Federal Register / Vol. 72, No. 68 / Tuesday, April 10, 2007 / Rules and Regulations 17807 

recent Vessel Monitoring System (VMS) 

reports and other available information, 

the Regional Administrator has 

determined that the current rate of 

harvest will result in the under-harvest 

of the GB yellowtail flounder TAC 

during the 2006 fishing year. Based on 

this information, the Regional 

Administrator is increasing the current 

10,000–lb (4,536–kg) trip limit in the 

Western U.S./Canada Area, and the 

5,000–lb (2,268–kg) trip limit in the 

Eastern U.S./Canada Area to 25,000 lb 

(11,340 kg) in both areas, effective April 

5, 2007, through April 30, 2007. 

Accordingly, there is a 25,000–lb 

(11,340–kg) trip limit on the amount of 

GB yellowtail flounder that can be 

harvested or landed for the remainder of 

the fishing year for vessels subject to 

these regulations. GB yellowtail 

flounder landings will be closely 

monitored through VMS and other 

available information. Should 100 

percent of the TAC allocation for GB 

yellowtail flounder be projected to be 

harvested, the Eastern U.S./Canada Area 

will close to all groundfish DAS vessels, 

and all vessels will be prohibited from 

harvesting, possessing, or landing 

yellowtail flounder from the U.S./ 

Canada Management Area for the 

remainder of the fishing year. 

Additionally, the Eastern GB cod TAC 

will also be closely monitored, and 

should 100 percent of its TAC allocation 

be projected to be harvested, groundfish 

DAS vessels will be prohibited from 

entering the Eastern U.S./Canada Area 

for the remainder of the fishing year, as 

required by the regulations at 

§ 648.85(a)(3)(iv). 

Classification 

This action is authorized by 50 CFR 

part 648 and is exempt from review 

under Executive Order 12866. 

Pursuant to 5 U.S.C. 553(b)(B), the 

Assistant Administrator (AA) finds good 

cause to waive prior notice and 

opportunity for public comment for this 

action, because notice and comment 

would be impracticable and contrary to 

the public interest. The regulations at 

§ 648.85(a)(3)(iv)(D) grant the Regional 

Administrator the authority to adjust the 

GB yellowtail flounder trip limits to 

prevent over-harvesting or underharvesting the TAC allocation. Given 

that approximately 20 percent of the GB 

yellowtail flounder TAC remains 

unharvested and the 2006 fishing year 

ends on April 30, 2007, the time 

necessary to provide for prior notice, 

opportunity for public comment, or 

delayed effectiveness would prevent the 

agency from ensuring that the 2006 TAC 

for GB yellowtail flounder will be fully 

harvested. If implementation of this 

action is delayed, the NE multispecies 

fishery could be prevented from fully 

harvesting the TAC for GB yellowtail 

flounder during the 2006 fishing year. 

Under-harvesting the GB yellowtail TAC 

would result in increased economic 

impacts to the industry and social 

impacts beyond those analyzed for 

Amendment 13, as the full potential 

revenue from the available GB 

yellowtail flounder TAC in the U.S./ 

Canada Management Area would not be 

realized. This action also relieves a 

restriction placed on the NE 

multispecies fishing industry by 

liberalizing the trip limits for GB 

yellowtail flounder. 

For the reasons specified above and 

because this action relieves a restriction, 

the AA finds good cause, pursuant to 5 

U.S.C. 553(d)(3), to waive the entire 30- 

day delayed effectiveness period for this 

action. A delay in the effectiveness of 

the trip limit modification in this rule 

would prevent the agency from meeting 

its management obligation and ensuring 

the opportunity for the 2006 TAC for GB 

yellowtail flounder specified for the 

U.S./Canada Management Area to be 

harvested at a level that approaches 

optimum yield. Any such delay could 

lead to the negative impacts to the 

fishing industry described above. 

The rate of harvest of the GB 

yellowtail flounder TAC in the U.S./ 

Canada Management Area is updated 

weekly on the internet at http:// 

www.nero.noaa.gov. Accordingly, the 

public is able to obtain information that 

would provide at least some advanced 

notice of a potential action to provide 

additional opportunities to the NE 

multispecies industry to fully harvest 

the TAC for GB yellowtail flounder 

during the 2006 fishing year. Further, 

the potential for this action was 

considered and open to public comment 

during the development of Amendment 

13 and Framework 42. Therefore, any 

negative effect the waiving of public 

comment and delayed effectiveness may 

have on the public is mitigated by these 

factors. 

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

Dated: April 5, 2007. 

James P. Burgess 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 07–1764 Filed 4–5–07; 1:36 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 061228342–7068–02; I.D. 

122206A] 

RIN 0648–AT66 

Fisheries of the Northeastern United 

States; Atlantic Herring Fishery; 2007–

2009 Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS announces final 

specifications for the 2007–2009 fishing 

years for the Atlantic herring (herring) 

fishery. The intent of this final rule is 

to conserve and manage the herring 

resource and provide for a sustainable 

fishery. 

DATES: Effective May 10, 2007, through 

December 31, 2009. 

ADDRESSES: Copies of supporting 

documents, including the 

Environmental Assessment, Regulatory 

Impact Review, Initial Regulatory 

Flexibility Analysis (EA/RIR/IRFA), and 

Essential Fish Habitat Assessment are 

available from Paul J. Howard, 

Executive Director, New England 

Fishery Management Council, 50 Water 

Street, Mill 2, Newburyport, MA 01950. 

