Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Proposed Rules 63791 

and therefore slow recovery of the stock, 

contrary to the Council’s objectives. 

Two alternatives, including the status 

quo, were considered for the action to 

set the recreational bag limit at zero. 

The first alternative, the status quo, 

would maintain the recreational catch 

target at 2.20 million lb (1 million kg) 

as defined in Amendment 30B and thus 

maintain the current recreational bag 

limit of 2 gag within the 4-fish aggregate 

grouper bag limit. Selection of this 

alternative would be inconsistent with 

current National Standard 1 guidance 

because this level of harvest would be 

above the ABC recommended by the 

Council’s SSC of 1.17 million lb (0.53 

million kg) for 2011. In addition, this 

alternative would promote overfishing 

and slow recovery of the stock. 

The second alternative would set the 

gag bag limit to zero on the date when 

620,000 lb (0.28 million kg) of gag is 

projected to be landed by the 

recreational sector in 2011. This harvest 

level is consistent with the fishing 

mortality rate associated with the OY 

used by the Council in Amendment 30B 

to set the recreational annual catch 

target. Under certain assumptions 

regarding the disposition of discards, 

this alternative is expected to result in 

a fishing season of 83 days. Given the 

closure of the shallow water grouper 

(SWG) recreational sector annually from 

February 1 to March 31, fishing would 

be allowed for the month of January and 

from April 1 to May 22. However, this 

fishing season is dependent on 

achieving the same percentage 

reduction in dead discards as obtained 

from the harvest. If these levels of 

reduction are not met, then harvesting 

this amount of fish could exceed the 

reductions needed for the stock to 

recover under the rebuilding plan being 

developed in Amendment 32 which, in 

turn, could require deeper cuts in future 

harvests than those projected by the 

current assessment update. 

Although by regulation, the actions in 

this proposed temporary rule do not 

need to end overfishing, they do need to 

reduce overfishing. This alternative 

could limit the types of long-term 

measures developed by the Council in 

Amendment 32 that could be applied to 

the 2011 fishing year since the 620,000 

lb (0.28 million kg) catch target would 

likely be achieved before rulemaking 

from Amendment 32 is implemented. 

Therefore, the harvest for the rest of the 

fishing year could be zero and any longterm measures developed in 

Amendment 32 would not apply until 

2012. 

Further, recent discrepancies with the 

estimation of dead discards could affect 

how the assessment projects the status 

of the stock. If these discrepancies show 

a more pessimistic condition of the 

stock when the assessment is rerun, 

then selecting this alternative could 

result in harvest levels inconsistent with 

rebuilding the stock within the time 

frames outlined in the MagnusonStevens Act. This is particularly 

important for the recreational sector 

which harvests a greater proportion of 

the gag total catch than the commercial 

sector. Conversely, should these 

discrepancies result in a more 

optimistic condition of the stock, the 

recreational catch target and bag limit 

could be increased in subsequent 

actions. 

This proposed temporary rule does 

not establish any new reporting, recordkeeping, or other compliance 

requirements. 

List of Subjects in 50 CFR Part 622 

Fisheries, Fishing, Puerto Rico, 

Reporting and recordkeeping 

requirements, Virgin Islands. 

Dated: October 12, 2010. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons set out in the 

preamble, 50 CFR part 622 is proposed 

to be amended as follows: 

PART 622—FISHERIES OF THE 

CARIBBEAN, GULF, AND SOUTH 

ATLANTIC 

1. The authority citation for part 622 

continues to read as follows: 

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

§ 622.20 [Amended] 

2. In § 622.20, paragraph (b)(2)(iv)(A) 

is suspended. 

3. In § 622.34, paragraph (v) is added 

to read as follows: 

§ 622.34 Gulf EEZ seasonal and/or area 

closures. 

* * * * * 

(v) Closure of the recreational sector 

for gag. The recreational sector for gag 

in the Gulf EEZ is closed. During the 

closure, all recreational harvest and 

possession of gag grouper in or from the 

Gulf EEZ is prohibited. Such fish caught 

in the Gulf EEZ must be released 

immediately with a minimum of harm. 

4. In § 622.39, paragraph (b)(1)(ii) is 

suspended, and paragraph (b)(1)(viii) is 

added, to read as follows: 

§ 622.39 Bag and possession limits. 

* * * * * 

(b) * * * 

(1) * * * 

(viii) Groupers, combined, excluding 

goliath grouper, Nassau grouper, and 

gag—4 per person per day, but not to 

exceed 1 speckled hind or 1 warsaw 

grouper per vessel per day, or 2 red 

grouper per person per day. However, 

no grouper may be retained by the 

captain or crew of a vessel operating as 

a charter vessel or headboat. The bag 

limit for such captain and crew is zero. 

* * * * * 

5. In § 622.42, paragraphs 

(a)(1)(iii)(A)(3) and (a)(1)(iii)(B)(3) are 

suspended, and paragraphs 

(a)(1)(iii)(A)(4) and (a)(1)(iii)(B)(4) are 

added, to read as follows: 

§ 622.42 Quotas. 

