Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Atlantic Herring Fishery; Adjustment to Atlantic Herring Specifications and Sub-Annual Catch Limits for 2019, 2760-2767 [2019-01658]
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Federal Register / Vol. 84, No. 27 / Friday, February 8, 2019 / Rules and Regulations
a line that extends due east from the
border of Miami-Dade and Monroe
Counties, Florida.
NMFS has determined that less than
70 percent of the October 1 through the
end of February commercial quota for
Atlantic king mackerel in the southern
zone was harvested by February 1, 2019.
Accordingly, a 75-fish commercial trip
limit applies to vessels fishing for king
mackerel in or from Federal waters
south of 29°25′ N lat. and north of
25°20′24″ N lat. off the east coast of
Florida in the Atlantic southern zone
effective at 12:01 a.m., local time, on
February 7, 2019. The 75-fish trip limit
will remain in effect through February
28, 2019, or until the commercial quota
is reached and the southern zone closes.
On March 1, 2019, the new fishing year
begins and a commercial trip limit of 50
fish will again be in effect for this area.
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Classification
The Regional Administrator for the
NMFS Southeast Region has determined
this temporary rule is necessary for the
conservation and management of
Atlantic king mackerel and is consistent
with the Magnuson-Stevens Act and
other applicable laws.
This action is taken under 50 CFR
622.385(a)(1)(ii)(D) and is exempt from
review under Executive Order 12866.
These measures are exempt from the
procedures of the Regulatory Flexibility
Act because the temporary rule is issued
without opportunity for prior notice and
comment.
This action responds to the best
scientific information available. The
Assistant Administrator for NOAA
Fisheries (AA) finds that the need to
immediately implement this
commercial trip limit increase
constitutes good cause to waive the
requirements to provide prior notice
and opportunity for public comment
pursuant to the authority set forth in 5
U.S.C. 553(b)(B), because prior notice
and opportunity for public comment on
this temporary rule is unnecessary and
contrary to the public interest. Such
procedures are unnecessary because the
rule establishing the commercial trip
limits has already been subject to notice
and comment, and all that remains is to
notify the public of the trip limit
increase. Such procedures are contrary
to the public interest, because prior
notice and opportunity for public
comment would require time and delay
the fishers’ ability to catch more king
mackerel to harvest the commercial
quota and achieve optimum yield, and
would prevent fishers from reaping the
socioeconomic benefits associated with
this increased commercial trip limit.
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For the aforementioned reasons, the
AA also finds good cause to waive the
30-day delay in effectiveness of this
action, pursuant to 5 U.S.C. 553(d)(3).
Authority: 16 U.S.C. 1801 et seq.
Dated: February 1, 2019.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 2019–01234 Filed 2–7–19; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 181031994–9022–02]
RIN 0648–XG608–X
Magnuson-Stevens Act Provisions;
Fisheries of the Northeastern United
States; Atlantic Herring Fishery;
Adjustment to Atlantic Herring
Specifications and Sub-Annual Catch
Limits for 2019
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This action implements an inseason adjustment to the Atlantic
herring specifications and sub-annual
catch limits for 2019. These adjustments
are necessary to reduce 2018 herring
catch limits that would otherwise
remain in effect for 2019. This action is
expected to prevent overfishing of the
herring resource and lower the risk of
the stock becoming overfished.
DATES: Effective February 8, 2019.
ADDRESSES: Copies of this action,
including the Supplemental
Environmental Assessment and the
Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (SEA/
RIR/IRFA) prepared in support of this
action, are available from Michael
Pentony, Regional Administrator, 55
Great Republic Drive, Gloucester, MA
01930. Documents are also accessible
via the internet at: https://
www.nefmc.org.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Carrie Nordeen, Fishery Policy Analyst,
978–281–9272.
SUPPLEMENTARY INFORMATION:
Background
We published a proposed rule for the
in-season adjustment to Atlantic herring
specifications and sub-annual catch
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limits (ACLs) for 2019 on November 30,
2018 (83 FR 61593). The comment
period on the proposed rule ended on
December 31, 2018. We received 22
comment letters on the proposed rule,
which are summarized in the Comments
and Responses section of this final rule.
We implemented 2016–2018 herring
specifications on November 1, 2016 (81
FR 75731), as recommended by the New
England Fishery Management Council.
The specifications included an
overfishing limit (OFL) of 111,000 mt
for 2018. The acceptable biological
catch (ABC) for 2018 was also set at
111,000 mt. The ABC was based on the
Council’s interim control rule, set equal
to the OFL with at least a 50-percent
probability of preventing overfishing,
and consistent with the Council’s
Scientific and Statistical Committee’s
(SSC) advice. The annual catch limit
(ACL) for 2018 was 104,800 mt.
In June 2018, a new Northeast
Regional Stock Assessment Workshop
(SAW) for herring, reviewed by the
Stock Assessment Review Committee
(SARC), was completed. The assessment
concluded that although herring was not
overfished and overfishing was not
occurring in 2017, poor recruitment
would likely result in a substantial
decline in herring biomass. The stock
assessment estimated that recruitment
had been at historic lows during the
most recent 5 years (2013–2017). The
assessment projected that biomass could
increase, after reaching a low in 2019,
if recruitment returns to average levels,
but that herring catch would need to be
reduced, starting in 2018, to prevent
overfishing and lower the risk of the
stock becoming overfished. The final
assessment summary report is available
on the Northeast Fisheries Science
Center (NEFSC) website
(www.nefsc.noaa.gov/publications/).
The Atlantic Herring Fishery
Management Plan (FMP) allows NMFS
to make in-season adjustments to the
herring specifications and sub-ACLs to
achieve conservation and management
objectives, after consultation with the
Council, consistent with the Herring
FMP’s objectives and other FMP
provisions. In August 2018, at the
request of the Council, we used an inseason adjustment to reduce the 2018
ACL from 104,800 mt to 49,900 mt to
reduce the risk of overfishing in 2018
(83 FR 42450, August 22, 2018). This
resulted in at least a 50-percent
probability of preventing overfishing
projected for 2018. However, assessment
projections indicated that catch would
need to be further reduced in 2019 to
prevent overfishing and lower the risk
of the stock becoming overfished.
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By regulation, herring catch limits for
2018, as modified by the 2018 in-season
adjustment, remain in effect until
replaced. At its September 2018
meeting, the Council adopted a new
ABC control rule for the herring fishery
developed in Amendment 8 to the
Herring FMP and requested we use an
in-season adjustment to reduce 2018
herring catch limits for 2019 while it
develops new specifications starting in
2020. The Council was scheduled to
begin developing the 2019–2021 herring
specifications at its September meeting
and take final action on the new
specifications at its December 2018
meeting. The Council planned for us to
implement the new specifications
during 2019, based on the new ABC
control rule it adopted in Amendment 8.
However, because of the time required
for the Council to prepare the necessary
documentation and for us to review and
approve the control rule in Amendment
8 and implement final approved
measures, the new specifications would
not have been effective early enough to
prevent catch from exceeding the lower
catch limits required to prevent
overfishing in 2019.
To assist us with developing the 2019
in-season adjustment, the Council
discussed options for 2019 catch limits
at its September 2018 meeting and
recommended that we:
• Use the most recent assessment and
projections to develop the 2019
specifications;
• Use the ABC control rule approved
by the Council in Amendment 8;
• Maintain the sub-ACLs for herring
management areas based on the
proportions allocated in the 2016–2018
specifications package, including;
Æ Area 1A: 28.9 percent,
Æ Area 1B: 4.3 percent,
Æ Area 2: 27.8 percent,
Æ Area 3: 39 percent;
• Proportionally reduce the fixed gear
set-aside allocation which is based on a
small weir fishery west of Cutler, ME;
and
• Set the border transfer (which
allows U.S. vessels to transfer herring to
Canadian vessels to be processed as
food) at 0 mt.
The SSC met on October 10, 2018, to
review the recent herring stock
assessment and consider herring catch
limits. The term of reference for the
meeting specified that the SSC use the
new ABC control rule adopted by the
Council in Amendment 8 to recommend
the OFL and ABCs for 2019–2021. After
reviewing the results of the stock
assessment and information compiled
by the Council’s Herring Plan
Development Team (PDT), the SSC
recommended herring OFLs of 30,688
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mt in 2019, 38,878 mt in 2020, and
59,788 mt in 2021. The SSC also
recommended that herring ABCs should
not exceed 21,266 mt in 2019, 16,131 mt
in 2020, and 16,131 mt in 2021. The
SSC was concerned that the new
assessment’s recruitment projections
used a long-term average, rather than
weighting recent low recruitment,
resulting in a substantial projected
biomass increase for 2021. To mitigate
its concerns, the SSC recommended
maintaining the 2020 ABC (16,131 mt)
for 2021, updating the herring
assessment in 2020, and investigating
herring’s recent low recruitment. The
assessment update would enable the
SSC to reconsider its 2021 ABC
recommendation based on updated
estimates of recruitment and biomass.
In response to the Council’s request
for an in-season adjustment of 2018
herring catch limits for 2019, we
proposed reduced catch limits for 2019
in November 2018. The herring ABC we
proposed for 2019, as well as the
resulting ACL and sub-ACLs, while
consistent with methods used to set
recent specifications, were higher than
limits recommended by the Council and
SSC. Our proposed herring catch limits
were based on an ABC with a 50-percent
probability of preventing overfishing
(30,688 mt). In contrast, the Council’s
recommended 2019 catch limits were
based on an ABC of 21,266 mt,
generated using the new control rule
developed in Amendment 8, and
estimated to have a 15-percent
probability of overfishing. While the
sub-ACL values we proposed for 2019
were higher than those recommended
by the Council, our proposed method to
allocate catch to the sub-ACLs was
consistent with Council
recommendations. We intended the
proposed catch limits to balance
preventing overfishing with maintaining
a viable herring fishery to achieve
optimum yield (OY), while we consider
approval and implementation of a longterm ABC control rule in Amendment 8.
