[Federal Register Volume 70, Number 19 (Monday, January 31, 2005)]
[Proposed Rules]
[Pages 4808-4811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1744]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050112008-5008-01; I.D. 010605E]
RIN 0648-AS23


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery

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

ACTION: Proposed 2005 specifications for the Atlantic herring fishery; 
request for comments.

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SUMMARY: NMFS proposes specifications for the 2005 Atlantic herring 
fishery, which would be maintained through 2006 unless stock and 
fishery conditions change substantially. The regulations for the 
Atlantic herring fishery require NMFS to publish specifications for the 
upcoming year and to provide an opportunity for public comment. The 
intent of the specifications is to conserve and manage the Atlantic 
herring resource and provide for a sustainable fishery. NMFS also 
proposes one clarification to the Atlantic herring regulations, which 
would remove references to the dates on which the proposed and final 
rules for the annual specifications must be published.

DATES: Comments must be received no later than 5 p.m., Eastern Standard 
Time, on March 2, 2005.

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 accessible via the Internet at http:/www.nero.gov.
    Written comments on the proposed specifications should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 1 Blackburn Drive, Gloucester, MA 01930. Mark on the outside 
of the envelope: ``Comments-2005 Herring Specifications.'' Comments may 
also be sent via facsimile (fax) to 978-281-9135. Comments on the 
specifications may be submitted by e-mail as well. The mailbox address 
for providing e-mail comments is <a href="/cdn-cgi/l/email-protection#9bd3fee9e9a9ababaec8ebfef8e8dbf5f4fafab5fcf4ed"><span class="__cf_email__" data-cfemail="18507d6a6a2a28282d4b687d7b6b5876777979367f776e">[email protected]</span></a>. Include in the 
subject line of the e-mail comment the following document identifier: 
``Comments-2005 Herring Specifications.'' Comments may also be 
submitted electronically through the Federal e-Rulemaking portal: 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, 978-281-9259, e-mail at <a href="/cdn-cgi/l/email-protection#0e6b7c676d206a616267604e60616f6f20696178"><span class="__cf_email__" data-cfemail="6207100b014c060d0e0b0c220c0d03034c050d14">[email protected]</span></a>, fax at 978-281-
9135.

SUPPLEMENTARY INFORMATION:

Background

    Regulations implementing the Atlantic Herring Fishery Management 
Plan (FMP) require the New England Fishery Management Council's 
(Council) Atlantic Herring Plan Development Team (PDT) to meet at least 
annually, no later than July each year, with the Atlantic States Marine 
Fisheries Commission's (Commission) Atlantic Herring Plan Review Team 
(PRT) to develop and recommend the following specifications for 
consideration by the Council's Atlantic Herring Oversight Committee: 
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 reserve (if any). 
The PDT and PRT also recommend the total allowable catch (TAC) for each 
management area and subarea identified in the FMP. As the basis for its 
recommendations, the PDT reviews available data pertaining to: 
Commercial and recreational catch; current estimates of fishing 
mortality; stock status; recent estimates of recruitment; virtual 
population analysis results and other estimates of stock size; sea 
sampling and trawl survey data or, if sea sampling data are 
unavailable, length frequency information from trawl surveys; impact of 
other fisheries on herring mortality; and any other relevant 
information. Recommended specifications are presented to the Council 
for adoption and recommendation to NMFS. NMFS reviews the Council 
recommendation, and may modify it if necessary to insure

[[Page 4809]]

that it is consistent with the criteria in the FMP and other applicable 
laws. After the review of the Council submission, NMFS has modified the 
following Council recommendations, for reasons detailed below: The 
Council recommended setting OY at 180,000 mt, DAH at 180,000 mt, DAP at 
176,000 mt, USAP at 0, the TAC for Area 2 at 50,000 mt, and the TAC for 
Area 3 at 60,000 mt.

Proposed 2005 Specifications

    NMFS proposes the specifications and Area TACs contained in the 
following table.

