[Federal Register Volume 77, Number 37 (Friday, February 24, 2012)]
[Rules and Regulations]
[Pages 10978-10980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4358]



[[Page 10978]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 111207734-2119-02]
RIN 0648-BB50


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Adjustment to 2012 Annual Catch Limits

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

ACTION: Final rule.

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SUMMARY: This action reduces the 2012 annual catch limits (ACLs) for 
the Atlantic herring (herring) fishery to account for catch overages in 
2010 and to prevent overfishing.

DATES: Effective February 24, 2012, through December 31, 2012.

ADDRESSES: Copies of supporting documents, the 2010-2012 Herring 
Specifications and Amendment 4 to the Herring Fishery Management Plan 
(FMP), 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. These documents are 
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

    The Atlantic herring harvest in the United States is managed under 
the Herring FMP developed by the New England Fishery Management Council 
(Council), and implemented by NMFS, in 2000. The Council developed 
herring specifications for 2010-2012, which were approved by NMFS on 
August 12, 2010 (75 FR 48874). Although herring is not overfished and 
is not experiencing overfishing, the herring annual acceptable 
biological catch for fishing years 2010-2012 (106,000 mt) was reduced 
from previous years (145,000 mt in 2009) due to concerns about a 
retrospective pattern in the 2009 herring stock assessment that over-
estimates biomass.
    The stock-wide herring ACL (91,200 mt) is divided among three 
management areas, one of which has two sub-areas. Area 1 is located in 
the Gulf of Maine (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 
Georges Bank (GB). The herring stock complex is considered to be a 
single stock, but there are inshore (GOM) and offshore (GB) stock 
components. The GOM and GB stock components segregate during spawning 
and mix during feeding and migration. Each management area has its own 
sub-ACL to allow greater control of the fishing mortality on each stock 
component. While the stock-wide herring ACL for 2010-2012 was not 
reduced below the 2008 catch level, the management area sub-ACLs were 
reduced from 2009 levels by 20 to 60 percent. The management area sub-
ACLs established for 2010-2012 were: 26,546 mt for Area 1A, 4,362 mt 
for Area 1B, 22,146 mt for Area 2, and 38,146 mt for Area 3.
    Amendment 4 to the Herring FMP (Amendment 4) (76 FR 11373, March 2, 
2011) revised the specification-setting process, bringing the Herring 
FMP into compliance with ACL and accountability measure (AM) 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA). Under the FMP, if NMFS determines catch will 
reach 95 percent of the sub-ACL allocated to a management area or 
seasonal period, then NMFS prohibits 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. This AM slows 
catch to prevent or minimize catch in excess of a management area or 
seasonal period sub-ACL. As a way to account for ACL overages in the 
herring fishery, Amendment 4 established an AM requiring overage 
deductions. If the catch of herring in any given fishing year exceeds 
any ACL or sub-ACL, the overage will be deducted from the corresponding 
ACL/sub-ACL in the next full fishing year (e.g., an overage in FY 2010 
will be deducted from the ACL/sub-ACL in 2012).
    Fishing year 2010 was the first year that NMFS monitored herring 
catch against the recently reduced management area sub-ACLs. NMFS 
experienced difficulty determining when to implement the 2,000-lb 
(907.2-kg) possession limit in Area 1B because of a pulse of fishing 
effort in that area. NMFS had similar difficulties determining when to 
implement the reduced possession limit in Area 1A because catch rates 
were highly variable. Ultimately, catch from Areas 1B and 1A exceeded 
their allocations by 1,639 mt and 1,878 mt, respectively. These 
experiences demonstrated that more timely catch reporting was needed to 
better monitor catch against sub-ACLs and to allow catch to achieve, 
but not exceed, management area sub-ACLs. Therefore, in September 2011, 
NMFS revised vessels reporting requirements to obtain more timely catch 
reports (76 FR 54385, September 1, 2011). As a result of that 
rulemaking, limited access herring vessels are required to report 
herring catch daily via vessel monitoring systems, open access herring 
vessels are required to report catch weekly via the interactive voice 
response system, and all herring-permitted vessels are required to 
submit vessel trip reports (VTRs) weekly.

