10978 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Rules and Regulations 

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. 

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 subACL 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 subACLs 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 herringpermitted vessels are required to submit 

vessel trip reports (VTRs) weekly. 

Final Adjustment to the 2012 Annual 

Catch Limits 

In accordance with regulations at 

§ 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 subACL 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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Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Rules and Regulations 10979 

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 subACLs 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 subACLs. 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 individualvessel 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 subACLs, 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 § 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 subACL. 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 subACL 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] 

BILLING CODE 3510–22–P 


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