Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11373 

report) in such an operational area. It is 

expected the HCA for Afghanistan could 

exempt ‘‘payments made in the theater 

of operations’’ from Prompt Payment Act 

interest and interest penalties. 

In the preparation of the interim rule, 

a review of Federal Procurement Data 

Systems data for FY08 showed that of 

the 140 awards made to U.S. firms, only 

21 were made to small business entities. 

This total represents 15 percent of all 

awards made during this time period. 

Therefore, the overall impact of the rule 

is not expected to have a significant 

aggregate economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

However, a regulatory flexibility 

analysis was completed because there is 

an economic impact to consider. 

There is no reporting requirement 

established by this rule. There are no 

significant alternatives which 

accomplish the stated objectives. This 

rule will allow DoD to utilize the 

exemptions provided by OMB 

implementation of the Prompt Payment 

Act, which exempts military 

contingencies. 

V. Paperwork Reduction Act 

The rule does not impose any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 212, 

232, and 252 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, the Defense Acquisition 

Regulations System confirms as final the 

interim rule published at 75 FR 40712, 

July 13, 2010, with the following 

changes: 

■ 1. The authority citation for 48 CFR 

part 232 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 232—CONTRACT FINANCING 

■ 2. Section 232.901 is amended by— 

■ a. Revising the first sentence of 

paragraph (1) introductory text to read 

as set forth below; 

■ b. Amending paragraph (1)(i)(C) by 

removing ‘‘Section’’ and adding in its 

place ‘‘section’’. 

232.901 Applicability. 

(1) Except for FAR 32.908, FAR 

subpart 32.9, Prompt Payment, does not 

apply when— 

* * * * * 

[FR Doc. 2011–4526 Filed 3–1–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080513659–1114–03] 

RIN 0648–AW75 

Fisheries of the Northeastern United 

States; Atlantic Herring; Amendment 4 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This rule implements 

approved measures in Amendment 4 to 

the Atlantic Herring (Herring) Fishery 

Management Plan (FMP). Amendment 4 

was developed by the New England 

Fishery Management Council (Council) 

to bring the FMP into compliance with 

new Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) requirements by: Revising 

definitions and the specificationssetting process, consistent with annual 

catch limit (ACL) requirements; and 

establishing fishery closure thresholds, 

a haddock incidental catch cap, and 

overage paybacks as accountability 

measures (AMs). In addition, the 

amendment designates herring as a 

‘‘stock in the fishery;’’ establishes an 

interim acceptable biological catch 

(ABC) control rule; and makes 

adjustments to the specification process 

by eliminating consideration of total 

foreign processing (JVPt), including 

joint venture processing (JVP) and 

internal waters processing (IWP), and 

reserve from the specification process, 

and eliminates the Council’s 

consideration of total allowable level of 

foreign fishing (TALFF). 

DATES: Effective April 1, 2011. 

ADDRESSES: An environmental 

assessment (EA) was prepared for 

Amendment 4 that describes the 

proposed action and other considered 

alternatives and provides a thorough 

analysis of the impacts of the proposed 

measures and alternatives. Copies of 

Amendment 4, including the EA, the 

Regulatory Impact Review (RIR), and the 

Initial Regulatory Flexibility Analysis 

(IRFA), are available from: Paul J. 

Howard, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Mill 2, Newburyport, 

MA 01950, telephone (978) 465–0492. 

The EA/RIR/IRFA is also accessible via 

the Internet at http:// 

www.nero.nmfs.gov. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Nordeen, Fishery Policy Analyst, 

978–281–9272, fax 978–281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

This amendment brings the Herring 

FMP into compliance with requirements 

of the reauthorization of the MSA in 

2006, specifically ACLs and AMs. 

Because herring is not subject to 

overfishing, the MSA requires the 

Herring FMP to be in compliance with 

ACL and AM requirements by 2011. In 

addition to the public meetings at which 

Amendment 4 was developed, the 

Council held three public meetings on 

the draft Amendment 4 and its EA 

during January 2010. Following the 

public comment period that ended on 

January 12, 2010, the Council adopted 

Amendment 4 on January 26, 2010, and 

submitted the amendment to NMFS on 

April 22, 2010. The Notice of 

Availability (NOA) for Amendment 4 

was published on August 12, 2010, with 

a comment period ending October 12, 

2010. A proposed rule for Amendment 

4 was published on October 18, 2010, 

with a comment period ending 

December 2, 2010. On November 9, 

2010, NMFS approved Amendment 4 on 

behalf of the Secretary of Commerce. 

Initially, the Council intended for 

Amendment 4 to also consider the 

issues of catch monitoring and 

reporting, interactions with river 

herring, access by midwater trawl 

vessels to groundfish closed areas, and 

interactions with the Atlantic mackerel 

fishery. In June 2009, the Council 

determined there was not sufficient time 

to develop and implement all the 

measures originally contemplated in 

Amendment 4 by 2011, so it decided 

that Amendment 4 would only address 

ACL and AM requirements and 

specification issues. The other issues 

(e.g., catch monitoring and reporting, 

interactions with river herring and 

Atlantic mackerel, access to groundfish 

closed areas) are currently being 

considered in Amendment 5 to the 

Herring FMP (Amendment 5). NMFS 

has the independent authority to revise 

reporting requirements, and has 

informed the Council that it will be 

developing a rulemaking to establish 

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11374 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

daily catch reporting for limited access 

herring vessels in 2011. 

This rule implements management 

measures that: Revise current 

definitions and the specification-setting 

process to include ACLs and AMs; 

designate herring as a ‘‘stock in the 

fishery;’’ establish an interim ABC 

control rule; eliminate JVPt, including 

JVP and IWP, and reserve from the 

specifications process; and eliminate the 

Council’s consideration of TALFF. The 

proposed rule includes detailed 

information about the Council’s 

development of these measures, and 

that discussion is not repeated here. 

ACL Specification Process 

Amendment 4 revises the 

specification-setting process for the 

herring fishery. This action establishes a 

process whereby an overfishing limit 

(OFL) may be set, which corresponds to 

a maximum sustainable yield (MSY). 

This action specifies that ABC is to be 

recommended by the Council’s 

Scientific and Statistical Committee 

(SSC). During the setting of ABC, 

scientific uncertainty is to be 

considered, and ABC may be reduced 

from the OFL to account for scientific 

uncertainty. Scientific uncertainty 

includes, but is not limited to, 

uncertainty related to stock size 

estimates, variability around estimates 

of recruitment, and consideration of 

ecosystem issues. This action 

establishes a process whereby a stockwide ACL may be set that is to be equal 

to or less than ABC. During the setting 

of the stock-wide ACL, management 

uncertainty is to be considered. The 

stock-wide ACL may be reduced from 

the ABC to account for management 

uncertainty, which includes, but is not 

limited to, uncertainty related to 

expected catch of herring in the New 

Brunswick weir fishery and discard 

estimates of herring caught in Federal 

and state waters. 

The stock-wide ACL is specified to 

account for all herring catch. Estimates 

of discards are reported by harvesters, 

and provided by NMFS observers. The 

available information suggests that 

discards in the herring fishery are low, 

relative to the amount of landed herring. 