  Specifications and Area TACs for the 2005 (and 2006) Atlantic Herring
                                 Fishery
------------------------------------------------------------------------
                 Specification                  Proposed Allocation (mt)
------------------------------------------------------------------------
                  ABC                                           220,000
                  OY                                            150,000
                  DAH                                           150,000
                  DAP                                           146,000
                  JVPt                                                0
                  JVP                                                 0
                  IWP                                                 0
                  USAP                             20,000 (Area 2 and 3
                                                                  only)
                  BT                                              4,000
                  TALFF                                               0
                  Reserve                                             0
                  TAC - Area 1A                 60,000 (January 1 - May
                                                    31, landings cannot
                                                          exceed 6,000)
                  TAC - Area 1B                                  10,000
                  TAC - Area 2                      30,000 (No Reserve)
                  TAC - Area 3                                   50,000
------------------------------------------------------------------------

    In addition, the Council recommended, and NMFS proposes, to 
maintain the 2005 specifications for 2006, unless stock and fishery 
conditions change substantially. The Herring PDT will update and 
evaluate stock and fishery information during 2005, and the Council and 
NMFS may determine, based on the review by the Herring PDT, that no 
adjustments to the specifications are necessary for the 2006 fishing 
year. Maintaining the specifications for 2 years would provide the 
Council with an opportunity to complete the development of Amendment 1 
to the FMP, which may implement a limited access program for the 
herring fishery in addition to other management measures, including 
possible adjustments to the specification process.
    NMFS also proposes one change to the Atlantic herring regulations, 
which would remove references to the dates on which the proposed and 
final rules for the annual specifications must be published, because it 
is not necessary to specify these dates in regulatory text. This 
regulatory language change is a matter of agency procedure and is 
consistent with previously approved measures.
    An ABC of 220,000 mt is proposed, consistent with the MSY proxy 
recommended in Amendment 1 to the FMP, which is currently being 
developed. The 220,000 mt proxy recommended in Amendment 1 is intended 
to be a temporary and precautionary placeholder for MSY until the next 
stock assessment for the Atlantic herring stock complex is completed. 
Because of the importance of ABC as a means of determining the other 
values in the specifications, it is discussed in the specifications, 
even though it is not a value that is set by the specification process.
    The FMP specifies that OY will be less than or equal to ABC minus 
the expected Canadian catch (C) from the stock complex. The estimate of 
the Canadian catch that is deducted from ABC will be no more than 
20,000 mt for the New Brunswick weir fishery and no more than 10,000 mt 
for the Georges Bank fishery. With ABC set at 220,000, OY could be less 
than or equal to 190,000 mt if the maximum catch is assumed for the 
Canadian herring fishery. The FMP also states that the establishment of 
OY will include consideration of relevant economic, social, and 
ecological factors and that, for this reason, OY may be less than ABC 
C. In addition, the Herring PDT recommended that OY be specified at a 
level lower than ABC for biological and ecological reasons.
    The Council recommended that the OY and the DAH for the 2005 
Atlantic herring fishery be set at 180,000 mt. The determination of OY 
was based, in part, on meeting the FMP objectives of increasing 
economic benefits to the U.S. fishing industry through the expansion of 
U.S. herring into the world market. If OY were set at a higher level, 
it could result in TALFF, which is that portion of the OY of a fishery 
that will not be harvested by vessels of the United States. While NMFS 
agrees that there are legitimate and legally defensible reasons to set 
the OY at a level that can be harvested by the domestic fleet and that 
would thereby preclude the specification of a TALFF, NMFS does not find 
that the Council's analysis justifies the levels of OY and DAH that it 
recommended.
    The allocation of TALFF would allow foreign vessels to harvest U.S. 
fish and sell their product on the world market, in direct competition 
with the U.S. industry. The Council expressed its concern, supported by 
industry testimony, that an allocation of TALFF would threaten the 
expansion of the domestic industry. The economic benefits to the Nation 
from TALFF activity are limited to the payment of poundage fees. 
However, the Council's analysis also makes it clear that, despite the 
loss of poundage fees resulting from zero TALFF, the expansion of the 
U.S. industry would generate potential long-term economic benefits for 
U.S. Atlantic herring harvesters and processors that would outweigh 
that loss. For these reasons, the Council concluded, and NMFS agrees, 
that the specification of an OY at a level that can be fully harvested 
by the domestic fleet, thereby precluding the specification of a TALFF, 
will assist the U.S. Atlantic herring industry to expand and will yield 
positive social and economic benefits to U.S. harvesters and 
processors. NMFS, therefore, proposes that OY be specified at 150,000 
mt.
    The Council recommended that DAH be set at 180,000 mt. NMFS 
believes that this is too high for a number of reasons. First, the 
Council proposal presumes a dramatic increase in landings that is not 
justified in the Council's submission. From 1996-2003, herring landings 
averaged 102,000 mt. The highest level of landings in recent years was 
in 2001, when they reached 121,332 mt. To justify a DAH of 180,000, one 
would have to assume a roughly 80-percent increase in DAH as compared 
to average landings in recent years, and a 50-percent increase in DAH 
as compared to the highest year in the series. NMFS proposes setting 
DAH at 150,000 mt. This would allow a 23-percent increase in landings 
as compared to 2001, and would, therefore, better reflect fishery 
performance in recent years, while at the same time giving the fishery 
an opportunity to expand. Given the trends in landings, and the 
industry's testimony that the fishery is poised for significant growth, 
NMFS concludes that it is reasonable to assume that in 2005 the 
commercial fishery will harvest 150,000 mt of herring.
    The Council's recommendation for TACs assumed an OY of 180,000 mt. 
With the OY being set at 150,000 mt, the proposed TACs, too, have to be 
modified. While the proposed Area 1A and 1B TACs would remain the same 
as they were in 2004, NMFS proposes reducing the Area 2 TAC from 50,000 
mt to 30,000 mt, and the Area 3 TAC from 60,000 mt to 50,000 mt. These 
area allocations are intended to permit the fishery to increase 
landings above the highest levels achieved in recent years. The highest 
recent landings in Area 2 were 27,198 mt in 2000; thus, the allocation 
would allow the fishery to slightly exceed that level. The highest 
recent landings in Area 3 were 35,079 mt in 2001; thus, the allocation 
would