The Council discussed our proposed
2019 herring catch limits at its
December 2018 meeting, at which time
it firmly reiterated its original
recommendations that catch limits be
based on an ABC of 21,266 mt and subACL allocations be consistent with
recent specifications. The Council
explained the necessity of lowering the
risks of overfishing and the stock
becoming overfished, especially given
the uncertainty associated with the
assessment’s projections of herring
biomass and recruitment. It expressed
concern that higher catch in 2019 would
result in even lower catch limits for
2020. While the Council acknowledged
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that negative economic impacts on the
fishing industry would be greater under
the lower catch limits, it stressed that
conservation benefits outweighed the
short-term revenue considerations. The
Council also explained that maintaining
recent sub-ACL allocations prevents
overfishing on any one sub-component
of the herring stock and helps minimize
negative economic impacts associated
with reduced catch limits by providing
fishery access to all gear types and
management areas. Following the
Council meeting, the Council further
detailed its rationale for its
recommended 2019 herring catch limits
in a December 13, 2018, letter to us.
We work closely with the Council for
sustainable management of New
England fisheries. The Council develops
harvest policies for its fisheries and we
tend to defer harvest policy decisions to
the Council, unless those policies are
inconsistent with the Magnuson-Stevens
Fishery Conservation and Management
Act or other applicable law. The
Council expressed concern with our
proposed herring catch limits for 2019
and recommended limits be lowered to
prevent overfishing and lower the risk
of the stock becoming overfished. After
considering the Council’s policy
concerns and to better account for
scientific uncertainty, we are adjusting
the 2018 herring specifications and subACLs for 2019 to achieve conservation
and management objectives, consistent
with the Council’s recommendations,
Herring FMP objectives, and other
Herring FMP provisions. The final 2019
herring catch limits implemented in this
in-season adjustment are shown in
Table 1 below.
TABLE 1—FINAL ATLANTIC HERRING
SPECIFICATIONS AND SUB-ACLS FOR
2019 (mt)
Overfishing Limit ...........................
ABC ..............................................
Management Uncertainty .............
OY/ACL ........................................
Domestic Annual Harvest .............
Border Transfer ............................
Domestic Annual Processing .......
U.S. At-Sea Processing ...............
Area 1A Sub-ACL (28.9%) ...........
Area 1B Sub-ACL (4.3%) .............
Area 2 Sub-ACL (27.8%) .............
Area 3 Sub-ACL (39%) ................
Fixed Gear Set-Aside ...................
Research Set-Aside .....................
30,668.
21,266.
6,200.
15,065.*
15,065.
0.
15,065.
0.
4,354.*
647.
4,188.
5,876.
39.
3% of
subACLs.
* 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.
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Based on the best available science,
we are reducing the OFL for 2019 to
30,668 mt. Please note that a
typographic error in the PDT’s October
2018 report changed the ABC with a 50percent probability of preventing
overfishing from 30,668 mt to 30,688
mt. That mistake was perpetuated in the
SSC’s OFL recommendation for 2019
and in our November 2018 proposed
rule. The correct value for an OFL with
a 50-percent probability of preventing
overfishing in 2019 is 30,668 mt. The
Herring FMP specifies that the OFL
must be equal to catch resulting from
applying the maximum fishing mortality
threshold to a current or projected
estimate of stock size. When the stock
is not overfished and overfishing is not
occurring, this is usually the fishing rate
supporting maximum sustainable yield.
Catching in excess of this amount is
considered to be overfishing. An OFL of
30,668 mt would result in
approximately a 50-percent probability
of preventing overfishing in 2019. This
OFL is based on projections by the
SAW/SARC, as updated by NOAA’s
NEFSC staff using 2018 catch, and is
consistent with the SSC
recommendation.
The Herring FMP specifies that the
ABC may be equal to or less than the
OFL depending on scientific uncertainty
concerning stock size estimates,
variability around recruitment
estimates, and consideration of
ecosystem issues. We are reducing the
ABC to 21,266 mt for 2019. This ABC
accounts for scientific uncertainty in the
stock assessment’s projected estimates
of herring biomass and recruitment and
we expect it will prevent overfishing,
lower the risk of the stock becoming
overfished, and reduce catch level
variability between 2019 and 2020. Our
decision to implement a 2019 ABC
consistent with the Council’s
recommendation for this in-season
adjustment is independent of and
involves different considerations than
our consideration of the Council’s
recommended control rule in
Amendment 8. We expect the Council to
submit Amendment 8 to us for review
and approval in early 2019.
The Herring FMP specifies that the
ACL is reduced from the ABC to
account for management uncertainty,
and the primary source of management
uncertainty is catch in the New
Brunswick weir fishery. We are
maintaining the current management
uncertainty buffer (6,200 mt), as
recommended by the Council, so the
resulting herring ACL/OY is 15,065 mt
for 2019. Catch in the New Brunswick
weir fishery is variable. The value of the
current buffer is based on average catch
during 2009–2011. Like catch in 2010
(10,958 mt), New Brunswick weir catch
in 2018 was much higher than average
(11,500 mt). Because the average of
recent New Brunswick weir catch
(2016–2018) is 5,900 mt and years with
high weir catches are typically not
consecutive, we expect a buffer of 6,200
mt to appropriately account for
management uncertainty in 2019.
We are maintaining the sub-ACL
allocations used in the recent
specifications (2016–2018) for 2019.
This means that 28.9 percent of the ACL
is allocated to Area 1A, 4.3 percent is
allocated to Area 1B, 27.8 percent is
allocated to Area 2, and 39 percent is
allocated to Area 3. These sub-ACL
allocations were recommended by the
Council for past specifications, as well
as for 2019, because they do not
substantially impact one stock
component (inshore versus offshore)
more than the other while providing
fishing opportunities for all gears types
and all management areas.
Based on the Council’s
recommendations, we are reducing
border transfer to 0 mt and the fixed
gear set-aside to 39 mt for 2019. Border
transfer is a processing quota and is the
maximum amount of herring that can be
transshipped to Canada via Canadian
carrier vessels for human consumption.
Border transfer has been under-utilized
in recent years, and there has been no
border transfer since 2015. Reducing the
border transfer to 0 mt for 2019 would
ensure all herring caught in U.S. waters
are available to U.S. federally permitted
dealers for lobster bait or human
consumption. Additionally, we are
proportionally reducing the fixed gear
set-aside, relative to the Area 1A subACL, to 39 mt. The Herring FMP allows
up to 500 mt of the Area 1A sub-ACL
to be allocated for the fixed gear
fisheries in Area 1A (weirs and stop
seines) that occur west of 67°16.8′ W
long. (Cutler, Maine). This set-aside is
available for harvest by fixed gear
within the specified area until
November 1 of each fishing year. Any
portion of this allocation that has not
been harvested by November 1 is
transferred back to the sub-ACL
allocation for Area 1A. We expect that
reducing the fixed gear set aside will
allow additional herring harvest to be
available to both fixed and mobile gears
in Area 1A helping ensure OY is
achieved. As with the border transfer,
the fixed gear set-aside has been underutilized in recent years. Fixed gear
landings tracked against the set-aside
have averaged less than 12 mt in the
past 5 years.
The Herring FMP requires we adjust
for catch overages and underages in a
subsequent year. Total catch in 2017 did
not reach or exceed any of the
management area sub-ACLs, so typically
we would carryover those underages, or
a portion of the underages, to increase
sub-ACLs in 2019. However, to help
ensure catch does not exceed the ABC
in 2019, we are not increasing any subACLs in 2019 to adjust for underages in
2017.
Values for domestic annual harvest
and domestic annual processing in 2019
are adjusted consistent with the
specifications for OY and border
transfer. All other herring specifications
for 2019, including the river herring and
shad catch caps, remain unchanged
from 2018.
Changes From the Proposed Rule
This in-season adjustment
implements herring specifications and
sub-ACLs for 2019 that are lower than
our proposed 2019 herring limits. All
changes from the proposed rule are
consistent with Council
recommendations and intended to lower
the risks of overfishing and the stock
becoming overfished. Changes between
our proposed and final herring
specifications and sub-ACLs are shown
in Table 2 below. While the values for
sub-ACLs and the fixed gear set-aside
are different than those proposed, the
methods to allocate sub-ACLs and
adjust the fixed gear set-aside are the
same. The specifications for
management uncertainty, domestic
annual harvest, border transfer,
domestic annual processing, and
research set-aside are the same as those
proposed. All other specifications,
including river herring and shad catch
caps, remain unchanged from 2018.
TABLE 2—DIFFERENCE IN PROPOSED AND FINAL ATLANTIC HERRING SPECIFICATIONS AND SUB-ACLS FOR 2019
Proposed
for 2019
(mt)
Specifications
OFL ..............................................................................................................................................
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30,688
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Final for 2019
(mt)
30,668
Difference
(mt)
* ¥20
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TABLE 2—DIFFERENCE IN PROPOSED AND FINAL ATLANTIC HERRING SPECIFICATIONS AND SUB-ACLS FOR 2019—
Continued
Proposed
for 2019
(mt)
Specifications
ABC ..............................................................................................................................................
OY/ACL ........................................................................................................................................
Domestic Annual Harvest ............................................................................................................
Domestic Annual Processing .......................................................................................................
Area 1A Sub-ACL (28.9%) ..........................................................................................................
Area 1B Sub-ACL (4.3%) ............................................................................................................
Area 2 Sub-ACL (27.8%) .............................................................................................................
Area 3 Sub-ACL (39%) ................................................................................................................
Fixed Gear Set-Aside ..................................................................................................................
30,688
24,488
24,488
24,488
7,077
1,053
6,808
9,550
64
Final for 2019
(mt)
21,266
15,065
15,065
15,065
4,354
647
4,188
5,876
39
Difference
(mt)
¥9,422
¥9,423
¥9,423
¥9,423
¥2,723
¥406
¥2,620
¥3,674
¥25
* Difference due to correcting a typographical error in the value of the OFL.
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Projections used to generate the
proposed 2019 ABC assumed 49,900 mt
of herring catch in 2018. After
publication of the proposed rule, we
learned that total herring catch for 2018,
including 11,500 mt of catch in the New
Brunswick weir fishery that is not
counted against the ACL but used for
assessing status of the herring stock,
actually totaled 54,896 mt. This means
that the proposed ABC likely has less
than a 50-percent probability of
preventing overfishing in 2019. We
intended to explore ABC options for this
final rule that were lower than 30,688
mt but higher than 21,266 mt, in hopes
of finding a balance between conserving
the herring stock and minimizing
negative economic impacts on the
fishing industry. However, the lapse in
appropriations resulting in the partial
government shutdown starting on
December 22, 2018, prevented us from
working with staff from the NEFSC to
analyze additional alternatives. Setting
the final ABC lower than the OFL better
accounts for scientific uncertainty to
ensure catch limits will prevent
overfishing and meet the Herring FMP’s
goals and objectives.
