[Federal Register Volume 75, Number 200 (Monday, October 18, 2010)]
[Proposed Rules]
[Pages 63791-63797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26195]


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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.

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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

[[Page 63792]]

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:
    <bullet> Revise current definitions and the specification-setting 
process to include ACLs and AMs;
    <bullet> Designate herring as a ``stock in the fishery;''
    <bullet> Establish an interim ABC control rule;
    <bullet> Eliminate JVPt, including JVP and IWP, and reserve from 
the specifications process; and
    <bullet> 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 Magnuson-Stevens 
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

[[Page 63793]]

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 non-
target 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 B<INF>MSY</INF> (biomass that would support MSY) using long-
term projections at F<INF>MSY</INF> (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

[[Page 63794]]

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 stock-wide 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 Sec.  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 Sec.  
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 Non-
Selected 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

[[Page 63795]]

specification-setting process to include OFL, ABC, and ACL; the 
allocating of OY; the management area TACs as sub-ACLs; 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 specifications-setting 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 non-selected, 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 
specifications-setting 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 ABC-
setting 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 non-selected, 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 Sec.  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:


Sec.  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 sub-ACL for each management area, including seasonal periods 
as specified at Sec.  648.201(d) and modifications to sub-ACLs as 
specified at Sec.  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 (F<INF>MSY</INF>). 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 F<INF>MSY</INF> 
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 (F<INF>REB</INF>), 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 Sec.  
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.

[[Page 63796]]

    (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 sub-
ACLs 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 Sec.  648.201(a), can be 
modified through the specifications process.
    3. Section 648.201 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
sub-ACLs for Area 1A, including the specification of the seasonal 
periods, shall be set through the annual specification process 
described in Sec.  648.200.
    (e) Up to 500 mt of the Area 1A sub-ACL shall be allocated for the 
fixed gear fisheries in Area 1A (weirs and stop seines) that occur west 
of 44[deg]36.2 N. Lat. and 67[deg]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 sub-ACL 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 Sec.  648.204, paragraphs (a) introductory text, (a)(1), 
(a)(2), (a)(3), and (a)(4) are revised to read as follows:


Sec.  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 
sub-ACL allocated to the area, as specified in Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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.

[[Page 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 Sec.  648.201.
* * * * *
    5. In Sec.  648.206, paragraphs (b)(8), (b)(25), (b)(28), and 
(b)(30) are revised, and paragraph (b)(31) is added to read as follows:


Sec.  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 Sec.  648.207, paragraph (g) is revised to read as follows:


Sec.  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