(a) * * * 

(1) * * * 

(iii) * * * 

(A) * * * 

(4) For fishing year 2011 and 

subsequent fishing years—4.83 million 

lb (2.19 million kg). 

(B) * * * 

(4) For fishing year 2011 and 

subsequent fishing years—100,000 lb 

(45,359 kg). 

* * * * * 

[FR Doc. 2010–26198 Filed 10–15–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080513659–0476–01] 

RIN 0648–AW75 

Fisheries of the Northeastern United 

States; Atlantic Herring Fishery; 

Amendment 4 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement measures in Amendment 4 

to the Atlantic Herring (Herring) Fishery 

Management Plan (FMP). Amendment 4 

was developed by the New England 

Fishery Management Council (Council) 

to bring the FMP into compliance with 

new Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) requirements 

by: Revising definitions and the 

specifications-setting process, consistent 

with annual catch limit (ACL) 

requirements; and establishing fishery 

closure thresholds, a haddock incidental 

catch cap, and overage paybacks as 


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accountability measures (AMs). In 

addition, the amendment designates 

herring as a ‘‘stock in the fishery’’; 

establishes an interim acceptable 

biological catch (ABC) control rule; and 

makes adjustments to the specification 

process by eliminating consideration of 

total foreign processing (JVPt), including 

joint venture processing (JVP) and 

internal waters processing (IWP), and 

reserve from the specification process, 

and eliminates the Council’s 

consideration of total allowable level of 

foreign fishing (TALFF). 

DATES: Public comments must be 

received no later than 5 p.m., eastern 

standard time, on December 2, 2010. 

ADDRESSES: An environmental 

assessment (EA) was prepared for 

Amendment 4 that describes the 

proposed action and other considered 

alternatives and provides a thorough 

analysis of the impacts of the proposed 

measures and alternatives. Copies of 

Amendment 4, including the EA, the 

Regulatory Impact Review (RIR), and the 

Initial Regulatory Flexibility Analysis 

(IRFA), 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. 

The EA/RIR/IRFA is also accessible via 

the Internet at http:// 

www.nero.nmfs.gov. 

You may submit comments, identified 

by 0648–AW75, by any one of the 

following methods: 

(A) Electronic Submissions: Submit 

all electronic public comments via the 

Federal e-Rulemaking portal http:// 

www.regulations.gov; 

(B) Fax: (978) 281–9135, Attn: Carrie 

Nordeen; 

(C) Mail to NMFS, Northeast Regional 

Office, 55 Great Republic Drive, 

Gloucester, MA 01930. Mark the outside 

of the envelope ‘‘Comments on Herring 

Amendment 4.’’ 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF formats only. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Nordeen, Fishery Policy Analyst, 

978–281–9272, fax 978–281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

The Magnuson-Stevens Act, which 

was re-authorized in January 2007, now 

requires the establishment of ACLs and 

AMs to end and/or prevent overfishing 

in all FMPs. A notice of intent (NOI) 

was published in the Federal Register 

(73 FR 26082, May 8, 2008) announcing 

the Council’s intent to develop 

Amendment 4 and prepare an 

environmental impact statement (EIS) 

analyzing the impacts of the proposed 

management measures. As stated in the 

NOI, the purpose of Amendment 4 is to 

bring the Herring FMP into compliance 

with ACL and AM requirements. 

Because herring is not subject to 

overfishing, the Herring FMP is required 

to be in compliance with ACL and AM 

requirements by 2011. In addition, the 

NOI also identified the following issues 

to be addressed: Catch monitoring and 

reporting, interactions with river 

herring, access by midwater trawl 

vessels to groundfish closed areas, and 

interactions with the Atlantic mackerel 

fishery. In June 2009, the Council 

determined there was not sufficient time 

to develop and implement all of the 

measures contemplated in the NOI by 

2011, so it decided to split Amendment 

4 into two separate actions. The Council 

determined that Amendment 4 would 

continue to address ACL and AM 

requirements and other specification 

issues, but that all other issues (e.g., 

catch monitoring and reporting, 

interactions with river herring and 

Atlantic mackerel, access to groundfish 

closed areas) would be considered in 

Amendment 5 to the Herring FMP. A 

supplemental NOI, announcing this 

change and notifying the public that an 

EA, rather than an EIS, was being 

prepared to analyze the impacts of 

Amendment 4, was published in the 

Federal Register on December 28, 2009 

(74 FR 68577). 

The Council held three public 

meetings on Amendment 4 during 

January 2010. Following the public 

comment period that ended on January 

12, 2010, the Council adopted 

Amendment 4 on January 26, 2010. 

This action proposes management 

measures that were recommended by 

the Council as part of Amendment 4. If 

implemented, these management 

measures would: 

• Revise current definitions and the 

specification-setting process to include 

ACLs and AMs; 

• Designate herring as a ‘‘stock in the 

fishery;’’ 

• Establish an interim ABC control 

rule; 

• Eliminate JVPt, including JVP and 

IWP, and reserve from the specifications 

process; and 

• Eliminate the Council’s 

consideration of TALFF. 