Final Adjustment to the 2012 Annual Catch Limits

    In accordance with regulations at Sec.  648.201(a)(3), this action 
deducts the 2010 overages from 2012 catch limits. Therefore, in 2012, 
the sub-ACL for Area 1A is revised to 24,668 mt (reduced from 26,546 
mt) and the sub-ACL for Area 1B is 2,723 mt (reduced from 4,362 mt). 
The sub-ACLs for Areas 2 and 3 remain unchanged at 22,146 mt for Area 2 
and 38,146 mt for Area 3. The methods for determining the final 2010 
catch rates and subsequent 2012 adjustments were discussed in detail in 
the proposed rule and are not repeated here (76 FR 79610, December 22, 
2011).

Comments and Responses

    Six comment letters were received on the proposed rule for this 
action from the following: The Cape Cod Commercial Hook Fishermen's 
Association (CCCHFA); Cape Seafoods Inc./Western Sea Fishing Company; 
O'Hara Corporation/Starlight Inc. (a herring fishing organization); a 
fishing/environmental organization (CHOIR Coalition), the Herring 
Alliance (an environmental advocacy group); and a member of the public.
    Comment 1: The CCCHFA supports reducing 2012 herring sub-ACLs in 
Areas 1A and 1B to account for catch overages in those areas in 2010, 
but it believes that the reductions should have been implemented in a 
timelier manner.
    Response: The timing of this rulemaking is consistent with the 
overage deduction AM implemented in Amendment 4 that once the total 
catch of herring for a fishing year is determined, using all available 
information, any ACL or sub-ACL overage results in a reduction of the 
corresponding ACL/sub-ACL the following year. Therefore, the catch 
overages in Areas 1A and 1B in 2010, are being deduced from the 2012 
Area