Therefore, this action does not establish 

a specific deduction between the ABC 

and stock-wide ACL, to account for 

management uncertainty related to 

discards at this time. However, if new 

information on discards becomes 

available, Amendment 4 provides the 

Council with flexibility to incorporate 

that information into the stock-wide 

ACL-setting process as appropriate. 

This action revises the specifications 

authorized by the Herring FMP. The 

original FMP authorizes specifications 

for JVPt, JVP, IWP, reserve, and TALFF 

to be set for the herring fishery. 

Historically, JVPt (including JVP and 

IWP) was allocated to enable foreign 

processing operations to accept catch 

from U.S. vessels; TALFF was allocated 

to ensure fish were available to foreign 

processing vessels when U.S. vessels 

could not supply it. The U.S. herring 

fishery has experienced growth in both 

harvesting and processing capacity, 

accordingly, neither JVPt nor TALFF 

have been allocated since 2005. Because 

the U.S. herring industry is capable of 

harvesting and processing the entire 

available yield in the foreseeable future, 

and to maximize U.S. economic 

benefits, this action eliminates the 

annual specifications of JVPt, JVP, and 

IWP from the Herring FMP. 

Additionally, while TALFF could still 

be awarded consistent with the MSA, if 

the Secretary of Commerce determines 

there is inadequate domestic harvesting 

capacity and other requirements of 

section 201 of the MSA are satisfied, 

this action eliminates Council 

consideration of TALFF during 

development of the specifications. 

Historically, the FMP included the 

reserve to buffer against such things as 

uncertainty in stock size estimates, 

uncertainty in Canadian catch, excess 

U.S. capacity entering the herring 

fishery, and fluctuations in import/ 

export demand. With the 

implementation of limited access in 

2007 and Amendment 4’s proposed 

consideration of sources of scientific 

and management uncertainty in the 

setting of OFL, ABC, and ACL, the 

Council concluded that specifying a 

reserve is no longer necessary. 

Therefore, this action eliminates the 

specification of reserve from the Herring 

FMP. 

With the implementation of 

Amendment 1 to the Herring FMP (72 

FR 11252, March 12, 2007), the Council 

has the authority to set herring 

specifications for a period of 3 years. 

Amendment 4 maintains the current 

schedule of setting herring 

specifications for a period of 3 years. 

The herring stock complex is 

considered to be a single stock, but it is 

comprised of inshore (Gulf of Maine 

(GOM)) and offshore (Georges Bank 

(GB)) stock components. These stock 

components segregate during spawning 

and mix during feeding and migration. 

Herring management areas were 

developed in recognition of these 

different stock components; each 

management area has a total allowable 

catch (TAC) to allow the fishing 

mortality of the stock components to be 

managed independently. Area 1 is 

located in the GOM and is divided into 

an inshore section (Area 1A) and an 

offshore section (Area 1B). Area 2 is 

located in the coastal waters between 

Massachusetts and North Carolina, and 

Area 3 is on GB. Because the inshore 

stock component has substantially less 

biomass than the offshore stock 

component, it is likely more vulnerable 

to overfishing. This action maintains the 

function of the herring management area 

TACs, but re-defines each area TAC as 

an area sub-ACL (i.e., each management 

area has its own sub-ACL). The Area 1A 

TAC is currently allocated to two 

seasonal periods. The first season 

extends from January 1 through May 31, 

and the second season extends from 

June 1 through December 31. This 

action maintains these seasons and 

allocates the Area 1A sub-ACL into the 

same two seasonal periods. 

The specification of OY is required by 

the MSA and authorized in the current 

Herring FMP. OY is derived from MSY, 

as reduced by relevant economic, social, 

or ecological factors. This action 

specifies that OY remain part of the 

specification-setting process, that it is to 

be equal to or less than ABC, and that 

it address uncertainty related to 

economic, social, or ecological factors. 

For example, the Council may choose to 

allocate an OY that is reduced from ABC 

to address the role of herring as forage 

or the fishing mortality rate on the 

inshore stock component. If the Council 

allocates a reduced OY, it would be in 

addition to any consideration of 

scientific or management uncertainty 

and would be a specific reduction to 

address a specific issue. 

Stocks in a Fishery 

The MSA requires that an FMP 

contain a description of the fish species 

in a fishery, and National Standard 1 

guidelines task the Council with 

determining which specific target stocks 

and/or non-target stocks to include in 

the fishery. Target stocks are defined as 

stocks that fishers seek to catch for sale 

or personal use, and non-target stocks 

are fish caught incidentally during the 

pursuit of target stocks. In general, any 

stock managed through an FMP is 

considered to be in that fishery. While 

other species are caught incidentally 

when fishing for herring, herring is the 

target stock, and the only stock directly 

managed by the Herring FMP. This 

action establishes herring as a stock in 

the fishery. The Council retains the 

authority to designate additional stocks 

in the fishery in a future action. Bycatch 

in the herring fishery will continue to be 

addressed and minimized to the extent 

possible, consistent with other 

requirements of the MSA. Additionally, 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11375 

incidental catch in the herring fishery 

counts against the ACLs for incidental 

catch species if ACLs have been 

established in their respective Federal 

FMPs. 

Interim ABC Control Rule 

The ABC control rule is the specified 

method of setting the ABC, giving full 

consideration to scientific uncertainty. 

The ABC control rule is based on 

scientific advice from a Council’s SSC 

and, when possible, considers the 

probability of overfishing. The ABC 

control rule should consider the 

scientific uncertainty associated with 

stock assessment results, including time 

lags in updating assessments, the degree 

of retrospective revision of assessment 

results, and the uncertainty of stock 

projections. 

During development of the 2010–2012 

herring specifications, the SSC 

identified two sources of scientific 

uncertainty in the 2009 herring 

assessment: (1) The assessment model 

has a strong retrospective pattern that 

reduces estimates of stock size when 

updated with new (2001–2007) data; 

and (2) biomass projections suggest the 

herring stock cannot rebuild to BMSY

(biomass that would support MSY) 

using long-term projections at FMSY

(fishing mortality rate for MSY). Given 

this magnitude of scientific uncertainty, 

the SSC determined that a permanent 

herring ABC control rule cannot be 

derived until a new benchmark 

assessment is conducted to address 

these issues. In the meantime, the 

Council recommended that Amendment 

4 contain an interim ABC control rule 

based on the SSC’s 2010–2012 herring 

ABC recommendation. This action 

establishes an interim control rule 

specifying that ABC be based on recent 

catch in the herring fishery, and that the 

Council determines the desired risk 

tolerance in setting the ABC. For 

example, recent catch could be the most 

recent catch data (single year) or an 

average of recent data (3-year or 5-year 

average). This interim ABC control rule 

will remain in effect until a new ABC 

control rule is developed. If a new ABC 

control rule can be developed following 

the 2012 benchmark stock assessment, it 

will be developed in the 2013–2015 

herring specifications. 

Accountability Measures 

The MSA requires AMs to be 

developed in association with ACLs. 

AMs should minimize the frequency 

and magnitude of catch in excess of the 

ACLs (overages) and provide for 

subsequent harvest adjustments if ACLs 

are exceeded. This action designates 

two existing herring management 

measures as AMs, and establishes an 

additional AM that would require an 

overage deduction, if catch exceeds the 

stock-wide ACL or a sub-ACL. This 

action also specifies that these AMs can 

be modified, as necessary, through a 

framework adjustment to the Herring 

FMP or through the herring fishery 

specifications process. 