A Notice of Availability (NOA) for 

Amendment 4 was published on August 

12, 2010 (75 FR 48920). The comment 

period on the NOA ends on October 12, 

2010. 

Proposed Measures 

The proposed measures are based on 

the description of the measures in 

Amendment 4; NMFS seeks comments 

on all proposed measures. 

ACL Specification Process 

The Magnuson-Stevens Act requires 

each Regional Fishery Management 

Council to establish a mechanism for 

specifying ACLs that do not exceed 

fishing-level recommendations made by 

its Scientific and Statistical Committee 

(SSC) and prevent overfishing. While 

the current Herring FMP contains a 

specification-setting process and 

measures to prevent overfishing, several 

modifications to the specification 

process are necessary to bring the FMP 

into compliance with new MagnusonStevens Act requirements. These 

modifications include: The addition of 

new FMP definitions; changes to the 

existing FMP definition for optimum 

yield (OY); incorporation of SSC 

recommendations into the specification 

of ABC; and explicit consideration of 

scientific and management uncertainty 

when setting specifications. 

Amendment 4 proposes that the 

herring specifications set an overfishing 

limit (OFL), which corresponds to a 

maximum sustainable yield (MSY). ABC 

would be recommended by the 

Council’s SSC. During the setting of 

ABC, scientific uncertainty would be 

considered, and ABC may be reduced 

from the OFL to account for scientific 

uncertainty. Scientific uncertainty 

includes, but is not limited to, 

uncertainty related to stock size 

estimates, variability around estimates 

of recruitment, and consideration of 

ecosystem issues. 

Amendment 4 also proposes to set a 

stock-wide ACL that would be equal to 

or less than ABC. During the setting of 

the stock-wide ACL, management 

uncertainty would be considered. The 

stock-wide ACL may reduced from the 

ABC to account for management 

uncertainty, which includes, but is not 

limited to, uncertainty related to 

expected catch of herring in the New 

Brunswick weir fishery and discard 


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estimates of herring caught in Federal 

and state waters. 

The stock-wide ACL is specified to 

account for all herring catch. Estimates 

of discards are reported by harvesters, 

and provided by NMFS observers. The 

available information suggests that 

discards in the herring fishery are low, 

relative to the amount of landed herring. 

Therefore, the Council determined no 

specific deduction is required, between 

the ABC and stock-wide ACL, to 

account for management uncertainty 

related to discards at this time. If new 

information on discards becomes 

available, Amendment 4 proposes to 

provide the Council with flexibility to 

incorporate that information into the 

stock-wide ACL-setting process as 

appropriate. 

The Herring FMP authorizes 

specifications for JVPt, JVP, IWP, 

reserve, and TALFF to be set for the 

herring fishery. Historically, JVPt 

(including JVP and IWP) was allocated 

to enable foreign processing operations 

to accept catch from U.S. vessels; 

TALFF was allocated to ensure fish 

were available to foreign processing 

vessels when U.S. vessels could not 

supply it. The U.S. herring fishery has 

experienced growth in both harvesting 

and processing capacity, accordingly 

neither JVPt or TALFF have been 

allocated since 2005. Because the U.S. 

herring industry is capable of harvesting 

and processing the entire available yield 

in the foreseeable future, and to 

maximize U.S. economic benefits, 

Amendment 4 proposes to eliminate the 

annual specifications of JVPt, JVP, and 

IWP from the Herring FMP. 

Additionally, while TALFF could still 

be awarded consistent with the 

Magnuson-Stevens Act, if the Secretary 

of Commerce determines there is 

inadequate domestic harvesting capacity 

and other requirements of the 

Magnuson-Stevens Act Section 201 are 

satisfied, Amendment 4 proposes that 

the Council would not consider TALFF 

during development of the 

specifications. 

Historically, the reserve was specified 

to buffer against such things as 

uncertainty in stock size estimates, 

uncertainty in Canadian catch, excess 

U.S. capacity entering the herring 

fishery, and fluctuations in import/ 

export demand. With the 

implementation of limited access in 

2008 and Amendment 4’s proposed 

consideration of sources of scientific 

and management uncertainty in the 

setting of OFL, ABC, and ACL, the 

Council concluded that specifying a 

reserve is no longer necessary. 

Therefore, Amendment 4 proposes to 

eliminate the specification of reserve 

from the Herring FMP. 

With the implementation of 

Amendment 1 to the Herring FMP (72 

FR 11252, March 12, 2007), the Council 

has the authority to set herring 

specifications for a period of 3 years. 

Amendment 4 proposes to maintain the 

current schedule of setting herring 

specifications for a period of 3 years. 

The herring stock complex is 

considered to be a single stock, but it is 

comprised of inshore (Gulf of Maine 

(GOM)) and offshore (Georges Bank 

(GB)) stock components. These stock 

components segregate during spawning 

and mix during feeding and migration. 