The EA/RIR/IRFA is also accessible via 

the Internet at http://www.nero.gov. 

NMFS prepared a Final Final Regulatory 

Flexibility Analysis (FRFA), a summary 

of which is contained in the 

Classification section of the preamble of 

this final rule. Copies of the FRFA and 

the Small Entity Compliance Guide are 

available from Patricia A. Kurkul, 

Regional Administrator, Northeast 

Region, National Marine Fisheries 

Service, One Blackburn Drive, 

Gloucester, MA 01930–2298. 

FOR FURTHER INFORMATION CONTACT: Eric 

Jay Dolin, Fishery Policy Analyst, 978–

281–9259, e-mail at 

eric.dolin@noaa.gov, fax at 978–281–

9135. 

SUPPLEMENTARY INFORMATION: 

Background 

Proposed 2007–2009 specifications 

were published on January 10, 2007 (72 

FR 1206 ), with public comment 

accepted through February 9, 2007. 

These final specifications are 

unchanged from those that were 

proposed. A complete discussion of the 


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development of the specifications 

appears in the preamble to the proposed 

rule and is not repeated here. 

2007–2009 Final Initial Specifications 

The following specifications are 

established by this action: Allowable 

biological catch (ABC), optimum yield 

(OY), domestic annual harvest (DAH), 

domestic annual processing (DAP), total 

foreign processing (JVPt), joint venture 

processing (JVP), internal waters 

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

(USAP), border transfer (BT), total 

allowable level of foreign fishing 

(TALFF), and total allowable catch 

(TAC) for each management area and 

subarea. 

TABLE 1. SPECIFICATIONS AND AREA TACS FOR THE 2007–2009 ATLANTIC HERRING FISHERY

Specification 2007 Allocation (mt) 2008–2009 Allocation (mt) 

ABC 194,000 194,000 

OY 145,000 145,000 

DAH 145,000 145,000 

DAP 141,000 141,000 

JVPt 0 0 

JVP 0 0 

IWP 0 0 

USAP 20,000 

(Areas 2 and 3 only) 

20,000 

(Areas 2 and 3 only) 

BT 4,000 4,000 

TALFF 0 0 

Reserve 0 0 

TAC - Area 1A 50,000 

[48,500 fishery; 1,500 RSA] 

(January 1 - May 31, landings cannot exceed 5,000) 

45,000 

[43,650 fishery; 1,350 RSA] 

(January 1 - May 31, landings cannot exceed 5,000) 

TAC - Area 1B 10,000 

[9,700 fishery; 300 RSA] 

10,000 

[9,700 fishery; 300 RSA] 

TAC - Area 2 30,000 

[29,100 fishery; 900 RSA] 

(No Reserve) 

30,000 

[29,100 fishery; 900 RSA] 

(No Reserve) 

TAC - Area 3 55,000 

[53,350 fishery; 1,650 RSA] 

60,000 

[58,200 fishery; 1,800 RSA] 

Research Set Aside 3 percent from each area TAC 

(2008 and 2009 FY only) 

3 percent from each area TAC 

(2008 and 2009 FY only) 

Comments and Responses 

There were 460 comments received. 

Commenters included the American 

Pelagic Association; Cape Seafoods; 

Center for Oceanic Research and 

Education; Conservation Law 

Foundation; Garden State Seafood 

Association; Bumblebee Seafoods/ 

Stinson Seafood; Maine Department of 

Marine Resources; Mid-Atlantic Fishery 

Management Council; Northern Pelagic 

Group, LLC; Ocean Conservancy; and 

451 individuals and vessel owners. 

Comment 1: Three organizations and 

448 individuals support the proposed 

rule, especially NMFS’s decision to 

reduce the Area 1A TAC to 45,000 mt 

in 2008 and 2009. 

Response: This action is unchanged 

from the proposed rule. 

Comment 2: Two organizations and 

three vessel owners opposed the 

Council’s recommendation to reduce the 

Area 1A TAC to 50,000 mt for 2007–

2009, and strongly opposed NMFS’s 

further reduction of the Area 1A TAC to 

45,000 mt for 2008 and 2009. They 

argue that the Council’s 

recommendation was unnecessarily 

restrictive, in light of the stock’s status. 

They further argue that NMFS should 

not have relied on the Plan 

Development Team’s (PDT’s) risk 

assessment in making its decision to 

further reduce the Area 1A TAC to 

45,000 mt because it was not peerreviewed, and was overly conservative. 

They disagreed that the Councils’ and 

NMFS’s concern about the retrospective 

pattern in the stock assessment is an 

appropriate reason to reduce the Area 

1A TAC. They argued that the 29,000–

mt buffer between ABC and OY was 

intended to account for the retrospective 

pattern and that it is, therefore, 

scientifically inappropriate to further 

reduce the Area 1A TAC. The 

commenters argue that the Council’s 

specifications document pointed out 

that trawl survey results are highly 

variable, and that no trends are apparent 

from the most recent years of the survey 

across all strata. The commenters state 

that encounter rates are increasing, 

rather than declining, and a broader size 

distribution is evident; and that both of 

these trends indicate a healthy resource. 

One organization stated that it is 

misleading for NMFS to state that there 


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is considerable overlap between the 

inshore stock component and Area 1A. 