[[Page 4810]]

allow the fishery to exceed that level by a considerable amount because 
this is the area most likely to see expanded harvests.
    The regulations, at Sec.  648.200(e), allow for inseason 
adjustments of the herring specifications. Thus, if the herring fishery 
during the 2005 or the 2006 fishing year expands more than anticipated, 
the OY, the DAH, the DAP, and the area TACs could be increased to 
enable the fishery to perform to its fullest potential. Such increases 
would be constrained by the analysis that the Council included in this 
year's specification recommendations. That means that DAH and OY could 
be increased to a maximum of 180,000 mt, the DAP could be increased to 
a maximum of 176,000 mt, and the Area 2 TAC and the Area 3 TAC could be 
increased to 50,000 mt and 60,000 mt, respectively, which are the 
highest levels that the Council originally recommended and analyzed for 
each of these measures. NMFS invites the public to comment on the 
potential use of the inseason adjustment mechanism to set new levels 
for DAH, DAP, OY, and area TACs during the 2005 fishing year, should 
such changes be warranted based on the performance of the fishery. More 
specifically, NMFS invites the public to comment on the appropriateness 
of potentially increasing DAH and OY up to the maximum level of 180,000 
mt, and the Area 2 TAC and the Area 3 TAC to 50,000 mt and 60,000 mt, 
respectively, through the inseason adjustment mechanism.
    The Council argued that DAP equals 176,000 mt, and NMFS found its 
argument that current processing capacity is capable of handling that 
volume of fish persuasive. However, for the purposes of these 
specifications, DAP is determined not only by capability to process but 
also by whether domestic processors will utilize such capacity. Since 
DAH is proposed to be set at 150,000 mt (of which 4,000 mt would be 
allocated for BT), DAP would be limited to 146,000 mt. It is certainly 
possible, given the capacity of the current harvesting fleet, the 
potential for market expansion to occur, and the expressed intent (made 
clear through public testimony) of the U.S. industry to increase its 
participation in the Atlantic herring fishery, that processors will 
utilize the recommended DAP. Because the Council's recommended DAP is 
sufficient to process the entire DAH (minus the BT), the Council and 
NMFS proposes setting JVP at zero. Future JV operations would likely 
compete with U.S. processors for product, which could have a 
substantial negative impact on domestic facilities in a market-driven 
fishery. This is consistent with the following relationship, which is 
specified in the FMP: DAH = DAP + JVPt + BT.
    The Council recommended setting USAP at zero, arguing that current 
shoreside capacity is sufficient to process U.S. landings, therefore 
eliminating the need for alternative processing capacity (USAP). The 
Council also argued that the FMP provides discretion to favor certain 
segments of the processing industry, and that to allow USAP would 
economically hurt shoreside processors/communities. The Council 
expressed concern that, once utilized, USAP allocations would become 
permanent. Finally, the Council argued that the fact that there was 
USAP allocated from 2000-2004 that was not used demonstrates that there 
is no interest in USAP.
    NMFS believes that the Council's rationale for setting USAP at zero 
is insufficient because it would favor one segment of the U.S. 
processing sector over another, without any justifiable reasons based 
on conservation objectives. On average, large amounts of the TAC in 
Areas 2 and 3 (where USAP was authorized in previous years) have not 
been taken each year. During the development of the specifications, at 
least one industry member expressed interest in pursuing USAP 
operations in 2005. When the Council discussed the possibility of 
allocating 10,000 mt to USAP, this individual stated that USAP 
operations would not be feasible at that level. For these reasons, NMFS 
proposes setting USAP at 20,000 mt in Areas 2 and 3 only. USAP could 
provide an additional outlet for harvesters and, therefore, increase 
the benefits to the U.S. industry. As for the Council's concern that 
USAPs will become permanent, there is no basis for this concern. The 
specification process allows the Council to modify its recommendations 
in the future, provided there is justification.