Herring Research Set-Aside Exempted
Fishing Permits
In the proposed rule, we solicited
public comment on exempted fishing
permits (EFPs) used to exempt vessels
from certain herring management
regulations to support herring research
set-aside (RSA) compensation fishing.
Consistent with previous herring RSA
EFPs, vessels would be allowed to
harvest herring RSA in a management
area after a sub-ACL had been caught
and the herring fishery is limited to
2,000 lb (907 kg) of herring per day/trip
in that area. EFPs would also allow
vessels to harvest RSA during times
when the sub-ACLs are not seasonally
available for harvest, specifically during
January through May in Area 1A and
January through April in Area 1B. We
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received no comments on the EFPs, so
we intend to issue EFPs to facilitate
herring RSA compensation fishing in
support of the projects funded under the
2019 Herring RSA Program.
Comments and Responses
We received 22 comment letters on
the proposed rule: 11 from participants
in the herring and lobster fisheries; 2
from fishing industry organizations
(Maine Lobstermen’s Association (MLA)
and New England Purse Seiner’s
Alliance (NEPSA)); 2 from states
(Massachusetts Division of Marine
Fisheries (MA DMF) and Maine
Division of Marine Resources (ME
DMR)); 2 from environmental advocacy
groups (Conservation Law Foundation
(CLF)/Natural Resources Defense
Council (NRDC) and Earthjustice); 2
from participants in other fisheries (tuna
and recreational); 1 from the Council; 1
from the Town of Wellfleet; and 1 from
a member of the public.
Comment 1: Several commenters
supported the Council’s recommended
herring ABC of 21,266 mt including:
MA DMF; CLF/NRDC; Earthjustice;
Town of Wellfleet; and one recreational
fisheries participant. These commenters
echoed the Council’s rationale for
supporting a lower ABC in 2019 and
that rationale is as follows:
• A buffer is needed between the OFL
and ABC to account for scientific
uncertainty associated with the
assessment’s recruitment and biomass
projections;
• The lower ABC performs better
across several metrics than the proposed
ABC, including lower probability of
overfishing (15 percent versus 50
percent) and lower variability in yield
(between 2019 and 2020);
• Maintaining fishing mortality at the
rate to support maximum sustainable
yield is not consistent with the
Council’s risk tolerance for herring and
applying a lower fishing mortality rate
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would help the stock rebuild more
quickly;
• Actual catch in 2018 exceeded
49,900 mt so the proposed ABC would
have less than a 50-percent probability
of preventing overfishing in 2019;
• It is uncertain what higher than
average catch in the New Brunswick
weir fishery will mean for stock
recruitment;
• The 2020 ABC can be higher under
the lower ABC than under the proposed
ABC;
• The higher ABC results in
additional risk to the stock that is not
justified given the marginal increase in
short-term revenue; and
• The lower ABC balances the goals
and objectives of the Herring FMP.
Additionally, MA DMF commented
that the herring stock is less likely to
become overfished under the lower ABC
than under the proposed ABC,
especially if recruitment projections are
not realized. It also speculated that the
lower ABC in 2020, resulting from
higher limits in 2019, may cause more
economic hardship, threaten the
viability of the herring fishery, and have
serious implications for vessels fishing
for mackerel. Earthjustice and CLF/
NRDC contend that the MagnusonStevens Act prohibits ACLs from being
set higher than ABC recommendations
by the SSC. The Town of Wellfleet
commented that the lower ABC better
provides for herring predators than the
proposed ABC.
Response: We understand the
comments made by these stakeholders
and why they advocate for a lower
herring ABC in 2019, even though we
do not agree that the Magnuson-Stevens
Act prohibits us from setting harvest
limits higher than those recommended
by the SSC in this in-season adjustment.
For all the reasons we previously
described, we are implementing the
lower ABC (21,266 mt) recommended
by the Council for 2019.
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Comment 2: Several commenters
supported the proposed ABC of 30,688
mt including: ME DMR; NEPSA; MLA;
some participants in the herring and
lobster fisheries; and one participant in
the tuna fishery. Their rationale for
supporting a higher ABC in 2019 is as
follows:
• The 2019 ABC should be set
consistent with recent specifications
until the new control rule is reviewed
and approved as part of Amendment 8;
• The maximum fishing mortality rate
of 80 percent associated the new control
rule is redundant as the stock
assessment already accounts for the
consumption of herring by predators;
• The lower ABC is too restrictive, in
hopes of rebuilding the stock by limiting
fishing, but herring recruitment is
primarily environmentally-driven;
• The higher ABC helps achieve OY
by accounting for social, economic, and
ecological factors while preventing
overfishing and mitigating severe
economic hardship on the herring and
lobster fisheries;
• The higher ABC helps support a
mackerel fishery in 2019;
• The new control rule would not
have prevented the current condition of
the herring stock and it is an
overreaction to the 2018 stock
assessment without consideration for
the economic impacts on herring,
lobster, and mackerel fisheries;
• Leaving an extra 9,000 mt of herring
in the water will not make an
appreciable impact on the future health
of herring stock, but not doing so will
devastate the herring and lobster
fisheries;
• The economic impacts of the lower
ABC on the fishing industry will be
severe with participants in the herring
fishery struggling to maintain their
businesses, crews, and facilities and the
lobster fishery losing access to millions
of pounds of lobster bait resulting in
high prices and shortages; and
• A higher ABC in 2019 would allow
the lobster industry time to identify
alternative sources of bait, coordinate
bait distribution, and grow
infrastructure and storage capacity to
minimize the economic impacts of
reduced herring catch limits.
Response: We also understand the
comments made by these stakeholders
and why they advocate for a higher
herring ABC in 2019. While the impacts
of less catch and less revenue associated
with either ABC alternative will
negatively impact the fishing industry,
we agree with the commenters that
economic impacts on the fishing
industry will likely be more severe with
implementation of the lower ABC.
Because actual catch in 2018 was higher
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than anticipated, the proposed ABC of
30,688 mt likely has less than a 50percent probability of preventing
overfishing in 2019. This means that the
higher ABC is no longer a viable
alternative for 2019. The partial
government shutdown that began on
December 22, 2018, prevented us from
analyzing additional ABC alternatives.
Therefore, to better account for
scientific uncertainty and prevent
overfishing and lower the risk of the
stock becoming overfished, we are
implementing the lower ABC
recommended by the Council for 2019.
Comment 3: The Council and some
participants in the herring trawl fishery
expressed support for maintaining
recent sub-ACL allocations. They
commented that the proposed sub-ACL
allocations provide harvesting
opportunities for vessels fishing in
offshore areas, small-mesh bottom trawl
fishing in Area 2, and vessels fishing for
mackerel in Area 2.
Response: We acknowledge these
comments and are maintaining the
recent herring sub-ACL allocations in
2019.
Comment 4: Several commenters
opposed maintaining the recent subACLs allocations including the MLA,
NEPSA, ME DMR, some participants in
the herring purse seine fishery, some
participants in the lobster fishery, and
one participant in the tuna fishery. They
commented that more herring should be
allocated to Area 1A because:
• Recent allocations do not reflect the
availability of the herring resource or
the effort of the herring fishery;
• Recent allocations do not equally
distribute the impact of a low ABC
across states, so Maine will be more
severely impacted than other states
because of its need for lobster bait;
• If the largest percentage of the ACL
is not allocated to Area 1A, the ACL
may not be harvested;
• Purse seine vessels will be more
impacted by a low ABC than trawl
vessels because they only fish in Area
1A;
• Timing of the Area 1A fishery
coincides with the lobster fishery’s need
for fresh bait;
• Allocating the most harvest to Area
1A will help lessen the impact of the
ABC reduction on the lobster fishery;
and
• Unharvested catch should be
transferred into areas where it can be
harvested.
Response: We understand the
concerns expressed in these comments.
Because sub-ACL allocations have the
potential for biological impacts on the
herring stock and economic impacts on
the fishing industry, we are deferring to
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the Council’s recommendations for subACL allocations. The Council will soon
begin developing herring specifications
for 2020–2021 and will likely reconsider
sub-ACL allocations at that time.
Because herring revenue makes up a
larger percentage of total revenue for
purse seine vessels than trawl vessels,
we agree that purse seine vessels may be
more negatively affected by low catch
limits than trawl vessels. We disagree
that sub-ACL allocations will prevent
the ACL from being harvested in 2019
because recent catch (2016–2018) in
each of the management areas has been
higher than the 2019 sub-ACLs, with the
exception of Area 2 in 2017. But if there
is unharvested herring catch available in
any of the management areas near the
end of the fishing year, the Council
could request we use an additional inseason adjustment to reallocate
unharvested catch.
Comment 5: Earthjustice and CLF/
NRDC commented on the river herring
and shad catch caps for 2019. They
cautioned that maintaining the current
catch caps would allow
disproportionately high catch of river
herring and shad, compared to herring
catch, and would not encourage vessels
to avoid river herring and shad catch or
minimize bycatch in violation of the
Magnuson-Stevens Act.
Response: We disagree with these
comments. In January 2017, midwater
vessels had only harvested about 3,000
mt of herring from Area 3 when their
catch of river herring and shad
approached 80-percent of the Cape Cod
catch cap. Because the midwater trawl
fleet quickly modified their fishing
behavior to avoid river herring and
shad, they were able to avoid fully
harvesting the Cape Cod catch cap for
the remainder of 2017. In March 2018,
midwater trawl vessels fully harvested
the Southern New England catch cap,
triggering the 2,000-lb herring
possession limit in the catch cap closure
area, in combination with less than
6,500 mt of herring from Area 2. Herring
catch from Area 2 remained low for the
rest of the year and totaled
approximately 7,000 mt at the end of
2018. These examples illustrate that
even at low levels of herring catch, the
current river herring and shad catch
caps provide an incentive to avoid river
herring and shad and minimize bycatch.
Comment 6: The Council expressed
support for reducing border transfer to
zero so that more herring would be
available to the bait market. Both the
Council and ME DMR expressed
support for a fixed gear set-aside and the
Council noted that the fixed gear setaside should be reduced in proportion
to the ABC.
