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]
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[FR Doc. 2016–26232 Filed 10–31–16; 8:45 am]
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David Tochen,
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DEPARTMENT OF COMMERCE
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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 https://
www.greateratlantic.fisheries.noaa.gov/.
FOR FURTHER INFORMATION CONTACT:
Shannah Jaburek, Fishery Management
SUMMARY:
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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)
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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 ................
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138,000–2016.
117,000–2017.
111,000–2018.
111,000.
6,200.
104,800.*
104,800.
4,000.
100,800.
0.
30,300.*
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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(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
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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
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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
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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.
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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
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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
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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
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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
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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
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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,
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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.
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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).
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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
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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
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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 ...................................................
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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
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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 https://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