Classification

    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866.
    The Council prepared an IRFA, as required by section 603 of the 
Regulatory Flexibility Act, which describes the economic impacts this 
proposed rule, if adopted, would have on small entities. A copy of the 
IRFA can be obtained from the Council or NMFS (see ADDRESSES) or via 
the Internet at http:/www.nero.noaa.gov. A summary of the analysis 
follows:

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action, is contained in 
the preamble to this proposed rule and is not repeated here.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    During the 2003 fishing year, 154 vessels landed herring, 38 of 
which averaged more than 2,000 lb (907 kg) of herring per trip. There 
are no large entities, as defined in section 601 of the RFA, 
participating in this fishery. 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. It does not 
duplicate, overlap, or conflict with any other Federal rules.

Minimizing Significant Economic Impacts on Small Entities

    Impacts were assessed by the Council and NMFS by comparing the 
proposed measures to the Atlantic herring landings made in 2003. The 
proposed specifications are not expected to produce a negative economic 
impact to vessels prosecuting the fishery because, while it reduces the 
current (2003/2004) TACs for herring in Areas 2 and 3 (while keeping 
Areas 1A and 1B the same), it still allows for landings levels that are 
significantly higher than the average landings achieved by the fishery 
in recent years. The proposed 2005 specifications should allow for 
incremental growth in the industry, while taking into consideration 
biological uncertainty.
    The specification of 150,000 mt for OY and DAH is proposed for the 
2005 fishery, and for the 2006 fishery if stock and/or fishery 
conditions do not change significantly during 2005. At this level, 
there could be an increase of up to 50,000 mt in herring landings, or 
$7,150,000 in revenues, based on a market price of $143/mt. This could 
allow individual vessels to increase their profitability under the 
proposed 2005 specifications, depending on whether or not new vessels 
enter the fishery (the herring fishery will remain an open-access 
fishery for the 2005

[[Page 4811]]