Herring management areas were 

developed in recognition of these 

different stock components; each 

management area has a total allowable 

catch (TAC) to allow the fishing 

mortality of the stock components to be 

managed independently. Area 1 is 

located in the 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 GB. Because the inshore 

stock component has substantially less 

biomass than the offshore stock 

component, it is likely more vulnerable 

to overfishing. Amendment 4 proposes 

maintaining the function of the herring 

management area TACs, but re-defining 

each area TAC as an area sub-ACL. The 

Area 1A TAC is currently allocated to 

two seasonal periods. The first season 

extends from January 1 through May 31, 

and the second season extends from 

June 1 through December 31. 

Amendment 4 proposes to maintain 

these periods and allocate the Area 1A 

sub-ACL into two seasonal periods, 

January 1 through May 31, and June 1 

through December 31. 

The specification of OY is required by 

the Magnuson-Stevens Act and 

authorized in the current Herring FMP. 

OY is derived from MSY, as reduced by 

relevant economic, social, or ecological 

factors. Amendment 4 proposes that OY 

remain part of the specification-setting 

process, and that it would be equal to 

or less than ABC and used to address 

uncertainty related to economic, social, 

or ecological factors. For example, the 

Council may choose to allocate an OY 

that is reduced from ABC to address the 

role of herring as forage or the fishing 

mortality rate on the inshore stock 

component. If the Council allocates a 

reduced OY, it would be in addition to 

any consideration of scientific or 

management uncertainty and would be 

a specific reduction to address a specific 

issue. 

Stocks in a Fishery 

The Magnuson-Stevens Act requires 

that an FMP contain a description of the 

fish species in a fishery, and National 

Standard 1 guidelines task the Council 

with determining which specific target 

stocks and/or non-target stocks to 

include in the fishery. Target stocks are 

defined as stocks that fishers seek to 

catch for sale or personal use, and nontarget stocks are fish caught incidentally 

during the pursuit of target stocks. In 

general, any stock managed through an 

FMP is considered to be in that fishery. 

While other species are caught 

incidentally when fishing for herring, 

herring is the target stock, and the only 

stock directly managed by the Herring 

FMP. For these reasons, Amendment 4 

proposes that herring be the stock in the 

fishery. The Council retains the 

authority to designate additional stocks 

in the fishery in a future action. Bycatch 

in the herring fishery will continue to be 

addressed and minimized to the extent 

possible, consistent with other 

requirements of the Magnuson-Stevens 

Act. 

Interim ABC Control Rule 

The ABC control rule is the specified 

method of setting the ABC, giving full 

consideration to scientific uncertainty. 

The ABC control rule is based on 

scientific advice from a Council’s SSC 

and, when possible, considers the 

probability of overfishing. The ABC 

control rule should consider the 

scientific uncertainty associated with 

stock assessment results, including time 

lags in updating assessments, the degree 

of retrospective revision of assessment 

results, and the uncertainty of stock 

projections. 

During development of the 2010–2012 

herring specifications, the SSC 

identified two sources of scientific 

uncertainty in the 2009 herring 

assessment: (1) The assessment model 

has a strong retrospective pattern that 

reduces estimates of stock size when 

updated with new (2001–2007) data; 

and (2) biomass projections suggest the 

herring stock can not rebuild to BMSY

(biomass that would support MSY) 

using long-term projections at FMSY

(fishing mortality rate for MSY). Given 

this magnitude of scientific uncertainty, 

the SSC determined that a herring ABC 

control rule cannot be derived until a 

new benchmark assessment is 

conducted to address these issues. In 

the meantime, the Council 

recommended that Amendment 4 

contain an interim ABC control rule 

based on the SSC’s 2010–2012 herring 

ABC recommendation. The interim 

control rule proposes that ABC be set 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
63794 Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Proposed Rules 

based on recent catch in the herring 

fishery, and that the Council determine 

the desired risk tolerance in setting the 

ABC. For example, recent catch could 

be the most recent catch data (single 

year) or an average of recent data (3-year 

or 5-year average). This interim ABC 

control rule will remain in effect until 

a new ABC control rule is developed 

following the next herring assessment. 

Accountability Measures 

The Magnuson-Stevens Act requires 

AMs to be developed in association 

with ACLs. AMs should minimize the 

frequency and magnitude of catch in 

excess of the ACLs (overages) and 

provide for subsequent harvest 

adjustments if ACLs are exceeded. 

Amendment 4 proposes designating two 

existing management measures as AMs, 

as well as establishing an additional AM 

that would require an overage 

deduction, if catch exceeds the stockwide ACL or a sub-ACL. Amendment 4 

also proposes that these AMs can be 

modified, as necessary, through a 

framework adjustment to the Herring 

FMP or through the herring fishery 

specifications process. 

Current herring regulations at 

§ 648.201(a) state that, if NMFS 

determines catch will reach 95 percent 

of the TAC allocated to a management 

area or seasonal period, then NMFS 

shall prohibit 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. 

The remaining 5 percent of the TAC for 

that management area or period 

provides for the incidental catch of 

herring in other fisheries. In recognition 

that this measure functions as an AM, 

by slowing catch to prevent or minimize 

catch in excess of a management area or 

seasonal period TAC/sub-ACL, 

Amendment 4 proposes that this 

management area closure measure be 

designated as an AM. 