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1A and 1B sub-ACLs. The proposed rule explained that both Federal and 
state dealer data are used to compile final catch; final state data 
became available in September, and 2010 herring data were finalized 
November 25, 2011; this action deducts 2010 overages as soon as is 
possible.
    Comment 2: The Herring Alliance and CHOIR Coalition both expressed 
support for reducing 2012 herring sub-ACLs in Areas 1A and 1B to 
account for 2010 catch overages in those areas. However, CHOIR 
Coalition and the Herring Alliance believe 2010 overages should have 
been deducted from 2011 sub-ACLs, rather than waiting until 2012, and 
that this action is only a step toward bringing accountability to the 
herring fishery. Additionally, the Herring Alliance, CHOIR Coalition, 
and CCFHA commented that overages accrued in 2010, underscore the need 
for a more comprehensive catch monitoring and reporting system, 
including a third party monitoring system, evident by sub-ACLs overages 
and data issues with the herring landings reported by vessels and 
dealers (e.g., missing VTRs, missing dealer reports, discrepancies 
between vessel and dealer reports).
    Response: As explained in the proposed rule, 2010 herring data were 
not finalized until November 25, 2011. Given the timing of data 
availability and the need to provide the herring industry with notice 
of catch limit changes, this action deducts 2010 overages as soon as is 
possible. While the sub-ACLs for Areas 1A and 1B were exceeded, total 
herring catch in 2010 (72,852 mt) did not exceed the stock-wide ACL of 
91,200 mt. According to the MSA, ACLs must be set at a level that 
prevents overfishing. The sub-ACLs overages in 2010 did not result in 
overfishing, therefore, the current AMs are sufficient. As NMFS 
reviewed the 2010 herring data, and compared individual VTRs with 
individual dealer reports, it resolved data errors resulting from 
misreporting. Because the quality of inseason data could be affected by 
misreporting, NMFS strongly encourages vessel owner/operators and 
dealers to double check reports for accuracy and ensure reports are 
submitted on a timely basis. However, because NMFS resolved data 
reporting issues as part of the 2010 review, data issues did not 
negatively affect 2010 data. For these reasons, NMFS does not believe 
there is a significant failure of the current catch reporting system, 
and that the current catch reporting system fulfills the requirements 
of the MSA. Additionally, the Council is considering changes to catch 
reporting and monitoring for the herring fishery in Amendment 5 to the 
Herring FMP (Amendment 5), currently scheduled for implementation in 
2013, and those changes have the potential to further improve the catch 
monitoring system for the herring fishery.
    Comment 3: The Choir Coalition urged NMFS to ensure that Amendment 
5 implements a third-party monitoring system for the herring fishery.
    Response: While the Council did consider third-party monitoring of 
herring catch in developing Amendment 5, that alternative was 
ultimately rejected by the Council and is no longer under consideration 
in Amendment 5.
    Comment 4: The Herring Alliance criticized the methodology used by 
NMFS to calculate a discard estimate for the herring fishery. The 
Herring Alliance believes that discards coded as ``fish not known (fish 
nk)'' contain substantial amounts of herring, while acknowledging that 
these discards also likely contain fish other than herring. When 
calculating a herring discard estimate, the Herring Alliance 
recommended that NMFS assume all ``fish nk'' discarded from limited 
access herring vessels are herring and that the fleet-wide estimate of 
discarded ``fish nk'' should be added to the discard estimate of 
herring to calculate total herring discards in 2010.
    Response: NMFS calculated 2010 herring discards by dividing the 
amount of observed herring discards (``herring'' and ``herring not 
known (herring nk'')) by the amount of all observed fish landed. That 
discard ratio was then multiplied by the amount of all fish landed for 
each trip to calculate total amount of herring discards in 2010. If an 
observer verifies that fish are Atlantic herring, those fish are coded 
as ``herring.'' If an observer verifies that fish are a type of herring 
but cannot verify species of herring, those fish are coded as ``herring 
nk.'' If an observer cannot verify species identification on catch that 
is discarded, that discard event is coded by observers as ``fish nk.'' 
Because the discards coded as ``fish nk'' likely contain species other 
than herring, NMFS believes it is not appropriate to count those 
discards against herring management area sub-ACLs. When developing the 
discard methodology, NMFS consulted with the Council's Herring Plan 
Development Team (PDT), which concurred that the discard estimate for 
the herring fishery should be calculated based on the amount of 
observed ``herring'' and ``herring nk'' and that it should not include 
discards coded as ``fish nk.'' In accordance with Amendment 4, NMFS 
will be annually determining catch (landings and discards) in the 
herring fishery and evaluating that catch against management area sub-
ACLs. Additionally, the Council is considering changes to catch 
reporting and monitoring for the herring fishery in Amendment 5. As 
more information is known about catch in the herring fishery, the 
methodology to calculate herring landings and discards can be revised, 
as appropriate.
    Comment 5: The herring fishing organizations (Cape Seafoods Inc./
Western Sea Fishing Company, O'Hara Corporation/Starlight Inc.) raised 
concerns about the common vessel and dealer reporting errors described 
in the proposed rule. They expressed frustration that they make every 
effort to report accurately and wondered why NMFS is not doing more to 
resolve reporting errors.
    Response: NMFS reviews vessel and dealer data inseason and works to 
resolve reporting errors as soon as possible by comparing vessel and 
dealer data and contacting either the vessel or the dealer if data are 
questionable. The list of common reporting errors was included in the 
proposed rule to help make industry aware of the reporting issues that 
NMFS is seeing in the data and, ultimately, to minimize the number of 
reporting errors that need to be resolved. NMFS will continue to work 
with herring industry members to ensure that herring catch information 
is being accurately reported and any data errors are corrected in a 
timely manner.
    Comment 6: The herring fishing organizations also both disagreed 
with NMFS's conclusion that the economic effects of this action are 
anticipated to be minimal because the reduction is relatively minor and 
herring vessels generate most of their revenue in other fisheries. The 
commenters stated that, while some vessels with herring permits 
generate most of their income from other fisheries, most of the herring 
harvest is caught by only a few vessels that rely on herring revenue as 
the primary, and sometimes only, source of fisheries revenue.
    Response: As described in the proposed rule, Amendment 4 analyzed 
the effects of deducting overages. Since deductions are the same 
magnitude as the overages, there is no overall change to the amount of 
fish available for harvest. Therefore, if participants are active in 
the fishery during the overage year and the deduction year, the total 
economic impact on participants is neutral across years. Additionally, 
NMFS reviewed 2010 economic data to further evaluate the economic 
effect of this action. In 2010, herring revenue averaged 20 percent of 
total fisheries