Current herring regulations at 

§ 648.201(a) state that, if NMFS 

determines catch will reach 95 percent 

of the TAC allocated to a management 

area or seasonal period, then NMFS 

shall prohibit vessels from fishing for, 

possessing, catching, transferring, or 

landing more than 2,000 lb (907.2 kg) of 

herring per trip from that area or period. 

The original FMP established the 

management area closure threshold (i.e., 

95 percent of the management area 

TAC) to slow the herring fishery as 

catch approached the TAC for a 

management area, and intended the 

5-percent buffer to account for the 

incidental catch of herring in other 

fisheries. In recognition that this 

measure functions as an AM, by slowing 

catch to prevent or minimize catch in 

excess of a management area or seasonal 

period TAC/sub-ACL, Amendment 4 

designates this management area closure 

measure as an AM. Because the 

incidental catch of herring in other 

fisheries is typically low, if some 

herring discards were not accounted for 

in the vessel catch reports, the 5-percent 

buffer could also function to account for 

these discards. Therefore, the function 

of the 5-percent buffer is to account for 

the incidental catch of herring in other 

fisheries and, when appropriate, to 

buffer against the uncertainty associated 

with discard estimates. 

Current Northeast multispecies 

regulations at § 648.86(a)(3)(ii) specify a 

haddock incidental catch cap to control 

haddock catch by herring vessels in the 

GOM/GB Herring Exemption Area. 

When the Regional Administrator has 

determined that the haddock incidental 

catch cap has been caught, all vessels 

issued a herring permit are prohibited 

from fishing for, possessing, or landing 

herring in excess of 2,000 lb (907.2 kg) 

per trip in the GOM/GB Herring 

Exemption Area. Additionally, the 

haddock possession limit for all vessels 

issued All Areas or Areas 2⁄3 Limited 

Access herring permits is reduced to 

0 lb (0 kg) in all of the herring 

management areas. Amendment 16 to 

the Northeast Multispecies FMP 

(Amendment 16) designated haddock 

catch in the herring fishery as a subACL for the Multispecies FMP (75 FR 

18262, April 9, 2010). Consistent with 

Multispecies Amendment 16, this action 

designates the haddock incidental catch 

cap as an AM in the Herring FMP, with 

the clarification that the 0-lb (0-kg) 

haddock possession limit does not 

apply to herring vessels that also 

possess a Northeast multispecies permit 

and are operating on a declared 

groundfish trip. 

As a way to account for ACL overages 

in the herring fishery, this action 

establishes an AM that would provide 

for overage deductions. Once the total 

catch of herring for a fishing year is 

determined, using all available 

information, any ACL or sub-ACL 

overage would result in a reduction of 

the corresponding ACL/sub-ACL the 

following year. For example, if final 

accounting of the 2010 total herring 

catch in Area 1A, which is generally 

available in the spring of 2011, 

indicated that the Area 1A sub-ACL was 

exceeded by 5 mt, then, in 2012, the 

sub-ACL for Area 1A would be reduced 

by 5 mt to account for the overage that 

occurred during 2010. All overage 

deductions will be announced by NMFS 

in the Federal Register prior to the start 

of the fishing year. NMFS understands 

that the size of an overage and the 

frequency of overages have the potential 

to affect the herring stock. In the event 

of multiple overages, Amendment 4 

provides the flexibility to re-evaluate 

and modify, if necessary, the ACLs/subACLs and AMs consistent with National 

Standard 1 guidelines, during the 

specifications process. 

Comments and Responses 

NMFS received five letters during the 

comment period relating to the NOA for 

Amendment 4; one letter was from a 

member of the public; two letters were 

from non-herring, fishing industry 

organizations (Coalition for the Atlantic 

Herring Fishery’s Orderly, Informed, 

and Responsible Long-Term 

Development (CHOIR), Cape Cod 

Commercial Hook Fisherman’s 

Association (CCCHFA)); and two letters 

were from environmental advocacy 

groups (Oceana, Herring Alliance). An 

additional four letters were received on 

the proposed rule for Amendment 4; 

one letter was from the Atlantic States 

Marine Fisheries Commission (ASMFC), 

two letters were from non-herring, 

fishing industry organizations (CHOIR, 

CCCHFA), and one letter was from an 

environmental advocacy group (Herring 

Alliance). Only the comments relevant 

to Amendment 4 are addressed below. 

Comment 1: The Herring Alliance, 

CCCHFA, and CHOIR expressed 

concern about the sufficiency of the 

ACLs/sub-ACLs and AMs in the 

amendment. They believe that existing 

reporting and monitoring is not 

adequate to track catch against ACLs/ 

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11376 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

sub-ACLs and that AMs are not 

adequate to prevent ACLs/sub-ACLs 

from being exceeded. The commenters 

cited recent quota overages, specifically 

the quota overage in Area 1B, where 138 

percent of the Area 1B quota was 

harvested (6,014 mt) in 2010, as 

evidence that, absent improvements to 

monitoring, measures in Amendment 4 

are not sufficient to track catch against 

ACLs and prevent ACLs from being 

exceeded. 

Response: While alternatives for 

modifications to the reporting and 

monitoring program for herring are 

being developed in Amendment 5, 

NMFS concludes that current reporting 

and monitoring is sufficient to monitor 

catch against ACLs/sub-ACLs. Herring 

vessels are required to report herring 

catch (landings and discards) weekly. 

These catch reports are verified by 

comparing them to herring landings 

reported by dealers. Herring is a highvolume fishery. When there is a pulse 

of fishing effort on a relatively small 

amount of unharvested quota, as 

occurred in Area 1B during September 

2010, the chance of a quota overage 

exists, regardless of reporting or 

monitoring tools. Amendment 4 

recognizes an existing measure as a 

preventative AM; the measure limits 

herring catch (2,000 lb (907.2 kg) per 

trip) when a specified percentage (95 

percent) of an ACL/sub-ACL is projected 

to be harvested. The specified 

percentage is adjustable and, when it is 

set correctly, this AM is an appropriate 

measure to prevent ACLs/sub-ACLs 

from being exceeded. 

NMFS has the authority to revise 

reporting requirements or make 

inseason adjustments to ACLs/sub-ACLs 

as necessary. Recognizing the 

importance of timely catch information, 

NMFS will be developing a rulemaking 

to establish daily catch reporting for 

limited access herring vessels for 

implementation in 2011. 

Comment 2: The amendment contains 

a reactive AM that deducts any ACL/ 

sub-ACL overages in the fishing year 

following total catch determinations, 

but the Herring Alliance, CCCHFA, and 

CHOIR believe that any overages should 

be paid back in the year immediately 

following the overage. 

Response: The herring fishing year 

extends from January to December. The 

herring fishery can be active in 

December and, as explained in the 

amendment, information on the bycatch 

of herring in other fisheries is not 

finalized until the spring of the 

following year. For these reasons, and to 

provide sufficient notice to the industry 

when an ACL/sub-ACL is reduced due 

to an overage, NMFS concludes that it 

is appropriate that the amendment 

establishes a payback measure for the 

fishing year following the total catch 

determination (e.g., overages in 2010 

would be determined in 2011 and paid 

back in 2012). (See also the response to 

Comment 3.) 