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Response: We acknowledge these
comments and are reducing border
transfer to zero mt and implementing a
fixed gear set-aside of 39 mt for 2019,
reduced proportionally relative to the
Area 1A sub-ACL.
Comment 7: The NEPSA and one
participant in the herring fishery
supported the in-season transfer of
unharvested herring.
Response: We expect the fishery to be
able to fully harvest the ACL/OY in
2019, but if there is unharvested herring
catch available in any of the
management areas near the end of the
fishing year, the Council could request
we use an additional in-season
adjustment to reallocate unharvested
catch.
Comment 8: One participant in the
herring fishery expressed support for
the research set-aside because of the
value of the compensation fishery,
especially if it helps provide access to
the mackerel fishery.
Response: We acknowledge this
comment and are setting aside 3-percent
of each sub-ACL for research, consistent
with recent specifications.
Comment 9: Several commenters
expressed concern with weekly landing
limits and measures restricting the
activity of herring carrier vessels in Area
1A.
Response: Because these measures are
recommended by the Atlantic States
Marine Fisheries Commission and
implemented and enforced by
individual states, they are outside the
scope of this action.
Classification
The Administrator, Greater Atlantic
Region, NMFS determined that this final
rule is necessary for the conservation
and management of the herring fishery
and that it is consistent with the
Magnuson-Stevens Act and other
applicable law.
There is good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in
effectiveness so the purpose of this
action is not undermined. This action
reduces 2018 herring specifications and
sub-ACLs to prevent overfishing in 2019
with the goals of increasing herring
biomass and providing future fishery
opportunities. This action must be in
effect as soon as practicable to realize
these intended benefits. Because this
action reduces catch limits that directly
relate to preventing overfishing while
allowing the herring fishery to achieve
OY, a 30-day delay would be contrary
to the public interest.
The 2018 herring stock assessment
concluded that catch would need to be
reduced in 2019 to prevent overfishing
and lower the risk of the stock becoming
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overfished. Before taking this action, we
consulted with the Council at its
September and December 2018
meetings. At those meetings, the
Council requested that we use an inseason adjustment to reduce 2018
herring specifications and sub-ACLs for
2019 to prevent overfishing and lower
the risk of the stock becoming
overfished.
A delay in implementing these new
herring catch limits will increase the
likelihood that 2019 herring catch will
exceed these lower limits. These new
catch limits are almost 70 percent lower
than 2018 catch limits. Exceeding these
limits would result in a lower herring
biomass and negative economic impacts
on the herring industry due to further
reduced catch limits in 2020 and
beyond. Because herring is a critical
source of bait for the lobster fishery,
these negative economic impacts are
also expected to affect the lobster
fishery by reducing its bait supply.
Additionally, we are required to
implement a 2,000-lb (907-kg) herring
possession limit for the remainder of the
year in each management area once we
project 92-percent of an area’s sub-ACL
is harvested. We are also required to
implement a 2,000-lb (907-kg) herring
possession limit for the remainder of the
year in all management areas once we
project 95-percent of the herring ACL is
harvested. If a delay in implementing
this action results in catch approaching,
or exceeding, the new 2019 catch limits,
implementation of a herring possession
limit is more likely. Early
implementation of a herring possession
limit would be counter to the goals and
objectives of this action, which is
intended to reduce 2019 catch, but also
continue to provide fishing
opportunities for the remainder of the
2019 fishing year.
This action is necessary to help
rebuild the herring stock and maintain
the viability of the herring fishing
industry and other fisheries that rely on
herring. Waiving the 30-day delay in
effectiveness is necessary to fully
achieve the conservation and economic
benefits this action is intended to
provide. A 30-day delay in effectiveness
is unnecessary because it provides no
benefit to herring conservation or the
herring fishing industry. Conversely, a
30-day delay could result in a lower
herring biomass and negative economic
impacts to the herring industry due to
further reduced catch limits in 2020 and
beyond. For these reasons, NMFS has
determined that a 30-day delay in the
effectiveness of this action is contrary to
the public interest.
This final rule is exempt from review
under Executive Order 12866.
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2765
A final regulatory flexibility analysis
(FRFA) was prepared 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 support of
this action. A description of why this
action was considered, the objectives of,
and the legal basis for this rule is
contained in in the preamble to the
proposed and this final rule, and is not
repeated here. All of the documents that
constitute the FRFA and a copy of the
SEA/RIR/IRFA are available upon
request (see ADDRESSES) or via the
internet at https://www.nefmc.org.
A Statement of the Significant Issues
Raised by the Public in Response to the
IRFA, a Statement 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
We received 22 comment letters on
the proposed rule. Those comments,
and our responses, are contained in the
Comments and Responses section of this
final rule and are not repeated here. All
changes from the proposed rule, as well
as the rationale for those changes, are
described in the Changes from the
Proposed Rule section of this final rule
and are not repeated here.
Description and Estimate of Number of
Small Entities to Which the Rule Would
Apply
The RFA recognizes three kinds of
small entities: Small businesses; small
organizations; and small governmental
jurisdictions. For purposes of the RFA
only, the small business criteria in the
finfish fishing industry (NAICS 114111)
is a firm that is independently owned
and operated and not dominant in its
field of operation, with gross annual
receipts of $11 million or less. Small
organizations and small governmental
jurisdictions are not directly regulated
by this action.
There are five permit categories in the
herring fishery: (1) Limited access
permit for all management areas
(Category A); (2) limited access permit
for access to Areas 2 and 3 only
(Category B); (3) limited access
incidental catch permit for 25 mt per
trip (Category C); (4) an open access
incidental catch permit for 3 mt per trip
(Category D); and (5) an open access
permit for limited access mackerel
permit holders authorizing up to 9 mt
per trip (Category E) in Areas 2 and 3.
In 2017, there were a total of 1,566
permitted herring vessels. Of those,
1,434 were exclusively Category D
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vessels. Of the remaining 132 permitted
herring vessels, 22 belonged to large
businesses. Every Category B permit was
also authorized for Category C, and all
but one Category E permitted vessel also
carried a Category D authorization. We
included Category E vessels that also
have Category D authorization in the
analysis. Table 3 presents the counts of
permitted vessels by category along with
their affiliated entity’s small or large
business status (the status of the
company that holds the herring permit).
TABLE 3—NUMBER OF HERRING PERMITS BY CATEGORY, 2015–2017
Number of herring permits
Herring permit categories
2015
Large
2016
Small
Large
2017
Small
Large
Small
A ...............................................................
B/C ...........................................................
C (exclusive) ............................................
D (exclusive) ............................................
E ...............................................................
5
4
3
112
9
32
4
37
1,222
39
5
4
3
115
9
30
4
37
1,306
40
6
4
3
114
9
30
4
37
1,320
39
Total ..................................................
133
1,334
136
1,417
136
1,430
Source: NMFS.
Table 4 refines the counts from Table
3 to include only those vessels that had
revenue from herring at least once in the
3-year period of analysis. In 2017, there
were 4 large businesses and 69 small
that had revenue from herring.
TABLE 4—NUMBER OF HERRING PERMITS WITH HERRING REVENUE, 2015–2017
Number of herring permits
Herring permit categories
2015
Large
2016
Small
Large
2017
Small
Large
Small
A ...............................................................
B/C ...........................................................
C (exclusive) ............................................
D (exclusive) ............................................
E ...............................................................
4
0
0
0
0
20
2
11
27
4
4
0
0
0
0
19
2
9
29
1
4
0
0
0
0
19
3
12
31
4
Total ..................................................
4
64
4
60
4
69
Source: NMFS.
Finally, Table 5 defines the small
entities affected by this proposed
action—small businesses with a Herring
Category A, B, C, or E permit and
revenue from herring during the 2015–
2017 period of analysis. There were 37,
31, and 38 such vessels in 2015, 2016,
and 2017 respectively.
TABLE 5—AFFECTED SMALL ENTITIES, PERMITTED HERRING VESSELS WITH HERRING REVENUE, 2015–2017
Number of herring permits
Herring permit categories
2015
Large
2016
Small
Large
2017
Small
Large
Small
A ...............................................................
B/C ...........................................................
C (exclusive) ............................................
E ...............................................................
4
0
0
0
20
2
11
4
4
0
0
0
19
2
9
1
4
0
0
0
19
3
12
4
Total ..................................................
4
37
4
31
4
38
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Source: NMFS.
To better understand the impact of
this action on the affected small
businesses, we compared the revenue
from herring fishing to total revenue
brought in by the entity (business) that
holds the herring permit. The 17 to 18
small entities with Category A permits
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show the most dependence on the
herring fishery, with 49.75 percent to
62.03 percent of their revenue coming
from herring landings. The 4 small
Category E permitted entities have the
least dependence on the herring fishery
with less than one percent of total entity
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revenue coming from the herring
fishery.
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Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
This final rule does not introduce any
new reporting, recordkeeping, or other
compliance requirements.
Pmangrum on DSK3GMQ082PROD with RULES
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
Regulations at 50 CFR 648.200(e)
allow us to make in-season adjustments
to the herring specifications and subACLs to achieve conservation and
management objectives, after
consultation with the Council,
consistent with the Herring FMP’s
objectives and other FMP provisions.
Specifications and sub-ACLs must also
be based on the best available scientific
information, consistent with National
Standard 2 of the Magnuson-Stevens
Act. The adjustments to 2018 herring
specifications and sub-ACLs for 2019
implemented in this final rule satisfy
regulatory and statutory requirements
while achieving conservation and
management objectives. Other options
that we considered, including those that
would have had less of an impact on
small entities, failed to meet one or
more of these stated objectives and,
therefore, could not be implemented.