Similarly, current Northeast 

multispecies regulations at 

§ 648.86(a)(3)(ii) specify a haddock 

incidental catch cap to control haddock 

catch by herring vessels in the GOM/GB 

Herring Exemption Area. When the 

Regional Administrator has determined 

that the haddock incidental catch cap 

has been caught, all vessels issued a 

herring permit are prohibited from 

fishing for, possessing, or landing 

herring in excess of 2,000 lb (907.2 kg) 

per trip in the GOM/GB Herring 

Exemption Area. Additionally, the 

haddock possession limit for all vessels 

issued All Areas or Areas 2⁄3 Limited 

Access permits is reduced to 0 lb (0 kg) 

in all of the herring management areas. 

Amendment 16 to the Northeast 

Multispecies FMP (Amendment 16) 

designated haddock catch in the herring 

fishery as a sub-ACL for the 

Multispecies FMP (75 FR 18262, April 

9, 2010). Consistent with Multispecies 

Amendment 16, Herring Amendment 4 

proposes that the current haddock 

incidental catch cap be designated as an 

AM in the Herring FMP, with the 

clarification that the 0-lb (0-kg) haddock 

possession limit does not apply to 

herring vessels that also possess a 

Northeast multispecies permit and are 

operating on a declared groundfish trip. 

As a way to account for ACL overages 

in the herring fishery, Amendment 4 

proposes an AM that would provide for 

overage deductions. Once the total catch 

of herring for a fishing year is 

determined, using all available 

information, any ACL or sub-ACL 

overage would result in a reduction of 

the corresponding ACL/sub-ACL the 

following year. For example, if final 

accounting of the 2011 total herring 

catch in Area 1A, which is generally 

available in the spring of 2012, 

indicated that the Area 1A sub-ACL was 

exceeded by 5 mt, then, in 2013, the 

sub-ACL for Area 1A would be reduced 

by 5 mt to account for the overage that 

occurred during 2011. Additionally, if 

Amendment 4 is effective prior to final 

catch accounting for 2010, then any 

overage in 2010 would be deducted in 

2012. All overage deductions would be 

announced by NMFS in the Federal 

Register prior to the start of the fishing 

year. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, the NMFS 

Assistant Administrator has determined 

preliminarily that this proposed rule is 

consistent with Amendment 4 to the 

Herring FMP, other provisions of the 

Magnuson-Stevens Act, and other 

applicable law, subject to further 

consideration after public comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA). The IRFA, which includes 

this section of the preamble to this rule 

and analyses contained in Amendment 

4 and its accompanying EA/RIR/IRFA, 

describes the economic impact this 

proposed rule, if adopted, would have 

on small entities. A description of the 

action, why it is being considered, and 

the legal basis for this action are 

contained at the beginning of this 

section in the preamble and in the 

SUMMARY section of the preamble. 

Description and Estimate of Number of 

Small Entities to Which the Rule Would 

Apply 

All participants in the herring fishery 

are small entities, as none grossed more 

than $4 million annually; therefore, 

there are no disproportionate economic 

impacts on small entities. The proposed 

measures in Amendment 4 will affect all 

participants in the herring fishery, as 

they revise current definitions and the 

specifications-setting process in the 

Herring FMP, but these measures are not 

anticipated to have direct economic 

impacts. In 2009, there were 41 vessels 

issued All Areas Limited Access 

Permits, 4 vessels issued Areas 2 and 3 

Limited Access Permits, 54 vessels 

issued Limited Access Incidental Catch 

Permits, and 2,272 vessels issued Open 

Access Permits. Section 6.2 in 

Amendment 4 describes the vessels, key 

ports, and revenue information for the 

herring fishery in more detail. 

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. 

Economic Impacts of the Proposed 

Action Compared to Significant NonSelected Alternatives 

The proposed measures Amendment 

4 are not anticipated to have direct 

economic effects on herring fishery 

participants. A detailed economic 

analysis of the proposed measures, as 

well as the non-selected alternatives, is 

in Section 7.2 of Amendment 4. The 

proposed measures are designed to 

bring the Herring FMP into compliance 

with new Magnuson-Stevens Act 

requirements by revising current 

definitions and the specification-setting 

process to include ACLs and AMs. In 

addition, the amendment designates 

herring as a ‘‘stock in the fishery;’’ 

establishes an interim ABC control rule; 

and makes adjustments to the 

specification process by eliminating 

JVPt, including JVP and IWP, and 

reserve from the specifications process, 

and eliminating the Council’s 

consideration of TALFF. Alternative to 

the proposed measures is the status quo, 

which would retain all current 

definitions and the current specification 

process. 