One organization supported the 

reduction of the Area 1A TAC to 50,000 

mt, but not to 45,000 mt in 2008 and 

2009. They argue that the retrospective 

pattern described by the Transboundary 

Resource Assessment Committee 

(TRAC) applies to the stock as a whole, 

and not individual stock components, 

and that the 29,000–mt buffer between 

ABC and OY addresses the issue. They 

stated that the reduction in the Area 1A 

TAC to 45,000 mt and commensurate 

increase in the Area 3 TAC does not 

account for the retrospective pattern, 

because it maintains OY at the same 

level. They also argued that only the 

NMFS fall survey shows a decline in 

abundance and biomass, and the other 

surveys are either increasing or variable 

and stable. They noted that the PDT 

suggested that encounter rates may be a 

better indicator of stock status for 

herring, and that the Northeast Fisheries 

Science Center (NEFSC) fall surveys are 

not showing a decline in the encounter 

rates, and the Massachusetts inshore 

survey is showing an increase in 

encounter rates. 

One organization opposed the 

reduction of Area 1A TAC, but provided 

no additional rationale. One vessel 

owner argued that the industry was not 

allowed to participate in the Advisory 

Panel’s decisionmaking during the 

specifications-setting process. 

Response: The herring stock is in 

good shape. However, both the Council 

and NMFS agree that, while the overall 

stock is healthy, there is a clear need to 

be precautionary with the inshore 

component of the stock. This is directly 

related to the establishment of the Area 

1A TAC because, contrary to some 

comments, there is substantial overlap 

between the inshore stock component 

and Area 1A. The inshore component, at 

different times of year, is distributed 

throughout Areas 1A, 1B, and 2. Based 

on the stock mixing ratios employed in 

the specifications document (and in the 

FMP), it is reasonable to state that there 

is a considerable amount of overlap 

between the inshore stock component 

and Area 1A. The specifications 

document estimates that, in the 

summer, 50 percent of the catch from 

Area 1A comes from the inshore 

component. In the winter, 100 percent 

of the catch in Area 1A, and 20 percent 

of the catch in Area 2, is assumed to 

come from the inshore component of the 

resource. Removals from Area 1B are 

assumed to be composed of 30 percent 

of the inshore component at all times of 

the year. 

Several aspects of the specifications 

analyses provided a strong basis for 

NMFS to enact the Area 1A TACs 

specified in this action. Three elements 

in particular contributed to NMFS’s 

determination that the 2008–2009 TACs 

should be set lower than recommended 

by the Council. 

The Council’s Scientific and 

Statistical Committee (SSC) met in 2003 

to consider the status of the herring 

stock and found, among other things, 

that ‘‘no severe declines in the stock 

complex should be expected by 

maintaining current levels of catches 

over the short-term; however, the 

current concentration of harvest in the 

inshore Gulf of Maine is of concern and 

may be excessive.’’ Thus, NMFS 

concluded that the issue is not whether 

there is a need for more caution when 

establishing the Area 1A TAC, but 

rather, how much caution is necessary. 

Both the Council and NMFS agreed 

that the available data and concerns 

warranted a significant reduction in the 

Area 1A TAC over the next 3 years. 

NMFS, however, concluded that the 

Council’s proposal, to set the Area 1A 

TAC at 50,000 mt, did not go far enough 

to protect the stock in Area 1A. 

NMFS also concluded that the 

retrospective pattern in the stock 

assessment, which overestimates 

biomass and underestimates fishing 

mortality in the terminal year of the 

assessment, argues for caution. NMFS 

concluded that for the stock as a whole, 

the buffer of 29,000 mt between ABC 

(maximum OY) and OY specified in this 

action would help ensure that adequate 

spawning stock biomass (SSB) is 

available to produce strong recruitment 

in the future. However, the retrospective 

pattern indicates that, as more data are 

collected and analyzed, the stock, 

including the inshore stock component, 

will be found to be not as robust as 

current data imply. 

Finally, the PDT’s risk assessment 

provides a useful tool for evaluating 

TAC alternatives. The risk assessment is 

a tool that the Council asked the PDT to 

provide, and it was presented and 

debated by the PDT members, the 

Herring Advisory Panel (AP), and the 

Herring Committee, as well as the 

Council. According to the risk 

assessment, setting the Area 1A TAC at 

45,000 mt for 2008–2009 will provide a 

slightly improved chance of producing 

exploitation rates that are more 

consistent with Fmsy for the stock 

component, within a range of realistic 

stock mixing ratios. Therefore, NMFS 

finds that the SSC advice, the 

retrospective pattern in the stock 

assessment, and the conclusions of the 

PDT’s risk assessment combine to make 

a sound case for specifying the Area 1A 

TAC at 45,000 mt in fishing years 2008 

and 2009. 

The commenters correctly 

characterize the variability of the trawl 

survey data and encounter rates. While 

NMFS acknowledges these points, it 

does not conclude that they overcome 

the concerns noted above. More 

specifically, although some of the 

encounter rates do not indicate a 

decline in stock status, they are just one 

of the indicators that the Council and 

NMFS needs to rely on in determining 

the appropriate levels for the various 

TACs. As mentioned above, taken 

together, the SSCs advice, the 

significant retrospective pattern in the 

stock assessment, and the PDT’s risk 

assessment, even in the face of some 

positive or stable encounter rates, justify 

the precautionary approach being taken 

in this rule. 