Alternative 1 (2018 catch limits) has
less than a 50-percent probability of
preventing overfishing in 2019 and,
thus, is inconsistent the MagnusonStevens Act. Alternative 1 would also
negatively impact the herring stock by
increasing the risk that it would become
overfished. The primary difference
between Alternative 2 (final 2019 catch
limits) and Alternative 3 (catch limits
based on an ABC of 30,668) are
specifications for ABC and the resulting
ACL and sub-ACLs for 2019. The ABC
associated with the Alternative 3
(30,668 mt) is 9,402 mt higher than the
ABC associated with Alternative 2
(21,266 mt). Projections used to generate
Alternative 3 assumed 49,900 mt of
herring catch in 2018. After publication
of the proposed rule, we learned that
total herring catch for 2018, including
catch in the New Brunswick weir
fishery, actually totaled 54,896 mt. This
means that Alternative 3, like
Alternative 1, has less than a 50-percent
probability of preventing overfishing in
2019 and is also inconsistent with the
Magnuson-Stevens Act. In its comment
letter on the proposed rule, the Council
also cautioned that Alternative 3’s
higher ABC is inconsistent with the
Council’s risk tolerance for the herring
resource. While Alternatives 1 and 3
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Jkt 247001
would have allowed for higher total
revenue and higher herring revenue
than Alternative 2, Alternative 2 is the
only alternative that meets the
conservation and management
objectives of the regulatory and
statutory requirements. The impacts of
adjustments to herring specifications
and sub-ACLs for 2019, 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., fishery bulletin) will be sent
to all holders of permits for the herring
fishery. The guide and this final rule
will be posted on the GARFO website.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 5, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2019–01658 Filed 2–7–19; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 665
[Docket No. 180202118–8999–01]
RIN 0648–BH63
Pacific Island Fisheries; Reclassifying
Management Unit Species to
Ecosystem Component Species
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule reclassifies
certain management unit species in the
Pacific Islands as ecosystem component
species. The rule also updates the
SUMMARY:
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2767
scientific and local names of certain
species. The intent of this final rule is
to prioritize conservation and
management efforts and to improve
efficiency of fishery management in the
region.
DATES: This rule is effective March 11,
2019.
ADDRESSES: The Western Pacific Fishery
Management Council (Council)
prepared Amendment 4 to the Fishery
Ecosystem Plan (FEP) for American
Samoa, Amendment 5 to the FEP for the
Marianas Archipelago, and Amendment
5 to the FEP for Hawaii. Those
amendments, available as a single
document, include an environmental
assessment (EA) that describes the
potential impacts on the human
environment that would result from the
action. This document is available at
https://www.regulations.gov or from the
Council, 1164 Bishop St., Suite 1400,
Honolulu, HI 96813, tel (808) 522–8220,
fax (808) 522–8226, or https://
www.wpcouncil.org.
FOR FURTHER INFORMATION CONTACT: Kate
Taylor, NMFS PIR Sustainable
Fisheries, 808–725–5182.
SUPPLEMENTARY INFORMATION: The
Council and NMFS manage fishing in
the U.S. Exclusive Economic Zone (EEZ)
around the U.S. Pacific Islands pursuant
to the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act). In this rule,
NMFS, as recommended by the Council,
is reclassifying certain bottomfish, coral
reef ecosystem, precious coral, and
crustacean management unit species
(MUS) in the three FEPs as ecosystem
component species (ECS). The action
focuses Federal conservation and
management on the MUS (i.e., the
targets of Federal fisheries).
The Council recommended amending
the three FEPs to reclassify certain
management unit species as ecosystem
component species. The intent of these
amendments is to focus management
efforts on species that are in need of
conservation and management, and
improve efficiency of fishery
management in the region. On August 8,
2018, NMFS published a notice of
availability of the amendments,
including an environmental assessment,
and request for public comments (83 FR
39039); the comment period ended
October 9, 2018. NMFS did not receive
any comments directly related to the
amendments, and on November 5, 2018,
the Secretary of Commerce approved the
FEP amendments. This final rule
implements the FEP amendments.
This action does not change any
fishery operations in terms of location,
target and non-target species, catch,
E:\FR\FM\08FER1.SGM
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Agencies
[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Rules and Regulations]
[Pages 2760-2767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01658]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 181031994-9022-02]
RIN 0648-XG608-X
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Atlantic Herring Fishery; Adjustment to Atlantic Herring
Specifications and Sub-Annual Catch Limits for 2019
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action implements an in-season adjustment to the Atlantic
herring specifications and sub-annual catch limits for 2019. These
adjustments are necessary to reduce 2018 herring catch limits that
would otherwise remain in effect for 2019. This action is expected to
prevent overfishing of the herring resource and lower the risk of the
stock becoming overfished.
DATES: Effective February 8, 2019.
ADDRESSES: Copies of this action, including the Supplemental
Environmental Assessment and the Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (SEA/RIR/IRFA) prepared in support of
this action, are available from Michael Pentony, Regional
Administrator, 55 Great Republic Drive, Gloucester, MA 01930. Documents
are also accessible via the internet at: https://www.nefmc.org.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, 978-281-9272.
SUPPLEMENTARY INFORMATION:
Background
We published a proposed rule for the in-season adjustment to
Atlantic herring specifications and sub-annual catch limits (ACLs) for
2019 on November 30, 2018 (83 FR 61593). The comment period on the
proposed rule ended on December 31, 2018. We received 22 comment
letters on the proposed rule, which are summarized in the Comments and
Responses section of this final rule.
We implemented 2016-2018 herring specifications on November 1, 2016
(81 FR 75731), as recommended by the New England Fishery Management
Council. The specifications included an overfishing limit (OFL) of
111,000 mt for 2018. The acceptable biological catch (ABC) for 2018 was
also set at 111,000 mt. The ABC was based on the Council's interim
control rule, set equal to the OFL with at least a 50-percent
probability of preventing overfishing, and consistent with the
Council's Scientific and Statistical Committee's (SSC) advice. The
annual catch limit (ACL) for 2018 was 104,800 mt.
In June 2018, a new Northeast Regional Stock Assessment Workshop
(SAW) for herring, reviewed by the Stock Assessment Review Committee
(SARC), was completed. The assessment concluded that although herring
was not overfished and overfishing was not occurring in 2017, poor
recruitment would likely result in a substantial decline in herring
biomass. The stock assessment estimated that recruitment had been at
historic lows during the most recent 5 years (2013-2017). The
assessment projected that biomass could increase, after reaching a low
in 2019, if recruitment returns to average levels, but that herring
catch would need to be reduced, starting in 2018, to prevent
overfishing and lower the risk of the stock becoming overfished. The
final assessment summary report is available on the Northeast Fisheries
Science Center (NEFSC) website (www.nefsc.noaa.gov/publications/).
The Atlantic Herring Fishery Management Plan (FMP) allows NMFS to
make in-season adjustments to the herring specifications and sub-ACLs
to achieve conservation and management objectives, after consultation
with the Council, consistent with the Herring FMP's objectives and
other FMP provisions. In August 2018, at the request of the Council, we
used an in-season adjustment to reduce the 2018 ACL from 104,800 mt to
49,900 mt to reduce the risk of overfishing in 2018 (83 FR 42450,
August 22, 2018). This resulted in at least a 50-percent probability of
preventing overfishing projected for 2018. However, assessment
projections indicated that catch would need to be further reduced in
2019 to prevent overfishing and lower the risk of the stock becoming
overfished.
[[Page 2761]]
By regulation, herring catch limits for 2018, as modified by the
2018 in-season adjustment, remain in effect until replaced. At its
September 2018 meeting, the Council adopted a new ABC control rule for
the herring fishery developed in Amendment 8 to the Herring FMP and
requested we use an in-season adjustment to reduce 2018 herring catch
limits for 2019 while it develops new specifications starting in 2020.
The Council was scheduled to begin developing the 2019-2021 herring
specifications at its September meeting and take final action on the
new specifications at its December 2018 meeting. The Council planned
for us to implement the new specifications during 2019, based on the
new ABC control rule it adopted in Amendment 8. However, because of the
time required for the Council to prepare the necessary documentation
and for us to review and approve the control rule in Amendment 8 and
implement final approved measures, the new specifications would not
have been effective early enough to prevent catch from exceeding the
lower catch limits required to prevent overfishing in 2019.
To assist us with developing the 2019 in-season adjustment, the
Council discussed options for 2019 catch limits at its September 2018
meeting and recommended that we:
Use the most recent assessment and projections to develop
the 2019 specifications;
Use the ABC control rule approved by the Council in
Amendment 8;
Maintain the sub-ACLs for herring management areas based
on the proportions allocated in the 2016-2018 specifications package,
including;
[cir] Area 1A: 28.9 percent,
[cir] Area 1B: 4.3 percent,
[cir] Area 2: 27.8 percent,
[cir] Area 3: 39 percent;
Proportionally reduce the fixed gear set-aside allocation
which is based on a small weir fishery west of Cutler, ME; and
Set the border transfer (which allows U.S. vessels to
transfer herring to Canadian vessels to be processed as food) at 0 mt.
The SSC met on October 10, 2018, to review the recent herring stock
assessment and consider herring catch limits. The term of reference for
the meeting specified that the SSC use the new ABC control rule adopted
by the Council in Amendment 8 to recommend the OFL and ABCs for 2019-
2021. After reviewing the results of the stock assessment and
information compiled by the Council's Herring Plan Development Team
(PDT), the SSC recommended herring OFLs of 30,688 mt in 2019, 38,878 mt
in 2020, and 59,788 mt in 2021. The SSC also recommended that herring
ABCs should not exceed 21,266 mt in 2019, 16,131 mt in 2020, and 16,131
mt in 2021. The SSC was concerned that the new assessment's recruitment
projections used a long-term average, rather than weighting recent low
recruitment, resulting in a substantial projected biomass increase for
2021. To mitigate its concerns, the SSC recommended maintaining the
2020 ABC (16,131 mt) for 2021, updating the herring assessment in 2020,
and investigating herring's recent low recruitment. The assessment
update would enable the SSC to reconsider its 2021 ABC recommendation
based on updated estimates of recruitment and biomass.
In response to the Council's request for an in-season adjustment of
2018 herring catch limits for 2019, we proposed reduced catch limits
for 2019 in November 2018. The herring ABC we proposed for 2019, as
well as the resulting ACL and sub-ACLs, while consistent with methods
used to set recent specifications, were higher than limits recommended
by the Council and SSC. Our proposed herring catch limits were based on
an ABC with a 50-percent probability of preventing overfishing (30,688
mt). In contrast, the Council's recommended 2019 catch limits were
based on an ABC of 21,266 mt, generated using the new control rule
developed in Amendment 8, and estimated to have a 15-percent
probability of overfishing. While the sub-ACL values we proposed for
2019 were higher than those recommended by the Council, our proposed
method to allocate catch to the sub-ACLs was consistent with Council
recommendations. We intended the proposed catch limits to balance
preventing overfishing with maintaining a viable herring fishery to
achieve optimum yield (OY), while we consider approval and
implementation of a long-term ABC control rule in Amendment 8.
