[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Rules and Regulations]
[Pages 42450-42452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18128]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 180703607-8744-01]
RIN 0648-XG340


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Atlantic Herring Fishery; Adjustment to 2018 Atlantic 
Herring Management Area Sub-Annual Catch Limits

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule reduces the sub-annual catch limits 
for the four Atlantic Herring Management Areas (including Area 1A, 1B, 
2, and 3). This action is necessary to address Atlantic herring 
population decline due to poor recruitment into the population. The 
reduction is intended to mitigate herring population declines and lead 
to more available herring biomass and higher catch limits in 2019 and 
beyond.

DATES: This action is effective August 22, 2018 through December 31, 
2018. Comments must be received on or before September 21, 2018.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2018-0094, by either of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0094, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: Submit written comments to Michael Pentony, Regional 
Administrator, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on Atlantic Herring 2018 ACL 
Adjustments.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Daniel Luers, Fishery Management 
Specialist, 978-282-8457.

SUPPLEMENTARY INFORMATION: 

Background

    Regulations implementing the Atlantic Herring Fishery Management 
Plan (FMP) for herring appear at 50 CFR part 648, subpart K. We 
implemented 2016-2018 herring specifications (November 1, 2016; 81 FR 
75731) in November 2016 as recommended by the Council. The 
specifications included overfishing limits (OFLs) of 138,000 mt, 
117,000 mt, and 111,000 mt for 2016, 2017, and 2018, respectively. The 
resulting acceptable biological catch (ABC) based on the New England 
Fishery Management Council's ABC control rule was 111,000 mt in 2018, 
an amount equal to the OFL and that had no greater than a 50-percent 
probability that overfishing would occur. This ABC was consistent with 
the Council Scientific and Statistical Committee's advice. The current 
ACL for the herring fishery is 100,969 mt, and the sub-ACLs for the 
four management areas are: Area 1A-31,789 mt; Area 1B-3,552 mt; Area 2-
31,137 mt; and Area 3-43,763 mt.
    In June of 2018, a new Northeast Regional Stock Assessment Workshop 
(SAW) and review by the Stock Assessment Review Committee (SARC) for 
Atlantic herring was completed. The assessment concluded that although 
Atlantic herring was not overfished and overfishing was not occurring 
in 2017, the stock is declining due to poor recruitment of herring into 
the population. The stock assessment estimated that recruitment has 
been at historic lows during the most recent 5 years (2013-2017). The 
final assessment summary report is available on the Northeast Fisheries 
Science Center website (www.nefsc.noaa.gov/publications/).
    The assessment projects that poor recruitment of Atlantic herring 
will likely result in a substantial decline in biomass, but that the 
biomass should increase after reaching a low in 2019 if recruitment 
returns to historic average levels. The SAW/SARC estimated that if the 
entire 2018 acceptable biological catch (ABC) (111,000 mt) is 
harvested, the 2019 overfishing limit (OFL) would need to be reduced by 
nearly 90 percent, to 13,700 mt. The SAW/SARC also estimated that if 
the 2018 catch is half of the ABC (55,000 mt), the OFL in 2019 would 
need to be 28,900 mt.
    The herring specification regulations provide us with the authority 
to make in-season adjustments to the specifications and sub-ACLs to 
achieve conservation and management objectives after we have consulted 
with the Council. Any adjustments must be consistent with the Atlantic 
Herring FMP objectives and other FMP provisions. After receiving 
preliminary SAW/SARC results, we consulted with the Council on 
potential sub-ACL adjustments during the Council's June 2018 meeting.
    At its June 2018 meeting, based on the SAW/SARC preliminary stock 
assessment projections, the Council recommended capping the sub-ACLs 
for herring Management Areas 1A, 1B, and 3 at 2017 catch levels, and to 
set the Area 2 sub-ACL at 8,200 mt. The Council recommended a slightly 
different approach for Area 2 because the 2017 harvest level had been 
surpassed, and they wanted to allow for a fall fishery for the bottom 
trawl fleet, who have consistently relied upon fall herring catch in 
that area. The Council recommendation was intended to provide some 
conservation benefits for herring in 2018 and thereby mitigate the 
impacts of estimated 2019 reductions on the herring industry. After the 
June Council meeting, additional catch projections completed at the 
SARC meeting indicated the Council's recommended level of catch has a 
69-percent chance of resulting in overfishing in 2018. The Northeast 
Fisheries Science Center subsequently provided us with an additional 
projection based on a 50-percent probability of overfishing. This 
projection resulted in catch equal to 49,900 mt.
    To lessen the risk of overfishing occurring in 2018, we are 
reducing the 2018 total allowable catch to 49,900 mt, which is 3,775 mt 
less than the Council's recommended 53,655 mt. This action only reduces 
the sub-ACLs for the four herring management areas and does not alter 
any other limits in the 2016-2018 specifications. We chose to reduce 
the Council's recommended catch so that the new area sub-ACLs provide 
at least a 50-percent probability of preventing overfishing in 2018. We 
set levels based on the newly projected OFL for 2018 out of precaution 
to prevent overfishing while allowing the fishery to achieve optimum 
yield. As explained below, projections based on current catch rates 
show a low probability that the fishery will catch