The current Herring FMP contains a 

specification-setting process and 

measures to prevent overfishing. The 

proposed action would re-define: The 


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specification-setting process to include 

OFL, ABC, and ACL; the allocating of 

OY; the management area TACs as subACLs; and the management area closure 

measure and haddock incidental catch 

cap as AMs. Additionally, the proposed 

action includes an AM that would 

provide for an overage deduction if total 

catch exceeded an ACL. Because 

Amendment 4 proposes only minor 

adjustments to the existing 

specification-setting process and 

measures that prevent overfishing, the 

proposed action has no direct economic 

effects beyond those associated with the 

non-selected, status quo alternative. 

However, by revising the specificationssetting process to make the process, and 

the SSC’s involvement in the process, 

more explicit and providing for overage 

deductions, the proposed action has the 

potential to better prevent overfishing, 

possibly creating a more sustainable 

fishery and better ensuring the longevity 

of the herring fishery as an economic 

resource, as compared to the nonselected, status quo alternative. 

Designating herring as the stock in the 

fishery is administrative. While other 

species are caught incidentally when 

fishing for herring, herring is the only 

stock directly managed by the Herring 

FMP. Because there may be non-target 

stocks that warrant consideration in the 

future, the Council retains authority to 

designate additional stocks in the 

fishery in a future action. Designating 

herring as the stock in the fishery will 

not change how the current FMP 

operates; therefore, there are no 

economic differences between the 

proposed action and the non-selected, 

status quo alternative. 

As described previously, the current 

Herring FMP contains a specificationssetting process and measures to prevent 

overfishing. Therefore, establishing an 

ABC control rule in Amendment 4 is 

similar to the non-selected, status quo, 

alternative. However, making the ABCsetting process, and the SSC’s 

involvement in that process, explict has 

the potential to better prevent 

overfishing, possibly creating a more 

sustainable fishery and better ensuring 

the longevity of the herring fishery as an 

economic resource, as compared to the 

non-selected, status quo alternative. 

Amendment 4 proposes to eliminate 

JVPt, including JVP and internal waters 

processing IWP, and reserve from the 

specifications process. Because the U.S. 

herring fishery has experienced growth 

in both harvesting and processing 

capacity, and has sufficient capacity to 

harvest the available yield, JVPt, 

including JVP and IWP, has been 

allocated at zero since 2005. 

Accordingly, there are no economic 

differences between the proposed action 

and the non-selected, status quo 

alternative. Historically, the reserve was 

specified to buffer against such things as 

uncertainty in stock size estimates, 

uncertainty in Canadian catch, excess 

U.S. capacity entering the herring 

fishery, and fluctuations in import/ 

export demand. With Amendment 4’s 

proposed consideration of OFL, ABC, 

and ACL to account for sources of 

scientific and management uncertainty, 

specifying a reserve is redundant; 

therefore, there are no economic 

differences between the proposed action 

and the non-selected, status quo 

alternative. Additionally, while TALFF 

could still be awarded, consistent with 

the Magnuson-Stevens Act, by the 

Secretary of Commerce, Amendment 4 

proposes that the Council would not 

consider TALFF during development of 

the specifications. Like JVPt, TALFF has 

been specified at zero since 2005. 

Because there is no functional 

difference between not considering 

TALFF and setting TALFF at zero, there 

are no economic differences between 

the proposed action and the nonselected, status quo alternative. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Recordkeeping and 

reporting requirements. 

Dated: October 12, 2010. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons set out in the 

preamble, 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 § 648.200, paragraphs (a) 

introductory text, (b)(1), (b)(2), (b)(3), 

(b)(4), (e), and (f) introductory text are 

revised, and paragraphs (b)(5) and (g) 

are added to read as follows: 

§ 648.200 Specifications. 

(a) The Atlantic Herring Plan 

Development Team (PDT) shall meet at 

least every 3 years, but no later than July 

of the year before new specifications are 

implemented, with the Atlantic States 

Marine Fisheries Commission’s 

(Commission) Atlantic Herring Plan 

Review Team (PRT) to develop and 

recommend the following specifications 

for a period of 3 years for consideration 

by the New England Fishery 

Management Council’s Atlantic Herring 

Oversight Committee: Overfishing Limit 

(OFL), Acceptable Biological Catch 

(ABC), Annual Catch Limit (ACL), 

Optimum yield (OY), domestic annual 

harvest (DAH), domestic annual 

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

(USAP), border transfer (BT), the subACL for each management area, 

including seasonal periods as specified 

at § 648.201(d) and modifications to 

sub-ACLs as specified at § 648.201(f), 

and the amount to be set aside for the 

RSA (from 0 to 3 percent of the sub-ACL 

from any management area). 

Recommended specifications shall be 

presented to the New England Fishery 

Management Council (Council). 

* * * * * 

(b) * * * 

(1) 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 (FMSY). 

Catch that exceeds this amount would 

result in overfishing. 

(2) ABC must be equal to or less than 

the OFL. The Council’s Scientific and 

Statistical Committee (SSC) shall 

recommend ABC to the Council. 

Scientific uncertainty, including, but 

not limited to, uncertainty around stock 

size estimates, variability around 

estimates of recruitment, and 

consideration of ecosystem issues, shall 

be considered when setting ABC. If the 

stock is not overfished and overfishing 

is not occurring, then ABC may be based 

on FMSY or its proxy, recent catch, or 

any other factor the SSC determines 

appropriate. If the stock is overfished, 

then ABC may be based on the 

rebuilding fishing mortality rate for the 

stock (FREB), or any other factor the SSC 

determines appropriate. 