The Council discussed our proposed 2019 herring catch limits at its
December 2018 meeting, at which time it firmly reiterated its original
recommendations that catch limits be based on an ABC of 21,266 mt and
sub-ACL allocations be consistent with recent specifications. The
Council explained the necessity of lowering the risks of overfishing
and the stock becoming overfished, especially given the uncertainty
associated with the assessment's projections of herring biomass and
recruitment. It expressed concern that higher catch in 2019 would
result in even lower catch limits for 2020. While the Council
acknowledged that negative economic impacts on the fishing industry
would be greater under the lower catch limits, it stressed that
conservation benefits outweighed the short-term revenue considerations.
The Council also explained that maintaining recent sub-ACL allocations
prevents overfishing on any one sub-component of the herring stock and
helps minimize negative economic impacts associated with reduced catch
limits by providing fishery access to all gear types and management
areas. Following the Council meeting, the Council further detailed its
rationale for its recommended 2019 herring catch limits in a December
13, 2018, letter to us.
We work closely with the Council for sustainable management of New
England fisheries. The Council develops harvest policies for its
fisheries and we tend to defer harvest policy decisions to the Council,
unless those policies are inconsistent with the Magnuson-Stevens
Fishery Conservation and Management Act or other applicable law. The
Council expressed concern with our proposed herring catch limits for
2019 and recommended limits be lowered to prevent overfishing and lower
the risk of the stock becoming overfished. After considering the
Council's policy concerns and to better account for scientific
uncertainty, we are adjusting the 2018 herring specifications and sub-
ACLs for 2019 to achieve conservation and management objectives,
consistent with the Council's recommendations, Herring FMP objectives,
and other Herring FMP provisions. The final 2019 herring catch limits
implemented in this in-season adjustment are shown in Table 1 below.
Table 1--Final Atlantic Herring Specifications and Sub-ACLs for 2019
(mt)
------------------------------------------------------------------------
------------------------------------------------------------------------
Overfishing Limit.......................... 30,668.
ABC........................................ 21,266.
Management Uncertainty..................... 6,200.
OY/ACL..................................... 15,065.*
Domestic Annual Harvest.................... 15,065.
Border Transfer............................ 0.
Domestic Annual Processing................. 15,065.
U.S. At-Sea Processing..................... 0.
Area 1A Sub-ACL (28.9%).................... 4,354.*
Area 1B Sub-ACL (4.3%)..................... 647.
Area 2 Sub-ACL (27.8%)..................... 4,188.
Area 3 Sub-ACL (39%)....................... 5,876.
Fixed Gear Set-Aside....................... 39.
Research Set-Aside......................... 3% of sub-ACLs.
------------------------------------------------------------------------
* 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.
[[Page 2762]]
Based on the best available science, we are reducing the OFL for
2019 to 30,668 mt. Please note that a typographic error in the PDT's
October 2018 report changed the ABC with a 50-percent probability of
preventing overfishing from 30,668 mt to 30,688 mt. That mistake was
perpetuated in the SSC's OFL recommendation for 2019 and in our
November 2018 proposed rule. The correct value for an OFL with a 50-
percent probability of preventing overfishing in 2019 is 30,668 mt. The
Herring FMP specifies that the OFL must be equal to catch resulting
from applying the maximum fishing mortality threshold to a current or
projected estimate of stock size. When the stock is not overfished and
overfishing is not occurring, this is usually the fishing rate
supporting maximum sustainable yield. Catching in excess of this amount
is considered to be overfishing. An OFL of 30,668 mt would result in
approximately a 50-percent probability of preventing overfishing in
2019. This OFL is based on projections by the SAW/SARC, as updated by
NOAA's NEFSC staff using 2018 catch, and is consistent with the SSC
recommendation.
The Herring FMP specifies that the ABC may be equal to or less than
the OFL depending on scientific uncertainty concerning stock size
estimates, variability around recruitment estimates, and consideration
of ecosystem issues. We are reducing the ABC to 21,266 mt for 2019.
This ABC accounts for scientific uncertainty in the stock assessment's
projected estimates of herring biomass and recruitment and we expect it
will prevent overfishing, lower the risk of the stock becoming
overfished, and reduce catch level variability between 2019 and 2020.
Our decision to implement a 2019 ABC consistent with the Council's
recommendation for this in-season adjustment is independent of and
involves different considerations than our consideration of the
Council's recommended control rule in Amendment 8. We expect the
Council to submit Amendment 8 to us for review and approval in early
2019.
The Herring FMP specifies that the ACL is reduced from the ABC to
account for management uncertainty, and the primary source of
management uncertainty is catch in the New Brunswick weir fishery. We
are maintaining the current management uncertainty buffer (6,200 mt),
as recommended by the Council, so the resulting herring ACL/OY is
15,065 mt for 2019. Catch in the New Brunswick weir fishery is
variable. The value of the current buffer is based on average catch
during 2009-2011. Like catch in 2010 (10,958 mt), New Brunswick weir
catch in 2018 was much higher than average (11,500 mt). Because the
average of recent New Brunswick weir catch (2016-2018) is 5,900 mt and
years with high weir catches are typically not consecutive, we expect a
buffer of 6,200 mt to appropriately account for management uncertainty
in 2019.
We are maintaining the sub-ACL allocations used in the recent
specifications (2016-2018) for 2019. This means that 28.9 percent of
the ACL is allocated to Area 1A, 4.3 percent is allocated to Area 1B,
27.8 percent is allocated to Area 2, and 39 percent is allocated to
Area 3. These sub-ACL allocations were recommended by the Council for
past specifications, as well as for 2019, because they do not
substantially impact one stock component (inshore versus offshore) more
than the other while providing fishing opportunities for all gears
types and all management areas.
Based on the Council's recommendations, we are reducing border
transfer to 0 mt and the fixed gear set-aside to 39 mt for 2019. Border
transfer is a processing quota and is the maximum amount of herring
that can be transshipped to Canada via Canadian carrier vessels for
human consumption. Border transfer has been under-utilized in recent
years, and there has been no border transfer since 2015. Reducing the
border transfer to 0 mt for 2019 would ensure all herring caught in
U.S. waters are available to U.S. federally permitted dealers for
lobster bait or human consumption. Additionally, we are proportionally
reducing the fixed gear set-aside, relative to the Area 1A sub-ACL, to
39 mt. The Herring FMP allows up to 500 mt of the Area 1A sub-ACL to be
allocated for the fixed gear fisheries in Area 1A (weirs and stop
seines) that occur west of 67[deg]16.8' W long. (Cutler, Maine). This
set-aside is available for harvest by fixed gear within the specified
area until November 1 of each fishing year. Any portion of this
allocation that has not been harvested by November 1 is transferred
back to the sub-ACL allocation for Area 1A. We expect that reducing the
fixed gear set aside will allow additional herring harvest to be
available to both fixed and mobile gears in Area 1A helping ensure OY
is achieved. As with the border transfer, the fixed gear set-aside has
been under-utilized in recent years. Fixed gear landings tracked
against the set-aside have averaged less than 12 mt in the past 5
years.
The Herring FMP requires we adjust for catch overages and underages
in a subsequent year. Total catch in 2017 did not reach or exceed any
of the management area sub-ACLs, so typically we would carryover those
underages, or a portion of the underages, to increase sub-ACLs in 2019.
However, to help ensure catch does not exceed the ABC in 2019, we are
not increasing any sub-ACLs in 2019 to adjust for underages in 2017.
Values for domestic annual harvest and domestic annual processing
in 2019 are adjusted consistent with the specifications for OY and
border transfer. All other herring specifications for 2019, including
the river herring and shad catch caps, remain unchanged from 2018.
Changes From the Proposed Rule
This in-season adjustment implements herring specifications and
sub-ACLs for 2019 that are lower than our proposed 2019 herring limits.
All changes from the proposed rule are consistent with Council
recommendations and intended to lower the risks of overfishing and the
stock becoming overfished. Changes between our proposed and final
herring specifications and sub-ACLs are shown in Table 2 below. While
the values for sub-ACLs and the fixed gear set-aside are different than
those proposed, the methods to allocate sub-ACLs and adjust the fixed
gear set-aside are the same. The specifications for management
uncertainty, domestic annual harvest, border transfer, domestic annual
processing, and research set-aside are the same as those proposed. All
other specifications, including river herring and shad catch caps,
remain unchanged from 2018.
Table 2--Difference in Proposed and Final Atlantic Herring Specifications and Sub-ACLs for 2019
----------------------------------------------------------------------------------------------------------------
Proposed for Final for 2019 Difference
Specifications 2019 (mt) (mt) (mt)
----------------------------------------------------------------------------------------------------------------
OFL............................................................. 30,688 30,668 * -20
[[Page 2763]]
ABC............................................................. 30,688 21,266 -9,422
OY/ACL.......................................................... 24,488 15,065 -9,423
Domestic Annual Harvest......................................... 24,488 15,065 -9,423
Domestic Annual Processing...................................... 24,488 15,065 -9,423
Area 1A Sub-ACL (28.9%)......................................... 7,077 4,354 -2,723
Area 1B Sub-ACL (4.3%).......................................... 1,053 647 -406
Area 2 Sub-ACL (27.8%).......................................... 6,808 4,188 -2,620
Area 3 Sub-ACL (39%)............................................ 9,550 5,876 -3,674
Fixed Gear Set-Aside............................................ 64 39 -25
----------------------------------------------------------------------------------------------------------------
* Difference due to correcting a typographical error in the value of the OFL.
Projections used to generate the proposed 2019 ABC assumed 49,900
mt of herring catch in 2018. After publication of the proposed rule, we
learned that total herring catch for 2018, including 11,500 mt of catch
in the New Brunswick weir fishery that is not counted against the ACL
but used for assessing status of the herring stock, actually totaled
54,896 mt. This means that the proposed ABC likely has less than a 50-
percent probability of preventing overfishing in 2019. We intended to
explore ABC options for this final rule that were lower than 30,688 mt
but higher than 21,266 mt, in hopes of finding a balance between
conserving the herring stock and minimizing negative economic impacts
on the fishing industry. However, the lapse in appropriations resulting
in the partial government shutdown starting on December 22, 2018,
prevented us from working with staff from the NEFSC to analyze
additional alternatives. Setting the final ABC lower than the OFL
better accounts for scientific uncertainty to ensure catch limits will
prevent overfishing and meet the Herring FMP's goals and objectives.