NMFS does not share the 

commenters’ concerns about the use of 

the PDT’s risk assessment. PDTs are 

established by the Council specifically 

to offer technical advice that will assist 

in making sound fishery management 

decisions. The current process for 

obtaining the PDT’s advice does not 

include an additional formal peer 

review of that advice. A certain amount 

of informal peer review is built into the 

PDT process by virtue of its membership 

and the debates that take place at PDT 

meetings, the Council’s committee 

meetings, and Council meetings. An 

additional layer of informal peer review 

takes place within NMFS, when the 

specifications package, including the 

PDT’s products, are reviewed by NMFS 

staff. 

The perception that the industry was 

not allowed to participate in the AP’s 

deliberations is not accurate. Not only is 

the AP comprised of industry members, 

but all of its meetings were public 

meetings, for which public notice was 

provided. At those meetings a variety of 

industry members contributed their 

thoughts and ideas to the process, 

although not all of their suggestions 

were ultimately adopted. 

Comment 3: Two organizations 

argued that the reduction of the Area 1A 

TAC to 45,000 mt is not justified. They 

also argued that the PDT analysis was 

presented to the Council at the last 

minute and that participants in the 

fishery did not have adequate 

opportunity to review and comment on 

it. One commenter argued that the use 

of this new analysis appears contrary to 

the recent Congressional reauthorization 

of the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act), which 

specifies in section 302(g) that, ‘‘The 

Secretary and each Council may 


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establish a peer review process for that 

Council for scientific information used 

to advise the Council about the 

conservation and management of the 

fishery.’’ Finally, this commenter argued 

that the assumption in the specifications 

that the New Brunswick (NB) weir 

fishery will catch 20,000 mt annually is 

an overestimate and, therefore, it serves 

to provide an additional level of caution 

in the specifications. 

Response: The justification for setting 

the Area 1A TAC at 45,000 mt and the 

concerns about the PDT’s risk 

assessment are addressed in the 

response to Comment 2. NMFS notes 

that the Council process provided 

several opportunities for public 

comment, including comment on the 

risk assessment. 

The new Magnuson-Stevens Act 

requirement is not retroactively 

applicable to the process the Council 

followed to develop these herring 

specifications. 

The Council adopted the estimate that 

the NB weir fishery will land 20,000 mt 

annually after public debate. Though in 

recent years landings by this fishery 

have not attained 20,000 mt, the Council 

and NMFS concluded it is a reasonable 

estimate. Historical catches in the NB 

weir fishery were much higher than 

those in recent years, and exceeded 

20,000 mt in many years prior to 1995. 

Landings of herring in the NB weir 

fishery average 22,475 mt for 1978–

2005, despite the fact that the 2005 

landings are currently estimated to have 

been about 13,000 mt. 

Comment 4: Five vessel owners 

pointed out that there is no stock 

assessment for the inshore component 

and, therefore, the target and threshold 

fishing mortality rates for the inshore 

stock component remain uncertain. 

Because of this, the owners argue that 

reducing the Area 1A TAC based on a 

concern that the Council’s 

recommendations for 2008 and 2009 

would be only marginally successful at 

producing an exploitation rate 

consistent with Fmsy is not justified, 

because the Fmsy for the inshore 

component remains uncertain. 

Furthermore, these owners pointed out 

that, although the TRAC assessment 

estimated that the inshore component of 

the stock represents 18 percent of the 

total stock biomass, the TRAC 

assessment does not provide guidance 

on the TAC allocations by management 

area or the mixing rates between stock 

components. The owners find the use of 

the 18 percent value to be problematic, 

and cast doubt on the usefulness of the 

PDT’s risk assessment because it is not 

peer-reviewed. The risk assessment 

should not, they contend, be used as a 

justification for draconian cuts. 

Response: The commenters are correct 

that the stock assessment does not 

provide specific fishing mortality target 

and threshold rates for the inshore stock 

component or the specification of 

management area TACs. However, 

NMFS concluded that it is appropriate 

to use the risk assessment and the TRAC 

estimate that the inshore stock 

component represents 18 percent of the 

total biomass, for reasons outlined in 

detail in the response to Comment 2. 

The stock mixing ratios used in the risk 

assessment are, as the specifications 

document points out, supported by the 

best available scientific information. 

Comment 5: Five organizations argued 

that the proposed reallocation of 5,000 

mt from Area 1A to Area 3 should, 

instead, be a reallocation of the same 

amount into a reserve for Area 2. The 

rationale offered is that a higher 

percentage of the Area 2 TAC has been 

taken in recent years than of the Area 

3 TAC. The establishment of such a 

reserve would, the commenters argue, 

increase the amount of herring available 

to the Atlantic mackerel fishery, which 

has an incidental catch of herring. This 

would reduce the likelihood of a closure 

of the herring fishery in Area 2. The 

commenters believe that a herring 

closure would de facto close the 

mackerel fishery in that area because 

vessels would not fish in the area for 

mackerel if they could not also retain 

more than 2,000 lb (907.2 kg) of herring. 

Response: There are two reasons for 

transferring the 5,000 mt from Area 1A 

to Area 3. First, since Area 3 fish are 

assumed to come entirely from the 

offshore component of the stock, the 

addition of 5,000 mt to that Area’s TAC 

will not impact the status of the inshore 

component. Second, this reallocation 

will increase opportunities for the fleet 

to fish for herring in Area 3 and, 

therefore, support one of the FMP’s 

goals, which is to provide for the 

orderly development of the offshore 

herring fishery. In contrast, because of 

mixing of the subcomponents of the 

stock, a shift of 5,000 mt from Area 1A 

to Area 2 would still allow the fishery 

to harvest from the inshore stock 

component. 

