[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11373-11381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4726]


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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.

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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 specifications-setting 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

[[Page 11374]]

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 stock-wide 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,

[[Page 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 B<INF>MSY</INF> (biomass that would support MSY) using long-
term projections at F<INF>MSY</INF> (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 Sec.  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 Sec.  
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 sub-ACL 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/sub-ACLs 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/

[[Page 11376]]

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 high-volume 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

[[Page 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 sub-ACL) 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/sub-ACLs 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

[[Page 11378]]

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 non-selected 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 
specification-setting 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

[[Page 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 non-target 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 
specifications-setting 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 ABC-
setting process, and the SSC's involvement in that process, explicit 
has the potential to better prevent overfishing, as compared to the 
non-selected, 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

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.200, 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:


Sec.  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 sub-ACL for each management area, including seasonal periods 
as specified at Sec.  648.201(d) and modifications to sub-ACLs as 
specified at Sec.  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 (F<INF>MSY</INF>). 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 F<INF>MSY</INF> 
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 (F<INF>REB</INF>), 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 Sec.  
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 sub-
ACLs 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:
* * * * *

[[Page 11380]]

    (g) All aspects of AMs, as described at Sec.  648.201(a), can be 
modified through the specifications process.

0
3. Section 648.201 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  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 
sub-ACLs for Area 1A, including the specification of the seasonal 
periods, shall be set through the annual specification process 
described in Sec.  648.200.
    (e) Up to 500 mt of the Area 1A sub-ACL shall be allocated for the 
fixed gear fisheries in Area 1A (weirs and stop seines) that occur west 
of 44[deg] 36.2 N. Lat. and 67[deg] 16.8 W. long (Cutler, Maine). This 
set-aside shall be available for harvest by fixed gear within the 
specified area until November 1 of each fishing year. Any portion of 
this allocation that has not been utilized by November 1 shall be 
restored to the sub-ACL allocation for Area 1A.
    (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.

0
4. In Sec.  648.204, paragraphs (a) introductory text, (a)(1), (a)(2), 
(a)(3), and (a)(4) are revised to read as follows:


Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  648.201.
* * * * *

0
5. In Sec.  648.206, paragraphs (b)(8), (b)(25), (b)(28), and (b)(30) 
are revised, and paragraph (b)(31) is added to read as follows:


Sec.  648.206  Framework provisions.

* * * * *
    (b) * * *
    (8) Distribution of the ACL;
* * * * *
    (25) In-season adjustments to ACLs;
* * * * *
    (28) ACL set-aside amounts, provisions, adjustments;
* * * * *

[[Page 11381]]

    (30) AMs; and
    (31) Any other measure currently included in the FMP.
* * * * *

0
6. In Sec.  648.207, paragraph (g) is revised to read as follows:


Sec.  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