Comment 3: The Herring Alliance 

commented that delaying overage 

deductions may transfer accountability 

for overages to those not responsible for 

causing overages, because active 

participation in the fishery can change 

over time, and that ecological harm 

could result from unnecessary ‘‘balloon 

payments’’ due to overage rollovers. The 

CCCHFA commented that delaying 

overage deductions may cause harm to 

the stock. 

Response: Since the implementation 

of limited access in 2007, active 

participation in the herring fishery has 

been relatively stable. Market conditions 

and the availability of herring to the 

fishery drive participation in the herring 

fishery, but it is unlikely that, in a given 

year, these factors would prevent a 

portion of the fleet from participating in 

the fishery. Generally, there is no danger 

to the stock associated with ‘‘balloon 

payments’’ resulting from overage 

rollovers, because overages, if there are 

any, would be consistently deducted 

from ACLs/sub-ACLs for the fishing 

year following total catch 

determination. Herring is a relatively 

long-lived species (over 10 years) and 

multiple year classes are harvested by 

the fishery (typically ages two through 

six). These characteristics suggest that 

the herring stock may be robust to a 

single year delay in overage deductions 

(i.e., overage deduction in 2012 versus 

2011). There is no evidence that a single 

year delay is more likely to affect the 

reproductive potential of the stock than 

an overage deduction in the year 

immediately following the overage, 

particularly since the herring stock is 

not overfished at this time. However, 

NMFS understands that the health of a 

stock, size of an overage, and the 

frequency of overages could combine to 

affect the stock in the future. In the 

event that these factors combine to 

create a negative impact on the stock, 

Amendment 4 provides the flexibility to 

re-evaluate and modify ACLs/sub-ACLs 

and AMs, consistent with National 

Standard 1 guidelines, during the 

specifications-setting process. 

Comment 4: The Herring Alliance and 

CCCHFA expressed concern about the 

adequacy of the interim ABC control 

rule in the amendment. The Herring 

Alliance also believes the Council 

should have stated its policy on the risk 

of overfishing in the control rule, and 

that it is inappropriate to establish an 

updated control rule via the 

specifications process. Additionally, the 

Herring Alliance commented that, in the 

absence of a permanent ABC control 

rule, the final rule must specify a time 

frame and mechanism for replacing the 

interim control rule with a permanent 

control rule. 

Response: Due to the scientific 

uncertainty associated with the 2009 

herring stock assessment, the SSC 

determined that a permanent ABC 

control rule cannot be determined at 

this time. Therefore, Amendment 4 

contains an interim ABC control rule 

(based on SSC recommendations) until 

the next herring benchmark assessment 

(currently scheduled for June 2012) 

determines if it can address the 

concerns with the last assessment. If a 

new ABC control rule can be developed 

following the 2012 benchmark stock 

assessment, it will be developed in the 

2013–2015 herring specifications. The 

amendment does contain a default risk 

policy; the Council’s default policy on 

the risk of overfishing is the amount of 

buffer between the Council’s OFL and 

ABC recommendations for 2010–2012. 

This risk policy will be updated when 

the control rule is updated. Regarding 

the mechanism to update the control 

rule, the SSC makes ABC 

recommendations as part of the 

specifications process, and it is 

appropriate that this amendment 

provides the flexibility to update the 

control rule through that process. 

Comment 5: The Herring Alliance, 

CHOIR, and CCCHFA all expressed 

concern about the accounting of herring 

discarded at sea. The commenters 

believe that the final rule must include 

protocols for quantifying herring 

discards as part of management 

uncertainty and a mechanism to offset 

the ACL from the ABC accordingly. 

Additionally, absent improved 

monitoring, the commenters doubt the 

credibility of the discard data and 

conclusions that herring discards are 

low. 

Response: As described in the 

proposed rule, estimates of discards are 

reported by harvesters, and also 

provided by NMFS observers, on trips 

when observers are present. The 

available information suggests that 

discards in the herring fishery are low, 

relative to the amount of landed herring. 

Therefore, based on the best available 

information, Amendment 4 does not 

establish a specific deduction between 

the ABC and stock-wide ACL to account 

for management uncertainty related to 

discards at this time. However, if new 

information on discards becomes 

available, Amendment 4 provides the 

Council with flexibility to incorporate 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11377 

that information into the stock-wide 

ACL-setting process, as appropriate. 

Additionally, as described previously, 

the Council is in the process of 

developing Amendment 5, which 

considers revisions to catch monitoring 

and reporting requirements for the 

herring fishery. 

Comment 6: Following up on their 

concern with the accounting of discards, 

CHOIR and CCCHFA commented on a 

perceived discrepancy between the 

amendment and the proposed rule. 

They commented that the amendment 

describes the buffer (i.e., 5 percent of a 

management area sub-ACL) associated 

with the management area closure 

measure as a measure to buffer against 

the uncertainty associated with discard 

estimates while the proposed rule 

describes the buffer as a measure 

intended to address incidental catch. 

The commenters then questioned how 

the 5-percent buffer was intended to 

function. 

Response: Proposed regulations state 

that, if NMFS projects that catch will 

reach 95 percent of the annual sub-ACL 

allocated to a management area before 

the end of the fishing year, NMFS shall 

prohibit vessels, beginning the date the 

catch is projected to reach 95 percent of 

the sub-ACL, from fishing for, 

possessing, catching, transferring, or 

landing more than 2,000 lb (907.2 kg) of 

herring per trip per day for that area. 

The original FMP established the 

management area closure threshold (i.e., 

95 percent of the management area subACL) to slow the herring fishery as 

catch approached the TAC for a 

management area, and intended the 5- 

percent buffer to account for the 

incidental catch of herring in other 

fisheries. Amendment 4 maintains this 

function of the buffer, as described in 

both the proposed rule and the 

amendment. Additionally, because the 

incidental catch of herring in other 

fisheries is typically low, if some 

discards were not accounted for in the 

vessel catch reports, the 5-percent buffer 

could also function to account for these 

discards, as described in the 

amendment. Because the amendment 

describes that the intent of the 5-percent 

buffer is to account for the incidental 

catch of herring in other fisheries and to 

buffer against the uncertainty associated 

with discard estimates, this final rule 

clarifies that the buffer associated with 

the management area closure measure 

has both functions. 

Comment 7: The Herring Alliance 

commented that Amendment 4 should 

establish ACLs and AMs for river 

herring and shad, and suggested a 

Federal FMP is necessary for these 

species. 

Response: In June 2009, the Council 

focused Amendment 4 on bringing the 

Herring FMP into compliance the ACL 

and AM requirements by 2011. When 

considering the development of a 

Federal FMP for river herring and shad, 

the analysis would have to take into 

account the benefits of the FMP versus 

the costs and the need for a Federal 

plan, given that ASMFC has an 

Interstate FMP for river herring and 

shad. Because there was not time to 

conduct these types of analyses and 

implement Amendment 4 by 2011, 

creating a Federal FMP for river herring 

and shad was outside the scope of this 

amendment. Additionally, an ASMFC 

river herring stock assessment is 

currently scheduled for 2011. In 

advance of stock status information, it 

would be difficult for a Federal FMP to 

detail how it would prevent overfishing 

on river herring. In the absence of 

Federal management for river herring 

and shad, the MSA does not require 

ACLs and AMs for these species. 