On a practical level, the Area 2 TAC 

has never been fully harvested. In 2006, 

roughly 22,000 mt of herring was landed 

from this area, while in the 4 prior 

years, landings from the area ranged 

from 11,000 mt to 16,000 mt. In light of 

this history, the 30,000 mt allocated to 

Area 2 would appear unlikely to 

constrain the mackerel fishery. The 

Council has the option of reviewing 

information relating to the herring stock 

and fishery in 2007 and revising the 

Area 2 TAC for 2008–2009, if warranted. 

Comment 6: Two organizations urged 

that a portion of the DAH be set-aside 

for use in value-added food grade 

products, and that such an allocation 

would be consistent with the allocation 

of 20,000 mt for USAP. These 

commenters also urged NMFS to 

establish three different fishing seasons 

within Area 1A, and to apportion the 

TAC among those seasons to extend the 

fishing season in Area 1A, achieve OY, 

and more effectively protect prespawning herring. 

Response: These suggestions would 

require amendment of the Herring FMP, 

which defines the allocations that must 

be recommended by the Council and 

enacted by NMFS, and are therefore 

outside the scope, purpose, and 

authority of this action. Such changes 

may be pursued through the Council 

process. 

Comment 7: Two organizations 

argued that the Council’s decision to 

review the new survey data during 2007 

and determine whether adjustments 

should be made to the specifications for 

the 2008 and 2009 fishing years was 

sufficiently precautionary and should be 

allowed to proceed. One organization 

believed that NMFS’s revision of the 

allocations for 2008–2009 precluded the 

Council from conducting a review of the 

fishery during the 3–year specification 

period. 

Response: NMFS’s decision to reduce 

the Area 1A TAC to 45,000 mt for the 

2008 and 2009 fishing years has no 

bearing on the review process that the 

Council stated that it plans to conduct 

during 2007. That review is expected to 

take place, and the Council is at liberty 

to recommend changes to the 

specifications for 2008 and/or 2009 

based on its review, if warranted. 

Comment 8: Five vessel owners 

supported the implementation of the 

status quo specifications for the herring 

fishery, which would set OY at 150,000 

mt, the Area 1A TAC at 60,000 mt, and 

the Area 3 TAC at 50,000 mt. They 

argue that the recent landings levels of 

around 100,000 mt are sustainable. They 

note that the TRAC report supports this 

view, and that the PDT analysis 

indicates that all of the alternatives, 

including the status quo, are projected 

to result in removals of the inshore 

component that are less than the 

historical (1995–2006) removals within 

a reasonable range of stock mixing 

assumptions. 

Response: The commenters are correct 

in noting that the TRAC concluded that 

removals at current levels (around 

100,000 mt per year for the past 15 

years) are sustainable. They are also 


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correct that the PDT’s risk assessment 

indicated that setting the TACs at the 

status quo level was projected to result 

in removals from the inshore stock 

component that are less than historical 

removals for the period 1995–2005, 

during the winter (January-March; 

August-December). However, the PDT’s 

risk assessment was not as clear cut for 

the summer period (April-July), where it 

showed that the status quo TACs would 

generate removals that would be at or 

below historical removals in about 50 

percent of the possible scenarios. Both 

the Council’s recommended TACs and 

the TACs established by this action 

would be more risk-averse than the 

status quo during the summer period, 

when a large amount of the Area 1A 

catch is taken. 

The commenters failed to note that 

there was a second part to the PDT’s risk 

assessment, which evaluated the 

success of proposed TAC alternatives in 

achieving an exploitation rate that 

equates to Fmsy for the herring stock. As 

noted in the response to Comment 2, 

this aspect of the risk assessment was 

one of the reasons that both the Council 

and NMFS concluded that it was 

appropriate to make a significant 

reduction in the Area 1A TAC to reduce 

the risk of overfishing the inshore stock 

component. 

Comment 9: One organization argued 

that, based on the TRAC results and 

reasonable assumptions about stock 

component mixing rates, the Area 1A 

TAC should be set between 35,000–

42,000 mt. Furthermore, this 

organization does not support the 

addition of 5,000 mt to the Area 3 TAC, 

and argues that, at most, the Area 3 TAC 

should be 55,000 mt. The commenter 

argues that, because the natural 

mortality rate used by the TRAC in its 

assessment model is not accurate and 

might significantly underestimate 

natural mortality, NMFS has not 

accurately estimated the amount of 

herring that can be safely removed from 

the ecosystem and that, as a result, 

NMFS should be more precautionary in 

setting the herring specifications. 

Response: The PDT stated that if it 

may be possible to apply a fishing 

mortality rate to an average biomass for 

the inshore stock component (assuming 

that it comprises 18 percent of total 

biomass), and estimate a TAC 

specifically for the inshore stock 

component. Using this approach would 

likely result in a TAC for the inshore 

stock component of about 35,000 mt - 

42,000 mt. However, the PDT also stated 

that a TAC for the inshore stock 

component does not equate to a TAC for 

Area 1A, as fish from both the inshore 

and offshore component are caught in 

Areas 1A, 1B, and 2. 

