 
recommended by the SSC for 2016-2018 and has an increased risk of 
overfishing as compared to the preferred alternative. The ABC 
associated with Alternative 2 is equal to the ABC associated with the 
preferred alternative; however, the management uncertainty buffer is 
less under Alternative 2, resulting in a higher ACL than the preferred 
alternative. Rather than select an alternative with a higher ACL, the 
Council selected Alternative 3 to be more precautionary. Alternatives 1 
and 2 for the river herring/shad catch caps failed to use the best 
available science as compared to the Alternative 3, which uses a longer 
time series, including more recent and previously omitted data, as well 
as a weighted mean, to best account for the inter-annual variability in 
the level of river herring and shad sampling, to generate the values 
for river herring/shad catch caps. The impacts of the specifications, 
as implemented by this final rule, are not expected to 
disproportionately affect large or small entities.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide was prepared. Copies of this final rule 
are available from the Greater Atlantic Regional Fisheries Office 
(GARFO), and the compliance guide, i.e., permit holder letter, will be 
sent to all holders of permits for the Atlantic herring fishery. The 
guide and this final rule will be posted or publicly available on the 
GARFO Web site.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 26, 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.  648.201, add paragraph (h) to read as follows:


Sec.  648.201  AMs and harvest controls.

* * * * *
    (h) If NMFS determines that the New Brunswick weir fishery landed 
less than

[[Page 75740]]

4,000 mt through October 1, NMFS will allocate an additional 1,000 mt 
to the stockwide ACL and Area 1A sub-ACL. NMFS will notify the Council 
of this adjustment and publish the adjustment in the Federal Register.
[FR Doc. 2016-26320 Filed 10-31-16; 8:45 am]
BILLING CODE 3510-22-P