Comment 8: One member of the 

public and the Herring Alliance 

commented on the National 

Environmental Policy Act (NEPA) 

requirements and questioned the 

Council’s decision to conduct an EA for 

Amendment 4. The Herring Alliance 

believes that ABCs, ACLs, and AMs 

need to be analyzed in an 

environmental impact statement (EIS), 

and that it is unlawful to separate 

Amendment 4 from Amendment 5 

because single actions must be analyzed 

together so as to not obscure the true 

environmental impacts. 

Response: The scope and effect of 

Amendment 4 is primarily 

administrative in nature, as it modifies 

the process for setting specifications, 

but does not implement the actual 

specifications (e.g., ABC, ACL). 

Therefore, for this reason and the 

analyses contained in the EA, the 

Finding of No Significant Impact was 

justified in determining that an EIS was 

not necessary or appropriate. 

Amendment 4 and Amendment 5 are 

separate actions; therefore, it is both 

appropriate and lawful to analyze them 

as separate actions, recognizing that 

Amendment 5 is considered in 

Amendment 4’s cumulative effects 

analysis as a future action, and 

Amendment 4 will be considered in the 

cumulative effects analysis of 

Amendment 5 as a past action. 

Comment 9: The CCCHFA 

commented that the analysis in the EA 

prepared for Amendment 4 was flawed 

because it concluded that exceeding 95 

percent of a sub-ACL is unlikely, and it 

did not analyze the effects of not 

designating river herring as non-target 

stock in the fishery. 

Response: Between 2001 and 2009, 

herring catch (reported by vessels) 

exceeded management area closure 

thresholds (i.e., 95 percent of the TAC 

for a management area) on eight 

occasions (less than 25 percent of the 

time). To explain, the 4 herring 

management areas were monitored over 

9 years, for a total of 36 management 

area thresholds, and those thresholds 

were exceed 8 times. NMFS believes it 

is appropriate to consider an event that 

occurs less than 25 percent of the time 

unlikely. National Standard 1 guidelines 

specify that Councils are to reconsider 

their ACLs, if those ACLs are 

consistently exceeded. Amendment 4 

provides the flexibility to re-evaluate 

and modify, if necessary, ACLs/subACLs and AMs during the specification 

process. Additionally, as described 

previously, the amendment contains an 

AM that requires any ACL/sub-ACL 

overages to be deducted in the year 

following total catch accounting. 

Designating river herring as a stock in 

the fishery was not considered by the 

Council in Amendment 4 nor was it 

representative of status quo; therefore, it 

is not required to be analyzed in the EA. 

Comment 10: Language in the 

proposed rule states that, if the 

amendment is effective prior to final 

catch accounting for 2010, any overage 

in 2010 would be deducted in 2012. The 

CCCHFA questioned whether or not 

2010 overages would be deducted in 

2012 if the amendment was not effective 

prior to final catch accounting for 2010. 

Response: Catch accounting for 2010 

will be finalized in 2011; therefore, any 

2010 ACL/sub-ACL overages will be 

deducted from the corresponding ACL/ 

sub-ACL in 2012. 

Comment 11: CCCHFA commented 

that it is concerned with how the role 

of herring as forage is considered in 

Amendment 4. CHOIR commented that 

it was pleased that the proposed rule 

provides for the consideration of the 

role of herring as forage during the 

specifications-setting process, but that it 

is disappointed that this consideration 

is not required. 

Response: This action provides for 

consideration of the role of herring as 

forage, as appropriate. NMFS believes it 

is sufficient that herring as forage can be 

considered by the SSC when it 

recommends ABC, and the Council has 

the ability to establish an additional 

buffer between ABC and OY to address 

herring as forage, and that a regulatory 

requirement is not necessary. 

Comment 12: The Herring Alliance, 

CCCHFA, and Oceana all commented 

that Amendment 4 should have 

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11378 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

considered additional species to be 

designated as ‘‘non-target stocks in the 

fishery,’’ including river herring, shad, 

haddock, mackerel, and spiny dogfish. 

Oceana also commented that the 

bycatch analysis in Amendment 4 is 

insufficient. 

Response: NMFS disagrees with these 

comments. National Standard 1 

guidelines state that designations for 

non-target stocks in the fishery are at the 

Council’s discretion, and the Council 

chose not to designate any species as 

‘‘non-target stocks in the fishery’’ in this 

amendment. Amendment 4 includes 

NMFS observer information on all 

species caught and discarded on 

observer trips and considers the effects 

of this action on non-herring species. 

Incidental catch in the herring fishery 

counts against the ACLs established for 

these incidental catch species if they are 

managed under another Federal FMP. 

Additionally, as described previously, 

Amendment 5 is further considering 

interactions between the herring fishery 

and river herring. 

Comment 13: The Herring Alliance, 

CCCHFA, and CHOIR commented that 

they support the proposed rule 

requirements to set sub-ACLs and AMs 

for the herring management areas. 

Response: NMFS concurs. 

Comment 14: The ASMFC 

commented that it supports measures in 

the proposed rule. ASMFC developed 

Addendum II to Amendment 2 to the 

Interstate FMP for Atlantic Herring to 

complement Amendment 4. ASMFC 

commented that any changes to the 

proposed rule may create inconsistent 

management between state and Federal 

management programs. 

Response: NMFS concurs. 

Changes From the Proposed Rule 

There are no substantive changes from 

the proposed rule, only clarifications to 

the possession limits associated with 

the management area closure AM (2,000 

lb (907.2 kg)), limited access incidental 

catch permit (55,000 lb (25 mt)), and 

open access permit (6,600 lb (3 mt)). 

Classification 

The Administrator, Northeast Region, 

NMFS, determined that Amendment 4 

is necessary for the conservation and 

management of the herring fishery and 

that it is consistent with the MSA and 

other applicable law. 

This final rule has been determined to 

be not significant for purposes of 

Executive Orders 12866 and 13563. 

A final regulatory flexibility analysis 

(FRFA) was prepared. The FRFA 

incorporates the IRFA, a summary of the 

significant issues raised by the public 

comments in response to the IRFA and 

NMFS responses to those comments, 

and analyses contained in Amendment 

4 and its accompanying EA/RIR/IRFA. 

Copies of these analyses are available 

from the Council or NMFS (see 

ADDRESSES). 

Statement of Need 

This action brings the Herring FMP 

into compliance with MSA 

requirements, specifically those 

requiring ACLs and AMs. A description 

of action, why it was considered, and 

the legal authority for the action is 

contained in the preamble and not 

repeated here. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

Nine comment letters were received 

during the comment periods on the 

NOA and proposed rule, but none of the 

comments were specifically directed to 

the IRFA. 