Regarding the commenter’s 

contention that the natural mortality 

rate used in the TRAC assessment is not 

accurate, the TRAC investigated values 

for natural mortality other than 0.2, but 

deemed that 0.2 was the appropriate 

value to use in the stock assessment. 

The peer-reviewed TRAC results 

constitute the best available scientific 

information on this point. 

NMFS notes that Fmsy for the stock 

was estimated at 0.31 by the TRAC. The 

analysis of the stockwide F associated 

with the specifications estimates F’s of 

0.18 in 2007; 0.197 in 2008, and 0.221 

in 2009. NMFS concludes that these 

fishing mortality estimates are 

sufficiently precautionary. 

Comment 10: Five vessel owners 

argued that the perceived declines in 

the inshore component, based on the 

incorporation of recent data (2004 and 

2005) from the NMFS trawl survey, 

appears to be a rush to judgment. They 

pointed out that, in 2006, herring 

fishermen reported very high inshore 

biomass and that, based on a personal 

communication with NEFSC staff, the 

fall 2006 survey results indicate a 

rebound to previous levels. 

Response: The PDT noted the impact 

that recent data has on overall trends for 

the inshore component; however it also 

placed that data within its proper 

context, stating that, ‘‘While data 

specific to the inshore component of the 

stock is limited and the Herring PDT 

cannot make a status determination 

based on bottom trawl indices alone, a 

change in the direction of the trend line 

is an important consideration.’’ The 

Council’s 2007 review will consider any 

upated survey data and, if the results 

indicate a change in the apparent trend 

of recent years, then it could result in 

recommendations for TAC adjustments 

in 2008–2009. While NMFS took recent 

trawl survey information into account in 

taking this action, there were several 

factors that led NMFS to specify the 

Area 1A TAC at 45,000 mt for 2008–

2009, as discussed in the response to 

Comment 2. 

Comment 11: Five vessel owners 

argued that the 10,000–15,000 mt 

reduction of the Area 1A TAC will have 

greater economic impacts than the 

revenue loss estimates of $136,350–

204,500 per vessel for purse seine 

vessels. They contend that it is incorrect 

to assume that the reduced catch in 

Area 1A can be made up from Area 3. 

They explain that vessel size and 

weather make it difficult for their 

vessels to work offshore and make up 

for reduced landings from Area 1A. 

Response: The analysis of the 

economic impacts of the proposed TACs 

takes into account the same points made 

by the commenter. The specific pervessel revenue impacts cited by the 

commenter are part of the analysis of 

revenue impacts on vessels that have 

harvested herring from Area 1A in the 

past, and are likely to qualify for the 

limited access permit established by 

Amendment 1. The analysis presumes 

that these vessels will continue to 

harvest the same proportion of the Area 

1A TAC as in the past. The analysis 

notes that there are several things that 

could affect this assumption, notably 

that the reduced TAC may create an 

incentive for vessel owners to compete 

more aggressively for the reduced Area 

1A TAC, thus altering the proportion of 

fish available to past participants. The 

analysis also notes that, while there are 

opportunities to harvest fish from other 

management areas to compensate for the 

reduction in Area 1A, this may not be 

possible for all vessels. It notes that 

there are a number of reasons it may not 

be possible for all vessels to fish in other 

areas, particularly offshore Areas 2 and 

3, because the size of some vessels 

creates safety concerns, and because 

there are higher operating costs 

associated with longer trips, notably the 

costs associated with additional 

steaming time and associated fuel costs. 

Comment 12: One organization argued 

that, because of the mixing between 

offshore and inshore components during 

the spring, only the fall surveys should 

be considered as an indicator of the 

status of the inshore stock component. 

It also argued that a number of the 

survey results, as well as observed 

encounter rates, indicate that the health 

of the stock is not in decline. 

Response: Overall, the herring stock is 

in good shape, but for reasons outlined 

in the response to Comment 2 there are 

concerns about the inshore stock 

component that resulted in the 

reduction of the Area 1A TAC. 

Classification 

This action is authorized by 50 CFR 

part 648 and has been determined to be 

not significant for purposes of Executive 

Order 12866. 

A FRFA was prepared. The FRFA 

incorporates the IRFA, a summary of the 

signficant issues raised by the public 

comments in response to the IRFA, 

NMFS responses to those comments, 

and a summary of the analyses 

completed to support the action. A copy 

of the analyses is available from NMFS 

(see ADDRESSES). 

A description of the reasons for this 

action, the objectives of this action, and 

the legal basis for this final rule is found 


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17812 Federal Register / Vol. 72, No. 68 / Tuesday, April 10, 2007 / Rules and Regulations 

in the preambles to the proposed rule 

and this final rule and is not repeated 

here. 

Statement of Need for this Action 

The purpose of this action is to 

establish specifications to conserve and 

manage the herring resource for the 

period 2007–2009, as required by the 

FMP. 

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 

NMFS received 460 comments on the 

proposed specifications. Only one 

comment was specific to the IRFA. 

Comment 12 outlines concerns 

expressed by five vessel owners that the 

analysis of the Area 1A TACs 

underestimated the economic impacts 

they would experience due to the 

reductions in the allocation for the area. 

NMFS’ assessment of the issues raised 

by this comment is contained in the 

preamble and not repeated here. The 

comment did not result in any changes 

to the Area 1A TAC, which was reduced 

for biological reasons. 