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these amounts. However, Atlantic herring catch is highly unpredictable, 
and catch totals could quickly surpass current sub-ACLs in spite of our 
projections. The fishery still has an opportunity to achieve these 
limits and mitigate the economic hardship from expected reductions in 
2019-2021. This 2018 reduction is projected to increase the OFL to 
30,700 mt in 2019, 38,900 mt in 2020, and 59,800 mt in 2021.

                         Table 1--Adjustment of Specifications for 2018 Herring Sub-ACLs
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                                       2018 Original (from          2018 Council
                                         specifications)           recommendation          NMFS adjusted final
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Area 1A Sub-ACL...................                  * 31,789                  * 28,682                    27,743
Area 1B Sub-ACL...................                     3,552                     2,639                     2,639
Area 2 Sub-ACL....................                    31,137                     8,200                     8,200
Area 3 Sub-ACL....................                    43,763                    14,134                    11,318
Total of Sub-ACLs.................                ** 110,536                    53,655                    49,900
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* If New Brunswick weir fishery catch through October 1 is less than 4,000 mt, then 1,000 mt will be added to
  the ACL and Area 1A Sub-ACL.
** Total of the sum of the area sub-ACLs. Note that this is different from the stockwide ACL (100,969 mt) which
  is not increased by carrying over underages.

    We are relying on the SAW/SARC's report and the Northeast Fisheries 
Science Center's additional projection to set reduced 2018 management 
area sub-ACLs for the fishery. The SAW/SARC used the most recent and 
best available data to make projections for future biomass. Although 
the estimates of future biomass are projections, they represent the 
best available scientific data for NMFS to act upon to mitigate both 
further biomass reductions and adverse economic impacts to the herring 
fishery. Based on this information, we are setting sub-ACLs consistent 
with projection probabilities that were used to set OFLs for the 2016-
2018 specifications.
    The herring specification regulations provide that the OFL must be 
equal to catch resulting from applying the maximum fishing mortality 
threshold to a current or projected estimate of stock size. When the 
stock is not overfished and overfishing is not occurring, this is 
usually the fishing rate supporting maximum sustainable yield 
(F<INF>MSY</INF>). Catch that exceeds this amount would result in 
overfishing. The ABC may be set equal to the OFL, or it may be set 
lower than the OFL to account for scientific uncertainty. The ACL may 
be equal to or lower than the ABC after considering management 
uncertainty.
    The 2016-2018 specifications included an ABC that was equal to the 
OFL for 2018 and was based on a projection showing there was no greater 
than a 50 percent probability that overfishing would occur at that 
level. Further, the SSC determined there was a near zero chance the 
stock would become overfished at that level based on the scientific 
information available to it at the time. The sub-ACLs were slightly 
reduced from the ABC to account for management uncertainty in the New 
Brunswick weir fishery.
    We do not anticipate that the fishery will catch the reduced limits 
for each of the four management areas. The herring fishery caught 
49,500 mt in 2017, and catch rates to date in 2018 are substantially 
below those for 2017. The largest catch limit reduction in 2018 would 
occur in Area 3, where we would reduce the sub-ACL by over 30,000 mt. 
However, catch in Area 3 has dropped sharply in the past 3 years. The 
fishery caught 33.3k mt in 2015, 18.8k mt in 2016, and 14.1k mt in 
2017. The 2018 catch through July 20 is only about 1.2k mt. This is 
below the catch level through July 20 for 2017, which was the previous 
lowest catch level for that time series. Similarly, the fishery has 
failed to catch the Area 1B sub-ACL in two of the previous three years, 
and the current catch level is less than the lowest of those years 
(2015), suggesting that it may be difficult for the fishery to catch 
this area's sub-ACL. Additionally, the vast majority of Area 2 is 
closed to the midwater trawl fishery due to a river herring/shad catch 
cap closure, which greatly reduces the likelihood that any more than a 
small portion of the remaining sub-ACL would be harvested. Finally, 
even if catch rates increase this year and catch amounts approach the 
new catch limits set in this action, we are required to close the 
directed fisheries once 92 percent of the sub-ACL is projected to be 
caught. This would allow us to constrain catch below the limit that is 
expected to prevent overfishing.