(3) ACL must be equal to or less than 

the ABC. Management uncertainty, 

which includes, but is not limited to, 

expected catch of herring in the New 

Brunswick weir fishery and the 

uncertainty around discard estimates of 

herring caught in Federal and state 

waters, shall be considered when setting 

the ACL. Catch in excess of the ACL 

shall trigger accountability measures 

(AMs), as described at § 648.201(a). 

(4) OY may not exceed OFL (i.e., 

MSY) and must take into account the 

need to prevent overfishing while 

allowing the fishery to achieve OY on a 

continuing basis. OY is prescribed on 

the basis of MSY, as reduced by social, 

economic, and ecological factors. OY 

may equal DAH. 


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63796 Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Proposed Rules 

(5) DAH is comprised of DAP and BT. 

* * * * * 

(e) In-season adjustments. The 

specifications and sub-ACLs established 

pursuant to this section may be adjusted 

by NMFS to achieve conservation and 

management objectives, after consulting 

with the Council, during the fishing 

year in accordance with the 

Administrative Procedure Act (APA). 

Any adjustments must be consistent 

with the Atlantic Herring FMP 

objectives and other FMP provisions. 

(f) Management areas. The 

specifications process establishes subACLs and other management measures 

for the three management areas, which 

may have different management 

measures. Management Area 1 is 

subdivided into inshore and offshore 

sub-areas. The management areas are 

defined as follows: 

* * * * * 

(g) All aspects of AMs, as described at 

§ 648.201(a), can be modified through 

the specifications process. 

3. Section 648.201 is revised to read 

as follows: 

§ 648.201 AMs and harvest controls. 

(a) AMs. (1) Management area closure. 

If NMFS projects that catch will reach 

95 percent of the annual sub-ACL 

allocated to a management area before 

the end of the fishing year, or 95 percent 

of the Area 1A sub-ACL allocated to the 

first seasonal period as set forth in 

paragraph (d) of this section, NMFS 

shall prohibit vessels, beginning the 

date the catch is projected to reach 95 

percent of the sub-ACL, from fishing for, 

possessing, catching, transferring, or 

landing >2,000 lb (907.2 kg) of Atlantic 

herring per trip and/or >2,000 lb (907.2 

kg) of Atlantic herring per day in such 

area, except as provided in paragraphs 

(b) and (c) of this section. These limits 

shall be enforced based on a calendar 

day, without regard to the length of the 

trip. NMFS shall implement these 

restrictions, in accordance with the 

APA, through notification in the 

Federal Register. 

(2) Haddock incidental catch cap. If 

NMFS determines that the incidental 

catch allowance in § 648.85(d) has been 

caught, all vessels issued an Atlantic 

herring permit or fishing in the Federal 

portion of the Gulf of Maine/Georges 

Bank (GOM/GB) Herring Exemption 

Area, defined at § 648.85(a)(3)(ii)(A)(1), 

shall be prohibited from fishing for, 

possessing, or landing herring in excess 

of 2,000 lb (907.2 kg) per trip in or from 

the GOM/GB Herring Exemption Area, 

unless all herring possessed and landed 

by the vessel were caught outside the 

GOM/GB Herring Exemption Area and 

the vessel complies with the gear 

stowage provisions specified in 

§ 648.23(b) while transiting the 

Exemption Area. Upon this 

determination, the haddock possession 

limit shall be reduced to 0 lb (0 kg) for 

all vessels that have an All Areas 

Limited Access Herring Permit and/or 

an Areas 2 and 3 Limited Access 

Herring Permit, regardless of where they 

were fishing, unless the vessel also 

possesses a Northeast Multispecies 

permit and is operating on a declared 

groundfish trip. NMFS shall implement 

the described fishing restrictions in 

accordance with the APA. 

(3) ACL overage deduction. If NMFS 

determines that total catch exceeded 

any ACL or sub-ACL for a fishing year, 

then the amount of the overage shall be 

subtracted from that ACL or sub-ACL for 

the fishing year following total catch 

determination. NMFS shall make such 

determinations and implement any 

changes to ACLs or sub-ACLs, in 

accordance with the APA, through 

notification in the Federal Register, 

prior to the start of the fishing year 

during which the reduction would 

occur. 

(b) A vessel may transit an area that 

is limited to the 2,000-lb (907.2-kg) limit 

specified in paragraph (a) of this section 

with >2,000 lb (907.2 kg) of herring on 

board, provided such herring were 

caught in an area or areas not subject to 

the 2,000-lb (907.2-kg) limit specified in 

paragraph (a) of this section, and that all 

fishing gear is stowed and not available 

for immediate use as required by 

§ 648.23(b), and provided the vessel is 

issued a vessel permit appropriate to the 

amount of herring on board and the area 

where the herring was harvested. 