Herring Research Set-Aside Exempted Fishing Permits
In the proposed rule, we solicited public comment on exempted
fishing permits (EFPs) used to exempt vessels from certain herring
management regulations to support herring research set-aside (RSA)
compensation fishing. Consistent with previous herring RSA EFPs,
vessels would be allowed to harvest herring RSA in a management area
after a sub-ACL had been caught and the herring fishery is limited to
2,000 lb (907 kg) of herring per day/trip in that area. EFPs would also
allow vessels to harvest RSA during times when the sub-ACLs are not
seasonally available for harvest, specifically during January through
May in Area 1A and January through April in Area 1B. We received no
comments on the EFPs, so we intend to issue EFPs to facilitate herring
RSA compensation fishing in support of the projects funded under the
2019 Herring RSA Program.
Comments and Responses
We received 22 comment letters on the proposed rule: 11 from
participants in the herring and lobster fisheries; 2 from fishing
industry organizations (Maine Lobstermen's Association (MLA) and New
England Purse Seiner's Alliance (NEPSA)); 2 from states (Massachusetts
Division of Marine Fisheries (MA DMF) and Maine Division of Marine
Resources (ME DMR)); 2 from environmental advocacy groups (Conservation
Law Foundation (CLF)/Natural Resources Defense Council (NRDC) and
Earthjustice); 2 from participants in other fisheries (tuna and
recreational); 1 from the Council; 1 from the Town of Wellfleet; and 1
from a member of the public.
Comment 1: Several commenters supported the Council's recommended
herring ABC of 21,266 mt including: MA DMF; CLF/NRDC; Earthjustice;
Town of Wellfleet; and one recreational fisheries participant. These
commenters echoed the Council's rationale for supporting a lower ABC in
2019 and that rationale is as follows:
A buffer is needed between the OFL and ABC to account for
scientific uncertainty associated with the assessment's recruitment and
biomass projections;
The lower ABC performs better across several metrics than
the proposed ABC, including lower probability of overfishing (15
percent versus 50 percent) and lower variability in yield (between 2019
and 2020);
Maintaining fishing mortality at the rate to support
maximum sustainable yield is not consistent with the Council's risk
tolerance for herring and applying a lower fishing mortality rate would
help the stock rebuild more quickly;
Actual catch in 2018 exceeded 49,900 mt so the proposed
ABC would have less than a 50-percent probability of preventing
overfishing in 2019;
It is uncertain what higher than average catch in the New
Brunswick weir fishery will mean for stock recruitment;
The 2020 ABC can be higher under the lower ABC than under
the proposed ABC;
The higher ABC results in additional risk to the stock
that is not justified given the marginal increase in short-term
revenue; and
The lower ABC balances the goals and objectives of the
Herring FMP.
Additionally, MA DMF commented that the herring stock is less
likely to become overfished under the lower ABC than under the proposed
ABC, especially if recruitment projections are not realized. It also
speculated that the lower ABC in 2020, resulting from higher limits in
2019, may cause more economic hardship, threaten the viability of the
herring fishery, and have serious implications for vessels fishing for
mackerel. Earthjustice and CLF/NRDC contend that the Magnuson-Stevens
Act prohibits ACLs from being set higher than ABC recommendations by
the SSC. The Town of Wellfleet commented that the lower ABC better
provides for herring predators than the proposed ABC.
Response: We understand the comments made by these stakeholders and
why they advocate for a lower herring ABC in 2019, even though we do
not agree that the Magnuson-Stevens Act prohibits us from setting
harvest limits higher than those recommended by the SSC in this in-
season adjustment.
For all the reasons we previously described, we are implementing
the lower ABC (21,266 mt) recommended by the Council for 2019.
[[Page 2764]]
Comment 2: Several commenters supported the proposed ABC of 30,688
mt including: ME DMR; NEPSA; MLA; some participants in the herring and
lobster fisheries; and one participant in the tuna fishery. Their
rationale for supporting a higher ABC in 2019 is as follows:
The 2019 ABC should be set consistent with recent
specifications until the new control rule is reviewed and approved as
part of Amendment 8;
The maximum fishing mortality rate of 80 percent
associated the new control rule is redundant as the stock assessment
already accounts for the consumption of herring by predators;
The lower ABC is too restrictive, in hopes of rebuilding
the stock by limiting fishing, but herring recruitment is primarily
environmentally-driven;
The higher ABC helps achieve OY by accounting for social,
economic, and ecological factors while preventing overfishing and
mitigating severe economic hardship on the herring and lobster
fisheries;
The higher ABC helps support a mackerel fishery in 2019;
The new control rule would not have prevented the current
condition of the herring stock and it is an overreaction to the 2018
stock assessment without consideration for the economic impacts on
herring, lobster, and mackerel fisheries;
Leaving an extra 9,000 mt of herring in the water will not
make an appreciable impact on the future health of herring stock, but
not doing so will devastate the herring and lobster fisheries;
The economic impacts of the lower ABC on the fishing
industry will be severe with participants in the herring fishery
struggling to maintain their businesses, crews, and facilities and the
lobster fishery losing access to millions of pounds of lobster bait
resulting in high prices and shortages; and
A higher ABC in 2019 would allow the lobster industry time
to identify alternative sources of bait, coordinate bait distribution,
and grow infrastructure and storage capacity to minimize the economic
impacts of reduced herring catch limits.
Response: We also understand the comments made by these
stakeholders and why they advocate for a higher herring ABC in 2019.
While the impacts of less catch and less revenue associated with either
ABC alternative will negatively impact the fishing industry, we agree
with the commenters that economic impacts on the fishing industry will
likely be more severe with implementation of the lower ABC. Because
actual catch in 2018 was higher than anticipated, the proposed ABC of
30,688 mt likely has less than a 50-percent probability of preventing
overfishing in 2019. This means that the higher ABC is no longer a
viable alternative for 2019. The partial government shutdown that began
on December 22, 2018, prevented us from analyzing additional ABC
alternatives. Therefore, to better account for scientific uncertainty
and prevent overfishing and lower the risk of the stock becoming
overfished, we are implementing the lower ABC recommended by the
Council for 2019.
Comment 3: The Council and some participants in the herring trawl
fishery expressed support for maintaining recent sub-ACL allocations.
They commented that the proposed sub-ACL allocations provide harvesting
opportunities for vessels fishing in offshore areas, small-mesh bottom
trawl fishing in Area 2, and vessels fishing for mackerel in Area 2.
Response: We acknowledge these comments and are maintaining the
recent herring sub-ACL allocations in 2019.
Comment 4: Several commenters opposed maintaining the recent sub-
ACLs allocations including the MLA, NEPSA, ME DMR, some participants in
the herring purse seine fishery, some participants in the lobster
fishery, and one participant in the tuna fishery. They commented that
more herring should be allocated to Area 1A because:
Recent allocations do not reflect the availability of the
herring resource or the effort of the herring fishery;
Recent allocations do not equally distribute the impact of
a low ABC across states, so Maine will be more severely impacted than
other states because of its need for lobster bait;
If the largest percentage of the ACL is not allocated to
Area 1A, the ACL may not be harvested;
Purse seine vessels will be more impacted by a low ABC
than trawl vessels because they only fish in Area 1A;
Timing of the Area 1A fishery coincides with the lobster
fishery's need for fresh bait;
Allocating the most harvest to Area 1A will help lessen
the impact of the ABC reduction on the lobster fishery; and
Unharvested catch should be transferred into areas where
it can be harvested.
Response: We understand the concerns expressed in these comments.
Because sub-ACL allocations have the potential for biological impacts
on the herring stock and economic impacts on the fishing industry, we
are deferring to the Council's recommendations for sub-ACL allocations.
The Council will soon begin developing herring specifications for 2020-
2021 and will likely reconsider sub-ACL allocations at that time.
Because herring revenue makes up a larger percentage of total revenue
for purse seine vessels than trawl vessels, we agree that purse seine
vessels may be more negatively affected by low catch limits than trawl
vessels. We disagree that sub-ACL allocations will prevent the ACL from
being harvested in 2019 because recent catch (2016-2018) in each of the
management areas has been higher than the 2019 sub-ACLs, with the
exception of Area 2 in 2017. But if there is unharvested herring catch
available in any of the management areas near the end of the fishing
year, the Council could request we use an additional in-season
adjustment to reallocate unharvested catch.
Comment 5: Earthjustice and CLF/NRDC commented on the river herring
and shad catch caps for 2019. They cautioned that maintaining the
current catch caps would allow disproportionately high catch of river
herring and shad, compared to herring catch, and would not encourage
vessels to avoid river herring and shad catch or minimize bycatch in
violation of the Magnuson-Stevens Act.
Response: We disagree with these comments. In January 2017,
midwater vessels had only harvested about 3,000 mt of herring from Area
3 when their catch of river herring and shad approached 80-percent of
the Cape Cod catch cap. Because the midwater trawl fleet quickly
modified their fishing behavior to avoid river herring and shad, they
were able to avoid fully harvesting the Cape Cod catch cap for the
remainder of 2017. In March 2018, midwater trawl vessels fully
harvested the Southern New England catch cap, triggering the 2,000-lb
herring possession limit in the catch cap closure area, in combination
with less than 6,500 mt of herring from Area 2. Herring catch from Area
2 remained low for the rest of the year and totaled approximately 7,000
mt at the end of 2018. These examples illustrate that even at low
levels of herring catch, the current river herring and shad catch caps
provide an incentive to avoid river herring and shad and minimize
bycatch.
Comment 6: The Council expressed support for reducing border
transfer to zero so that more herring would be available to the bait
market. Both the Council and ME DMR expressed support for a fixed gear
set-aside and the Council noted that the fixed gear set-aside should be
reduced in proportion to the ABC.
[[Page 2765]]
Response: We acknowledge these comments and are reducing border
transfer to zero mt and implementing a fixed gear set-aside of 39 mt
for 2019, reduced proportionally relative to the Area 1A sub-ACL.
Comment 7: The NEPSA and one participant in the herring fishery
supported the in-season transfer of unharvested herring.
Response: We expect the fishery to be able to fully harvest the
ACL/OY in 2019, but if there is unharvested herring catch available in
any of the management areas near the end of the fishing year, the
Council could request we use an additional in-season adjustment to
reallocate unharvested catch.