fishing year). The magnitude of economic impacts related to the 
146,000-mt specification of DAP will depend on the shoreside processing 
sector's ability to expand markets and increase capacity to handle 
larger amounts of herring during 2005 and 2006.
    The potential loss associated with eliminating the JVPt allocation 
(20,000 mt for 2003 and 2004) could approximate $2.9 million (based on 
an average price of $143/mt) if all of the 20,000-mt allocation would 
have been utilized (10,000 mt for JVP and 10,000 mt for IWP). However, 
very little of the 10,000-mt JVP allocation was utilized in 2002 and 
2003 and, as of August 2004, no JVP activity for herring had occurred 
during the 2004 fishing year. The Council received no indication that 
demand for the JVP allocation will increase in 2005 and 2006. As a 
result, no substantial economic impacts are expected from reducing the 
JVP allocation to 0 mt in 2005 and possibly 2006, as vessels that sold 
fish in the past to JV processor vessels could sell to U.S. processors.
    The Area 1A and 1B TACs of 60,000 and 10,000 mt, respectively, have 
been unchanged since the 2000 fishery. In 2002 and 2003, the Area 1A 
TAC for the directed herring fishery was fully utilized and is expected 
to be fully utilized for the 2005 fishery. Therefore, no change is 
expected in profitability of vessels from the 2005 Area 1A 
specification. Since only 4,917 mt of herring were harvested in Area 1B 
in 2003, the proposed 2005 specification of 10,000 mt should allow for 
increased economic benefits to individual vessels prosecuting the 
fishery in this management area. The potential economic gains 
associated with allocating 20,000 mt for USAP could approximate $2.9 
million (based on an average price of $143/mt) if all of the 20,000-mt 
allocation were utilized in 2005.
    The Council analyzed four alternatives for OY and the distribution 
of TACs. One alternative would have retained the specifications 
implemented during the 2003 and 2004 fishing years, which would have 
maintained the OY at 180,000 mt. This OY is still roughly 80 percent 
greater than the average historical landings for this fishery, and 
therefore that level of OY would not pose a constraint on the fishery. 
The three other alternatives considered by the Council would set the OY 
at 150,000 mt. Although the OY of 150,000 mt is lower than that 
proposed by the Council, it is still roughly 50 percent greater than 
the average historical landings for this fishery, and therefore that 
level of OY would not pose a constraint on the fishery. Each of the 
alternatives that would set the OY at 150,000 mt would establish 
varying levels for the area TACs.
    One alternative would have established the following TACs: Area 1A, 
60,000 mt; Area 1B, 10,000 mt; Area 2, 20,000 mt; and Area 3, 60,000 
mt. The only area TAC that would be lower than 2003/2004 under this 
option is the Area 2 TAC. The most recent year in which the landings 
from this area were greater than 20,000 mt (the proposed TAC) was 2000 
(27,198 mt). The average landings from 2001 2003 were 14,300 mt with 
2003 landings at 16,079 mt. Under current market conditions, the new 
TAC may become constraining if the fishery in 2005 (and possibly 2006) 
is similar to that in 2000. If this is the case, then the Area 2 TAC 
fishing season could end before the end of the year, creating a 
potential economic constraint on the fishery, especially if vessels are 
forced to travel farther (increased steaming time) to harvest in Area 
3.
    Another alternative considered would have established the following 
TACs: Area 1A, 45,000 mt; Area 1B, 10,000 mt; Area 2, 35,000 mt; and 
Area 3, 60,000 mt. With a 15,000-mt decrease in the combined Area 1 
TACs, the economic impact of this option could be relatively large on 
vessels in the fishery that depend on herring in Area 1A, especially if 
those vessels are not able to move to other areas to obtain fish. Even 
if vessels could fish in other areas, their operating costs would be 
increased because of increased steaming time. An Area 2 TAC of 35,000 
mt proposed under this alternative should not be constraining given 
recent landings history.
    The final alternative considered would have established the 
following TACs: Area 1A, 55,000 mt; Area 1B, 5,000 mt; Area 2, 30,000 
mt; and Area 3, 60,000 mt. With a 10,000-mt decrease in the combined 
Area 1 TACs, the impact of this alternative would very similar to the 
impact of the prior alternative, although not as severe. An Area 2 TAC 
of 30,000 mt proposed under this alternative should not be constraining 
given recent landings history.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 25, 2005.
Rebecca Lent,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out above, 50 CFR part 648 is proposed to be 
amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.200, paragraphs (c) and (d) are revised to read as 
follows:


Sec.  648.200  Specifications.

* * * * *
    (c) The Atlantic Herring Oversight Committee shall review the 
recommendations of the PDT and shall consult with the Commission's 
Herring Section. Based on these recommendations and any public comment 
received, the Herring Oversight Committee shall recommend to the 
Council appropriate specifications. The Council shall review these 
recommendations and, after considering public comment, shall recommend 
appropriate specifications to NMFS. NMFS shall review the 
recommendations, consider any comments received from the Commission and 
shall publish notification in the Federal Register proposing 
specifications and providing a 30-day public comment period. If the 
proposed specifications differ from those recommended by the Council, 
the reasons for any differences shall be clearly stated and the revised 
specifications must satisfy the criteria set forth in this section.
    (d) NMFS shall make a final determination concerning the 
specifications for Atlantic herring. Notification of the final 
specifications and responses to public comments shall be published in 
the Federal Register. If the final specification amounts differ from 
those recommended by the Council, the reason(s) for the difference(s) 
must be clearly stated and the revised specifications must be 
consistent with the criteria set forth in paragraph (b) of this 
section. The previous year's specifications shall remain effective 
unless revised through the specification process. NMFS shall issue 
notification in the Federal Register if the previous year's 
specifications will not be changed.
* * * * *
[FR Doc. 05-1744 Filed 1-28-05; 8:45 am]
BILLING CODE 3510-22-S


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