(c) A vessel may land in an area that 

is limited to the 2,000-lb (907.2-kg) limit 

specified in paragraph (a) of this section 

with >2,000 lb (907.2 kg) of herring on 

board, provided such herring were 

caught in an area or areas not subject to 

the 2,000-lb (907.2-kg) limit specified in 

paragraph (a) of this section, and that all 

fishing gear is stowed and not available 

for immediate use as required by 

§ 648.23(b), and provided the vessel is 

issued a vessel permit appropriate to the 

amount of herring on board and the area 

where the herring was harvested. 

(d) The sub-ACL for Management 

Area 1A is divided into two seasonal 

periods. The first season extends from 

January 1 through May 31, and the 

second season extends from June 1 

through December 31. Seasonal subACLs for Area 1A, including the 

specification of the seasonal periods, 

shall be set through the annual 

specification process described in 

§ 648.200. 

(e) Up to 500 mt of the Area 1A subACL shall be allocated for the fixed gear 

fisheries in Area 1A (weirs and stop 

seines) that occur west of 44°36.2 N. Lat. 

and 67°16.8 W. long (Cutler, Maine). 

This set-aside shall be available for 

harvest by fixed gear within the 

specified area until November 1 of each 

fishing year. Any portion of this 

allocation that has not been utilized by 

November 1 shall be restored to the subACL allocation for Area 1A. 

(f) If NMFS determines that the New 

Brunswick weir fishery landed less than 

9,000 mt through October 15, NMFS 

will allocate an additional 3,000 mt to 

the Area 1A sub-ACL in November. 

NMFS will notify the Council of this 

adjustment and publish the adjustment 

in the Federal Register. 

4. In § 648.204, paragraphs (a) 

introductory text, (a)(1), (a)(2), (a)(3), 

and (a)(4) are revised to read as follows: 

§ 648.204 Possession restrictions. 

(a) A vessel must be issued a valid 

limited access herring permit to fish for, 

possess, or land more than 6,600 lb (3 

mt) of Atlantic herring from any herring 

management area in the EEZ, provided 

that the area has not been closed due to 

the attainment of 95 percent of the subACL allocated to the area, as specified 

in § 648.201. 

(1) A vessel issued an All Areas 

Limited Access Herring Permit may fish 

for, possess, or land Atlantic herring 

with no possession restriction from any 

of the herring management areas 

defined in § 648.200(f), provided that 

the area has not been closed due to the 

attainment of 95 percent of the sub-ACL 

allocated to the area, as specified in 

§ 648.201. 

(2) A vessel issued only an Areas 2 

and 3 Limited Access Herring Permit 

may fish for, possess, or land Atlantic 

herring with no possession restriction 

only from Area 2 or Area 3 as defined 

in § 648.200(f), provided that the area 

has not been closed due to the 

attainment of 95 percent of the sub-ACL 

allocated to the area, as specified in 

§ 648.201. Such a vessel may fish in 

Area 1 only if issued an open access 

herring permit or a Limited Access 

Incidental Catch Herring Permit, and 

only as authorized by the respective 

permit. 

(3) A vessel issued a Limited Access 

Incidental Catch Herring Permit may 

fish for, possess, or land up to 55,000 lb 

(25 mt) of Atlantic herring in any 

calendar day, from any management 

area defined in § 648.200(f), provided 

that the area has not been closed due to 

the attainment of 95 percent of the subACL allocated to the area. 


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Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Proposed Rules 63797 

(4) A vessel issued an open access 

herring permit may not fish for, possess, 

or land more than 6,600 lb (3 mt) of 

Atlantic herring from any herring 

management area per trip and/or per 

calendar day, provided that the area has 

not been closed due to the attainment of 

95 percent of the sub-ACL allocated to 

the area, as specified in § 648.201. 

* * * * * 

5. In § 648.206, paragraphs (b)(8), 

(b)(25), (b)(28), and (b)(30) are revised, 

and paragraph (b)(31) is added to read 

as follows: 

§ 648.206 Framework provisions. 

* * * * * 

(b) * * * 

(8) Distribution of the ACL; 

* * * * * 

(25) In-season adjustments to ACLs; 

* * * * * 

(28) ACL set-aside amounts, 

provisions, adjustments; 

* * * * * 

(30) AMs; and 

(31) Any other measure currently 

included in the FMP. 

* * * * * 

6. In § 648.207, paragraph (g) is 

revised to read as follows: 

§ 648.207 Herring Research Set-Aside 

(RSA). 

* * * * * 

(g) If a proposal is approved, but a 

final award is not made by NMFS, or if 

NMFS determines that the allocated 

RSA cannot be utilized by a project, 

NMFS shall reallocate the unallocated 

or unused amount of the RSA to the 

respective sub-ACL by publication of a 

notice in the Federal Register in 

compliance with the Administrative 

Procedure Act, provided that the RSA 

can be available for harvest before the 

end of the fishing year for which the 

RSA is specified. 

* * * * * 

[FR Doc. 2010–26195 Filed 10–15–10; 8:45 am] 

BILLING CODE 3510–22–P 


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