Comment 8: One participant in the herring fishery expressed support
for the research set-aside because of the value of the compensation
fishery, especially if it helps provide access to the mackerel fishery.
Response: We acknowledge this comment and are setting aside 3-
percent of each sub-ACL for research, consistent with recent
specifications.
Comment 9: Several commenters expressed concern with weekly landing
limits and measures restricting the activity of herring carrier vessels
in Area 1A.
Response: Because these measures are recommended by the Atlantic
States Marine Fisheries Commission and implemented and enforced by
individual states, they are outside the scope of this action.
Classification
The Administrator, Greater Atlantic Region, NMFS determined that
this final rule is necessary for the conservation and management of the
herring fishery and that it is consistent with the Magnuson-Stevens Act
and other applicable law.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effectiveness so the purpose of this action is not undermined.
This action reduces 2018 herring specifications and sub-ACLs to prevent
overfishing in 2019 with the goals of increasing herring biomass and
providing future fishery opportunities. This action must be in effect
as soon as practicable to realize these intended benefits. Because this
action reduces catch limits that directly relate to preventing
overfishing while allowing the herring fishery to achieve OY, a 30-day
delay would be contrary to the public interest.
The 2018 herring stock assessment concluded that catch would need
to be reduced in 2019 to prevent overfishing and lower the risk of the
stock becoming overfished. Before taking this action, we consulted with
the Council at its September and December 2018 meetings. At those
meetings, the Council requested that we use an in-season adjustment to
reduce 2018 herring specifications and sub-ACLs for 2019 to prevent
overfishing and lower the risk of the stock becoming overfished.
A delay in implementing these new herring catch limits will
increase the likelihood that 2019 herring catch will exceed these lower
limits. These new catch limits are almost 70 percent lower than 2018
catch limits. Exceeding these limits would result in a lower herring
biomass and negative economic impacts on the herring industry due to
further reduced catch limits in 2020 and beyond. Because herring is a
critical source of bait for the lobster fishery, these negative
economic impacts are also expected to affect the lobster fishery by
reducing its bait supply.
Additionally, we are required to implement a 2,000-lb (907-kg)
herring possession limit for the remainder of the year in each
management area once we project 92-percent of an area's sub-ACL is
harvested. We are also required to implement a 2,000-lb (907-kg)
herring possession limit for the remainder of the year in all
management areas once we project 95-percent of the herring ACL is
harvested. If a delay in implementing this action results in catch
approaching, or exceeding, the new 2019 catch limits, implementation of
a herring possession limit is more likely. Early implementation of a
herring possession limit would be counter to the goals and objectives
of this action, which is intended to reduce 2019 catch, but also
continue to provide fishing opportunities for the remainder of the 2019
fishing year.
This action is necessary to help rebuild the herring stock and
maintain the viability of the herring fishing industry and other
fisheries that rely on herring. Waiving the 30-day delay in
effectiveness is necessary to fully achieve the conservation and
economic benefits this action is intended to provide. A 30-day delay in
effectiveness is unnecessary because it provides no benefit to herring
conservation or the herring fishing industry. Conversely, a 30-day
delay could result in a lower herring biomass and negative economic
impacts to the herring industry due to further reduced catch limits in
2020 and beyond. For these reasons, NMFS has determined that a 30-day
delay in the effectiveness of this action is contrary to the public
interest.
This final rule is exempt from review under Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared 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 support of this action. A description of why this action
was considered, the objectives of, and the legal basis for this rule is
contained in in the preamble to the proposed and this final rule, and
is not repeated here. All of the documents that constitute the FRFA and
a copy of the SEA/RIR/IRFA are available upon request (see ADDRESSES)
or via the internet at https://www.nefmc.org.
A Statement of the Significant Issues Raised by the Public in Response
to the IRFA, a Statement 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
We received 22 comment letters on the proposed rule. Those
comments, and our responses, are contained in the Comments and
Responses section of this final rule and are not repeated here. All
changes from the proposed rule, as well as the rationale for those
changes, are described in the Changes from the Proposed Rule section of
this final rule and are not repeated here.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
The RFA recognizes three kinds of small entities: Small businesses;
small organizations; and small governmental jurisdictions. For purposes
of the RFA only, the small business criteria in the finfish fishing
industry (NAICS 114111) is a firm that is independently owned and
operated and not dominant in its field of operation, with gross annual
receipts of $11 million or less. Small organizations and small
governmental jurisdictions are not directly regulated by this action.
There are five permit categories in the herring fishery: (1)
Limited access permit for all management areas (Category A); (2)
limited access permit for access to Areas 2 and 3 only (Category B);
(3) limited access incidental catch permit for 25 mt per trip (Category
C); (4) an open access incidental catch permit for 3 mt per trip
(Category D); and (5) an open access permit for limited access mackerel
permit holders authorizing up to 9 mt per trip (Category E) in Areas 2
and 3.
In 2017, there were a total of 1,566 permitted herring vessels. Of
those, 1,434 were exclusively Category D
[[Page 2766]]
vessels. Of the remaining 132 permitted herring vessels, 22 belonged to
large businesses. Every Category B permit was also authorized for
Category C, and all but one Category E permitted vessel also carried a
Category D authorization. We included Category E vessels that also have
Category D authorization in the analysis. Table 3 presents the counts
of permitted vessels by category along with their affiliated entity's
small or large business status (the status of the company that holds
the herring permit).
Table 3--Number of Herring Permits by Category, 2015-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of herring permits
-----------------------------------------------------------------------------------------------
Herring permit categories 2015 2016 2017
-----------------------------------------------------------------------------------------------
Large Small Large Small Large Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
A....................................................... 5 32 5 30 6 30
B/C..................................................... 4 4 4 4 4 4
C (exclusive)........................................... 3 37 3 37 3 37
D (exclusive)........................................... 112 1,222 115 1,306 114 1,320
E....................................................... 9 39 9 40 9 39
-----------------------------------------------------------------------------------------------
Total............................................... 133 1,334 136 1,417 136 1,430
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NMFS.
Table 4 refines the counts from Table 3 to include only those
vessels that had revenue from herring at least once in the 3-year
period of analysis. In 2017, there were 4 large businesses and 69 small
that had revenue from herring.
Table 4--Number of Herring Permits With Herring Revenue, 2015-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of herring permits
-----------------------------------------------------------------------------------------------
Herring permit categories 2015 2016 2017
-----------------------------------------------------------------------------------------------
Large Small Large Small Large Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
A....................................................... 4 20 4 19 4 19
B/C..................................................... 0 2 0 2 0 3
C (exclusive)........................................... 0 11 0 9 0 12
D (exclusive)........................................... 0 27 0 29 0 31
E....................................................... 0 4 0 1 0 4
-----------------------------------------------------------------------------------------------
Total............................................... 4 64 4 60 4 69
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NMFS.
Finally, Table 5 defines the small entities affected by this
proposed action--small businesses with a Herring Category A, B, C, or E
permit and revenue from herring during the 2015-2017 period of
analysis. There were 37, 31, and 38 such vessels in 2015, 2016, and
2017 respectively.
Table 5--Affected Small Entities, Permitted Herring Vessels With Herring Revenue, 2015-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of herring permits
-----------------------------------------------------------------------------------------------
Herring permit categories 2015 2016 2017
-----------------------------------------------------------------------------------------------
Large Small Large Small Large Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
A....................................................... 4 20 4 19 4 19
B/C..................................................... 0 2 0 2 0 3
C (exclusive)........................................... 0 11 0 9 0 12
E....................................................... 0 4 0 1 0 4
-----------------------------------------------------------------------------------------------
Total............................................... 4 37 4 31 4 38
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NMFS.
To better understand the impact of this action on the affected
small businesses, we compared the revenue from herring fishing to total
revenue brought in by the entity (business) that holds the herring
permit. The 17 to 18 small entities with Category A permits show the
most dependence on the herring fishery, with 49.75 percent to 62.03
percent of their revenue coming from herring landings. The 4 small
Category E permitted entities have the least dependence on the herring
fishery with less than one percent of total entity revenue coming from
the herring fishery.
[[Page 2767]]
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
Regulations at 50 CFR 648.200(e) allow us to make in-season
adjustments to the herring specifications and sub-ACLs to achieve
conservation and management objectives, after consultation with the
Council, consistent with the Herring FMP's objectives and other FMP
provisions. Specifications and sub-ACLs must also be based on the best
available scientific information, consistent with National Standard 2
of the Magnuson-Stevens Act. The adjustments to 2018 herring
specifications and sub-ACLs for 2019 implemented in this final rule
satisfy regulatory and statutory requirements while achieving
conservation and management objectives. Other options that we
considered, including those that would have had less of an impact on
small entities, failed to meet one or more of these stated objectives
and, therefore, could not be implemented.
Alternative 1 (2018 catch limits) has less than a 50-percent
probability of preventing overfishing in 2019 and, thus, is
inconsistent the Magnuson-Stevens Act. Alternative 1 would also
negatively impact the herring stock by increasing the risk that it
would become overfished. The primary difference between Alternative 2
(final 2019 catch limits) and Alternative 3 (catch limits based on an
ABC of 30,668) are specifications for ABC and the resulting ACL and
sub-ACLs for 2019. The ABC associated with the Alternative 3 (30,668
mt) is 9,402 mt higher than the ABC associated with Alternative 2
(21,266 mt). Projections used to generate Alternative 3 assumed 49,900
mt of herring catch in 2018. After publication of the proposed rule, we
learned that total herring catch for 2018, including catch in the New
Brunswick weir fishery, actually totaled 54,896 mt. This means that
Alternative 3, like Alternative 1, has less than a 50-percent
probability of preventing overfishing in 2019 and is also inconsistent
with the Magnuson-Stevens Act. In its comment letter on the proposed
rule, the Council also cautioned that Alternative 3's higher ABC is
inconsistent with the Council's risk tolerance for the herring
resource. While Alternatives 1 and 3 would have allowed for higher
total revenue and higher herring revenue than Alternative 2,
Alternative 2 is the only alternative that meets the conservation and
management objectives of the regulatory and statutory requirements. The
impacts of adjustments to herring specifications and sub-ACLs for 2019,
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., fishery bulletin) will be sent
to all holders of permits for the herring fishery. The guide and this
final rule will be posted on the GARFO website.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 5, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2019-01658 Filed 2-7-19; 8:45 am]
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