Description and Estimate of Number of 

Small Entities to Which the Rule Would 

Apply 

All participants in the herring fishery 

are small entities, as none grossed more 

than $ 4 million annually; therefore, 

there are no disproportionate economic 

impacts on small entities. This action 

will affect all participants in the herring 

fishery, as it revises current definitions 

and the specifications-setting process in 

the Herring FMP, but these measures are 

not anticipated to have direct economic 

impacts. In 2009, there were 41 vessels 

issued All Areas Limited Access 

Permits, 4 vessels issued Areas 2 and 3 

Limited Access Permits, 54 vessels 

issued Limited Access Incidental Catch 

Permits, and 2,272 vessels issued Open 

Access Permits. Section 6.2 in 

Amendment 4 describes the vessels, key 

ports, and revenue information for the 

herring fishery; therefore, that 

information is not repeated here. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

This action does not contain any new 

collection-of-information, reporting, 

recordkeeping, or other compliance 

requirements. It does not duplicate, 

overlap, or conflict with any other 

Federal 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, Including a 

Statement of the Factual, Policy, and 

Legal Reasons for Selecting the 

Alternative Adopted in the Final Rule 

and Why Each One of the Other 

Significant Alternatives to the Rule 

Considered by the Agency Which Affect 

the Impact on Small Entities Was 

Rejected 

The measures in this action are not 

anticipated to have direct economic 

effects on herring fishery participants. 

The scope and effect of Amendment 4 

is primarily administrative in nature, as 

it modifies the process for setting 

specifications, but does not implement 

the actual specifications (e.g., ABC, 

ACL). A detailed economic analysis of 

the measures, as well as the nonselected alternatives, is in Section 7.2 of 

Amendment 4. These measures bring 

the Herring FMP into compliance with 

new MSA requirements by revising 

current definitions and the 

specification-setting process to include 

ACLs and AMs. In addition, this action 

designates herring as a ‘‘stock in the 

fishery;’’ establishes an interim ABC 

control rule; and makes adjustments to 

the specification process by eliminating 

JVPt, including JVP and IWP, and 

reserve from the specifications process, 

and eliminating the Council’s 

consideration of TALFF. The alternative 

to these measures is the status quo, 

which would retain all current 

definitions and the current specification 

process. 

The current Herring FMP contains a 

specification-setting process and 

measures to prevent overfishing. This 

action re-defines: The specificationsetting process to include OFL, ABC, 

and ACL; the allocating of OY; the 

management area TACs as sub-ACLs; 

and the management area closure 

measure and haddock incidental catch 

cap as AMs. Additionally, this action 

establishes an AM that provides for an 

overage deduction if total catch 

exceeded an ACL/sub-ACL. Because this 

action only makes minor adjustments to 

the existing specification-setting process 

and measures that prevent overfishing, 

this action has no direct economic 

effects. However, when the actual 

specifications are set, using the process 

implemented by this action, an 

economic analysis will be conducted. 

By revising the specifications-setting 

process to make the process, and the 

SSC’s involvement in the process, more 

explicit and providing for overage 

deductions, this action has the potential 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11379 

to better prevent overfishing, as 

compared to the non-selected, status 

quo alternative. 

Designating herring as the stock in the 

fishery is administrative. While other 

species are caught incidentally when 

fishing for herring, Atlantic herring is 

the only stock directly managed by the 

Herring FMP. National Standard 1 

guidelines state that designations for 

non-target stocks in the fishery are at the 

Council’s discretion, and the Council 

chose not to designate any species as 

‘‘non-target stocks in the fishery’’ in this 

amendment. Because there may be nontarget stocks that warrant consideration 

in the future, the Council retains 

authority to designate additional stocks 

in the fishery in a future action. 

Designating herring as the stock in the 

fishery will not change how the current 

FMP operates; therefore, there are no 

economic differences between this 

action and the non-selected, status quo 

alternative. 

As described previously, the current 

Herring FMP contains a specificationssetting process and measures to prevent 

overfishing. Therefore, establishing an 

ABC control rule in this action is similar 

to the non-selected, status quo, 

alternative. However, making the ABCsetting process, and the SSC’s 

involvement in that process, explicit has 

the potential to better prevent 

overfishing, as compared to the nonselected, status quo alternative. 

This action eliminates JVPt, including 

JVP and internal waters processing IWP, 

and reserve from the specifications 

process. Because the U.S. herring 

fishery has experienced growth in both 

harvesting and processing capacity, and 

has sufficient capacity to harvest the 

available yield, JVPt, including JVP and 

IWP, has been allocated at zero since 

2005. Accordingly, there are no 

economic differences between this 

action and the non-selected, status quo 

alternative. Historically, the reserve was 

specified to buffer against such things as 

uncertainty in stock size estimates, 

uncertainty in Canadian catch, excess 

U.S. capacity entering the herring 

fishery, and fluctuations in import/ 

export demand. With this action’s 

consideration of OFL, ABC, and ACL to 

account for sources of scientific and 

management uncertainty, specifying a 

reserve is redundant; therefore, there is 

no economic difference between this 

action and the non-selected, status quo 

alternative. Additionally, while TALFF 

could still be awarded, consistent with 

the MSA, by the Secretary of Commerce, 

this action eliminates Council 

consideration of TALFF during 

development of the specifications. Like 

JVPt, TALFF has been specified at zero 

since 2005. Because there is no 

functional difference between not 

considering TALFF and setting TALFF 

at zero, there are no economic 

differences between this action and the 

non-selected, status quo alternative. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Recordkeeping and 

reporting requirements. 

Dated: February 25, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

Authority: 16 U.S.C. 1801 et seq. 

■ 2. In § 648.200, paragraphs (a) 

introductory text, (b)(1), (b)(2), (b)(3), 

(b)(4), (e), and (f) introductory text are 

revised, and paragraphs (b)(5) and (g) 

are added to read as follows: 

§ 648.200 Specifications. 

(a) The Atlantic Herring Plan 

Development Team (PDT) shall meet at 

least every 3 years, but no later than July 

of the year before new specifications are 

implemented, with the Atlantic States 

Marine Fisheries Commission’s 

(Commission) Atlantic Herring Plan 

Review Team (PRT) to develop and 

recommend the following specifications 

for a period of 3 years for consideration 

by the New England Fishery 

Management Council’s Atlantic Herring 

Oversight Committee: Overfishing Limit 

(OFL), Acceptable Biological Catch 

(ABC), Annual Catch Limit (ACL), 

Optimum yield (OY), domestic annual 

harvest (DAH), domestic annual 

processing (DAP), U.S. at-sea processing 

(USAP), border transfer (BT), the subACL for each management area, 

including seasonal periods as specified 

at § 648.201(d) and modifications to 

sub-ACLs as specified at § 648.201(f), 

and the amount to be set aside for the 

RSA (from 0 to 3 percent of the sub-ACL 

from any management area). 

Recommended specifications shall be 

presented to the New England Fishery 

Management Council (Council). 

* * * * * 

(b) * * * 

(1) 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 (FMSY). 

Catch that exceeds this amount would 

result in overfishing. 

(2) ABC must be equal to or less than 

the OFL. The Council’s Scientific and 

Statistical Committee (SSC) shall 

recommend ABC to the Council. 

Scientific uncertainty, including, but 

not limited to, uncertainty around stock 

size estimates, variability around 

estimates of recruitment, and 

consideration of ecosystem issues, shall 

be considered when setting ABC. If the 

stock is not overfished and overfishing 

is not occurring, then ABC may be based 

on FMSY or its proxy, recent catch, or 

any other factor the SSC determines 

appropriate. If the stock is overfished, 

then ABC may be based on the 

rebuilding fishing mortality rate for the 

stock (FREB), or any other factor the SSC 

determines appropriate. 