Description and Estimate of Number of 

Small Entities to Which the Rule Will 

Apply 

During the 2005 fishing year, 143 

vessels landed herring, 33 of which 

averaged more than 2,000 lb ( 907 kg) 

of herring per trip. The Small Business 

Administration’s size standard for small 

commercial fishing entities is $4 million 

in gross sales. Thus, all the entities 

participating in this fishery are 

considered small entities, as defined in 

section 601 of the RFA. Therefore, there 

are no disproportionate economic 

impacts between large and small 

entities. 

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. 

Description of the Steps the Agency Has 

Taken to Minimize the Significant 

Economic Impact on Small Entities 

Consistent with the Stated Objective 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 of the Other Significant 

Alternatives to the Rule Considered by 

the Agency which Affect the Impact on 

Small Entities was Rejected 

The economic impacts of this action 

were assessed by the Council and NMFS 

in an analysis that compares the 

alternatives considered to the herring 

landings made in 2005, the most recent 

year for which complete data are 

available. From a fishery-wide 

perspective, these specifications are not 

expected to produce a negative 

economic impact to vessels prosecuting 

the fishery because it allows for 

landings levels that are significantly 

higher than the landings in recent years. 

The 2007–2009 specifications should 

allow for incremental growth in the 

industry, while appropriately 

addressing biological concerns. 

However, because of the allocation of 

the management area TACs, and the 

reduction in the Area 1A TAC in 

particular, these specifications could 

have a negative impact on various 

industry participants, despite the fact 

that overall landings levels could be 

higher than in recent years. 

The specification of OY and DAH is 

145,000 mt for 2007–2009. While higher 

levels of OY were considered (150,000 

mt and 170,000 mt) the OY of 145,000 

mt will allow an annual increase of up 

to 51,610 mt in herring landings 

compared to the 93,390 mt landed in 

2005. This will generate $10.4 million 

in revenues, based on an average price 

(in 2005) of $202/mt. Therefore, there 

are no negative economic impacts 

associated with the specification of OY 

in this action. Individual vessels could 

increase their revenues under the 

proposed 2007–2009 specifications, 

depending on the number of vessels 

participating in the fishery, which will 

become a limited access fishery with the 

implementation of Amendment 1 to the 

FMP on June 1, 2007. 

Several other specifications 

established by this action would also 

allow an increase in revenue to industry 

participants when compared to the 2005 

landings. These include DAH and DAP, 

which are specified at 145,000 mt and 

141,000 mt, respectively; USAP, which 

is specified at 20,000 mt; the Area 1B 

TAC, which is specified at 10,000 mt; 

the Area 2 TAC, which is specified at 

30,000 mt; and the Area 3 TAC, which 

is specified at 55,000 mt in 2007 and 

60,000 mt in 2008–2009. In each 

instance, there are no negative economic 

impacts associated with these 

specifications because they would allow 

industry participants to harvest and/or 

process more herring than in 2005. 

There are no potential economic 

impacts associated with the allocation 

for JVPt of zero, because it is unchanged 

from 2005. 

The only specification that could 

constrain the industry when compared 

to landings and revenue in 2005 is 

reduction of the Area 1A TAC to 50,000 

mt in 2007, and 45,000 mt in 2008 and 

2009. The impacts of these reductions 

were analyzed for the purse seine fleet, 

the single midwater trawl fleet, and the 

paired midwater trawl fleet. 

In 2005, the currently active purse 

seine fleet caught 27 percent of the Area 

1A TAC. With a 10,000–15,000–mt 

reduction in the Area 1A TAC, if the 

proportion of the herring catch by the 

purse seine fleet remains the same and 

the decrease in the Area 1A TAC cannot 

be made up from fishing in other areas, 

there would be a 2,700–mt loss in catch 

under this action in 2007, and a 4,050–

mt loss in catch in 2008 and 2009. Using 

the 2005 average price of herring of 

$202 per metric ton, this loss in catch 

would be worth $545,400 and $818,000, 

respectively, across the sector (there are 

four vessels in the currently active purse 

seine fleet). To make up for such a loss, 

these vessels would have to either 

increase their proportion of the herring 

catch in Area 1A relative to midwater 

trawlers, or move to other areas. There 

were no landings from Area 3 by these 

purse seine vessels in 2005, likely 

reflecting the fact that the vessels are too 

small to fish in these offshore areas. 

Moving offshore would also entail 

additional operating costs because the 

trips would be longer. 

The impact of the 10,000–15,000–mt 

decrease in the Area 1A TAC on the 

single midwater trawl fleet is difficult to 

predict, because the Purse Seine/Fixed 

Gear (PS/FG) only area established by 

Amendment 1 will eliminate single 

midwater trawl vessels from Area 1A 

during the most productive part of the 

Area 1A fishery (June through 

September). The establishment of a PS/ 

FG only area might intensify the race to 

fish in Area 1A, as midwater trawl 

vessels (single and paired) may try to 

catch more fish from the area prior to 

the closure to trawling on June 1. 

If herring are plentiful in Area 1A 

during the spring (Area 1A catches 

increase in May, historically), the single 

midwater trawlers may be able to 

maintain their historical proportion of 

the Area 1A TAC. However, it is likely 


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Federal Register / Vol. 72, No. 68 / Tuesday, April 10, 2007 / Rules and Regulations 17813 

that purse seine vessels and midwater 

pair trawl vessels would also participate 

in the pre-June race in order to keep 

their landings on par with previous 

years. In addition, single midwater trawl 

vessels might convert to purse seine 

gear in order to fish in Area 1A in the 

summer. 