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revenue for limited access vessels (44 percent for Category A vessels, 
13 percent for Category B vessels, 3 percent for Category C vessels) 
and less than 1 percent of total fisheries revenue for open access 
vessels. Total herring revenue in 2010 equaled approximately $18.8 
million for limited access vessels, and $150,000 for open access 
vessels. Absent the sub-ACL reductions in Areas 1A and 1B, the total 
potential herring revenue in 2012 is estimated to be $26.4 million. The 
sub-ACL reductions in Areas 1A and 1B would reduce the total potential 
herring revenue by 4 percent in 2012. While this action reduces the 
amount of fish available for harvest, both the fishery-wide and 
individual-vessel economic effects are anticipated to be minimal, 
because the reduction is relatively minor and the majority of herring 
vessels generate most of their revenue participating in other 
fisheries. There are a small number of herring vessels that generate a 
large percentage of their revenue from herring catch, and the herring 
fishing organizations are correct in that fishery participants who 
typically harvest a large percentage of the herring ACL may be more 
affected than others by the 2012 reductions. However, since the 
reduction in the ACL for FY 2012 is relatively small on an individual 
vessel basis, the economic impacts of this reduction will not be 
significant, nor will it affect a substantial number of small entities.
    Comment 7: A member of the public supports reducing the 2012 
herring sub-ACLs, but believes NMFS is not doing enough to protect 
marine fish stocks.
    Response: For the reasons explained in this rule, NMFS has reduced 
the herring sub-ACLs in Areas 1A and 1B for the 2012 fishing year.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule is necessary for the conservation and management of the 
herring fishery and that it is consistent with the MSA and other 
applicable law.
    The National Environmental Policy Act (NEPA) analysis to support 
this action was completed in Amendment 4 (76 FR 11373, March 2, 2011). 
A copy of the NEPA analysis is available upon request (see ADDRESSES).
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness for this rule and establish the date of 
publication in the Federal Register as the effective date for this 
action because delaying the effectiveness of the rule is contrary to 
the public interest and impracticable. This action reduces the 2012 
herring sub-ACLs in Areas 1A and 1B account for catch overages in 2010 
and to prevent overfishing. The 2012 herring fishing year began on 
January 1, 2012, and sub-ACLs for each management area were already in 
place as specified by the 2010-2012 herring specifications. The 
regulations at Sec.  648.201(a) require implementing a 2,000-lb (907.2-
lb) possession limit in a management area if herring catch in that area 
is projected to reach 95-percent of that area's sub-ACL. This 
accountability measure helps ensure that herring catch does not exceed 
a management area sub-ACL. As of February 1, 2012, herring catch in 
Area 1B is 2,932 mt, which is 67-percent of the original sub-ACL 
specified for Area 1B, and 107-percent of the reduced 2012 sub-ACL. 
Because herring catch in Area 1B has already exceeded 95 percent of 
reduced 2012 sub-ACL (2,587 mt) implemented in this action, triggering 
the need to implement a 2,000-lb (907.2-kg) possession limit in that 
area, any delay in this action will likely cause catch to further 
exceed the reduced Area 1B sub-ACL. Due to the high volume nature of 
the herring fishery, and the amount of herring already caught in Area 
1B for the 2012 fishing year, if implementation of this action is 
delayed, the reduced 2012 sub-ACL for Area 1B could be exceeded by a 
large amount, thereby undermining the purpose and focus of the rule, 
which seeks to prevent overfishing as required by the MSA. Accordingly, 
any delay in the rule's effectiveness would be contrary to the 
conservation objectives of the MSA and the Herring FMP.
    This final rule has been determined to be not significant for 
purposes of Executive Orders 12866 and 13563.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration (SBA) that this final rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
NMFS received two comments on this certification. The comments are 
addressed in the response to comments section above, and the 
certification remains unchanged from the proposed rule. Accordingly, no 
initial regulatory flexibility analysis is required, and none has been 
prepared.

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

    Dated: February 21, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administratorv for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-4358 Filed 2-21-12; 4:15 pm]
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