(3) ACL must be equal to or less than 

the ABC. Management uncertainty, 

which includes, but is not limited to, 

expected catch of herring in the New 

Brunswick weir fishery and the 

uncertainty around discard estimates of 

herring caught in Federal and state 

waters, shall be considered when setting 

the ACL. Catch in excess of the ACL 

shall trigger accountability measures 

(AMs), as described at § 648.201(a). 

(4) OY may not exceed OFL (i.e., 

MSY) and must take into account the 

need to prevent overfishing while 

allowing the fishery to achieve OY on a 

continuing basis. OY is prescribed on 

the basis of MSY, as reduced by social, 

economic, and ecological factors. OY 

may equal DAH. 

(5) DAH is comprised of DAP and BT. 

* * * * * 

(e) In-season adjustments. The 

specifications and sub-ACLs established 

pursuant to this section may be adjusted 

by NMFS to achieve conservation and 

management objectives, after consulting 

with the Council, during the fishing 

year in accordance with the 

Administrative Procedure Act (APA). 

Any adjustments must be consistent 

with the Atlantic Herring FMP 

objectives and other FMP provisions. 

(f) Management areas. The 

specifications process establishes subACLs and other management measures 

for the three management areas, which 

may have different management 

measures. Management Area 1 is 

subdivided into inshore and offshore 

sub-areas. The management areas are 

defined as follows: 

* * * * * 

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11380 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

(g) All aspects of AMs, as described at 

§ 648.201(a), can be modified through 

the specifications process. 

■ 3. Section 648.201 is revised to read 

as follows: 

§ 648.201 AMs and harvest controls. 

(a) AMs. (1) Management area closure. 

If NMFS projects that catch will reach 

95 percent of the annual sub-ACL 

allocated to a management area before 

the end of the fishing year, or 95 percent 

of the Area 1A sub-ACL allocated to the 

first seasonal period as set forth in 

paragraph (d) of this section, NMFS 

shall prohibit vessels, beginning the 

date the catch is projected to reach 95 

percent of the sub-ACL, from fishing for, 

possessing, catching, transferring, or 

landing >2,000 lb (907.2 kg) of Atlantic 

herring per trip in such an area, and 

from landing herring more than once 

per calendar day, except as provided in 

paragraphs (b) and (c) of this section. 

NMFS shall implement these 

restrictions in accordance with the APA. 

(2) Haddock incidental catch cap. If 

NMFS determines that the incidental 

catch cap for haddock in § 648.85(d) has 

been caught, all vessels issued an 

Atlantic herring permit or fishing in the 

Federal portion of the Gulf of Maine/ 

Georges Bank (GOM/GB) Herring 

Exemption Area, defined at 

§ 648.85(a)(3)(ii)(A)(1), shall be 

prohibited from fishing for, possessing, 

or landing herring in excess of 2,000 lb 

(907.2 kg) per trip in or from the GOM/ 

GB Herring Exemption Area. This 

prohibition shall not apply unless all 

herring possessed and landed by a 

vessel were caught outside the GOM/GB 

Herring Exemption Area and the vessel 

complies with the gear stowage 

provisions specified in § 648.23(b) while 

transiting the Exemption Area. Upon 

this determination, the haddock 

possession limit shall be reduced to 0 lb 

(0 kg) for all vessels that have an All 

Areas Limited Access Herring Permit 

and/or an Areas 2 and 3 Limited Access 

Herring Permit, regardless of where they 

were fishing, unless the vessel also 

possesses a Northeast Multispecies 

permit and is operating on a declared 

(consistent with § 648.10(g)) Northeast 

multispecies trip. NMFS shall 

implement the described fishing 

restrictions in accordance with the APA. 

(3) ACL overage deduction. If NMFS 

determines that total catch exceeded 

any ACL or sub-ACL for a fishing year, 

then the amount of the overage shall be 

subtracted from that ACL or sub-ACL for 

the fishing year following total catch 

determination. NMFS shall make such 

determinations and implement any 

changes to ACLs or sub-ACLs, in 

accordance with the APA, through 

notification in the Federal Register, 

prior to the start of the fishing year, if 

possible, during which the reduction 

would occur. 

(b) A vessel may transit an area that 

is limited to the 2,000-lb (907.2-kg) limit 

specified in paragraph (a) of this section 

with > 2,000 lb (907.2 kg) of herring on 

board, provided such herring were 

caught in an area or areas not subject to 

the 2,000-lb (907.2-kg) limit specified in 

paragraph (a) of this section, and that all 

fishing gear is stowed and not available 

for immediate use as required by 

§ 648.23(b), and provided the vessel is 

issued a vessel permit appropriate to the 

amount of herring on board and the area 

where the herring was harvested. 

(c) A vessel may land in an area that 

is limited to the 2,000-lb (907.2-kg) limit 

specified in paragraph (a) of this section 

with >2,000 lb (907.2 kg) of herring on 

board, provided such herring were 

caught in an area or areas not subject to 

the 2,000-lb (907.2-kg) limit specified in 

paragraph (a) of this section, and that all 

fishing gear is stowed and not available 

for immediate use as required by 

§ 648.23(b), and provided the vessel is 

issued a vessel permit appropriate to the 

amount of herring on board and the area 

where the herring was harvested. 

(d) The sub-ACL for Management 

Area 1A is divided into two seasonal 

periods. The first season extends from 

January 1 through May 31, and the 

second season extends from June 1 

through December 31. Seasonal subACLs for Area 1A, including the 

specification of the seasonal periods, 

shall be set through the annual 

specification process described in 

§ 648.200. 

(e) Up to 500 mt of the Area 1A subACL shall be allocated for the fixed gear 

fisheries in Area 1A (weirs and stop 

seines) that occur west of 44° 36.2 N. 

Lat. and 67° 16.8 W. long (Cutler, 

Maine). This set-aside shall be available 

for harvest by fixed gear within the 

specified area until November 1 of each 

fishing year. Any portion of this 

allocation that has not been utilized by 

November 1 shall be restored to the subACL allocation for Area 1A. 

(f) If NMFS determines that the New 

Brunswick weir fishery landed less than 

9,000 mt through October 15, NMFS 

shall allocate an additional 3,000 mt to 

the Area 1A sub-ACL in November, in 

accordance with the APA. 

■ 4. In § 648.204, paragraphs (a) 

introductory text, (a)(1), (a)(2), (a)(3), 

and (a)(4) are revised to read as follows: 

§ 648.204 Possession restrictions. 

(a) A vessel must be issued and 

possess a valid limited access herring 

permit to fish for, possess, or land more 

than 6,600 lb (3 mt) of Atlantic herring 

from any herring management area in 

the EEZ, provided that the area has not 

been closed due to the attainment of 95 

percent of the sub-ACL allocated to the 

area, as specified in § 648.201. 

(1) A vessel issued an All Areas 

Limited Access Herring Permit may fish 

for, possess, or land Atlantic herring 

with no possession restriction from any 

of the herring management areas 

defined in § 648.200(f), provided that 

the area has not been closed due to the 

attainment of 95 percent of the sub-ACL 

allocated to the area, as specified in 

§ 648.201. 