Classification

    The NMFS Assistant Administrator has determined that this interim 
final rule is consistent with the Atlantic Herring FMP, national 
standards and other provisions of the Magnuson-Stevens Fishery 
Conservation and Management Act, and other applicable law.
    This interim final rule is exempt from the procedures of Executive 
Order (E.O.) 12866 because this action contains no implementing 
regulations.
    This interim final rule does not introduce any new reporting, 
recordkeeping, or other compliance requirements.
    This interim final rule does not contain policies with Federalism 
or ``takings'' implications as those terms are defined in E.O. 13132 
and E.O. 12630, respectively.
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Fisheries (AA) finds it is impracticable and contrary to the public 
interest to provide for prior notice and an opportunity for public 
comment. Additionally, the AA finds there is good cause under 5 U.S.C. 
553(d)(1) and (3) to waive the 30-day delay in effectiveness so that 
the purpose of this rule is not undermined. This action reduces the 
herring catch limits to reduce the risk of overfishing in 2018 with a 
goal of increasing herring biomass and future fishery opportunity. This 
rule must be in effect as soon as practicable to realize these intended 
benefits.
    Before taking this action, we consulted with the New England 
Council at is June 2018 meeting, at which the Council recommended that 
we reduce the 2018 sub-ACLs for each herring management area. This 
consultation was scheduled after preliminary results from the 2018 
stock assessment became available indicating that herring biomass is 
likely to decline substantially in 2019. At this meeting, the Council 
discussed the preliminary stock assessment results, measures likely 
necessary in 2019, and took public comment on its recommendation to 
reduce the 2018 sub-ACLs. As a result of these discussions and input 
from the public, including the herring industry, the Council 
recommended reducing 2018 catch to mitigate the economic harm to the 
herring industry that is

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anticipated from necessary reductions in 2019.
    A delay in implementing the new catch limits will increase the 
likelihood that 2018 catch will exceed these new limits. The 2018 catch 
reductions in this action are based on the new benchmark assessment, 
which was just recently completed in June 2018. Based on this new 
scientific information, the reductions in this action would result in a 
50-percent probability of preventing overfishing in 2018. Exceeding the 
new harvest limits would result in a lower biomass and negative 
economic impacts to the herring industry due to a lower allowable catch 
in 2019 and beyond. Because herring is a critical bait source for the 
lobster fishery, these negative economic impacts are also expected to 
extend to the lobster fishery due to a reduction in bait supply.
    Additionally, we are required to implement a 2,000-lb possession 
limit for each management area through the end of the current fishing 
year once 92 percent of the area sub-ACL is projected to be caught. We 
are also required to implement the 2,000-lb possession limit for the 
whole fishery (all areas) when 95-percent of the total herring ACL is 
harvested. If a delay in implementing this action results in catch 
approaching, or exceeding, the new 2018 catch limits, the closure of 
the directed fishery is more likely. An inseason closure of the 
directed fishery would be counter to the goals and objectives of this 
action, which is intended to reduce 2018 catch, but also continue to 
provide fishing opportunities for the remainder of the 2018 fishing 
year.
    Input from the public at the June 2018 Council meeting was nearly 
all supportive of reducing 2018 catch limits, and the fishing industry 
and the public generally are expecting new limits to be set as soon as 
practicable. The lack of catch to date in 2018 has tempered the 
industry's expectations, and they no longer anticipate reaching even 
the reduced ACL. Herring industry members were concerned about the 
economic impact to the fishery in 2019 if we do not ensure reduced 
catch this year. Representatives from fishing advocacy and 
environmental groups also supported reducing 2018 catch limits, 
suggesting it could improve the projected stock estimates and expedite 
growth of the stock to previous high levels. The Council recommended we 
implement this action with the goal of conserving herring biomass and 
allowing for higher fishery catch limits in the 2019-2021 
specifications. We expect the 2018 sub-ACL reductions to increase the 
estimated herring biomass in 2019 and provide for more catch for the 
fishery.
    This interim final rule is exempt from the procedures of the 
Regulatory Flexibility Act because the rule is issued without 
opportunity for prior notice and opportunity for public comment.

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

    Dated: August 17, 2018.
Chris Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2018-18128 Filed 8-21-18; 8:45 am]
 BILLING CODE 3510-22-P