In 2005, the currently active single 

midwater trawl fleet caught 18 percent 

of the Area 1A TAC. If the proportion 

of the herring catch by the single 

midwater trawl fleet remains the same, 

and the decrease in the Area 1A TAC 

cannot be made up from fishing in other 

areas, there would be a 1,800–mt loss in 

catch under this action during 2007, and 

a 2,700–mt loss in catch in 2008 and 

2009. Using the 2005 average price of 

herring of $202 per metric ton, this loss 

in catch would be worth $363,600 and 

$545,400, respectively, across the sector 

(there are four vessels that were active 

in Area 1A from 2003–2005 in the single 

midwater trawl fleet). To make up for 

such a loss, the single midwater trawl 

vessels would have to either increase 

their proportion of the herring catch in 

Area 1A relative to purse seine vessels, 

or move to other areas. Moving to 

offshore areas may be problematic for 

two of the four single midwater trawl 

vessels, since these two are relatively 

smaller vessels and landed herring only 

from Area 1A during 2003 through 

2005. The other two vessels are 

somewhat larger and have Area 3 catch 

history, so their loss of Area 1A catch 

may be mitigated by their ability to fish 

in Area 3. If the single midwater trawl 

vessels make up their catch in Areas 2 

and 3, the vessel operating cost will 

increase because the trips will be longer. 

With decreases in the Area 1A TAC of 

10,000 mt to 15,000 mt under this 

action, the impact on the midwater pair 

trawl fleet could also be large. It is 

difficult to predict what the impact will 

be on the midwater pair trawl fleet, 

because these vessels will also be 

excluded from Area 1A for the period 

June-September due to the PS/FG only 

measure. In 2005, the currently active 

pair trawl fleet caught 55 percent of the 

Area 1A TAC. If the proportion of the 

herring catch by the pair trawl fleet 

remains the same and the decrease in 

the Area 1A TAC cannot be made up 

from fishing in other areas, there would 

be a 5,500–mt loss in catch under this 

action in 2007, and a 8,250–mt loss in 

2008 and 2009. Using the 2005 average 

price of herring of $202 per metric ton, 

this catch is worth $1,111,000 and 

$1,666,500 respectively, across the 

sector (there are 12 vessels in the pair 

trawl fleet that were active from 2003–

2005). To make up for such a loss, pair 

trawl vessels would have to either 

increase their proportion of the herring 

catch in Area 1A or move to other areas. 

All pair trawl vessels have Area 3 catch 

history, so their loss of Area 1A catch 

may be mitigated by their ability to fish 

in Area 3. If the pair trawl vessels make 

up their catch in Areas 2 and 3, the 

vessel operating cost will increase 

because the trips would be longer. 

The 10,000–mt to 15,000–mt 

reduction in TAC in Area 1A may cause 

participants using all 3 gear types to 

increase their fishing activity in Area 

1B. The Area 1B TAC has not been 

reached every year, and only 60 percent 

was harvested in 2005. Since Area 1B is 

farther from shore than Area 1A, vessel 

operating costs would increase because 

trips would be longer. Harvesting in 

Area 1B will only provide limited relief 

for vessels impacted by the reduction in 

the Area 1A TAC since the TAC is 

limited to 10,000 mt. 

There were seven alternatives 

considered. Three of the alternatives 

would have set the Area 1A TAC at 

60,000 mt. They were rejected because 

the biological concerns about the 

inshore herring stock component 

require a significant reduction in 

harvest within Area 1A. More 

specifically, NMFS concluded that the 

SSC’s advice, the retrospective pattern 

in the stock assessment, and the 

conclusions of the PDT’s risk 

assessment combine to make a sound 

case for being precautionary about 

protecting the inshore component and 

for specifying the Area 1A TAC at 

45,000 mt. 

One alternative would have set the 

Area 1A TAC at 50,000 mt for all three 

years. This was rejected for the reasons 

cited above; namely, that the SSC’s 

advice, the retrospective pattern in the 

stock assessment, and the conclusions 

of the PDT’s risk assessment combine to 

make a sound case for being 

precautionary about protecting the 

inshore component and for specifying 

the Area 1A TAC at 45,000 mt. 

Two of the alternatives would have 

reduced the Area 1A TAC to 45,000 mt 

for all three years. These were rejected 

because NMFS believed that it is 

sufficient to achieve biological 

objectives to implement the 45,000 mt 

TAC for 2008–2009, and establish the 

2007 TAC at 50,000 mt, consistent with 

action taken by the states under the 

Atlantic States Marine Fisheries 

Commission’s Interstate Fisheries 

Management Plan for Atlantic Sea 

Herring. The preferred alternative was 

selected because the SSC’s advice, the 

retrospective pattern in the stock 

assessment, and the conclusions of the 

PDT’s risk assessment combine to make 

a sound case for specifying the Area 1A 

TAC at 45,000 mt in fishing years 2008 

and 2009. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule, or group 

of related rules, for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, a small entity 

compliance guide will be sent to all 

holders of permits issued for the herring 

fishery. In addition, copies of this final 

rule and guide (i.e., permit holder letter) 

are available from the Regional 

Administrator (see ADDRESSES) and may 

be found at the following web site: 

http://www.nero.noaa.gov. 

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

Dated: April 2, 2007. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. E7–6648 Filed 4–9–07; 8:45 am] 

BILLING CODE 3510–22–S 


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