(2) A vessel issued only an Areas 2 

and 3 Limited Access Herring Permit 

may fish for, possess, or land Atlantic 

herring with no possession restriction 

only from Area 2 or Area 3 as defined 

in § 648.200(f), provided that the area 

has not been closed due to the 

attainment of 95 percent of the sub-ACL 

allocated to the area, as specified in 

§ 648.201. Such a vessel may fish in 

Area 1 only if issued an open access 

herring permit or a Limited Access 

Incidental Catch Herring Permit, and 

only as authorized by the respective 

permit. 

(3) A vessel issued a Limited Access 

Incidental Catch Herring Permit may 

fish for, possess, or land up to 55,000 lb 

(25 mt) of Atlantic herring in any 

calendar day, and is limited to one 

landing of herring per calendar day, 

from any management area defined in 

§ 648.200(f), provided that the area has 

not been closed due to the attainment of 

95 percent of the sub-ACL allocated to 

the area. 

(4) A vessel issued an open access 

herring permit may fish for, possess, or 

land up to 6,600 lb (3 mt) of Atlantic 

herring from any herring management 

area per trip, and is limited to one 

landing of herring per calendar day, 

provided that the area has not been 

closed due to the attainment of 95 

percent of the sub-ACL allocated to the 

area, as specified in § 648.201. 

* * * * * 

■ 5. In § 648.206, paragraphs (b)(8), 

(b)(25), (b)(28), and (b)(30) are revised, 

and paragraph (b)(31) is added to read 

as follows: 

§ 648.206 Framework provisions. 

* * * * * 

(b) * * * 

(8) Distribution of the ACL; 

* * * * * 

(25) In-season adjustments to ACLs; 

* * * * * 

(28) ACL set-aside amounts, 

provisions, adjustments; 

* * * * * 

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(30) AMs; and 

(31) Any other measure currently 

included in the FMP. 

* * * * * 

■ 6. In § 648.207, paragraph (g) is 

revised to read as follows: 

§ 648.207 Herring Research Set-Aside 

(RSA). 

* * * * * 

(g) If a proposal is approved, but a 

final award is not made by NMFS, or if 

NMFS determines that the allocated 

RSA cannot be utilized by a project, 

NMFS shall reallocate the unallocated 

or unused amount of the RSA to the 

respective sub-ACL, in accordance with 

the APA, provided that the RSA can be 

available for harvest before the end of 

the fishing year for which the RSA is 

specified. 

* * * * * 

[FR Doc. 2011–4726 Filed 3–1–11; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 090428799–9802–01] 

RIN 0648–BA57 

Magnuson-Stevens Act Provisions; 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; 

Inseason Adjustments to Fishery 

Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; inseason adjustments 

to biennial groundfish management 

measures; request for comments. 

SUMMARY: This final rule makes 

inseason adjustments to commercial and 

recreational fishery management 

measures for several groundfish species 

taken in the U.S. exclusive economic 

zone (EEZ) off the coasts of Washington, 

Oregon, and California. These actions, 

which are authorized by the Pacific 

Coast Groundfish Fishery Management 

Plan (FMP), are intended to allow 

fisheries to access more abundant 

groundfish stocks while protecting 

overfished and depleted stocks. 

DATES: Effective 0001 hours (local time) 

March 1, 2011. Comments on this final 

rule must be received no later than 5 

p.m., local time on April 1, 2011. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–BA57, by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Fax: 206–526–6736, Attn: Gretchen 

Hanshew. 

• Mail: William W. Stelle, Jr., 

Regional Administrator, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE., Seattle, WA 98115–0070, Attn: 

Gretchen Hanshew. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Gretchen Hanshew (Northwest Region, 

NMFS), 206–526–6147, fax: 206–526– 

6736, gretchen.hanshew@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This final rule is accessible via the 

Internet at the Office of the Federal 

Register’s Web site at http:// 

www.gpoaccess.gov/fr/index.html. 

Background information and documents 

are available at the Pacific Fishery 

Management Council’s (the Council or 

PFMC) Web site at http:// 

www.pcouncil.org/. 

Background 

On December 31, 2008, NMFS 

published a proposed rule to implement 

the 2009–2010 specifications and 

management measures for the Pacific 

Coast groundfish fishery (73 FR 80516). 

The final rule to implement the 2009– 

2010 specifications and management 

measures for the Pacific Coast 

Groundfish Fishery was published on 

March 6, 2009 (74 FR 9874). The final 

rule was subsequently amended by 

inseason actions on the following dates: 

April 27, 2009 (74 FR 19011); July 6, 

2009 (74 FR 31874); October 28, 2009 

(74 FR 55468); February 26, 2010 (75 FR 

8820); May 4, 2010 (75 FR 23620); July 

1, 2010 (75 FR 38030); July 16, 2010 (75 

FR 41386); August 23, 2010 (75 FR 

51684); October 4, 2010 (75 FR 61102); 

and December 3, 2010 (75 FR 75417). 

Additional changes to the 2009–2010 

specifications and management 

measures for petrale sole were made in 

two final rules on November 4, 2009 (74 

FR 57117), and December 10, 2009 (74 

FR 65480). NMFS also issued a final 

rule in response to a duly issued court 

order on July 8, 2010 (75 FR 39178). In 

addition, NMFS issued two final rules 

to implement Amendments 20 and 21 to 

the FMP on October 1, 2010 (75 FR 

60868), and December 15, 2010 (75 FR 

78344). The October 1, 2010, final rule, 

in part, re-organized the entire Pacific 

Coast Groundfish Fishery Regulations. 

Because of the restructuring, beginning 

on November 1, 2010, these 

specifications and management 

measures are found at 50 CFR part 660, 

subparts C through G. 

In June 2010, the Council 

recommended, and NMFS is working to 

implement, specifications and 

management measures for the 2011– 

2012 biennium. Given the complexity of 

the biennial specifications and 

management measures, the need for 

adequate National Environmental Policy 

Act documents and public review 

periods, and competing workloads, 

NMFS did not have enough time to 

implement a final rule by January 1, 

2011. Unless new management 

measures are implemented in a separate 

rulemaking, groundfish specifications 

and management measures that are in 

effect at the end of the previous biennial 

fishing period will remain in effect until 

they are modified, superseded, or 

rescinded. On December 30, 2010, 

NMFS issued an emergency rule to 

revise some harvest specifications and 

management measures, including 

several pieces necessary to sustainably 

manage the entire fishery and to begin 

the rationalized trawl fishery (75 FR 

82296). Therefore, with the exception of 

changes implemented in the December 

30, 2010, emergency rule, the 2009– 

2010 harvest specifications are in effect 

and the management measures that were 

in place at the end of the 2009–2010 

biennium will remain in effect for the 

start of the 2011 fisheries (e.g., January– 

February 2010 trip limits would remain 

in effect for January–February 2011). 

NMFS raised these issues to the 

Council at its November 2–9, 2010, 

meeting in Costa Mesa, California. The 

Council recommended adjusting the 

groundfish management measures to 

respond to updated fishery information 

and other inseason management needs. 

The Council considered the most 

recent 2010 fishery information, relative 

to 2010 specifications, and 

recommended inseason modifications 

WReier-Aviles on DSKGBLS3C1PROD with RULES